What is Collaborative Divorce?
Collaborative Divorce is a way to transition families through the end of marriage while minimizing the many stresses this entails. In this process, each party is represented by an attorney trained in non-adversarial conflict resolution techniques. Everyone (both parties and their attorneys) agrees that the case will be resolved outside of court. The process focuses on identifying and meeting the needs of all family members. It’s a way of making the divorce process compassionate and emotionally safe for everyone involved, including the children.
Do I need an attorney to represent me if I select the Collaborative Divorce process?
Yes. In fact, you need an attorney who has been specifically trained in collaborative law as well as in family law itself. The representation is limited to collaborative negotiations and the formalization of the divorce settlement. You are not retaining an attorney to litigate the case or who will take you to court. Thus, it’s a very different experience from retaining a conventional divorce attorney. The collaborative process is designed to take the fear out of divorce. There’s no posturing and no threats. Most of the negotiations take place in meetings around a table, with both parties and both attorneys present. The attorneys guide the process, helping their clients to express what they want and need authentically and without pulling punches, but at the same time respectfully. The attorneys also help the parties to hear and understand the wishes and needs of the other spouse. The parties are responsible for shaping the terms of their settlement agreement. At all times, the needs of children are kept front and center.
What is a collaborative team and who are the members?
A collaborative team will always include two collaborative divorce attorneys (one for each spouse). It may also include:
A Child Specialist who helps the parents understand the needs of the child(ren) and helps the child(ren) identify and express his/her/their wishes in an emotionally safe manner that does not involve taking sides.
A Financial Specialist who helps the parties figure out the various ways to divide their finite resources in a way that works for everyone. He or she can help the spouses understand the tax ramifications of various options and the long term financial prospects of each party under various scenarios. The Financial Specialist can also help value complex assets and sort out which qualify as community property and which remain separate.
Divorce Coaches who help the parties identify what’s truly important to them (as opposed to what just feels important in the heat of the moment) and how to communicate those needs in a manner the other spouse will be able to understand and appreciate.
What are the basics of the Collaborative Divorce process?
- Spouses and their lawyers all sign a legally binding contract in which they agree not to take the case to court. Everyone commits to resolving differences through a process that’s designed to be emotionally safe and that encourages creative possibilities. The goal is to find win-win agreements that everyone can feel good about.
- Both parties freely disclose all relevant information (including income, assets and debts). The exchange of information is open and honest, and neither side gets to take advantage of tactical errors made by the other party. The commitment is to identifying and reaching a fair and freely chosen settlement.
- The needs of the children are prioritized. Each party commits to a process that is respectful of the needs of all family members. Discussions are authentic (no pulling punches) but, at the same time, communication must be respectful and each party must understand that the other spouse has legitimate needs that must be addressed too.
- All professionals (except for the attorneys) and other experts are retained jointly.
- Throughout the process, both parties ensure that each has the financial resources to meet his/her reasonable needs as well as those of the children.
- In the event the collaborative process does not reach settlement and the parties choose to take the case to court, they must do so with new attorneys.
How does Collaborative Divorce work?
The parties interview and retain collaborative attorneys. The attorneys then discuss the case with each other and the possibility of pursuing the case collaboratively. If there is agreement that such approach is appropriate, the parties and their attorneys meet together in what’s typically termed a “4-way meeting” to discuss the collaborative process and to make sure everyone’s on board with this approach. If so, the parties and the attorneys sign agreements to abide by the rules and protocols of the collaborative process.
Over the course of the case, issues are addressed (mostly in 4-way meetings). The parties may meet separately with other professionals who are brought into the case — such as, for instance, a child specialist, financial specialist or divorce coach. Those individuals may be invited to participate in 4-way meetings if appropriate.
The resulting agreements that the parties reach over the course of the case are written up, signed and ultimately set forth or referenced in court orders.
What is the difference between conventional divorce and Collaborative Divorce?
- In conventional divorce, judges decide what’s best for the members of families. In collaborative, the parties themselves make those decisions.
- In conventional divorce, spouses typically view one another as adversaries. In collaborative, we’re all on the same team and the enemy is those issues that are not yet resolved.
- Conventional divorce is all about winning and losing. The collaborative process values creative resolution of conflict that focuses on solutions that allow everyone to win.
- The court is limited in the scope of what it can order. Spouses working together collaboratively and in good faith can explore a far vaster range of options.
