Collaborative divorce is a legal process that allows separating and divorcing couples to achieve an out of court settlement that meets the specific needs of each party and the family as a whole. The process uses non-adversarial procedures to facilitate settlement. For example, while each spouse has his or her own collaborative divorce lawyer, those lawyers are disqualified from representing either spouse in any future family law litigation. This disqualification rule keeps either side from using the threat of a lawsuit as a negotiation tactic during the collaborative process. The couple also voluntarily exchanges relevant documents and information with one another. The parties and the collaborative lawyers meet jointly for negotiation sessions, and engage in candid, open, and constructive dialogue about settlement terms, rather than making oppositional demands and counter-demands.
Couples going through separation and divorce can resolve a wide range of legal issues through the collaborative process, including child custody, child support, alimony, and property division. Because the process uses a cooperative –rather than adversarial — framework to facilitate settlement, it can significantly reduce the stress that divorce has on a family.
While collaborative divorce is a legal process, it is also a voluntary one, and parties have to agree to it. It begins when the couple, along with their respective collaborative lawyers, sign a written agreement to engage in the process. This written contract is typically called the “participation agreement.”
The participation agreement includes commitments that facilitate the non-adversarial nature of the process. These include a commitment to openly and honestly disclose all documents and information relevant to the issues they are attempting to resolve. For example, if the divorce involves division of marital property and debt, then each spouse agrees to provide the relevant documents and information needed to identify and value the marital estate and not to withhold any material information from the other. The participation agreement also includes a commitment not take advantage of a miscalculation or an inadvertent mistake that the other might make in connection with the collaborative divorce negotiations and related settlement documents. In other words, if a participating lawyer notices a drafting error in the final settlement document that benefits his client, he will point the error out so it can be corrected, rather than take advantage of it by remaining silent.
The parties also agree that, if expert feedback is needed, the expert will be consulted as a neutral advisor, rather than being hired to advocate for just one side. Financial professionals may be brought in to help the couple assess the value of assets or the family’s cash flow. Child specialists may be consulted to neutrally assess and give the parties feedback on what kind of parenting plan will best fit a child’s particular needs. Because the expert is acting as a neutral, costs and areas of potential conflict are often substantially reduced.
While the collaborative process is often a productive, cost-effective way to resolve legal issues arising from separation and divorce, it is not necessarily a good fit for every case. Even if you believe your separation is amicable, you and are your spouse are still technically opposing parties. It may seem that you still share common interest and goals with your spouse, but your spouse may see things differently. It is best to consult with an experienced family law attorney to determine whether collaborative divorce is the right fit for your particular situation.
