Traditionally, divorces play themselves out through two separate, but related, processes that unfold at the same time. One party usually starts a legal action: The dispute then involves a judge, trial attorneys, and a courtroom (the litigation process). Somewhere along the line, before that case reaches its trial, the dickering begins, often in a mediation setting (the negotiation process).
In other words, divorce negotiations usually occur under the threatening shadow of looming litigation. There, negotiations can be hampered by: (1) the negative emotion spawned by hardball litigation tactics; (2) a reluctance to share information that might be used against one in the litigation environment; or (3) an unwillingness to school the other in the weaknesses of his or her case.
By severing the negotiating from the litigating, collaborative divorce:
The collaborative approach creates these improvements in a simple, but radical, way. It requires all involved - the husband and his attorney, the wife and her attorney, and any neutral experts - to sign a contract: All must agree, in writing, that neither party will serve and file the divorce action. There will be no litigation. Instead, all of the parties and their lawyer's resources and energies will be devoted to negotiating. Freed from the dynamics of hostile litigation, the parties' negotiations are liberated and less guarded.
Negotiations take place in a series of four-way settlement meetings to exchange information, express interest, goals and concerns, develop options for settlement, and negotiate mutually acceptable agreements. During settlement negotiations, all parties treat each other with respect and they negotiate in good faith.
There is a special term in the parties' collaborative agreement that goes far to assure these goals: If either party chooses to abandon the collaborative approach - by serving and filing the divorce action - both attorneys must withdraw. In other words, the collaborative attorneys are prohibited from also serving as the parties' trial attorneys. They must be replaced.
The same is true of any experts (e.g. accountants, counselors, psychologists) the parties have jointly retained to help during the collaborative negotiations - they are barred from becoming involved as witnesses in the divorce litigation.
Unlike a traditional divorce, collaborative divorce offers you a team of skilled and compassionate professionals. Each team member, an expert in their own field, helps manage the many aspects of divorce - the legal issues, the emotional turmoil, the concerns for children, and the financial and property questions. With such support you'll feel more in control of the divorce process itself, and better equipped to begin a life afterwards. It is necessary for both husband and wife to retain separate attorneys trained in collaborative practice to navigate through this process. While other team members are optional, their participation will likely lead to a more sound and global resolution beyond the legal agreement.
Legal Counsel: Although a collaborative divorce seeks to avoid going to court, the settlement is still a legal agreement. Therefore, it is essential that licensed attorneys, trained specifically in the collaborative process be involved. The attorneys will:
Divorce Coach: Divorce is major life transition; while it marks the end of one part of your life, it is also the beginning of another. Involving a licensed mental health professional, trained in the collaborative process, will facilitate negotiations and help the parties develop strong communication skills. A divorce coach will:
Child Specialist: Children may suffer most from divorce, and be least able to understand and express their feelings. Their world is being turned down in ways that they cannot begin to comprehend. Communication with parents may be difficult, if not impossible. A goal of Collaborative Practice is to assure that children are a priority, not a casualty. The child specialist, an individual professionally trained and skilled in child development, will:
Financial Consultant: The divorce settlement will in part determine your financial well-being for many years to come. It is critical that it be structurally sound. The guidance of a financial planner, a Certified Accountant or Certified Divorce Financial Planner, will help protect your interest. The role of the financial planner includes:
Step 1: Find and hire a collaborative attorney. A "collaborative attorney" is one formally trained in the collaborative process, then committed to use it. Please visit "Meet our Professionals" to find a qualified and trained collaborative attorney. The first collaborative attorney contacted will provide the client contact information of other collaborative attorneys in the area for their spouse's consideration.
Step 2: Start the process. Once collaborative lawyers are hired, the next stop is a four-way conference involving the parties and the two attorneys. During this meeting, the ground rules of the collaborative process are established. Everyone commits to those ground rules by signing a Participation Agreement. After both parties are committed to the process, the group identifies and establishes client goals, interests, and issues to address throughout the collaborative process.
Step 3: Take care of immediate problems. The beginning of most divorces is an anxious time, often fraught with emergencies, both real and perceived: Will we remain under the same roof or separate while the divorce is processed? How will we share time with our children? Who will pay which bills? Will he or she gut our accounts? Will he or she run up balances on our joint credit cards? In the collaborative process, the parties focus first on issues like these.
Step 4: Meet and hire your professional team. Divorcing parties often need the assistance of experts: appraisers or auctioneers may be hired to value assets; accountants to assess the parties' financial needs; psychologists or counselors to help develop parenting plans; and divorce coaches to help parties effectively communicate with one another through a difficult stage in their lives. In a traditional divorce, both parties typically hire their own experts, thus doubling expenses. In the collaborative process, the parties employ experts jointly, the experts remain neutral, and the parties save money. The attorneys will assist clients in developing an appropriate team for their specific case needs.
Step 5: Gather information. No one should enter an agreement without being fully informed. Accordingly, most traditional divorces begin with months of formal "discovery," a process where attorneys send one another lengthy requests for information and documents. Responses, tailored for litigation purposes, are often evasive and uninformative. To the contrary, the collaborative process requires a commitment to transparency. Both parities promptly share required financial and other information with attorneys and other professional team members. The process plays out quicker and cheaper.
Step 6: Negotiate the settlement. In a traditional litigated divorce, the parties do not interact with one another. Proposals are communicated between the attorneys. When they negotiate under the same roof, the parties are usually in separate rooms. In the collaborative process, the parties and their attorneys negotiate face-to-face, at a single table.
In addition, collaborative attorneys are trained to move past "positional" negotiating in favor of "interest-based" bargaining. Positional bargaining is a trading of offers where the is often a "winner" and a "loser" (imagine buying a used car.) Interest-based negotiation drills deeper - it is a method of solving common problems together and to generate win-win solutions.
Step 7: Obtain the Final Decree. Only once the parties have settled their case and signed an agreement is a formal divorce action commenced. A court file needs to be opened to file the agreement, gain the court's approval, and receive a final divorce judgment and decree.