- Conventional divorce attorneys are trained to measure their success in terms of those things that can be measured. As a result, in conventional divorce the focus tends to be on tangible assets such as bank accounts, pension plans, home equity and the like. In Collaborative Divorce, it’s understood that tangible assets have value and that spouses must account for their financial needs and those of their children. At the same time, the value of intangible assets such as good will and the ability to parent children together is not lost in the shuffle. Collaborative attorneys are trained to be cognizant of the fact that when intangibles aren’t noticed or valued they tend to get trashed. Yet, those intangibles are often the most valuable assets of all. Collaborative attorneys understand that their place is not to set the value of intangibles. Such decisions are for the client alone. The attorney’s job is simply to remind the client that intangibles have value and that it’s important to keep that in mind when making choices. In Collaborative Divorce, we say “It’s easy to value the pension plan, but what is it worth to dance at your daughter’s wedding?”
How does the cost of Collaborative Divorce compare with the cost of litigation?
Litigation is expensive. Worse, it produces far more heat than light. Despite the high cost, the results are uncertain (as it’s left for a stranger in a black robe otherwise known as a judge to make decisions that impact the lives of spouses and children in truly enormous and consequential ways). No matter how well intentioned the judge is, he or she does not know the needs of the family anywhere near as well as the members of the family itself know their own needs (and those of their children). Even a multiple day divorce trial does not provide much insight into the needs of the members of the family.
Collaborative divorce is far less expensive than full blown litigation but not necessarily the cheapest option.
When spouses work together well and the issues of the case are not too complex, the least expensive option may be for spouses to sit down and work out their agreement for themselves. When that’s possible, it’s still important (vital, in fact) for the documents setting forth their agreements to be properly drafted. This is why it’s important to consult with an attorney before signing any agreement.
For many couples, the fear of the unknown and other complex emotions that typically go along with divorce make it extremely challenging for them to reach agreement on their own. The next least expensive option is divorce mediation, which can be very cost effective and, when used appropriately (i.e. in the right cases, with the right mediator), can produce excellent results. Collaborative is most often more expensive than mediation but it can also make possible the resolution of challenging and complex issues that may prove too much for mediation. Thus, unlike in litigation, with Collaborative Divorce the added expense is likely to produce added value. But this approach is not appropriate for all cases. Reaching settlement without assistance, mediation and Collaborative Divorce all require that both parties be willing and able to act in good faith if the settlement is to be lasting, fair to both parties and well suited to the needs of the children.
To properly assess whether collaborative divorce is the right approach for your family and your case, it’s important to meet with a qualified Collaborative Divorce attorney.
What are the risks and limitations of Collaborative Divorce?
Both parties must freely choose the collaborative process and commit to its rules and processes. Each must retain a Collaborative Divorce attorney. For best results, it’s important for the two attorneys to have a good working relationship. The more trust and good will there is between the attorneys, the more easily they’ll be able to make the process safe and easy for the family.
Collaborative attorneys will not take your case to court. Their representation is limited to settlement negotiations, and the formalization of settlement agreements in appropriate contracts and court orders.
Collaborative Divorce is not appropriate if either party is seeking to misuse the process to prevent disclosure of relevant information, steer the case toward a predetermined (non-negotiable) outcome, drag out the divorce process for its own sake, exhaust the other party (financially or emotionally) or prevent the divorce from happening.
In the event the collaborative process does not conclude with a comprehensive settlement, both attorneys must withdraw prior to the initiation of litigation. Experts utilized in the collaborative will most likely be excluded too.
What are the risks and limitations of conventional divorce?
Children may be emotionally scarred for life from the trauma of the adversarial divorce process.
Good will may be permanently and irrevocably destroyed, making it difficult or impossible for parents to effectively work together in raising their children. It may be difficult for parents to even look at each other, much less be present for important family events such as weddings and graduations. In fact, their discomfort with each other may cast a pall over the event itself. Sometimes children may be forced to choose between having mother or father at such events.
The divorce process may exhaust the spouses financially. It’s not uncommon for conventional divorce litigation to result in bankruptcy.
The divorce process may exhaust the parties emotionally. It’s not unusual for litigated divorce cases to drag on for months or years, making it very hard for the parties to get on with their lives.
How do I get my spouse interested in the Collaborative Divorce process?
Share the information on my website with your spouse. Watch the Collaborative Divorce Video together or separately. You and your spouse can meet with me for an informational discussion about the various ways to divorce. Such a meeting is not to be confused with a legal consultation. Because you and your spouse have different interests, I cannot provide legal advice at that meeting, and thus it will not be a legal consultation. We would simply talk about the four ways of divorcing, which are:
- For the parties to sit down and reach an agreement themselves (though, in most cases it makes sense to obtain assistance from an attorney in the drafting of legal documents);
- Divorce mediation
- Collaborative Divorce
- Traditional divorce litigation.
