Collaborative Divorce FAQ
Do I need an attorney to represent me in a collaborative divorce?
Yes. You and your spouse need your own divorce attorney in a collaborative divorce.
What are some of the key elements or “rules” in a collaborative divorce?
- The parties and their respective attorneys make a pledge not to litigate (or go to court).
- There is a commitment to cooperation and integrity as well as an expectation of a respectful, creative effort to meet the legitimate needs of both spouses and the children.
- There is an open, honest exchange of information. The parties freely disclose all financial information and pertinent material.
- Both parties insulate the children from the disputes.
- Both parties may use the same divorce financial professionals, mental health consultants, divorce coaches, appraisers, and other consultants. All such experts, if involved during the process, will be retained jointly and remain neutral third parties.
- The attorneys must guide the process to settlement or withdraw from further participation in the divorce process.
- Unlike adversarial lawyers who remain involved whether the case settles or a trial is held, your attorney can no longer assist you should you decide to litigate.
- There is parity of payment to each attorney, so that neither spouse is at a disadvantage because of the lack of funds.
- All information exchanged between the parties and their respective attorneys in the joint sessions remains confidential.
What is the role of the collaborative divorce attorney?
In a collaborative divorce, your attorney is not neutral. Attorneys fully represents their clients, but with a change in emphasis and attitude. Instead of taking an adversarial approach, lawyers who practice collaborative law emphasize mutual respect and cooperation. Both lawyers are trained to consider the other party's perspective in order to reach agreements that accomplish goals and preserve the welfare of the entire family, particularly the children.
As in any divorce proceeding, collaborative divorce lawyers serve as a resource, educator, and advocate for their clients. They perform the usual investigations and determinations and help their clients organize disclosure documents and understand documents provided by the other party. The lawyers apprise their respective clients of their legal rights and obligations and guide their client in analyzing the consequences of competing options.
Collaborative divorce is different from traditional litigious divorce because collaborative lawyers try to anticipate conflict, achieve creative solutions to problems, and strive to manage the divorce process in a spirit of cooperative resolution, mutual respect and dignified behavior. Specialized training helps a collaborative divorce lawyer hone the ability to practice respectful communication and listening skills and actively promote cooperative behavior. A collaborative divorce lawyer must understand the motivations of both parties and develop the ability to identify the issues and concerns of both in order to bring clarity of reason and reality to emotionally charged situations.
Many of the negotiations in collaborative divorce are performed in a four-way setting with each participant being represented by counsel throughout the process. The parties do not "hide" behind their lawyers. Unlike a traditional litigation setting, the opposing attorney can speak directly to the other lawyer's client in four-way meetings. This maximizes the group's potential for creative problem solving and exposes any obstacles to resolution. The two attorneys themselves may sometimes meet to discuss ways to resolve issues in an amicable and cooperative fashion.
In collaborative divorce, court is not an option. If a settlement cannot be reached, the collaborative divorce lawyers and team must withdraw, leaving the divorcing parties free to retain trial attorneys to pursue the matter in court. This ensures the commitment of the attorneys to reach agreements and overcome impasses through cooperative negotiation.
Much like court mediators, collaborative divorce lawyers are required to obtain special training. A collaborative divorce can save both parties the pain and anxiety of months spent haggling in court as well as the considerable expense generally incurred in an adversarial divorce. Through collaborative divorce, couples have the opportunity to emerge with a fair settlement and peaceable relationship while minimizing the negative effects of divorce on their children.
How is collaborative divorce different from what attorneys do to settle cases in a conventional divorce?
In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Most litigated divorce cases settle figuratively, if not literally, “on the courthouse steps.” By that time, a great deal of money has been spent, and a great deal of emotional damage can be caused by the parties or their lawyers taking extreme positions on various issues. Decisions may have been made by the judge earlier in the case, which favored one party over the other, or which created difficulties for both. The final settlement is reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to decide based on the positions the lawyers take. Nothing could be more different from what happens in a collaborative divorce settlement.
Collaborative divorce is, by definition, a non-adversarial approach to divorce. The collaborative divorce attorneys commit in writing not to go to court or litigate. They negotiate in good faith, and work together with you to achieve mutual settlement outside the court. The collaborative divorce process is designed solely to make it possible for creative, respectful collective problem solving by the only people who will have to live with the decisions – you and your spouse. It is quicker, less costly, more creative, individualized, less stressful, and overall more satisfying in its results than what occurs in settlements based on litigation.
