What is Collaborative Divorce?
Collaborative divorce is a respectful and dignified process which supports your family’s goals for a smooth transition to the next stage of your lives. Divorce is both an ending and a new beginning. The collaborative divorce process helps you anticipate your needs as you move forward, while prioritizing the future of your children, if children are involved. Through the collaborative divorce process, you develop and evaluate options or alternatives while aiming to construct a sustainable divorce agreement.
What are some of the Key Elements or “Rules” of Collaborative Divorce?
- The divorcing parties and their respective collaborative attorneys make a pledge not to litigate (or go to court). Both attorneys and other team professionals will withdraw from the process if either party litigates.
- There is a commitment of cooperation, respect and integrity and an effort to meet the legitimate needs of both spouses and the children.
- In collaborative divorce, there is an open, honest exchange of information. The parties freely disclose all financial information and pertinent material.
- Neither party takes advantage of the miscalculations or mistakes of the others. Errors are identified and corrected.
- Both parties insulate the children from the disputes and, should custody be an issue, professional custody evaluations are avoided.
- Both parties may use the same divorce financial professionals, mental health counselors, divorce coaches, appraisers, and other consultants. All such experts, if involved during the collaborative process, will be retained jointly and remain neutral third parties.
- In collaborative divorce, the attorneys must guide the process to settlement or withdraw from further participation in the divorce process. Unlike adversarial lawyers, who remain involved whether the case settles or goes to trial, your collaborative divorce attorney can no longer assist you if you decide to litigate.
- In collaborative divorce, there is parity of payment to each attorney, so that neither spouse is at a disadvantage because of the lack of funds.
- All information exchanged between the parties and their respective attorneys in the joint sessions remains confidential.
Do I need an attorney to represent me if I select the Collaborative Divorce process?
During the collaborative divorce process you and your spouse are individually represented by collaboratively trained family law attorneys. You and your spouse can choose any collaborative divorce attorney from an active collaborative divorce group. There are numerous collaborative divorce groups in the state of Connecticut. Typically, divorcing couples choose collaborative attorneys from the same geographical area in order to minimize travel. After you select an attorney, your attorney will discuss with you in further detail the collaborative divorce process and answer any specific questions that you may have. This meeting will give you the opportunity and information necessary to decide whether the collaborative divorce process is right for you and your situation.
How does the Collaborative Divorce Process work step by step?
After you and your spouse each hire a collaborative divorce attorney, everyone agrees in writing not to go to court or litigate. This means that your collaborative divorce attorney will not enter a court appearance on your behalf.
You meet privately with your attorney and than in face-to-face meetings (also known as four way meetings) with your spouse and his or her attorney. Additional experts, such as divorce coaches and child and financial specialists, may join the process if needed or are called for by your circumstances.
The number of meetings needed to bring your case to a conclusion depends on your circumstances. All meetings are intended to produce an honest exchange of information and clear understanding about the needs and expectations, especially concerning the well-being of children. The meetings are constructive and professional. Every meeting has an agenda and minutes are maintained, identifying issues and agreements. Issues are prioritized and information is shared. Mutual problem-solving and options are generated by all parties, ultimately leading to a divorce agreement.
The divorce agreement derived during the four way meetings, also called a Separation Agreement, will ultimately be made an order of the Connecticut Court at the conclusion of the collaborative divorce process. This Separation Agreement becomes a court enforceable contract.
What is a collaborative divorce team and who are the members?
A collaborative divorce team is the combination of professionals that you choose to work with to resolve your dispute. It can be simply you and the collaborative divorce attorneys. In addition to your collaborative attorneys, you can choose to include a neutral financial professional, divorce coach, a child specialist or other specialists you and your spouse believe would be beneficial to your particular circumstance. Your collaborative team will guide and support you as problem-solvers.
- Collaboratively Trained Attorneys – divorce attorneys with specialized training in collaborative divorce practice and mediation
- Divorce Coach – a professional that helps facilitate communication
- Financial Specialist – a financial analyst or CPA who can help review cash flows, asset values, and tax consequences
- Child Specialist – Family therapist trained in the developmental needs of children
How does the cost of collaborative divorce compare with the cost of litigation?