We would discuss the strengths and weaknesses of each approach and when their use is appropriate. At the end of that meeting, you and your spouse would decide how to proceed and, if you wished to utilize my services, how I can best serve. I can become the mediator, your attorney or your spouse’s attorney; however, I cannot serve in more than one role, and once I have taken on a particular role, I cannot not thereafter switch to another. In the event you choose me to be one of the attorneys in a collaborative case, I would provide a list of the other collaborative attorneys with whom I work particularly well.
How long does a Collaborative Divorce take from beginning to end?
The soonest any divorce can conclude in the state of Washington is 90 days after it has filed and served (or signed by both parties and filed). However, how long it takes to negotiate settlement can vary tremendously, depending on the complexity of the issues and the ability of the spouses to move through their fear, anger and other challenging emotions. Though I mentioned above that one of the things I look out for in a collaborative case is whether one of the parties may be seeking to drag the divorce out indefinitely, the bottom line issue is one of good faith. Sometimes a spouse not wishing to drag things out but simply needs time before he or she is ready to move forward. The collaborative process goes as slow as the slowest person needs to go so long as both spouses hold a sincere intention of being fair and reaching settlement. As part of the collaborative process, a spouse who is not ready to discuss certain issues may work with his/her divorce coach to reach a place of acceptance.
Even the slowest Collaborative Divorce cases will typically take far less time than litigated divorce cases. Just obtaining a trial date can, itself, be extremely challenging and cases are often bumped off the calendar by other cases that are considered by the court to have higher priority, such as criminal matters. In conventional divorce, discovery tends to be extremely expensive, time consuming and arduous.
What if my spouse chooses a divorce lawyer who isn’t trained in Collaborative Divorce?
Collaborative Divorce works only if each lawyer is trained in and committed to the principles and practices of Collaborative Divorce. Though each attorney does not necessarily need to be a member of Whatcom Collaborative Professionals, which is simply a practice group for collaborative professionals in and around Bellingham, it is important for both attorneys to be skilled with collaborative resolution of conflict and for each to trust and respect the other. Since most collaborative cases in the Fourth Corner region are handled by members of Whatcom Collaborative Professionals, the most skilled collaborative professionals are likely to be found among its members.
On occasion, I’ve worked with attorneys who, though not trained in Collaborative Divorce, had an essentially collaborative nature as well as a willingness to be coached through the process of learning to deal with cases in this way. No matter how well meaning an attorney is or how gentle his/her approach to divorce cases tends to be, there is a skill set that’s unique to Collaborative Divorce. At the same time, if an attorney is truly collaborative in his/her approach and committed to learning that skill set, his/her participation may prove both appropriate and fruitful. However, in such cases it becomes even more important that the trained Collaborative Divorce attorney is extremely well trained in conflict resolution techniques and experienced with the collaborative process.
My spouse has already filed papers with the Court. Can we still choose the Collaborative process to get our divorce?
Yes. If the case has been filed and served, it would be essential for responsive pleadings to be filed or for the parties to stipulate in writing to give the non-filing spouse an open extension to file a Response in the event that settlement is not reached. In such circumstances, it is essential that you to discuss the matter further with a collaborative attorney to ensure that such an approach is appropriate and executed correctly.
I am convinced a Collaborative Divorce is right for me but I don’t believe my spouse would be a good participant. Can we still have a Collaborative Divorce?
That depends. As stated above, it all comes down to a willingness and ability (on the part of both spouses) to act in good faith. Collaborative divorce is not appropriate to every divorcing family. Warning flags would be mental illness, drug abuse and other addictions, a history of domestic violence, an unwillingness or inability to compromise, and the like. It’s important to consult at length with a collaborative attorney to address whether Collaborative Divorce might be appropriate for your case.
What is the difference between collaborative practice and mediation?
Many Collaborative Divorce attorneys are also trained as mediators. In fact, many of the most skilled collaborative attorneys are also mediators because the skills required of mediators and collaborative attorneys overlap in many ways.
However, there are differences too. A mediator is neutral. He or she cannot provide legal advice. Often, parties who avail themselves of mediation will each have attorneys whom they consult to obtain legal advice. In my experience, mediation can be extremely cost effective and is appropriate for many couples; however, it can not provide anything approaching the level of support and containment available through the Collaborative Divorce process. The collaborative approach provides for the seamless formation of a team of professionals who can hold and contain a family as it’s taken apart and put back together in a new way that works for everyone involved. It can more easily address cases involving challenging issues such as addictions and mental illness.
Mediation is adequate for some divorcing couples. Others may be able to simply sit down and work out an agreement for themselves (provided the settlement documents are properly drafted, which is why it’s always important to at least consult with an attorney). But in those cases where mediation is not adequate, Collaborative Divorce may provide the means for you and your spouse to avoid the often tragic consequences of divorce litigation.