“Collaborative Divorce” is one of the most widely heard & least understood divorce terms of the Millennium.
Collaborative Divorce is based upon three principles:
- A pledge to reach agreement without going to court.
- An honest exchange of information by both spouses.
- A solution that takes into account the highest priorities of both spouses and their children.
In a collaborative divorce process, both spouses agree to hire a team of professionals, all of whom sign what is known as a “collaborative agreement.” This agreement states that throughout the divorce proceeding there will be an emphasis placed on open communication, respect and reciprocity.
As with mediation, a collaborative divorce is always a voluntary process. This means that if at any time and for any reason either spouse feels that the process is not working for them, they are entitled to withdraw without and continue the divorce from a new approach. However, if this occurs, the entire team of professionals must withdraw, and the couple must start over from scratch.
The agreement signing is absolutely critical. The mandate to reach a settlement out of court incentivizes both the couple themselves, as well as the professionals, to work it out. If the case “falls out” of the collaborative process, the team ceases to earn their fees since they cannot continue to work for either individual, and the couple loses not only the money they have already spent on that team, but has to begin from scratch paying for an entirely new process from the beginning.
Not pretty. At all.
I am ceaselessly amazed by the stories I have heard from people who were told by each of their attorneys that yes, this would be a collaborative divorce, only to find later that they attorneys were both using the phrase to mean “we will try really hard to work together amicably, but if not we can all just go to court.” Be extremely clear that you are seeking to hire a collaborative team for a collaborative process, not just trying to have a friendly divorce.
Collaborative divorce can be a shape-shifter as far as specifics go, but the most current model employed is called “stream-lined” collaborative approach. The team gathered within this framework generally consists of the following professionals:
- 2 family law attorneys — one per spouse
- 2 divorce coaches — one per spouse
- 1 neutral financial specialist
- 1 neutral child specialist
Unlike the full confidentiality between clients and their own attorneys, coaches and other professionals in a litigated divorce process, professionals working on a collaborative team have some leeway to share information in order to facilitate smoother agreement readiness.
In the simplest of terms, these roles can laid out as follows.
The attorneys ensure each party is fully aware of the legal ramifications of the issues on the table.
The coaches ensure each party is aware of the emotional triggers and issues at play, keeping their awareness keen on how their feelings may be informing or hindering their ability to reach agreements.
The financial neutral sorts through the couples entire financial portfolio and budget, providing them with a sharp picture of what is materially on the table, presenting them with potentials scenarios for dividing any assets and/or debts, and leading the resulting discussions and negotiations.
The child specialist is not a custody evaluator, but rather someone who meets with the couple, and potentially with the children, to provide helpful insight into where the children are developmentally and emotionally, as well as any particular thoughts based on their family situation that may be helpful to consider in constructing a parenting plan.
The simplest and most effective way to engage a team is to find a group of professionals who are members of a collaborative practice group. These groups meet together on a regular basis for ongoing education and training, and have spent time getting to know each other so that they can work together efficiently for the benefit of both individuals.
One the group has been engaged, they will gather together with the couple for an agreement signing meeting, in which the policies, fees, and procedures are clearly laid out for the couple and their entire team at once.
As with the mediation process detailed in Part 1 of this series, the couple then meets with their team over various incremental sessions in order to do the following:
- Gather, discuss and understand all relevant financial information.
- Discuss and understand the needs and interests of the children;
- Negotiate a mutually acceptable agreement incorporating a parenting plan, division of all assets and debts, and determination of the amount and duration of child support and/or spousal support.
Also as with a mediated divorce, the agreements are drafted into the form of a judgment or settlement agreement and submitted for entry to the court, without either spouse every having had to set foot in from of a judge.
While the idea of a “team” of professionals seems daunting to some, the reality is that within a litigated divorce you will likely have to deal with a team as well. A collaborative divorce provides a teamwork climate in which both parties can feel supported and advocated for, while also assuaging the gnawing feeling that the non-stop stream of court dates and demands for information from the “other side” are all just a money-making scheme on the part of one or both spouses attorneys.
Tomorrow I will review the utter chaos known as a “litigated” divorce process. Stay with me as these somewhat stale factoids coalesce into a big picture view of the myriad choices faced by anyone divorcing in today’s world.
Click here for Part 1 in the Demystifying Divorce Series: Mediation.
Click here for Part 3 in the Demystifying Divorce Series: Litigation/Court.
Click here for Part 4 in the Demystifying Divorce Series: Shifting Tides.
Photo credit: Flickr/nDGgwD