What is a collaborative divorce team and who are the members?
The combination of professionals you choose to work with to resolve your dispute constitutes the collaborative divorce team. Your collaborative divorce team can be simply you and the attorneys or you can choose to include other experts including a neutral financial professional, a divorce coach, a child specialist or other specialists you and your spouse believe would be beneficial to your particular circumstance.
The collaborative divorce process creates a team atmosphere as opposed to the adversarial atmosphere of a courtroom. Here’s why. When facing divorce, you may have numerous unresolved issues with your spouse. In the collaborative divorce process, you, your spouse and your collaborative divorce lawyers, can and will resolve some if not most of your issues in a series of meetings utilizing specific experts.
Following are some the potential team members in a collaborative divorce:
Parenting Coach: If the roadblock in the collaborative divorce is related to custody and parenting after separation or divorce, in collaborative divorce, the spouses and the collaborative divorce attorneys can utilize the services of a specialized parenting coordinator or parenting coach who is a child therapist, family therapist or PhD and has specialized training in collaborative family law and parenting coordination. The role of the child specialist is to represent any children and present, address and help the couple focus and resolve the children’s concerns and needs. The spouses can meet alone with the parenting coordinator and address all co-parenting issues, access to the children and numerous other details about parenting the children after separation or divorce. The collaborative divorce attorneys can use the agreements reached by the parents and the parenting coordinator in the final Divorce Agreement.
The Financial Neutral: If the roadblock in the collaborative divorce is of a financial nature, you and your spouse and the collaborative divorce lawyers have experts and resources available to address such financial roadblocks. By utilizing a neutral certified divorce financial analyst, a neutral business valuator trained in collaborative family law, or a neutral accountant, both spouses can obtain the clarity needed to re-enter constructive negotiations at a fraction of the cost of litigated divorce with separate business valuators or accountants. The role of the financial advisor is to provide accurate, impartial financial information, assist the couple in gathering necessary financial documents, and provide possible settlement options. By utilizing the services of a financial advisor, the overall cost of the divorce process is greatly reduced because the spouses jointly retain only one neutral expert to address the specific financial concerns.
The Neutral Divorce Coach: If the roadblocks in a collaborative divorce have to do with unproductive and hurtful communications between the spouses, collaborative divorce attorneys can invite a neutral, impartial divorce coach or communication coach into the process, that does not have any allegiance to either spouse or attorney. The Neutral Divorce Coach is a trained mediator that specializes in collaborative divorce. They are often a Marriage and Family Therapist, a psychologist with additional training in couple’s therapy, or a child therapist. Divorce coaches are utilized in the collaborative process to assist with communication skills, self-management, and negotiation skills. Utilizing a neutral coach streamlines the divorce process in a collaborative divorce and makes the process more efficient, more productive and far less costly than a litigated divorce.
What is the expectation of financial disclosure in a collaborative divorce?
In collaborative divorce, both spouses agree to full disclosure of income, marital property, all retirement assets including complex pensions or deferred compensation, and all facts which materially affect the collaborative divorce. The spouses have an obligation to produce all financial documents pursuant to the Connecticut Statutes. Collaborative divorce attorneys know when the financial picture is not clear or complete and will counsel and advise the couple as to all information required in order to achieve a complete financial profile prior to entering into negotiations. Centered on these commitments between two parties and their collaborative attorneys, the collaborative divorce process ensures that neither party will enter into a decision using the court system or by concealment of material facts or important financial information. Instead, the collaborative divorce process enables both parties to equally voice their needs and expectations until they reach a mutually suitable agreement.
How does the cost of Collaborative Divorce compare with the cost of litigation?
Litigation is often the most costly way to resolve a dispute. A litigated divorce is costly both in emotional and monetary currency. It is common for litigated divorces to begin with a motion for temporary support. It is common for a single temporary order in a litigated divorce to cost as much as ― if not more than ― the costs of an entire collaborative divorce representation. And that’s only the beginning of the litigation process!
