What is collaborative divorce and is it right for you?

Divorce proceedings in court can be time-consuming, expensive, and emotionally draining. Using the tools of the court is more muscle than some people want when restructuring their family. Often, people turn to mediation or alternative dispute resolution with collaboratively trained professionals. 

A problem with collaborative professionals in practice is that a settlement must be reached without the legal counsel of a lawyer, and one party can often feel taken advantage of if they are dissatisfied with the outcome. Is there a better alternative to collaborative professionals? The answer is yes. It is the newest option in family law: collaborative divorce.

What is a collaborative divorce?

Collaborative divorce is an option for couples who feel they can work out their divorce settlement themselves but still want legal protection. Although not right for everyone, this type of divorce strives to reach a settlement in a manner that addresses the needs of both parties without having to go to court. In many ways, this kind of divorce allows the parties to end the marriage but retain a functional relationship.

You and your spouse will work together to determine how your marital estate will be divided, what your custody and spousal support arrangements look like, and whether spousal support will be a part of your divorce stipulations. The goal is to come to a mutual agreement so you do not need to go to trial. Spouses who are unable to make these decisions together may find it necessary to go through litigation to finalize their divorce proceedings.

How does collaborative divorce work?

Before you decide to participate in this kind of divorce, you may be interested in how the collaborative law process unfolds for other financial professionals, too. Here is a step-by-step breakdown of how collaborative divorces for financial professionals typically work.

Step 1: Hire a divorce attorney

When working with your spouse to end your marriage through this type of divorce, you do not need to hire your own attorney. You should hire a divorce lawyer who has experience handling this sort of divorce,  is supportive of mediation efforts, and is skilled in the art of negotiation. 

The right divorce law firm should have the perfect combination of negotiation and courtroom advocacy skills. This way,  even if the collaboration divorce falls apart, you have a legal advocate on your side who can fight for fair settlement terms at trial.

Lawyers retained for a collaborative divorce process are specifically trained to reach "win-win" settlements instead of "win-lose." Collaborative divorce attorneys must be skilled in guiding negotiations and managing conflict. 

In fact, if a lawyer finds out their client has withheld or misrepresented relevant information, the lawyer is required to inform the other party and withdraw from the process. Collaborative attorneys are meant to be client advocates. They advocate not only for their client but for what is fair and just.

Step 2: Sign your collaborative divorce participation agreement

Once both parties have retained legal representation, you will both sign the collaborative team and divorce participation agreement, sometimes referred to as a collaborative law notice. This document will help both spouses manage their expectations regarding spousal support and distribution of marital assets. This sets the tone for the settlement negotiations and allows you to avoid going to court. Many collaborative team and divorce participation agreements also direct both parties to negotiate the collaborative divorce team and lawyers to withdraw from representation if the case proceeds to trial.

Step 3: Meet with your lawyer one-on-one

Before negotiating this kind of divorce, you will need to meet your attorney privately. This is the time to discuss how you envision your divorce settlement. 

You should inform your legal advocate if there are specific assets, debts, or property that you would like to retain possession of or you do not believe should be your responsibility.

However, keep in mind that you should be prepared to compromise in this type of divorce. Your legal representative will help you remain firm in your limits and recognize when it is time to give a little. 

You will also work with your collaborative divorce lawyer to build a team of other financial professionals, advisers lawyers, attorneys, a child specialist, financial planners, or even mental health professionals to help you support your reasons for requesting specific settlement terms, such as the division of your investment portfolios or your custody arrangement. Keep in mind that the purpose of working with these professionals is to avoid biased influence and help you settle your divorce case without having to go to trial.

Step 4: Collaborate with your ex-spouse

Next, it is time to officially begin collaborating with your ex. Settlements of divorce issues are reached in four-way meetings. Each party and their lawyer sit around a table. Issues are dealt with one by one until you come to a resolution.

You will continue having negotiation sessions on a monthly or bimonthly basis, depending on the circumstances of your case. An agenda is set before the meetings so that each party and their lawyer can prepare. During the meeting, divorcing spouses can set aside time to meet privately with their own lawyer. The agreement reached is information going to go to court together, and at the end of the legal process, the lawyer drafts it in a legally binding form.

