What Is Collaborative Divorce?
It’s no secret that going through a divorce can be challenging, contentious, and expensive. Most divorces don’t rise to the level of drama presented on primetime television, but that doesn’t mean it’s a walk in the park, either. Divorces commonly require attorneys, time, money, and in some cases, a lengthy trial.
Courts in every state encourage couples to work together to resolve divorce disputes, and when you can agree, you’ll notice that the process is much more comfortable. If you and your spouse can’t agree to all the terms in your divorce, you may find it helpful to hire a mediator¬—or, neutral third party—to facilitate a conversation and resolve your disputes.
Some states offer couples divorce alternatives, like a legal separation, but again, you’ll need to be on the same page as your spouse for this legal process to work. If tensions are high and there’s no possibility for an agreement, you’ll need to follow the traditional divorce process in your state.
What Is Collaborative Divorce?
A collaborative divorce is a legal divorce process that allows couples to negotiate all the terms of a divorce, without the need for mud-slinging or fighting in court. Couples will use a combination of mediation and negotiation to reach an agreement on the critical terms of divorce, like property and debt division, child custody and child support, and spousal support.
How does Collaborative Divorce differ from other divorce processes?
There are many ways to resolve disputes.
• Litigation is the traditional legal approach. In litigation, lawyers work hard to convince a judge (or jury) that his or her client’s version of reality is, in fact, correct. Often, this includes contradicting, or even belittling, the other party, and that person’s perception of reality. Trial is often compared to a battle, in which the best side wins. However, all lawyers understand that the “best side” doesn’t always win and that in many disputes, the party who “wins” at trial still loses in other ways. In some circumstances, litigation may be the only appropriate option. For example, if a party consistently hides information or is abusive, the formal procedures used in litigation may be necessary. If a party is unwilling to negotiate in good faith, the ultimate decision may need to be imposed by a judge. Litigation usually costs more than other forms of dispute resolution and the outcome is typically less satisfactory.
• In mediation, a neutral professional assists the parties in settling the dispute. Generally, the parties agree that all information will be shared and that they are seeking a “win-win” solution. The mediator does not represent either party and the parties do not go to court. In some forms of mediation, representing attorneys serve only in a consulting or reviewing capacity. In other situations, representing attorneys participate in the mediation. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who are able to understand and analyze the information being presented.
Collaborative Divorce combines the positive qualities of litigation and mediation. As in litigation, each party has an independent attorney who will provide quality legal advice and will assist in putting forward the client’s interests. Drawing from mediation, the parties and their Collaborative Attorneys commit to both an open information gathering and sharing process and a resolution of their differences without going to court. In addition, the parties can mutually agree to engage other professionals such as Child Specialists, Financial Specialists, Vocational Counselors or other neutral consultants to provide them with specialized assistance. The parties acknowledge that the best result for each of them will occur when they reach the best result for all of them.
How is information gathered in Collaborative Divorce?
The parties do not engage in expensive legal procedures to obtain information. The parties and their Collaborative Divorce Attorneys agree from the beginning that they will share all necessary information and documents voluntarily and in a timely fashion. Hiding documents or engaging in unnecessary delays are not permitted. If a party is not acting in good faith and “hides the ball”, it is the duty of the attorney to work with the client to change his or her behavior and to withdraw if the behavior continues. If a party continues to refuse to act in good faith, the Collaborative Divorce Process can be terminated.
The parties decide what type of assistance is needed in the information gathering process and jointly engage consultants. For example, the parties can jointly hire a Financial Specialist to assist them in gathering and organizing financial information and to create projections for future financial possibilities. They can also jointly engage an appraiser to provide them with information and education regarding the ranges of value of a particular asset.
How are questions relating to children addressed in a Collaborative Divorce?
