What Is A Collaborative Divorce And What Are The Benefits?

By Staff Writer

Faced with the ever rising financial costs of litigation, and the negative impact on the parties and their children by the adversarial court system, parties are increasingly looking for alternative ways to resolve their disputes. One of the newest trends in matrimonial and family law is the process of collaborative Divorce.

Collaborative divorce seeks to remedy the problems inherent in mediation. During the mediation process, the parties are assisted by one neutral professional whose job it is to assist the parties in reaching a settlement. Critics of mediation complain that this process does not work well for all parties, especially those with unequal negotiation skills. Also, in mediation, the mediator cannot give either party legal advice and cannot help either side advocate for his or her position. If the parties have retained attorneys to answer their questions and provide legal advice, the attorneys cannot be present during the mediation sessions and can only provide feedback after the fact.

In Collaborative divorce, each party retains their own lawyer. It is the job of the lawyer to advise his or her client during the process and to help that client in negotiating an agreement. Unlike mediation, each party is represented during the Collaborative Law process by an attorney at all stages. Therefore, if one party lacks negotiations skills, has a lack of knowledge of his or her legal rights, or is overly emotional, he will be placed on a more equal playing field by having the assistance of a skilled attorney.

All negotiations take place in four-way settlement meetings which are held between the parties and their lawyers. During these meetings, the parties agree to focus only on a resolution of the issues and specifically agree, in advance, not to disparage the other or engage in discussions regarding past events. The parties also agree to limit their discussions to the settlement conferences. Any outside discussions must be agreed upon by both parties and their attorneys. Similarly, any discussion with the parties’ children regarding the settlement issues are expressly prohibited absent the consent of the parties and their attorneys.

Before beginning the Collaborative Divorce process, both parties and their attorneys sign a binding Collaborative Law Agreement which contains the rules and guidelines of the process.

A critical component of this Agreement, and of the Collaborative Divorce process is the role of the parties’ attorneys. It is agreed that if the process does not work and either party goes to Court, neither attorney will be able to represent the parties during the Court proceedings. Similarly, if an attorney learns that his or her client is acting dishonestly, such as by failing to disclose assets, the attorney has an obligation to withdraw from representing the party during the Collaborative Divorce process.

Settlement is the only goal of Collaborative Divorce. The parties and the attorneys must agree not to threaten litigation or commence litigation during the process. The lawyers only job is to help his or her client reach a reasonable and fair settlement. While the lawyer will provide the client with legal advice, and assist in the negotiations, it is the client who makes the ultimate settlement decisions.

Collaborative Divorce is dependent upon the good faith and fair dealing of the parties. Unlike litigation, there is no formal discovery. Rather, the parties and lawyers agree to promptly provide all relevant financial records and other documentation. If it is necessary to retain experts for the valuation of assets or any other reason, the parties agree to hire a neutral expert. If litigation is later necessary, the neutral expert cannot be used by either party. Similarly, communications exchanged during the Collaborative Divorce Process cannot be used in subsequent litigation and neither party may subpoena the other party’s collaborative lawyer for purposes of any future litigation.

Proponents of the Collaborative Divorce method point to the decreased financial and emotional costs to parties. Unlike litigation, which is costly and stressful to both the parties and their attorneys, Collaborative Divorce seeks to resolve the parties’ differences with minimal conflict. It is also readily pointed out that parties are usually better off and happier with an agreement which they helped negotiate, rather than one which is arbitrarily imposed upon them by the Court.