Step 5: File your divorce agreement in court 

Once you have gone over the divorce settlement terms and had your divorce coach, attorney, or legal advocates draft your settlement agreement, it needs to be signed and finalized by the judge presiding over your case. Your divorce spouse's attorney also will be responsible for ensuring your documents are filed within the court of correct jurisdiction. After the judge has reviewed your divorce settlement, it will be signed and declared legally binding, and your divorce will be finalized.

Collaborative divorce vs. traditional divorce

Collaborative divorce is often preferred to traditional divorce. This is because traditional divorce proceedings can be very adversarial. Many couples are unable to work together to discuss how they will divide marital property and whether alimony will be paid, and they may argue over how they will split custody.

However, with a collaborative process, your goals are different from those you might have in traditional litigation. Instead of trying to win your divorce, you're trying to resolve the process as amicably as possible. You understand that there will be some give and take in a collaborative divorce and are willing to negotiate settlement terms to reduce stress and minimize conflict. 

Benefits of the collaborative process

The advantages of a collaborative process are undeniable. They include:

• Faster divorce resolution
• More control over the collaborative practice
• Less hostility
• Less expensive divorce resolution
• Fewer emotional aspects
• The ability to protect your privacy
• Reducing post-divorce litigation
• An honest and open information exchange
• The ability to reduce conflict
• Co parenting support

Collaborative law FAQs

Who is involved in a collaborative divorce process?

Multiple parties are involved in the same collaborative divorce process. Some examples of parties you may work with during your collaborative divorce include:

• Collaborative process attorneys who are trained in collaborative family law resolution
• Divorce coaches
• Ex-spouses
• A financial specialist or adviser
• Child psychologists
• The child specialist
• Education professionals
• Mental health professionals
• A neutral third party who is specially trained and may act as a mediator
• Other neutral experts
• Other professionals who voluntarily provide your attorneys with support throughout the process

What happens if divorce with collaborative professionals fails?

What if the collaborative law process and settlement break down? If the collaborative law divorce process falls apart and the divorce coach the couple goes to court, it will prevent you from moving forward. Neither the lawyer nor anyone from their original professional team may represent the couple. So, it is in the best interests of the lawyers to help the couple reach an amicable settlement.

Again, should the process break down, the couple can move to court and start all over in good faith. Not only that but if there is one issue that can't be settled, the couple has the option to bring that sticking point to court without tossing out the rest of the settlement. The key is that the parties must agree on all of the specific issues. 

In collaborative divorce works, the parties even have to agree on who will decide the issue - a judge or mediator. Negotiations, compromise, and creative problem-solving are the critical elements of collaborative divorce. With agreement instead of litigation, the hope of a collaborative professional is that couples will finalize their divorce and be satisfied with the outcome.

Can collaborative divorce address all the legal issues of a divorce, such as child custody and property division?

Yes, your collaboration can and should address every point of your divorce settlement. In fact, if you do not include stipulations regarding the division of your marital assets and property, alimony, child custody, or child support, the judge may not be able to finalize your divorce petition until you work out these provisions.

Can I save money with a collaborative divorce and avoid going to court?

You will save money with a collaborative process through your divorce. If you and your spouse cannot work together to settle your divorce details, the legal process itself will be drawn out, costing both of you more in legal and attorney's fees.

What is the downside of collaborative divorce?

Arguably, the only downside to a collaborative divorce is the risk that you will need to start negotiations over again if you cannot come to an agreement. This is because if your collaborative divorce falls apart, you will need to hire a new collaborative team and lawyer.

Is collaborative divorce right for us?

Collaborative divorce can be a great option for any family that is willing to negotiate settlement terms and have the determination to make these decisions without being forced to have a judge intervene. For a collaborative divorce to be successful, you will need to be prepared to work with your spouse throughout the process. If you are willing to discuss divorce terms rationally and set aside blame, this kind of divorce is more likely to be successful. 

However, if you have trouble communicating, your spouse is contesting the divorce, there is extreme conflict, you qualify for annulment, or your relationship has a history of domestic violence, collaborative divorce may not be the best option for you. 

Although you may not come away from the collaborative divorce process with 100% of what you wanted, chances are, you will come away with more of what you were hoping for than you would have if your marital estate was settled by a judge who does not know you, your spouse, or your family dynamic.