One of the most important aspects of Collaborative Divorce in a divorce dispute is the opportunity to resolve the divorce in a manner which creates a healthy co-parenting relationship so that the children’s interests and family relationships are protected. Sometimes, the parties have developed a working co-parenting relationship prior to entering the Collaborative Divorce process. However, in many cases, the parents need assistance in making the transition from parenting in one household to parenting in two households. Child Specialists can assist parents in developing effective communication and in creating a parenting agreement which will be beneficial for the children. The Collaborative Divorce Attorneys assist as needed in working out an agreement and preparing the necessary final legal documents.
How do the parties and professionals work together?
After initial meetings with their own Collaborative Divorce Attorneys, the typical process is to start the case with a four-way conference – the parties and Collaborative Divorce Attorneys meet together to discuss the issues, to make any necessary interim arrangements regarding children or finances, and to plan for information gathering. In addition, the parties can work individually and jointly with counselors to develop effective communication techniques and to manage the intense emotions that often accompany conflict. Additional consultants such as Financial Specialists, Child Specialists, or appraisers can also be hired to assist in other aspects of information gathering and processing. The four-way conferences continue to be the normal means of exchanging and clarifying information and brainstorming possible options for resolution. The Collaborative Divorce Attorneys work with each other and with their clients to plan each meeting. The parties and Collaborative Divorce Attorneys focus on educating everyone regarding the underlying information, each party’s interests and possible solutions. Out of this process, a settlement which meets the approval of the parties can be fashioned.
Does it work to have everyone together in the same room in the middle of a conflict?
The job of the Collaborative Divorce Professionals is to “set the tone” for positive communication. People in a legal dispute often feel vulnerable and emotional and can be less aware of how their patterns of communication can cause problems. The Collaborative Divorce Professionals help each client to present his or her interests and needs in a positive manner that can be heard by the other participants. Meeting together helps everyone to be “on the same page”, which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.
Must an agreement be reached in Collaborative Divorce?
Any solution must be agreed to by all parties. No party is forced to accept a solution that does not meet his or her interests and needs. The parties understand that the goal is to fashion a solution that comes as close as possible to a “win-win” agreement, while recognizing that they may not receive everything on their “wish list.”
If the parties reach an agreement through the Collaborative Divorce process, what happens next?
The Collaborative Divorce Attorneys will draft the necessary legal documents to memorialize the parties’ agreement. This paperwork is then submitted to the court for approval. A court hearing is not required. Neither the attorneys, nor the parties, appear in court.
What happens if a settlement cannot be reached?
If the parties cannot reach an agreement, the parties can explore other options for settlement such as mediation, arbitration, private judging and neutral case evaluation, some of which may allow them to stay within the collaborative framework. If court hearings are required, the Collaborative Divorce Attorneys withdraw and each party retains a new attorney for trial. The Collaborative Divorce Attorney will transfer the information gathered and will assist the trial attorney in the transition.
Why is it necessary for the Collaborative Divorce Attorney to withdraw if an agreement is not reached?
Attorneys are typically trained to approach cases with the underlying assumption that a judge will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being “what will happen if we go to court.” “Going to court” can often become a weapon or threat that derails communication rather than moving the parties to settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are “at the courthouse steps,” after incurring substantial attorney’s fees and depleting their emotional resources.
The agreement by both the parties and Collaborative Attorneys that the Collaborative Attorneys will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to all parties. The focus of the process stays on reaching an agreement rather than preparing a case for trial since the Collaborative Attorneys will not be representing the parties in court. The tendency to “drift” to court as the default decision-making method is reduced.
In addition, the parties are assured of the commitment level of the Collaborative Attorneys to the Collaborative Process by the requirement that the Attorneys withdraw if the Process is terminated. Similarly, each party is assured of the strength of the other party’s commitment to achieve a resolution that is acceptable to both of them, as they would otherwise need to find new counsel and establish a new working relationship if the Process is terminated.
Who should consider the Collaborative Divorce approach?
