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What is a collaborative divorce?

A collaborative law divorce is essentially the next step up the scale from mediation. The goal in a collaborative divorce is essentially the same: you’re still trying to resolve differences on your own and keep the case out of court. There’s one key distinction: rather than working through the same neutral third party as is the case in mediation, each of you hires your own divorce attorney, and those attorney’s advocate for their client while working to reach a settlement out of court.

The collaborative divorce process

The best way to visualize a collaborative divorce is to think of board-room corporate negotiations or the type of scenes you might have seen on TV when lawyers and their clients get together in a room to try to reach a settlement in a lawsuit. “In a collaborative law divorce, the parties stay out of the courthouse and focus on solving problems through business-like negotiations versus assessing blame for problems in adversarial litigation,” says family-law attorney Kevin Fuller. “The collaborative process is a solution-oriented settlement process that is both family-friendly and business-friendly. It’s less expensive because issues can be resolved more efficiently in a conference room rather than by courtroom litigation. It’s expensive to go to war. It’s also more private – no deposition, trial, or hearings.” (D Magazine, Oct. 2011, p. 136)

Most divorce collaborators schedule meetings every two weeks, and will alert couples in advance about what items are to be discussed at the next collaboration meeting, so that the process is orchestrated and moves along at a steady pace. The collaboration process continues for however long it takes you to reach an agreement on all the issues.

In a collaborative divorce, you’re not handing over decisions about your life, your finances and your children to lawyers and judges. Instead, you’re deciding these things yourselves while working with a team of trained collaborative professionals who are guiding you through the process. Each spouse has an advocate in the form of their divorce attorney, who advises their client about what’s reasonable versus unreasonable or what they might expect to happen if their situation went to court, so that each party feels as though they’re getting a fair shake and making informed decisions. Essentially, you’re mulling over what might occur in a court case without actually involving the court. Therefore you’re not at the mercy of a judge and have more power to control your own destiny.

The divorce collaboration agreement

Typically when initiating the collaborative law process, each party and their lawyers will sign a written agreement that covers five key components:

  1. A statement of commitment and intent to settle out of court whenever possible.
  1. A commitment to the full disclosure of financial statements and other pertinent information so that proper decisions can be reached.
  1. An agreement to focus on the future and work at solving problems, rather than assessing blame or rehashing old marital arguments.
  1. An agreement to use jointly selected neutral experts whenever valuation, tax, or accounting experts are needed, and to utilize the advice of special experts to resolve issues surrounding the children, if these come up.
  1. A pledge from the lawyers stating that they cannot and will not represent the parties in a courthouse case if the collaboration process breaks down. Because collaboration focuses on open communication between parties and not a one-side versus the other legal battle, it would create potential conflicts of interest for the same lawyers to represent the case in court. Therefore if you can’t work out your issues in collaboration, you’ll each have to get new attorneys.

The benefits of a collaborative divorce

  • In a collaborative divorce, the legal fees and professional expenses are used more efficiently. They go towards settlement efforts, not on all the work required to prepare for litigation and proving fault.
  • Divorce collaboration can finalize the divorce in weeks or months, whereas the litigation process can take years.
  • It may be the best option for couples who have a lot of shared assets and obligations that complicate the process, but who still want to settle out of court. It allows for legal representation through a process that still resembles mediation.
  • Couples can move at their own pace, devoting as much (or as little) time to the process as they require, completing the process when they are ready.

The drawbacks of a collaborative divorce

  • It’s more expensive than mediation, since it involves lawyers and each of you hire your own attorney.
  • It’s far less informal than mediation, which can sometimes raise the stress or tension of those involved. Of course, other people may actually be comforted by this more formal approach.
  • If the process breaks down and ends up going to court, it can add more expense and hassle since you’ll have to start over anew with all new attorneys. However, the benefits of collaboration over a traditional divorce are so huge that they outweigh this risk.
  • Should the process break down, any documents or information exchanged during collaboration cannot be used in court, unless both parties agree. The only exceptions to this rule are sworn affidavits and any signed interim agreements made during the collaboration process.

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