The costs associated with the collaborative process vary depending on a number of factors. Some of the factors include the complexity of the issues in your family, the number of professionals necessary or suited for your particular situation, the number of meetings it takes the collaborative team to work through all the issues. The particular detail of your case, ultimately, determines the cost.
Is the collaborative divorce process faster than a litigated divorce?
Your family’s unique situation determines how long the process will be. Collaborative divorce in general can be more direct and efficient. By focusing on problem-solving, rather than focusing on blame and grievances—there’s an opportunity to to resolve your divorce much more quickly than in a litigated divorce.
What happens if one side is dishonest or uncooperative in a collaborative divorce?
Some of the key factors of collaborative divorce are respect for one another and an open, honest exchange of information. The parties freely disclose all financial information and pertinent materials. There are, however, no guarantees that a participant in the collaborative divorce process will act in good faith. Your collaborative divorce attorney will pay close attention to the issue of transparency and full disclosure. If a determination is made that one of the parties is dishonest or fails to disclose pertinent information, the attorneys have an obligation to make everyone at the table aware. You can end the process at any time and choose to litigate your case.
The collaborative divorce agreement requires the collaborative divorce attorney to withdraw upon becoming aware that his or her client is being dishonest, or participating in the process in bad faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the collaborative divorce attorneys have committed in advance that they will withdraw and will not continue to represent the clients. The same is true if the client fails to keep agreements made during the course of negotiations; for instance, an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling or to produce certain documents.
How can I interest my spouse in the collaborative divorce process?
Tell your spouse that your marriage has been important, and you want to handle your divorce in a way that avoids unnecessary damage to your family. Tell your spouse that you are interested in a collaborative approach to ending your marriage. Share materials with your spouse such as the materials available on this website or from other Collaborative Divorce attorneys, groups or organizations. Encourage your spouse to select a family law attorney who has experience and training in the collaborative divorce.
What happens if we reach agreement on almost everything except one or two issues? Will we have to start over and litigate?
In that situation it is possible, if everyone agrees (both lawyers and both clients), to submit only those one or two issues for a decision by a “private judge” chosen by the parties. This is done with important limitations and safeguards built in, so that the integrity of the process is not undermined. Everyone must agree that the good faith atmosphere of the collaborative divorce process would not be damaged by submitting the issues for third party decision, and everyone must agree on the issues and on who will be the decision maker.
Is the collaborative divorce process better than other methods to resolve a divorce?
Many collaborative divorce attorneys believe so. Hence the investment in additional training and participation in various local and national collaborative practice groups and associations. The collaborative divorce process is designed to empower the spouses and the attorneys to construct agreements that address the unique concerns of each situation. The objective is to produce results that are creative, constructive and more efficient than results received from a court in the adversarial process. The collaborative divorce process provides the venue for all involved to use non-defensive, non-aggressive, collaborative analysis and reasoning to solve the problems that stem naturally with divorce.
How can I determine if collaborative divorce is the best choice for me?
Collaborative divorce is not for every person, or every case, or even every divorce attorney. The Collaborative divorce process is worth considering if some or all of the following principles and objectives ring true for you:
- You want a civilized, respectful resolution of your divorce and the consequent issues of divorce.
- The relationships you have created during your marriage are important to you, and your future: this includes your friends, extended family, neighbors, your community and even your spouse.
- You and your spouse will continue to parent your children together, and you want the best co-parenting relationship possible.
- You want to protect your children from the harm associated with a conflicted, litigated divorce.
- You have ethical, moral or spiritual beliefs that place a high value on taking personal responsibility for handling conflicts with integrity.
- You value privacy in your personal affairs and do not want the details of your problems to be available in the public court record.
- You value control and personal decision making and do not wish to hand over decisions about restructuring your financial and parenting arrangements to a judge who may not realize what is important or unique about your family.
- You recognize the restricted range of outcomes and “rough justice” generally available in the public court system and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
- You place as much or more value on your children and the relationships that will exist in your restructured family situation than you place on obtaining the maximum possible amount of money for yourself.
- You understand that conflict exists between you and your spouse. You also understand that conflict resolution involves not only achieving your own goals but is also a way to achieve the reasonable goals of your spouse.
- You and your spouse can commit your intelligence and emotional energy toward solving problems rather than assigning blame.