Litigation is often the most costly way to resolve a dispute. A litigated divorce is costly both in emotional and monetary currency. It is common for litigated divorces to begin with a motion for temporary support. The result is a temporary court order rather than a final agreement on the issue. It is common for a single temporary order to cost as much if not more than the costs of an entire collaborative divorce representation. And that’s only the beginning of the litigation process. Litigation can go for a year or more, is not confidential, involves extensive legal maneuvering by attorneys, more hearings, hiring of experts to support the attorneys’ arguments, and at the end a lengthy trial with unpredictable results. The collaborative divorce process is confidential, can move quickly and avoid most, if not all, of the emotional and legal entanglements.
The costs associated with the collaborative divorce process will vary depending on a variety of factors. Some of factors include the complexity of the issues in your family, the number of professionals necessary or suited for your particular situation, the number of meetings it takes the collaborative team to work though all the issues. The particular details of your case, ultimately, determines the cost of the collaborative divorce process.
Is Collaborative Divorce Faster?
Your family’s unique situation determines how long the divorce process will be. Collaborative divorce in general can be more direct and efficient. By focusing on problem-solving, rather than focusing on blame and grievances—there’s an opportunity to strive for respectful, sustainable agreements. Full disclosure and open communication are key elements in successfully addressing all pending issues in a timely manner. Furthermore, because the four way meetings occur outside the court, the legal maneuvering by attorneys in traditional litigation is completely avoided and there is no need to wait for court dates.
What happens if one side is dishonest or uncooperative in some way, or misuses the collaborative divorce process?
Some of the key factors of collaborative divorce are respect and open, honest exchange of information. The parties freely disclose all financial information and pertinent materials. This respectful tone encourages you and your spouse to show compassion, understanding and cooperation. Collaborative divorce professionals are trained in non-confrontational negotiation, helping keep discussions productive. The goal of collaborative divorce is to build a settlement on areas of agreement, not to perpetuate disagreement. Collaborative attorneys are trained to guide you and your spouse on a positive road to respectful negotiation. Hence, the need for both of you to hire collaborative attorneys.
There are, however, no guarantees that a participant in the collaborative divorce process will not act in bad faith. Your collaborative divorce attorney will pay close attention to the issue of transparency and full disclosure. If a determination is made that one of the parties is dishonest or fails to disclose pertinent information, the attorneys (both attorneys, yours and your spouse’s) have an obligation to make everyone at the table aware. You can end the process at any time and choose to litigate your case.
The collaborative divorce agreement requires collaborative attorneys to withdraw upon becoming aware that his or her client is being dishonest or participating in the process in bad faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the collaborative divorce attorneys, have committed in advance that they will withdraw and will not continue to represent the clients. The same is true if the client fails to keep agreements made during the course of negotiations; for instance, an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling or to produce certain documents.
How is collaborative divorce different from what attorneys do to settles cases in a conventional divorce?
In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional divorce you often come to view each other as adversaries and your divorce may be a battleground. The resulting conflicts take an immense toll on emotions—especially the children’s emotions and well being.
Collaborative divorce is by definition a non-adversarial, collaborative approach. The divorce attorneys commit in writing not to go to court or litigate. They negotiate in good faith, and work together with you to achieve mutual settlement outside the court. The collaborative divorce process is designed solely to make it possible for creative, respectful collective problem solving by the only people who will have to live with the decisions – you and your spouse. It is quicker, less costly, more creative, individualized, less stressful, and overall more satisfying in its results than what occurs in settlements based on litigation.
Most litigated divorce cases settle figuratively, if not literally “on the courthouse steps.” By that time, a great deal of money has been spent, and a great deal of emotional damage can have been caused by the parties or their lawyers taking extreme positions on various issues. Decisions may have been made by the judge earlier in the case, which favored one party over the other, or which created difficulties for both. The final settlement is reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to decide based on the positions the lawyers take. Nothing could be more different from what happens in a collaborative law settlement.
How can I interest my spouse in the collaborative divorce process?
Tell your spouse that your marriage has been important and you want to handle your divorce in a way that avoids unnecessary damage to your family. Tell your spouse that you are interested in a collaborative approach to ending your marriage. Share materials with your spouse such as this website and other materials available on this website or from other collaborative divorce attorneys, groups or organizations. Encourage your spouse to select a family law attorney who has experience and training in collaborative law.
What happens if we reach agreement on almost everything, with the exception of one or two issues on which we cannot agree? Will we have to start over and litigate?
If everyone agrees (both lawyers and both clients), it is possible to submit only those one or two issues for a decision by a “private judge” chosen by the parties. This is done with important limitations and safeguards built in, so that the integrity of the collaborative divorce process is not undermined. Everyone must agree that the good faith atmosphere of the Collaborative Law process would not be damaged by submitting the issues for third party decision and everyone must agree on the issues and on who will be the decision maker.
