Can’t We All Just Get Along? The Case for Collaborative Divorce

Even family law attorneys are not immune to the affects the family law system has on our clients. It is a stressful time filled with uncertainty, change, and often, animosity between the parties. To make matters worse, the traditional litigation process often leaves either or both parties even more frustrated and angry than they were when their marriage ended. Instead of providing closure, the traditional litigation process can further aggravate and agitate parties. However, there are other options available for couples who seek an alternative.

The collaborative divorce process which removes the various claims underlying in a marriage completely from the adversarial process of traditional litigation. Instead, collaborative divorce challenges the parties to approach their divorce holistically and cooperatively. Using many of the principles found in alternative dispute resolution, collaborative divorce offers couples an alternative to the painful, expensive, and emotionally-draining process of going through the court system in active litigation in order to dissolve their marriage and instead uses private meetings between the parties and their respective attorneys to facilitate agreements. Many couples find this to be an attractive alternative to litigation, as it can be more cost effective and private. Additionally, if children are involved collaborative divorce offers an effective way to shield children from court proceedings and also helps ensure a better working-relationship between the two co-parents going forward.

Parties often reach resolution in a collaborative law divorce over a set period of time in several different sessions which allows the former couple to focus on one issue at a time and allow them to revisit challenging issues or areas of disagreement more than once to attempt to come to an agreement. While not an option for every former couple, collaborative divorce does offer an interesting alternative for those interested in working cooperatively with their former spouse towards a peaceable end to their relationship as spouses.

In order to participate in the collaborative law process, both parties must voluntarily agree to do so in a written collaborative participation agreement. In this agreement, the parties agree as to the scope of the collaborative law proceedings. Additionally, the parties agree not only to voluntarily disclose all information necessary to the proceedings, but also agree to proceed in good faith while going through the collaborative law process. Lastly, the parties are allowed to determine how much of their collaborative law process will remain private, confidential, and privileged. This is an important distinction from the traditional litigation process in which all filings and hearings before the court are a matter of public record. If at any point either party files contested legal proceedings in court, the collaborative law process automatically terminates. To participate in a collaborative divorce, both parties must be represented by attorneys. If the collaborative divorce proceedings are terminated before a result is reached, those attorneys cannot represent either party in traditional litigation proceedings.

Much like traditional litigation, parties participating in the collaborative divorce process may engage in the assistance of other experts regarding the issues of mental health, finance, and business and property valuation. However, just like the attorneys representing parties during the collaborative process, these experts will also be barred from testimony if one party or the other instigates traditional court proceedings. In addition, many parties also opt to utilize child specialists. These child specialists help bring insight into child psychology, how children cope emotionally with divorce, and address potential areas of concern with respect to the children in light of the specific negotiations and considerations of the parties, specifically in regards to child custody. Coaches can also be present at the collaborative law sessions to assist each party in dealing with any potential emotional issues or topics which may arise when engaging in negotiations in order to help the parties overcome those issues and move towards agreement.

Parties often reach resolution in a collaborative law divorce over a set period of time in several different sessions which allows the former couple to focus on one issue at a time and allow them to revisit challenging issues or areas of disagreement more than once to attempt to come to an agreement. While not an option for every former couple, collaborative divorce does offer an interesting alternative for those interested in working cooperatively with their former spouse towards a peaceable end to their relationship as spouses.

Separation, its aftermath, and the process of divorce is never going to be easy for parties. It is a period of time characterized by chaos, fear, confusion, and more than a little anger. However, in the collaborative divorce process, parties can find a process which is private, which considers, holistically, the process of separation, and which empowers and encourages parties to take control of their own separations and define what their lives are going to look like long after the ink has dried.