What is Collaborative Divorce and How is it Different than the Traditional Litigation Divorce Process?
Divorce is often an overwhelming and emotionally devastating experience. Expectations of “until death do us part” are shattered, family ties are irreversibly broken, communication breaks down, mistrust grows, bills pile up, and innocent children become collateral damage.
And then the traditional litigation process begins with attorneys filing and serving petitions and counterpetitions, requests to produce, and motions to compel. Sometimes each party hires dueling mental health experts to convince a judge that he or she should have more time with the kids. Privacy is destroyed as each party’s life is probed and publicly questioned so that one side may gain a strategic advantage over the other.
But there’s a better way. A more civilized way. It is referred to as Collaborative Divorce (as well as Collaborative Process, Collaborative Practice, Collaborative Law, or Collaborative Family Law).
What is the Collaborative Process?
Collaborative Divorce has proven to be a decidedly effective way for a divorcing couple to resolve their issues without going to court.
To ensure full commitment to the collaborative divorce process, the participants and their attorneys agree in advance that they will work together in a cooperative, good faith effort to resolve issues without resorting to litigation in the court system.
Both parties agree that they will provide full, honest and open disclosure of all information relevant to the Collaborative Divorce process. And, they sign an agreement that their attorney’s representation is limited to the Collaborative process and that neither of the attorneys can ever represent them in a court proceeding against the other spouse. This eliminates the easy fallback position of letting a judge decide important issues in the participants’ lives and puts emphasis on finding workable solutions that are acceptable to both parties.
A vast majority of Collaborative Divorce cases result in a “win-win” solution that both parties agree is a fair resolution to their divorce issues.
The Collaborative Team Approach
The Collaborative Process utilizes a team approach, of which the four core team members include two attorneys, a mental health professional, and a financial specialist. These professional team members each have their own roles and responsibilities in the Collaborative Divorce Process. Within their respective specialty areas, they work together to assist divorcing spouses reach a fair settlement.
Each party has an experienced divorce attorney with advanced training in non-adversarial conflict resolution techniques. Unlike in traditional divorce proceedings, these attorneys actually work cooperatively with one another to problem-solve and create win-win options for settlement. Once all the information has been gathered and analyzed and a settlement agreed upon, the attorneys then draft the final documents (with input from the other professionals on the divorce team) for separation and file them with the court. Ninety-two days later (Colorado’s mandatory waiting period) the couple is officially divorced.
The other core Collaborative Divorce team members are thought of as “neutrals” as they work on behalf of both spouses and, essentially, their children. A Collaborative Divorce Facilitator (CDF), usually a licensed mental health professional, fulfills multiple roles on the team from coordinating all joint meetings and managing emotions to developing an effective parenting plan and coaching spouses through the process and onto being effective co-parents. Many soon-to-be-ex-spouses report that they actually get along better after experiencing the Collaborative Process than they did while they were married.
Another key neutral resource on the Collaborative Divorce team is the Certified Divorce Financial Analyst (CDFA). This financial specialist collects and evaluates the marital financial information and develops various settlement options (including tax implications and financial projections) for consideration. Having these key neutral professionals on the team and leveraging their deep expertise in their respective disciplines is one of the biggest benefits of the Collaborative Process.
A Healthier, More Holistic Divorce Option
Unlike traditional family law cases, attorneys in the Collaborative model are retained solely for the purpose of helping the divorcing spouses reach an agreement. In practical terms, this means that the attorneys are not conducting the usual opposition research to highlight an opposing party’s parental or other flaws in preparation for trial (which can be the most time-consuming, expensive, and destructive part of the traditional divorce process). And by working together rather than in a typical adversarial fashion, the attorneys are leading by example through cooperation and transparency. In addition, the facilitator/mental health professional helps the clients and the attorneys focus on what’s most important to the family’s future happiness and well-being.
The Collaborative Process Enables Creative Solutions
The Collaborative Process allows for flexible, creative solutions throughout the divorce process. The team explores options that look beyond a legal framework by incorporating the skills and expertise of the facilitator and financial professional. Clients are encouraged to focus on the best interests of their family, rather than rigid negotiation positions, to reach their goals. With the team, what-if scenarios are explored based on each client’s preferences and priorities in an effort to design the best possible outcome for both. Conversely in the traditional divorce court model, the judge doesn’t have the time to hear each person’s desires and arbitrarily settles disputes as expeditiously as possible.
