How Collaborative Divorce Works: FAQ

A collaborative divorce can be less hostile and less expensive than a traditional divorce. It can be used to resolve several legal issues, including:

• Spousal support or alimony
• Property division
• Parenting plan
• Child custody and visitation
• Child support

Divorces often involve lawyers, court dates, and significant time and expenses. This is especially true for divorcing couples who can't agree on what to do. They need the intervention of attorneys and judges to resolve their disputes.

Conversely, some couples don't have significant disagreements and can proceed with an uncontested divorce. For them, the only legal help they likely need is guidance with filing their divorce papers.

Most people find themselves in the middle. They are able and willing to come to agreements outside of court but may only be able to agree on some things. The parties may view certain legal issues differently.

But, they may not necessarily have to go to court to settle their issues. These couples could benefit from using the collaborative divorce process.

This article addresses frequently asked questions about collaborative divorces.

Collaborative Divorce: Background and Development

Collaborative law 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.

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.

Q: What is collaborative divorce?

A: Collaborative law removes disputes from the "fight and win" setting of a courtroom. Instead, issues are resolved in a "troubleshoot and problem-solve" environment of negotiations. Thus, a collaborative law divorce is a process by which parties use mediation and negotiations to settle their divorce.

The defining characteristic of collaborative divorce is that the parties and attorneys agree not to litigate. Suppose one of the parties goes back on that agreement not to litigate. In that case, all the attorneys are still bound, and the parties who litigate anyway must find new counsel.

Some courts even require divorcing parties to try mediation or collaborative divorce before going to court. Note that a collaborative law divorce takes two willing participants to negotiate in good faith. If your spouse is reluctant, mediation and negotiations may not be possible.

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.

Q: What is the difference between traditional divorce and collaborative divorce?

A: The traditional divorce process is typically adversarial. Couples in the traditional process engage with the courts because they cannot agree on various issues in the divorce. They may hire attorneys to negotiate on their behalf.

The traditional divorce process requires many court appearances. So going to court can be time-consuming and expensive. This approach often increases conflict, stress, and animosity between the parties.

Collaborative divorce focuses on cooperation between the ex-spouses to reach a mutually beneficial agreement. The process involves a collaborative divorce team. This team often includes:

• Attorneys
• Divorce coaches
• Financial specialists
• Child specialists

These collaborative professionals work with the spouses in a series of mediation sessions. The teams discuss and negotiate the divorce terms with the ex-spouses. Some divorcing couples may include family members in the dispute resolution process. Couples can have family members for emotional support or parenting plan discussions.

This collaborative practice aims to:

• Minimize conflict
• Reduce stress
• Promote amicable solutions

Q: What are the benefits of using a collaborative divorce?

A: There are several advantages to avoiding using a collaborative divorce to settle your 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.

Collaborative divorces typically move faster than a litigated divorce. This allows everyone to settle into a new routine. Your children can begin to adapt sooner.

Collaborative law participants can spare some stress on themselves and their family relationships. The details of the divorce can remain confidential through alternative dispute resolution (ADR) methods—another benefit.

Q: What is the process for a collaborative divorce?

A: 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 financial 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 and visitation
• Alimony
• Property division

Both parties sign the settlement agreement and it is filed with the family court. Neither party needs to go to court.

Q: Is a collaborative divorce right for me?

A: 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 for legal advice and to explore the best options for you.

Get Started With Your Collaborative Family Law Divorce: Hire an Attorney

The legal process of a divorce is complex. Collaborative divorce is a popular method to agree on these issues. It can be especially helpful for resolving support, custody, or property division disputes.

A skilled family law attorney will know how to effectuate a collaborative divorce. Visit FindLaw's collaborative divorce attorney directory to find a trusted attorney in your area.