No matter how painful or destructive your relationship is today, you have the ability to turn your situation around. You can end the conflict and restore the respect in your relationship. Sound impossible? It’s not. It can happen for you. Because it ends a marriage, divorce can be a painful experience. But divorce is also a new beginning. Recognizing this, many divorcing couples have sought a more constructive process of divorcing. For them, Collaborative Divorce has been the answer.
Despite the contested nature of traditional litigation, 98 percent of cases are resolved without having a judge make the decisions. However, these resolutions are often made on the eve of the trial after substantial amounts of time and money have spent preparing for trial. In the course of such preparations, parties engage in an adversarial litigation process that is often intrusive, combative, embarrassing and has a corrosive effect on the families involved. Collaborative Divorce is a thoughtful alternative that can reduce the stress, lower the cost and create agreements that are based on your family’s unique circumstances in an environment that doesn’t aggravate the underlying issues causing you to seek a dissolution. The goal is to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to the divorcing spouses and their families. This is particularly helpful to families with children who will remain families by virtue of those children forever without regard to the dissolution of the marriage. For couples without children who wish to preserve the extended familial relationships and friendships formed over the course of the marriage or simply wish to honor the relationship they once had with a spouse, collaborative law offers a more humane alternative to traditional adversarial models.
What Is Collaborative Law?
Collaborative Divorce is a different process for divorcing that can help you make a healthy, hopeful transition from one stage of your life and on configuration of your family, to the next. Collaborative Divorce strives to provide clients with the support, information and structure they need to reach agreements that are voluntary, conscious, carefully considered and of maximum mutual benefit. To achieve this goal, collaboration begins with and emphasizes education prior to negotiation, explores common goals in place of divisive positions, and creates a safe environment for constructive conversation. The emphasis is upon creative agreement rather than hostile victory.
Collaborative Divorce promotes respect, places the needs of children first and keeps control of the process with the divorcing spouses, not their lawyers. Collaborative Divorce helps each spouse anticipate their needs in moving forward, and includes those needs in the discussions. When children are involved, Collaborative Divorce makes their future a number one priority. As a more respectful, dignified process, Collaborative Divorce helps families make a smoother transition to the next stage of their lives.
Collaborative Divorce is guided by a very important principle: respect. By setting a respectful tone, Collaborative Divorce encourages the divorcing spouses to demonstrate compassion, understanding and cooperation. The goal of Collaborative Divorce is to build a settlement on areas of agreement, not to perpetuate disagreement.
From the start, it focuses on problem solving, not blaming or re-airing past grievances. Full disclosure and open communications help assure that all issues are discussed in a timely, non-confrontational manner. Finally, because settlement is reached before filing in court, there is more privacy and no waiting for the multiple court hearings that are usually necessary with conventional divorce.
What’s Wrong With the Old Way?
Although the traditional adversarial litigation model works well in some areas of the law, “zealous advocacy” can produce profound detrimental side effects in divorce cases. Especially when children are involved, full-scale adversarial war can require tactics that are destructive to the children, the spouses, and to their financial well-being. When contested divorces are fought as battles to be won, there can be no real winners. The negative impact can have long-lasting effects because a divorced couple has a relationship that continues after the litigation is concluded, whether it be financial or with respect to parenting their children.
The Team Approach
While Collaborative lawyers are always a part of Collaborative Divorce, other specialists are involved, depending on the family’s needs and circumstances. Such specialists can include child specialists, financial specialists and divorce coaches as part of the divorce team. Clients have the option of starting their divorce with whichever professional they feel most comfortable with. The clients jointly choose the professionals they need. For example, a couple with no minor children may start the Collaborative Divorce by visiting a CPA trained in the Collaborative Process, while a couple with young children may begin the process with a child or mental health specialist. The divorcing couple and their children benefit throughout the process from the assistance and support of all of their chosen professionals.
With informal methods such as voluntary production of financial documents, four-way conferences, negotiation, the divorce process can move along in a less costly, less hostile manner. While some lawyers may refer to themselves as being collaborative in style, true Collaborative Divorce requires commitment to the “no court” aspect of the process.
Is Collaborative Law Different Than Mediation?
Collaborative Divorce offers a middle ground between mediation and full adversarial litigation. In mediation, the parties meet with one neutral mediator and advocate their positions. The mediator cannot give any party advice or assist either of the parties in advocating their position. In Collaborative Divorce, each party is fully and individually represented throughout the process. Parties who might not be skilled in negotiating or in understanding financial or legal nuances can feel secure that their lawyer is protecting their interests.
Collaborative Divorce is designed to be less time consuming, less expensive and less confrontational than traditional adversarial divorce. Clients are better able to focus on pertinent issues because stress and anxiety are effectively reduced. Money saved in the collaboration can be used to jointly engage the services of other professionals, such as financial planners or tax accountants. An additional benefit is that the actual collaborative process is more private than a contested divorce generating court filings, transcripts and hearings in open court. If the children decide to look at the court file in the future, all they will see is the agreement attached to a simple divorce petition.
