Family Law
Collaborative Divorce

In a collaborative divorce, the parties strive to reach a fair settlement through a series of meetings (sometimes called joint sessions) between the two parties and their lawyers, and sometimes other neutral experts. The primary focus of the four-way meetings or joint sessions is to identify the priorities, goals, needs and interests of the parties, and help them progress towards and create a settlement that is consistent with their priorities, goals, needs, and interests. The parties make their own decisions based on their own standards. Some have critiqued this aspect of collaborative law (and mediation), believing that court processes are better suited towards protecting rights than voluntary dispute resolution processes. However, most attorneys involved in the divorce process agree that the parties can make better decisions about their children and their families than a judge.

Is a Collaborative Divorce Procedure Appropriate For The Estranged Couple?

To evaluate if the parties should pursue a cooperative rather than a litigated divorce, the following questions should be considered:

• Are they more interested in moving on with their lives than in perpetuating a marital battle in court?
• Do they want to be in control of their own future and not dependent upon who has the best attorney?
• Do they want to be in control of their destiny, including custody and financial support issues, rather than relying on a court's decision?
• Do they want to ensure that the members of their family each have what they need to move forward with their lives feeling intact and secure?
• Do they want the cost of obtaining their divorce to be as much as 80% less than a long drawn out litigated court battle?
• Do they want their divorce to be a private matter and not have the uncomfortable stressful situation aired in public?
• Do they want to have a financial settlement that is respectful to both parties according to their needs both now and in the future?
• Do they believe that both parties need to make their children their primary responsibility when making financial plans?
• Do they want to lessen the stress and arguments, when making decisions regarding their children?
• Do they want to have a good relationship with their children during and after the divorce?
• Do they want to end the emotional battle--the anger, upset and fighting?
• Do they want to preserve their children's emotional health during and after the divorce?
• Do they want to be treated with respect and dignity during their divorce process?
• Do they want their children to be able to invite both their parents to all the special events in their life?

Choosing a cooperative divorce means that they value an approach that focuses on the needs of the entire family. If they can answer "Yes" to most of the questions listed above, a cooperative process is right for them.

How Does The Collaborative Divorce Help to Achieve the Above Objectives?

• Their divorce has legal, emotional, financial and parenting problems to solve.
• They will have a full Team of Collaborative Professionals working with them to provide with expertise in each of these areas.
• Their Team will assist them to solve their separation and divorce problems during and after their divorce.
• They will select all of the professional members of their Team at the beginning of their case.
• They will each choose a Collaborative Lawyer and Divorce Coach, and together they will select a Child Specialist and a neutral Financial Specialist, if appropriate.
• The Collaborative Professionals on their Team will counsel, guide, support and educate them to make decisions about their futures.
• Their children will have a voice through the Child Specialist.
• They will do all of this without going to court.
• If they do decide to go to court, all of their Professionals on your Collaborative Divorce Team must withdraw from their case.
• They will sign a Collaborative Commitment Agreement, sometimes called a Participation Agreement, to start their Collaborative Divorce.
• This Agreement will outline the essential principals of Collaboration and may be tailored to their specific needs and desires.

What Does the Collaborative Commitment Agreement Do?

The key document in a Collaborative case is the Participation/Commitment Agreement. It is a contract signed by the participants, which sets forth the rules for the process. The parties and lawyers agree that:

1. The lawyers will not litigate the case. If the process fails, and litigation is the only recourse, the original attorneys must withdraw and the parties must retain new lawyers (the "disqualification" provision);
2. Neither party will take advantage of mistakes by the other side;
3. The parties will freely disclose all pertinent information and will not hide any material facts;
4. What is said in the settlement meetings remains confidential;
5. All experts will be neutral, and hired jointly by both parties and their children; and
6. Everyone will behave courteously and in good faith.

The disqualification provision is a key element to a collaborative case. It ensures that the lawyers' interests are aligned with the clients' interests of reaching settlement by eliminating any incentive to take the case to trial. It also ensures that clients and lawyers work more diligently towards a negotiated resolution, because there is a relatively high cost to ending the process prematurely. Collaborative law practitioners believe that when court is no longer a good option, non-court methods of reaching settlement are more likely to be pursued. Additionally, when court is not an option, it is believed that many collaborative law attorneys will make a concerted to resolve disputes without resorting to a third party decision maker, such as a judge or mediator.

What is the Effectiveness and Acceptance of the Collaborative Method?

Early studies are just being published which establish the effectiveness of the collaborative process. Anecdotally, lawyers and clients are consistently reporting that it can be quicker, less expensive and less painful than a typical divorce, with approximately 95% of cases reaching settlement. A Canadian government study found high levels of satisfaction with the process. Best of all, the collaborative approach helps all the family members come through the divorce with the least amount of trauma and distress. Because the parents aren't fighting, the children adjust better.One of the most important features of collaborative divorce is a pledge signed by each lawyer to withdraw if either of the parties decides to go to court. Since both lawyers would lose the clients if an agreement is not reached, they have an extra incentive to help their clients to cooperate and find solutions that honor the concerns of both parties.

What if a Collaborative Divorce Procedure is Not Suitable to the Situation?

Collaborative divorce may not be a viable option in certain situations. If there is active domestic violence, drug or alcohol addiction, serious mental illness, or an intention to hurt the other party emotionally or financially, traditional litigation or arbitration may be more appropriate. Some states are even considering passing laws that make it mandatory for attorneys to screen clients for domestic violence before recommending Collaborative divorce to them.

What is the Next Step?

Contact DeWitt Law to assist you with the collaborative divorce process.