A Private Alternative to Public Courtroom Clashes
All communications, meetings, and proposed settlement decisions that take place within the Collaborative context are privileged and confidential. Meetings are conducted, not in open court, but at the office of one of the attorneys or other team members. This private environment allows the spouses and team members to fulfill their agreement to be open, honest, and transparent throughout the process. Unlike traditional litigation, any agreement that is reached may not need to be filed with the court, helping private lives stay out of the public record.
Why is Collaborative Divorce Successful?
The Collaborative Practice model views divorce as the restructuring of the family and not as a battle to be won or lost. The model is successful because it provides the participants with an optimal setting, safe environment, and support system to enable them to settle their divorce issues as amicably as possible.
This model empowers spouses to creatively craft their own solutions, thereby improving the chances for long-term goodwill and a sense of satisfaction that a fair and just resolution was reached. The attorneys are not there to do battle with each other but are charged with guiding the process for the divorcing couple and collaborating on solutions.
A traditional divorce ends in one of two ways: either the parties are able to come to an agreement to divide the property and put together a parenting plan (if necessary) OR the parties go to court with each side presenting their point of view to the judge. The judge then makes his/her ruling on any of the unresolved issues. Ultimately, this gives the judge the power to decide how the family will be structured moving forward. This can lead to one or both of the parties frustrated with the judge’s decision and, potentially, more litigation in the future.
Conversely, collaborative divorce ends when an agreement is reached by the parties. The parties have complete control over what the restructuring of their family will look like. This leads clients to focus more on their relationship including establishing new skills to help them co-parent. This ability to co-parent and focus on the needs of the children typically leads to a deeper resolution and healthier relationship going forward.
While you will no longer be Husband and Wife, you will always be Mom and Dad.
In the unlikely event that a settlement is not reached, the Collaborative attorneys are forced to withdraw, and litigation lawyers may be retained. Knowing that the Collaborative attorneys cannot bring the case in front of a judge and that clients would need to start the process all over again with new attorneys further enhances cooperation in reaching more balanced settlement options.
What are the Typical Costs?
The traditional divorce process is an expensive one, especially if a settlement agreement isn’t reached and the parties end up in front of a judge. Perhaps you’ve heard horror stories of attorney fees spiraling into the $50,000—100,000+ range depending upon the complexity of the case, the number of marital assets to be divided, and the level of conflict between the spouses.
Typically, the cost of a collaborative divorce vs. a traditional divorce is significantly lower. Because the parties work together instead of battling over every little detail, the attorneys do not have to spend as much time resolving small disputes. Additionally, preparing for a trial is an extremely time-consuming process.
Even though it may seem like the collaborative process could be more expensive because the parties have to hire not only an attorney, but a facilitator/mental health professional and a financial expert, more often than not it is significantly cheaper than a long, drawn-out, contested divorce. For example, when preparing a parenting plan, the couple meets with the CDF/mental health professional for the discussion and preparation of this agreement. In the traditional divorce setting, both attorneys would be present for these meetings, significantly escalating the time and cost involved. The same is true for what we refer to as “offline” meetings between the two spouses and the CDFA. With the deep financial and tax expertise a financial professional brings to the process, dividing up the marital assets is easier, smoother, and often has a better outcome when using a financial neutral rather than attorneys.
Do it for Your Health
Nobody can say divorce is good for your health, but Collaborative Divorce may be the healthiest way to go through a divorce. Scientific research confirms that stress is bad for our health. Stress raises your cortisol levels, and elevated cortisol levels create inflammation which is known to be the cause of many ailments. So, if you find yourself heading for divorce, you might want to consider the Collaborative Divorce method.
Where to Start?
If Collaborative Divorce sounds like an interesting option worth exploring and you’d like to learn more, call or email to schedule a brief, complimentary phone consultation. If we determine that the Collaborative Process could work for you, I can help by recommending Collaboratively-trained attorneys and CDFAs to establish your supporting team and get the ball rolling.