Collaborative divorce, also known as collaborative law and collaborative practice, is a consensual dispute resolution process for people who wish to jointly make the decisions required to be made in their particular family situation, after the breakdown of their relationship.
It is a process for people who are divorcing, who are not married though have children in common, for same-sex couples, and other people who have family related conflicts. It is also for people who wish to enter into pre-nuptial agreements, post-nuptial agreements and/or cohabitation agreements.
Collaborative divorce is known as a consensual dispute resolution process because a couple must agree (“consent”) to agree to a number of things before entering into a collaborative process to resolve their dispute.
First and foremost, the couple must agree and be willing to enter into an open and honest discussion about how their conflict will be resolved. This means that they are acknowledging that despite their best efforts, their relationship, as it exists, has come to an end and recognizing that the relationship will be different in the future. Their willingness to do this helps them to define how their new relationship will look and how their family will function going forward. A couple considering the collaborative process must be willing and able to move beyond their feelings of hurt, anger, betrayal, fear, loss, etc. that exist in almost every relationship that breaks down. This is for their benefit and for the benefit of their family, especially their children.
Second, the couple must be willing to sign a document called a Participation Agreement that says they will engage in open and honest discussions, voluntarily exchange relevant information and documentation, and stay out of court during the process. This is a particularly important distinction between the collaborative process and regular negotiations. In a collaborative case, the couple along with each of their collaborative attorneys and other professionals, work together as a team to identify common interests and goals the couple has for resolving their conflicts and restructuring their family. In traditional divorce litigation, people establish positions from the very first moment of the case, through the divorce petition, where allegations are often damaging and hurtful. In traditional litigation, the negotiations are conducted largely through the lawyers via letters that go back and forth, telephone calls and sometimes by filing motions—all very expensive. In the collaborative process, the couple is in charge of the process, including scheduling meetings, deciding what information is to be exchanged and who is present during the conversations.
What is the Team?
Collaborative divorce is a team-oriented approach to helping people resolve conflicts. The team is made up of the couple and each of their collaborative attorneys. That’s right, each person has their own attorney, advising them on the law, advocating for them and assisting the couple to reach their goals. In this way, collaborative divorce differs from mediation because while mediators are tasked with helping the couple identify issues and facilitate settlement, they are not permitted to provide legal advice or to advocate for either person.
Collaborative attorneys differ from non-collaboratively trained, traditional family attorneys in that because the process is not adversarial, the collaborative attorneys work in unison with the couple and with each other to help the couple create unique solutions to their unique family needs and interests.
In Florida, the most common type of collaborative process that is utilized is a multi-disciplinary model. This means that the team is made up of professionals from multiple disciplines to help the couple focus on each particular issue with the help of an expert in that particular field. For example, the collaborative communication facilitator as a member of the mental health profession is more experienced in the area of child development, communication, and interpersonal relationships than most attorneys. Utilizing a member of this profession to address parenting issues and communication challenges is more efficient and cost-effective than utilizing attorneys to work out these issues.
Similarly, utilizing a neutral financial professional to address dividing the family nest egg in the most practical manner helps the couple retain more of their hard-earned nest egg and is more cost-effective and efficient than utilizing attorneys who do not have the same level of expertise in the field.
How does it work?
Generally, most people find collaborative law information from a family law attorney, who will explain the methods that are available to families in conflict. A knowledgeable family attorney will also explain the differences between each of the available options for addressing family conflict. Many people are surprised to learn that litigating a family conflict is not the only way to move forward after a break-up!
If you are in a position to consult with a family attorney, please make sure the attorney provides you enough information on all the various methods so that you and your spouse/partner can decide which method works best for you and your family. Remember, the decision on how to proceed is your decision, not your attorney’s.
Once the couple has decided upon the collaborative process, each of their respective attorneys will review a document called a Participation Agreement with them. The Participation Agreement is the corner stone of the collaborative process. It is a contract in which the couple and the attorneys agree to stay out of court during the process, agree to open and honest disclosure and discussions and agree to work together towards a resolution that incorporates each person’s needs and interests.
The Participation Agreement is what really differentiates the collaborative process from the litigation process.
The collaborative attorneys will most likely suggest that the couple utilize a collaborative communication facilitator to promote communication during the process, help the couple through the particularly difficult topics, work with the couple to resolve any conflicts involving their children, and teach the couple more effective communication methods so that they can co-parent their children going forward. The couple will often meet with the collaborative communication facilitator outside the presence of the attorneys prior to a full team meeting, allowing the couple to identify common goals and interests and allow the collaborative communication facilitator to get an idea where in the process each of the couple is at that time and what each person needs to move forward.
Once the couple has met with the collaborative facilitator, a meeting with both of the collaborative attorneys, the couple and the communication facilitator is scheduled. It is at this meeting that the goals and interests of the couple are discussed, the agenda for future meetings is outlined, tasks, such as getting an appraisal of the joint home, are assigned, documents that are relevant to the issues the couple is facing are identified and timelines for voluntarily exchanging those documents are agreed upon. At the first meeting, it is common for the couple to agree to work with a neutral financial professional to address the monetary/financial decisions that must be made.
During the course of the time frame, determined by the couple—not a court, the couple will meet with the financial professional to work out the financial issues in the case and/or meet with the collaborative communication facilitator to work out parenting issues. These meetings are generally conducted without the collaborative attorneys being present, allowing the couple to work with experts in the particular area and save money at the same time. Once the neutral financial professional helps the couple to work out the division of their assets, debts and issues involving support, such as alimony or child support, their collaborative attorneys will review the financial plan with each of their respective clients, ensuring each understands what the implications of the plan are, what their obligations are, etc.
Similarly, once the collaborative communication facilitator helps the couple to develop a parenting plan, the couple will review the parenting plan with their respective collaborative attorneys. In a series of subsequent meetings, the team will help the couple work out a settlement agreement that resolves all the issues, works for them and addresses the particularities of their family.
How do I know if collaborative law is right for me?
While collaborative law may not be for everyone, more and more couples are choosing it as the method to restructure their families following a breakdown of their relationships. If you and your spouse/partner want to move beyond negative feelings, learn methods to help foster communication, co-parent effectively and maturely, have more say in how your children will be raised, how your family nest egg will be divided, and move forward with self-determination, then collaborative law may be right for you. Collaborative law is a fit for all types of families, traditional and non-traditional.
The course of your separation or divorce is largely dependent upon the attorney you choose. So, make sure you know all your options before you decide how to proceed; ask your family attorney about collaborative law. Carolann Mazza, P.A. is a non-litigation family law firm committed to helping you restructure your family through divorce and/or assisting you with your family conflict in a healthier, less destructive manner. For more information, please visit her website, www.collaborativenow.com.