- What is Collaborative Divorce and Family Law?
- Why should I consider using the collaborative process?
- When should I talk with a collaborative attorney?
- How is collaborative divorce different from traditional legal divorce proceedings?
- Do we ever “go to Court?”
- What if my spouse has already filed papers with the Court – can we still choose collaborative divorce?
- How do you go about working toward a settlement?
- How do you get the information you need to proceed?
- What happens if one side or the other is dishonest in some way, or misuses the collaborative process to take advantage of the other party?
- How do you keep everyone from fighting?
- And that works?
- What other professionals are involved in Collaborative Divorce?
- What is the difference between Collaborative Divorce and mediation?
- Can we trust that our attorneys won't just take our case to court eventually?
- Aren't we duplicating services to have non-trial lawyers if we might need trial attorneys as well?
- How does the practice of Collaborative Divorce affect attorney's fees?
- What about fees for other collaborative professionals?
In Collaborative Divorce and Family Law—originally known as Collaborative Law and also called “Collaborative Practice”—collaboratively-trained attorneys represent clients in divorce, separation or other family disputes by using a collaborative process, rather than an adversarial process, to craft settlements that meet the needs of all family members. To begin, the parties sign a Participation Agreement. Signing the agreement indicates a commitment by all to resolve all differences and issues related to the separation or divorce outside of court. The Agreement is a contract and requires full disclosure of all financial information by both spouses.
Collaborative Divorce and Family Law started in the Twin Cities metropolitan area of Minnesota and is now practiced throughout the United States, Canada, Australia and Europe. Collaborative Family Law and the collaborative process can be used in any kind of family dispute including divorce, separation, post-divorce matters, custody, parenting time, child support, spousal maintenance, post- and ante-nuptial agreements, probate, or any dispute involving family relationships. For the sake of simplicity, these FAQS will refer simply to Collaborative Divorce and divorce disputes.
The collaborative process is designed to remove as much fear and anxiety as possible from decision-making in a divorce. Collaborative Divorce recognizes that the experience of ending a marriage or relationship is hard enough. Professionals should not make the experience worse by adding to the conflict or by causing either partner to feel more threatened or vulnerable than they do already.
Collaborative Divorce ensures that each marriage partner has accurate information, sound legal advice, solid support in problem-solving and decision-making, and sincere assistance in laying the groundwork for respectful working relationships after the process is over.
A couple's most precious assets are their children. A collaborative process ensures children are the beneficiaries of child-centered decision making by their parents.
Any person approaching divorce should talk with a collaborative attorney as early as possible to review all the process options that may be available in his or her situation. The earlier this is done, the more chance there is for the other spouse to agree to use a collaborative settlement process. Collaborative attorneys can guide you through the collaborative settlement process or through alternative settlement processes such as mediation. No matter what settlement approach you choose, a collaborative attorney can be a valuable ally.
A divorce proceeding, in the eyes of the law, is a civil lawsuit much like other civil lawsuits. Traditionally, one party serves the other with legal documents that ask for everything a court could possibly award them. The other party responds with a counter-suit, asking for the same awards from the court. Both parties, through their attorneys, file their respective documents then wait for a series of court hearings to move the case forward over a period of months or even years.
Attorneys, for the most part, have been trained to conduct this adversarial process and have resisted the difficult work of meeting with couples to do conflict resolution that focuses on future success for the entire family. Instead, negotiation in traditional divorce is usually done through the parties' respective attorneys – a process that is often lengthy, bitter, and filled with “win-lose” proposals driven by a prediction of how a judge will decide a case based on the general rule of law meant to apply to all. Thus the proposals do not address nor solve the unique concerns of the couple and may actually fuel the conflict. During negotiations the attorneys prepare the case for trial in the event no settlement is reached thereby minimizing the time spent on and the quality of the negotiations.
By contrast, collaborative attorneys and other collaborative professionals are hired by their clients for a settlement-only process. Collaborative professionals are limited to guiding the process to a settlement satisfactory to both parties or withdraw from further participation in the case. This leads to a “paradigm shift” for collaborative attorneys. Instead of advocating for their clients to get the largest piece of the pie no matter the human or financial cost, collaborative attorneys advocate for their clients' highest aspirations for themselves and their children in their post-divorce restructured families. Collaborative Divorce brings couples, their attorneys and other professionals together before either party is served with divorce papers. Here, the focus on settlement is absolute; it is not diluted or coerced by an adversarial court process. The court is not involved while the parties structure a mutually acceptable written resolution of all issues to submit to the court as a final decree.
If the parties resolve their issues through Collaborative Divorce, a settlement document, produced in the form of a final decree, is given to the court to enter as its “judgment.” Because both spouses are represented by legal counsel, the decree can be approved by a judge in Minnesota without a court hearing.
Absolutely!! Attorneys for the couple can ask the court to have the case placed on “inactive” status while the collaborative process replaces the court process.