Collaborative Divorce resolutions are reached through a process in which clients have more control and settlements have been designed to meet each party’s needs. These agreements are designed to be more sustainable over longer periods of time. The non-combative atmosphere diminishes hostilities; allows the divorcing spouses to preserve and enhance that which remains of their relationship; and, allows them to learn to work cooperatively during and after the divorce, managing finances and co-parenting children.
How It Works
The parties and their Collaborative lawyers agree upon and sign a Collaborative Divorce representation agreement. That agreement provides that if the collaborative process breaks down and either side files for relief from the court, the attorneys involved must withdraw from the representation. In this way, the attorneys become stake holders in the collaborative process; if the process breaks down, the attorneys no longer have the case.
The exchange of information is streamlined from more traditional litigation in which the cost of discovery are often great. In Collaborative Divorce, the divorcing spouses exchange financial and other information on a voluntary bases. The parties do not engage in the formal “discovery” process – often a time-consuming and costly process, especially for small business owners. All financial information is produced voluntarily and no discovery motions are filed, subpoenas issued or depositions taken.
The parties then participate in negotiations and meetings designed to resolve to all the issues that they face. No motions are filed or argued in court because the agreement is reached before a case is filed in court. To assist in the negotiations, the parties jointly engage the services of agreed upon specialists to help with the resolution of complex issues (i.e. business valuations, tax planning or customized parenting plans). Because the parties jointly decide on a single expert in whom they feel confident to guide them through each issue, there is not a “battle of the experts” in which each side hires their own expert to advance their position. Instead, the outcomes are guided by the professional’s neutral expertise rather than by which “hired gun” makes a better case to the judge.
Ultimately, all agreements are reduced to writing in a form that is acceptable to the court. By agreement, one of the spouses is designated as the “petitioner.” Because Florida is a “no fault state,” the petitioner need not make any derogatory allegations against the “respondent” and so this designation is purely one of convenience. The petitioning spouse’s attorney prepares the paperwork for the divorce to be served on the other spouse (at an agreed time and manner calculated to avoid embarrassment or unnecessary upset) and filed in court so the divorce conforms to all the legal and procedural requirements of Florida law. The lawyers arrange for the case to be placed on the court calendar for the only court appearance that is required — the final uncontested hearing where the agreement and required paperwork is presented to the court for approval at a “final hearing.” Because all issues have been resolved in advance, only one side need attend that hearing and it is a quick and simple hearing.
Is Collaborative Divorce Right For Everyone?
The success of the process greatly hinges on the ability of the parties to deal openly and honestly with one another, in good faith, without fear or feeling of intimidation or coercion. In order to accomplish the goals of the collaborative process, each party must perceive himself/herself to have equal power in the decision-making. At the start of the process, counselors and other professionals provide assistance to the parties to de-escalate the environmenta and relationship to allow the collaborative process to unfold. Sadly, such input is not always enough. For example, the presence of domestic abuse in a relationship disrupts the power dynamic in a relationship. This imbalance of power will interfere with core principles of the collaborative process: mutual respect and trust, and equality in decision-making.
Some relationships may have experienced episodes of name-calling or extreme fighting, which may be infrequent and not really affect the balance of power between the parties. In these cases, the collaborative process may still be appropriate, particularly when guided by the Collaborative professionals. High conflict in a relationship does not necessarily equate to an imbalance of power.
In other relationships, one spouses’s poor mental health may lead the other to feel in a constant state fearfulness, watchfulness, distrust, and a feeling of being trapped. The issues can be addressed and even successfully treated with proper counseling, psychotherapy, or medication, but takes a concerted and ongoing willingness on the part of the first partner to make a change for the better. Rarely do these issues ever resolve without significant mental health provider intervention. However, Collaborative Divorce may be beneficial even in the absense of such intervention as it promises a de-escalated emotional climate. However, for some couples, it may not be a viable option in certain situations. If mental health issues include or cause domestic abuse, drug or alcohol addiction, serious mental illness, or an intent to hurt the other party emotionally or financially, traditional litigation may be more appropriate.
What If Collaboration Doesn’t Work?
Collaborative Divorce provides an opportunity and an incentive for parties and lawyers to use their best efforts to reach agreement. If this is not possible, then the terms of the Collaborative Divorce agreement between the parties and their attorneys, require the parties to seek other litigation lawyers. Lawyers therefore have an incentive to facilitate agreement, rather than to foster conflict between the parties. If the collaborative process doesn’t resolve all the issues in dispute between the parties, agreements reached during the collaboration can be preserved, and litigation can focus on the remaining issue or issues, limited and defined by the less expensive collaborative process