Collaborative Divorce works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. In a Collaborative Divorce, each party maintains control over his/her decision-making rather than having a judge decide about important details of his/her future. Parties also control the amount of information that becomes a part of the public record (normally, the entire divorce file is open to the public, including any allegations made by either party in obtaining temporary orders or at trial).
People in conflict often have continuing relationships with each other, as co-parents, business colleagues, or through their circle of friends and relatives, and their community. Collaborative Divorce will increase the possibility of maintaining a civil or even cordial relationship with the other person after the resolution of the conflict.
How Much Does a Collaborative Divorce Cost?
Those who wish to dramatically reduce legal fees should also consider Collaborative Divorce. A dispute that goes through the entire legal process, including a trial can cost tens of thousands of dollars for each party. Formal legal procedures can take much more attorney time (and your money) than the less formal process used in Collaborative Divorce. The focus on settlement moves the case to resolution faster than the typical court-directed case, which also reduces fees.
What do I do if I want to use the Collaborative Divorce Process?
You will need to find a Collaborative Divorce Attorney whom you can trust to provide you with both quality legal advice and the skills needed to work towards a settlement. You should discuss with the attorney how to approach the other party about choosing the Collaborative Divorce process which may include you discussing the idea with him or her, your attorney contacting the other party, or your attorney discussing it with the other party’s attorney, if one has been retained. In the alternative, you may contact other professionals who are involved in the collaborative approach and discuss the process with them.
BENEFITS OF A COLLABORATIVE DIVORCE
If you and your spouse have decided to end your marriage, you are probably not looking forward to the prospect of litigation.
However, you have options, one of which is a collaborative divorce. Here are four reasons people consider this form of Alternative Dispute Resolution or ADR.
One of the primary benefits of a collaborative divorce is that it is less expensive than litigation. A contested divorce can cost thousands of dollars, while a collaborative divorce is less expensive as long as you can agree. According to information from the Collaborative Law Institute, couples who use the collaborative approach to divorce spend about half what litigation would cost. This helps both parties begin the post-divorce era on firmer financial footing.
With legal fees and associated costs, a lengthy court battle can be rough on your budget. While collaborative divorce may not be cheap, it is usually noticeably less expensive than traditional divorce.
When your divorce concludes, you need enough funds to start your new life. By opting for an affordable collaborative divorce, you save some money to spend on your next chapter.
It is not unusual for the atmosphere to become contentious during litigation. Collaborative divorce takes place outside of court in a more relaxed environment that helps couples work out their divorce agreement. There is less stress as compared with litigation, and with less stress comes less bitterness.
Collaborative divorce moves at a faster pace than traditional divorce, which can go on for months, if not years. On average, collaboration is over in half the time or less than it takes for litigation to wind up.
In a collaborative divorce, both spouses sit down with their respective attorneys to discuss each issue from asset distribution to child custody. Rather than having to accede to the decisions of a judge, the parties have more control over their own divorce and, as a result, their future. The parties can ask questions, state opinions and make requests as they work their way toward a divorce settlement.
You and your husband or wife may have a record of solving problems together. Even if your marriage is on the rocks, you may be able to use this cooperative experience to come up with the right solutions for your specific situation. By contrast, a judge may take a more cookie-cutter approach to your divorce.
Since you and your partner are engaging in a collaborative divorce voluntarily, you are more likely to come to an equitable solution. You and your partner are also more likely to stick to the agreement. A divorce option through which couples work together to develop their own settlement agreement is the whole point of the ADR process. Collaborative divorce is a calm, respectful way to end one phase of your life and begin another.
Your information remains private. During litigation, most of the information is public record.
You retain some control
With a conventional divorce, a judge has wide latitude to determine how to end your marriage. While you may not agree with a judge’s order, it is legally binding. With collaborative divorce, though, you have an opportunity to negotiate matters with your spouse. If you can reach an acceptable agreement, a judge is likely to respect it.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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