The collaborative divorce process provides an avenue for you to resolve your divorce in a cooperative, interest-based, solution-oriented manner without litigation so that you are not turning over the most important decisions of your life, your family, your finances, and your future to someone else.
If you and your spouse are willing to work together to resolve your issues without court intervention, the collaborative process provides you with the tools and path to do it. During this process for divorce, you will work with trained professionals who are adept at guiding you to a fair resolution in a supportive environment. You will not be a “party” to your divorce. Instead, you will be a participant in a process to determine what happens to you, your spouse, your family, your finances, and your future. This is a process that involves education, cooperation, transparency, respect, and hard work.
A collaborative agreement results in a more peaceful environment that engenders honesty, creativity, openness, respect, cooperation, and courtesy. During the process, each person learns imaginative ways to address their concerns in a manner that is beneficial for all parties. In addition, the process improves the ability of each spouse to co-parent through the building of skills like communication and trust.
You and your spouse would have to agree to voluntarily enter into the collaborative divorce process. The process is governed by statute and begins with the signing of a Collaborative Participation Agreement. Before the process can begin, domestic violence issues must be addressed to determine whether this process would be appropriate based on this factor.
The most standard structure for a collaborative divorce includes a process involving the husband and wife, also known as the participants, their attorneys, a collaboratively trained financial neutral, and a facilitator who has a mental health training background, also referred to as a mental health neutral. The neutrals and attorneys are collectively called the “professionals” or “professional team.”
The issues that must be resolved in the divorce are addressed in joint sessions, which are typically meetings comprised of two hours. Typically, the “professionals” meet prior to and after each joint session, in half-hour segments. The sessions are guided by an agenda that is agreed upon prior to the joint session. As part of the process, the participants and professionals agree to adhere to the agenda. The process does not require a specific number of sessions. The participants drive the process because only they can make the decisions to allow them to move through the process. The collaboratively trained team offers support and helps generate options to help the participants find the appropriate resolution. Upon the successful completion of the process, a collaborative marital settlement agreement will be signed, and a final judgment entered.
As part of the collaborative process, the parties commit to being transparent, providing the requested documentation for both parties to feel comfortable with the decisions they are going to make. There is also a commitment to respect the entire team participating in the process, as well as the process itself.
Many people are concerned by the potential cost of the process because they are retaining four professionals in their case instead of just their attorneys. Opinions vary as to whether the process is more or less expensive than the litigation process. It is certainly more expensive out the gate, in my opinion, when the issues are not particularly complicated. However, in a more complicated case, my experience has been the opposite, and I have found the collaborative process to be more cost effective than litigation. In a more complicated litigation case, experts are often retained at the inception of the case and provide input, direction, and analysis throughout the case. It is not unusual for both parties to have experts working on their case very early in the proceedings.
With both parties retaining their respective, individual experts in preparation for the legal battle, the litigation process becomes incredibly expensive and contentious very quickly. In such an instance, agreeing to hire one financial neutral as a part of the collaborative process who will serve as a warehouse for the documents, prepare the appropriate financial worksheets, and offer their analysis and potential options, is generally quite beneficial, cost-effective and streamlines the process. Additionally, in my experience, people who have gotten their divorce through the collaborative divorce process tend to be more satisfied and are able to maintain a better relationship with their former spouse than those who get divorced through a contested litigation proceeding.
One significant concern that parties have in deciding whether to enter into the collaborative process is the fact that if the collaborative process fails, then their attorneys must opt out of the divorce proceeding. The collaborative attorneys may not continue on as the litigation attorneys in the matter. However, if the case begins in the litigation setting, the litigation attorneys can represent the parties should they opt to move the case to the collaborative arena. Attorneys can go from litigation to collaborative, but not the reverse. Also, if the collaborative process terminates and the parties move into the litigation process, the information gathered as a part of the collaborative process will not be shared with the litigation attorneys. The purpose for these provisions is that it results in a greater commitment to the process and the team and takes off the table the ease with which one participant may use the threat of leaving the collaborative process as leverage in negotiations. If one party decides that they no longer wish to participate in the collaborative process, they do so with the understanding that they have lost the investment of all the time, energy, and money they have put into the process, along with losing their attorney.