Participants in Collaborative Divorce communicate through joint meetings, telephone conference calls, and email transmissions. In joint meetings, husband, wife, attorneys, and any other collaborative professionals working on the case sit around a table together, discuss the issues, and seek ways to reach agreement. The issues, concerns and needs of all family members are put on the table for full consideration by each member of the team.
We determine what the parties have in the way of assets and income using a business-like “trust but verify” approach. Rather than engaging in expensive legal “discovery” procedures which take a great deal of attorney time, parties commit in the Participation Agreement to disclose information voluntarily and to verify it with documentation and tax returns.
Collaborative Divorce is designed to guard against dishonesty. If there are questions about whether information being provided is accurate, collaborative attorneys can request source documents from an employer or banking institution. Most couples realize that it is in their best interests to remain honest and allow the process to work.
Collaborative professionals are trained to help clients deal with their emotions in joint meetings and conference calls. They understand how to help clients express authentic hopes and needs effectively. They ask questions that keep the conversation focused on mutually acceptable, workable outcomes.
Collaborative professionals also model appropriate behavior. Instead of confronting others in the room, they establish an atmosphere of mutual respect and ensure that everyone present sustains that respect throughout the process.
In most cases, it works beautifully. When problems arise, collaborative attorneys help divorcing couples remain committed to finding workable solutions. The very act of meeting together to work through problems and concerns sets the stage for giving thoughtful consideration to everyone's needs. Remarkably, this atmosphere helps to create broader, more detailed solutions and more complete settlement agreements.
Collaborative Divorce uses an interdisciplinary approach to helping families make decisions related to separation or divorce. An interdisciplinary approach has been used for some time in medicine and other professions, but is now gaining popularity in the legal profession.
In Collaborative Divorce, the couple has access to a team of professionals, each specializing in a different field of expertise. In addition to the collaborative attorneys, the collaborative team includes a neutral licensed mental health professional as a coach for the marriage partners, a neutral child psychologist to give the children a voice in the process, and a neutral financial specialist (such as a certified financial practitioner or certified divorce financial analyst) to help advise the couple on the impact of their financial decisions. All the professionals involved—the attorneys, the mental health professionals, and the financial planner—have special training to help them take a holistic view of the family's needs.
If the parties cannot reach a settlement, the first step is to consider the source of the impasse. For example, if the needs of the children or the complex valuation of a business or other asset are in question, the collaborative team will determine the most appropriate strategy for moving beyond the impasse. Outside neutral professionals may be brought in to help resolve the difficult issues. Sometimes, a mediator can help to change the dynamics and help guide discussions.
In mediation, one “neutral” professional—the mediator—helps disputing parties try to reach an agreement. However, the mediator cannot give legal advice to either marriage partner and cannot help either side advocate its position. Mediation can be challenging if one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught. The mediation can become unbalanced, and if the mediator tries to address these issues, the mediator can be seen as biased by one side or the other. If there are attorneys for the parties at all, they may not be present at the negotiating table and their advice may come too late to be helpful.
Collaborative Divorce was designed to deal with these problems while maintaining a commitment to settlement outside of the court process. Each side has legal advice and advocacy at all times during the collaborative process. If one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the collaborative attorneys and other collaborative professionals on the team make sure the playing field remains level and the process stays positive and productive.
Attorneys who have been involved in the collaborative process with a couple must withdraw if the collaborative process is ended. By agreeing to withdraw, attorneys help the couple focus on decisions that need to be made, not the conflict involved in making them. The marriage partners know that neither attorney is building a court case against them while they are going through one of the toughest times of their lives.
Let's put this in context. Attorneys, by training and instinct, are trial and court-oriented. Though they may try to settle cases through negotiation, they practice mostly litigation and tend to “drift” into court proceedings in which time, costs, and stress escalate. This is why the collaborative law movement began.
Collaborative attorneys, by definition, cannot resort to adversarial court proceedings. They concentrate on practicing conflict resolution and settlement.
If parties need to retain a trial attorney even after working with collaborative attorneys, they benefit from engaging with the best of both approaches.
In conventional divorce representation, attorneys spend much of their time preparing documents which are only for the court's use or to impress a judge, producing expenses that don't have direct value to the client.
Collaborative Divorce has advantages that tend to reduce attorney fees. Because conflict is reduced, settlement meetings are more productive and take less time. Because it often takes less support staff and time away from the office to represent clients in Collaborative Divorce, collaborative attorneys can pass the savings on to their clients by offering reduced rates for representation.
The biggest savings result from avoiding the most costly parts of litigation (e.g. hearings, multiple expert witnesses, depositions) and time wasted in unproductive meetings. Attorney time, in the collaborative process, is spent in direct service to the client.
The fees spent on other collaborative professionals that are typically part of a couple's collaborative “team”—a neutral Child Specialist, a neutral Coach, and a neutral Financial Professional—are cost-effective and provide added value to the couple. With the assistance of these professionals, a couple completes a customized Relationship Plan, a customized Parenting Plan, and a customized Financial Plan that are incorporated into the legal documents. This results in agreements that are durable over time and tailor-made for each family.