What is a Collaborative Divorce?
A Collaborative Divorce is a “process” option; just as is traditional litigation or mediation. In a collaborative process, the case is resolved outside of court with the parties reaching agreements on property division, support and parenting. The big difference in a collaborative divorce is that the parties and counsel all sign an agreement from the beginning that they will not go to court. When all of the agreements have been reached, the documents are filed with the court, and upon approval, a divorce is granted.
The Role of a Lawyer in a Collaborative Divorce
The collaborative process is based on providing the parties the support and information they need to best be able to make decisions for their family. In order to do this, a collaborative divorce requires that the parties both be represented by counsel. In this process each party hires their own collaborative lawyer who acts as their counsel and advocate. However, the lawyers in a collaborative case take a much different approach than they would in traditional litigation. Rather than each side starting off in an adversarial position, the lawyers’ objective is to help their clients work together to reach a resolution. As part of the collaborative agreement, the parties, and their counsel, agree not to litigate, or threaten to litigate, while working through the collaborative process. The parties, and all the players, commit to the process and agree to have resolution and cooperative negotiations be the focus. The end goal is to provide the parties with the legal and emotional support they need to be able to reach an agreement on all the terms of their divorce. If the parties are not able to reach agreement, or if either party chooses to go to court, then both attorneys must withdraw and the clients must hire new counsel for litigation. This part of the agreement ensures that everyone at the table is focused solely on helping the parties resolve their case.
The Team Approach: the Coach and Financial Neutral
The collaborative process also recognizes that many of the decisions and issues to be resolved in a divorce are not all legal ones. Questions of how best to create a parenting plan for your children, how to afford two households, and how to work together as co-parents when the case is over are not issues that are guided by laws. These are, however, oftentimes the most crucial issues for the parties, and are the ones that most often get neglected in a litigated case. These are also questions that are not always best answered by lawyers. In most collaborative cases, the parties will choose to use other professionals, in addition to their attorneys, to help them when addressing some of those non-legal concerns. By using financial professionals and family counselors, this team approach allows the couple to get advice and support from professionals who specialize in these areas. Their knowledge and expertise will then give the parties the information they need to work with their attorneys on the legal questions. The most common team members in a collaborative case are the Coach and the Financial Neutral. Both of these professionals work for the couple and not for either party individually. The decision as to what professionals to use and how best to use them is up to you.
A collaborative coach is a licensed mental health professional who is trained in the collaborative process. The coach will work with the parties directly to help them identify their goals and to assist them in developing a parenting plan. The coach will also serve as the facilitator for team meetings with the parties and their attorneys. In cases where effective communication between the parties is a problem, the assistance of a coach can be crucial to reaching resolution. The coach will work with parties to help them communicate effectively with each other, and with their children during the process. This approach will hopefully provide the parties with tools for positive co-parenting in their post-separation lives. The coach will help participants identify and prioritize their concerns about the process and the future and will work to keep the couple focused on their goals. Our human side often means that in conflict we react out of fear and anger which can make us lose focus of what is important. The coach helps the parties to keep what is important center stage. They help parties to move through this difficult life change with dignity, respect, and hope for their own futures.
The Financial Neutral
The collaborative financial professional is a collaboratively trained financial planner or CPA who acts as a neutral expert for the parties. Their expertise and advice can help the parties be able to make knowledgeable decisions about how best to divide their marital estate. In order to do this, the financial neutral will work with the couple to identify their financial goals. For some couples this may be simply affording two households; for others, it is being able to pay for the children’s college education. Once the couple has established their goals, the financial neutral will work with them to explore the best way to maximize their collective finances to achieve their specific goals. They will assist the parties in gathering and understanding relevant financial information, including retirement and investments. They will also work with the couple to determine realistic, post-divorce budgets for the two households. Once there is a complete list of all of the parties’ assets and debts, the financial neutral can explore the impact, and long term effect, of various property and asset divisions that the couple is considering. By comparing the different options, the couple can see the outcome of different scenarios. With this knowledge, they can work together to make the best decisions for their family.
Benefits of the Process
The benefits of a collaborative divorce are not only in the process itself, but are in the lasting effects of having treated each other respectfully and with dignity during an incredibly difficult transition. The collaborative process allows families to continue, even when a marriage has ended. Couples come to the decision to divorce for many different reasons. In litigated cases, these reasons often become the focus of the battle. In a collaborative divorce, the focus is not on blame or judgement, but is instead on creating a supportive team approach to help both of you through this life-changing event. The process respects privacy, empowers parties to problem solve, and allows them to begin to communicate and work together in a new forum.
A collaborative divorce also gives the control of the process to the parties. In the collaborative process, clients control the outcome of their divorce, the pace of the process, and determine what issues deserve attention. Rather than a judge deciding what is relevant, the parties determine what is important for them. Rather than decisions being made by a judge who is unfamiliar with the parties and their children, the couple themselves create divorce agreements that best suit their unique family situation.
The long term benefits of this process choice are enormous. By making the decisions about your future together, through cooperation and conversation, a relationship of mutual respect can be created which will continue long after the divorce. By not “doing battle,” the end of the marriage can happen with a sense of resolution and closure, not hatred and animosity. For your children, you have shown them that as parents, you will continue to work together to do what is best for them.