Collaborative Divorce: Overview
An emerging trend in alternative dispute resolution (ADR) is collaborative law. This is a structured and cooperative out-of-court approach to problem-solving. It allows those in a legal dispute to work with their attorneys toward a solution in a positive, results-focused setting.
By committing to the collaborative divorce process, divorcing spouses reach a divorce agreement. This agreement resolves issues of:
- Spousal support or alimony
- Property division
- Parenting plan
- Child custody and visitation
- Child support
All without stepping into a courtroom. The process can be less hostile and less expensive than a traditional divorce.
Below, FindLaw gives you an overview of the collaborative divorce process.
Background and Development
Founded in the early 1990s by Minnesota family law attorneys, the collaborative law process aims for a more civil, straightforward, and fair approach to divorce cases. Today, several national, regional, and state collaborative law groups exist. There's also the recently formed International Academy of Collaborative Professionals.
Most of these organizations focus on applying collaborative law principles to family law issues. This typically involves divorce and child-related disputes. But the techniques are being seen to help resolve conflicts in employment and business relationships.
What Is a Collaborative Divorce?
In terms of methods used to dissolve a marriage, an uncontested divorce is the quickest and most cost-effective way. An uncontested divorce is one where the parties agree on all the terms of their divorce.
Divorce mediation is a step more involved but is still faster than a traditional, litigated divorce. Divorce mediation is another form of ADR that employs a neutral third-party mediator to help the couple work out the divorce terms. Next is a collaborative divorce. Then, divorce arbitration, which is more like a trial.
The hallmark of the collaborative law process is the participants' commitment to resolving their divorce and all related disputes in a constructive and reasoned atmosphere. You have to be willing to work with each other to resolve the financial issues, property division, and child custody.
Unlike divorce mediation, each side has its own attorney. The attorneys take part in the collaborative process. The attorneys act as representatives for their clients. They also support and encourage an agreeable solution for all parties and families involved.
The Collaborative Divorce Process
Once a divorcing couple decides on this divorce method, each party hires its own collaborative divorce attorney. The couple and their collaborative divorce lawyers meet in a neutral setting to begin the negotiation process. This may be an office or conference room.
Both sides sign a participation agreement. The participation agreement states that each party promises to act in good faith and be fair in resolving the divorce. They agree to disclose all information and documents relevant to the issues.
The parties further agree they will not go to court. They cannot use the threat of litigation to get their way during the proceedings. If either party stops the collaborative process in favor of traditional litigation, the collaborative law attorneys must withdraw from the case. If one or both spouses decide to pursue litigation, they must hire different divorce attorneys.
The key to these negotiations is that all participants are free to, and expected, take part in a positive and open discussion. An agreeable resolution is the ultimate goal.
As negotiations progress, the parties may discover they need various experts to assist. They might agree to hire financial professionals to help with accounting matters or asset valuation in the property division.
This collaborative team is there to help each party reach a mutually agreed divorce settlement. A mental health professional or divorce coach may help with highly emotional areas. A child specialist can help with child custody and co-parenting issues.
The parties arrive at a settlement agreement, which resolves all disputes involved in the divorce. Once the divorcing couple completes negotiations, they enter into a comprehensive written agreement. The agreement validates the divorce and states the arrangements related to child support, custody, visitation, alimony, and property division issues.
Both parties sign the settlement agreement and it is filed with the family court. Neither party needs to go to court.
Benefits of Collaborative Divorce
Depending on the issue, collaborative law may provide a quicker and less expensive method of resolving a dispute.
Taking a divorce to court means the parties spend money to find information shared during the collaborative process. Sometimes, the collaborative process can be more expensive if the parties cannot agree and pursue litigation anyway.
The divorcing couple is more apt to follow the collaborative divorce agreement. This is because they have made choices and an arrangement that both parties agree with. A judge makes decisions about property, spousal support, child custody, and visitation during the traditional legal process.
If you have minor children, divorce mediation and collaborative divorce can be more beneficial. The parents may learn better ways to communicate when they have a dispute. The process can be less stressful on the children, as well as the divorcing couple. It can also be over sooner than a litigated divorce. This allows everyone to settle into a new routine. Your children can begin to adapt.
Collaborative law participants can spare some stress on themselves and their family relationships. The details of the divorce can remain confidential through ADR methods, which is another benefit.
Is a Collaborative Divorce Right for Me?
If the parties cannot work together or yours is a contested divorce, a collaborative divorce and other ADR methods will not work. You should talk to an attorney about the traditional divorce process.
This type of divorce proceeding may not be appropriate if there has been domestic violence in your marriage. If you are fearful and cannot speak freely in front of your spouse, you may not feel comfortable negotiating. Speak with a divorce attorney to explore the best options for you.
Get Professional Help with Your Collaborative Divorce
Are you considering filing for divorce? Or are you involved in a divorce, support, custody, or property division dispute? Consider your options. A collaborative divorce would offer a positive resolution to your situation.
Contact an attorney with collaborative family law experience. Only an attorney can give you legal advice and protect your rights. A local, experienced, collaborative divorce lawyer will be able to explore all your options with you and advocate on your behalf.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.