Before you previously read my latest blog posts on Divorce (You did read them right?), were you aware you had another option beyond a traditional litigation based Divorce? Of course, Mediation is great! But did you know there’s more? This time around we’re going to discuss Collaborative Law.
Collaborative Law is the best of both worlds, i.e., avoiding courtrooms and judges while still having a trusted attorney on whom to rely for counsel and support. Collaborative Divorce has been called “A New Approach to a Challenging Process.” Anyone who has been divorced will tell you it can be a tension-filled experience that harms you, any children involved, and the post-divorce relationship of your entire family. Even with the best of intentions, communication is a challenge. Conflict will arise over even minor issues – especially when addressing sensitive financial and custody matters. Any dialogue can break down, such that all contact must be handled through adversarial attorneys whose fees you would certainly prefer to avoided. If you desire to lessen the trauma to yourself and your children, be treated respectfully by your spouse, and have your needs/goals be heard and valued, collaborative divorce is worth considering.
The collaborative divorce process requires both parties to be open, honest, and realistic while each retain their own collaboratively-trained lawyer. You with your attorney and your spouse with his/her attorney will meet together in what are called “four ways”. You will all sign a contract, agree to openly share all financial documents, address all your children’s ongoing needs, etc., and be totally transparent about everything. Additionally, you will agree not to use the traditional court system but to work together to resolve issues in a respectful manner.
When a couple works in a collaborative/collegial environment it often becomes apparent they have many shared goals. These may include maintaining the children in the same school district or a private school, planning for college, ensuring each party has an adequate standard of living post-divorce, and guaranteeing appropriate living space for each party within proximity to the children so they have comfortable access to both parents.
Since it is your divorce, together you come up with solutions that are not court-mandated but instead work for your exact circumstances. As appropriate, you may seek the services of other experts acting as neutral parties: business valuators, appraisers, mental health professionals, and Certified Divorce Financial Analysts (financial advisors professionally trained in divorce issues). As a neutral party in a collaborative divorce, the CDFA’s role is to partner with the collaborative divorce attorneys and the divorcing couple to provide expertise on the financial side of things. CDFAs examine financial proposals; prepare financial projections that show how each party will fare under various scenarios; provide education regarding finances, tax returns, financial statements, cost basis, COBRA/health insurance and debt prioritizing; and make sure each spouse understands these financial topics to realistically assess the costs and benefits to each party over time.
Since running two households obviously costs more than one, parties may cooperate to develop workable and acceptable budgets. The collaborative process allows couples to collaborate while they negotiate to find the financial solutions that work best for their unique situation, be it for strategizing for one parent to stay in the marital home until the children have graduated, determining how best to fund college, or arranging the most safe care for a child with special needs. Collaborative divorce helps people feel assured that their needs are being heard and addressed. Difficult but realistic decisions are made in a respectful, civilized environment. Typically, interactions between the couple during and after the divorce are less stressful. If you have children, a real benefit is being able to watch your children at sporting events without jealousy, attend graduations without competing, go to the same wedding without sniping, etc. — all without your children worrying about having to take sides or fearing that a disaster will spoil the event.
In the previous posts, I wrote about Mediation. Like Mediation, a Collaborative Law divorce occurs in a cooperative, private setting in which the spouses craft the terms of their agreement. Unlike Mediation however, attorneys are present to help work together to craft an acceptable agreement through the aforementioned “4-way meetings.” The trend is now towards even more efficient 6-way meetings that feature a Neutral Mental Health Professional to further focus the agenda and keep the parties level-headed and on-point, as well as a Neutral Financial Professional to more expeditiously define/explain/clarify/brainstorm/resolve how to best prepare budgets, best avoid taxes during asset splitting, and make the best use of the resources available. The attorneys draft the settlement documents and conclude the divorce in a simple process that 100% allows the parties to avoid all contact with a court or Judge. The few required court papers are often but not always filed after the settlement terms are concluded.
Collaborative Law is a more formalized process than mediation. The couple and their lawyers commit in writing to follow specific rules or else suffer consequences. The spouses pledge that they will work together without court intervention to resolve their issues. The parties’ attorneys also pledge to work cooperatively, listening to concerns of both sides. The attorneys advocate for their clients in a more civil and respectful manner. Everyone agrees to share information and documents. If necessary, other members (as per the “6-way” reference above) can be added to the collaborative team to assist the spouses either jointly or individually. These may include financial advisors (like the CDFA mentioned above), parenting coaches, and child specialists. All of the team members are specially trained in the Collaborative method. Most importantly, all settlement communications, verbal and written, made during the collaborative process are kept private and are not admissible in a courtroom (should such a rare break-down result in the parties having to seek court assistance).
If either spouse initiates a court action before resolution, the collaborative process must terminate. By the terms of the special written agreement, the Collaborative attorneys are disqualified from representing their client-spouses in any litigation. If either spouse refuses to voluntarily produce information, a lawyer or party may terminate the process. The spouses must then obtain new counsel and begin again. Any jointly retained experts and consultants are also disqualified from participating in the litigation, unless both parties agree otherwise. Thus, there are many features/incentives — privacy, time, money, control, etc. — to help/make the collaborative process succeed.
This Alternative Dispute Resolution Method has evolved from modest beginnings in Minnesota in 1989. This lawyer brought the concept to Western PA in 1989 and has enjoyed seeing it’s use and acceptance grow in the past 15 years. Its time has come for local couples who are separating to make use of its wisdom and expert methodology for obtaining a Divorce with Dignity.