Is the Collaborative Divorce process better than other methods to resolve a divorce?
Many collaborative divorce attorneys believe so. Hence the investment in additional training and participation in various local and national collaborative practice groups and associations. The collaborative process is designed to empower the spouses and the attorneys to construct agreements that address the unique concerns of each situation. The objective is to produce results that are creative, constructive and more efficient than results received from a court in the adversarial process. The goal is to enable parties to reach a fair and reasonable settlement that addresses and meets the needs of both parties and their unique situation. Collaborative divorce requires each party and each attorney to take a reasoned position on all issues. When conflicting opinions exist, all participants use their best efforts and all constructive options are exhausted in order to create proposals and agreements that meet the fundamental needs of both parties. The collaborative divorce process provides the venue for all involved to use non-defensive, non-aggressive, collaborative analysis and reasoning to solve the problems that stem naturally with divorce.
How can I determine if the collaborative divorce the best choice for me?
The collaborative divorce process is not for every person, or every case, or even every family law attorney. Collaborative divorce is worth considering if some or all of these principles and objectives ring true for you:
- You want a civilized, respectful resolution of your divorce.
- The relationships you have created during your marriage are important to you and your future: this includes your friends, extended family, neighbors, your community and even your spouse.
- You and your spouse will continue to parent your children together and you want the best co-parenting relationship possible.
- You want to protect your children from the harm associated with a conflicted, litigated divorce between their parents.
- You have ethical, moral or spiritual beliefs that place a high value on taking personal responsibility for handling conflicts with integrity.
- You value privacy in your personal affairs and do not want the details of your problems to be available in the public court record.
- You value control and personal decision making and do not wish to hand over decisions about restructuring your financial and parenting arrangements to a judge who may not realize what is important or unique about your family.
- You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices.
- You place as much or more value on your children and the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.
- You understand that conflict exists between you and your spouse. You also understand that conflict resolution involves not only achieving your own goals but is also a way to achieve the reasonable goals of your spouse.
- You and your spouse can commit your intelligence and emotional energy toward solving problems rather than fixing the blame.
Why is collaborative divorce such an effective settlement process?
Because the collaborative lawyers have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. We call it a “paradigm shift.” Instead of being dedicated to getting the largest possible piece of the pie for their own client (no matter the human or financial cost), collaborative lawyers are dedicated to helping their clients achieve their highest intentions for themselves in their post-divorce restructured families.
Collaborative lawyers do not act as hired guns. Nor do they take advantage of mistakes inadvertently made by the other side. They do they threaten, insult, or focus on the negative in their own client or on the other side. They expect and encourage the highest good-faith problem-solving behavior from their own clients and themselves, and they stake their own professional integrity on delivering that.
Collaborative lawyers trust one another. They still owe a primary allegiance and duty to their own clients, but they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the Collaborative Law process.
Collaborative divorce offers a greater potential for creative problem solving than does either mediation or litigation because only collaborative law puts two lawyers in the same room moving in the same direction with both clients to solve the same list of problems. Lawyers excel at solving problems but in conventional litigation they generally pull in opposite directions. No matter how good the lawyers may be for their own clients, they cannot succeed as collaborative lawyers unless they also can find solutions to the other party’s problems that both clients find satisfactory. This is the special characteristic of collaborative law that is found in no other dispute resolution process.
How is collaborative divorce different than divorce mediation?
In mediation, an impartial third party (the mediator) assists in the negotiations of both parties and tries to help settle your case. However, the mediator cannot give either of you legal advice or be an advocate for either side. If there are lawyers for each of you, they may or may not be present at the mediation sessions. If they are not present, then you can consult them between mediation sessions. When there’s an agreement, the mediator prepares a draft of the settlement terms for review and editing by both you and your lawyers.
Collaborative practice allows both of you to have lawyers present during the negotiation process. The lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that’s positive and productive. When there is agreement, a document is drafted by the lawyers, and reviewed and edited by you both until everyone is satisfied.
Both collaborative divorce and mediation rely on voluntary, free exchange of information and commitment to honest communication. In mediation, an impartial third party (the mediator) assists in the negotiations of both parties and tries to help settle your case. However, the mediator cannot give either of you legal advice or be an advocate for either side. If there are lawyers for each of you, they may or may not be present at the mediation sessions, but if they are not present, then you can consult them between mediation sessions. When there’s an agreement, the mediator prepares a draft of the settlement terms for review and editing by both you and your lawyers.