How Does Collaborative Divorce Work And What Are The Benefits?

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Collaborative divorce is a legal process where couples agree to negotiate an agreement during separation with the help of a collaborative lawyer. Couples going through divorce or separation can decide on how they would like to proceed during the process. In such cases, they may need help only in filing or preparing paperwork to finalize the divorce proceedings. Others may go for divorce litigation with the attorneys of both parties when they cannot reach an agreement. Some couples, on the other hand, have differing opinions on child custody or the division of property but want to come to an agreement and settle issues outside of the court. These couples may seek help from a mediator or opt for collaborative divorce. Read on as we discuss the benefits of this type of divorce.

What Is A Collaborative Divorce?

Collaborative divorce or collaborative law process is different from traditional court proceedings. It is a cooperative approach to resolve conflicts rather than an adversarial one.

In this type of divorce proceeding, both parties do not file a lawsuit but enter into a series of discussions and negotiations to resolve issues, which may otherwise involve expensive and time-consuming litigations. These negotiations usually include spouses, attorneys (specialized in collaborative law) from both parties, and other professionals or subject matter experts such as financial experts, accountants, child custody specialists, therapists, mediators, or coaches.

Moreover, some courts advise couples to seek mediation or collaborative divorce before filing litigation.

Collaborative Divorce Versus Mediation

Before we discuss the difference between collaborative divorce and mediation, let us understand what mediation entails.

In mediation, a neutral or unbiased third-party (mediator) helps the couple resolve issues pertaining to the divorce. The mediator need not necessarily be a lawyer. Moreover, when a mediator helps spouses navigate through the divorce, both parties may choose not to involve any lawyers.

Let us now discuss the differences.

1. Involvement

  • Mediation: Only one mediator is involved and works with both parties.
  • Collaborative divorce: Two collaborative lawyers, along with professionals or subject matter experts such as financial experts, child custody experts, accountants, coaches, or therapists, are involved.

2. Negotiation

  • Mediation: A mediator is a third-party person who is involved in a neutral or unbiased negotiation process. The mediator works with both the partners to mutually resolve issues related to child custody or finances.
  • Collaborative divorce: Collaborative attorneys representing each of the spouses, along with subject matter experts or other professionals, work to resolve issues outside the court. However, each lawyer represents the interests of their own client.

3. Type of advice

  • Mediation: The mediator informs and advises both parties so that they can make their own decisions. Ideally the goal is to achieve mutual agreements.
  • Collaborative divorce: Collaborative attorneys regularly advise their parties on what to expect and do to cater to their individual interests.

4. Duration

  • Mediation: Mediation can take between one and four sessions, i.e., around one to three months. Usually, the duration or pace is dependent on both parties. Once the issues are resolved, the duration of the rest of the process will depend on the filing of legal paperwork and finalizing of the divorce proceedings in the court.
  • Collaborative divorce: Collaborative divorce can take anywhere between eight and 14 months. The duration or pace of the proceedings is dependent on the resolution of issues between the two parties. Since there are other specialists involved apart from the attorneys, their schedule is an important factor too. Besides, the filing of legal paperwork and finalizing of proceedings (court date) can also play a role in the duration of the proceedings.

5. Cost

  • Mediation: The cost can range between $3000 to $10,000 for a couple.
  • Collaborative divorce: The cost can range anywhere between $20,000 and $50,000 depending on the issues between the parties and the involvement of other professionals or experts. If collaborative divorce does not work out, and the couple goes to the court, the cost increases.

6. Outcome

  • Mediation: As both partners are involved in deciding the terms of the settlement agreement, the outcomes cater to the interest of both parties.
  • Collaborative divorce: In this process, collaborative attorneys and spouses are involved in the decision-making process. If both parties fail to reach an agreement according to their interests or demands, then the attorneys are disqualified. The couple then has to seek a court’s mediation and accept the settlement issued by the judge.

What Are The Benefits Of Collaborative Divorce?

The following are some of the benefits of collaborative divorce.

  1. This process helps save time and money when compared to traditional court proceedings.
  1. The couple agrees mutually on a settlement, simplifying the legal procedure or process.
  1. Since it takes place in an informal setting, there is a voluntary, open, and honest exchange of information between the parties.
  1. Collaborative divorce also helps partners find common ground on issues that may arise post-settlement or post-divorce.
  1. The parties benefit by negotiating a settlement that works for both, usually reducing conflict and stress.
  1. This process also helps in offering relief or a stable situation to the parties with a temporary agreement.
  1. Divorcing parents can move on more easily after divorce to a more child-oriented and peaceful co-parenting experience.

What Is the Process Of A Collaborative Law Divorce?

In a collaborative law divorce, the attorneys specialized in collaborative law negotiate and work keeping in mind the interest of their client. Let us discuss the step-by-step process.

  1. Hiring attorneys: Each spouse hires their own attorney. When choosing an attorney, hire someone who is supportive of and well-versed with the mediation and negotiation process. The attorney should help you get the maximum benefits amicably.
  1. Initial contracts: Both parties, including family law attorneys and the spouses, sign an agreement stating that they are committed to solving the issues and reaching a settlement amicably. This contract is also known as a ‘participation agreement.’

Moreover, an additional agreement is signed between the spouses and their attorneys, confirming that the attorneys would withdraw from the case (disqualified) if the parties do not reach any settlement and decide to move to a court. This is known as a “no court agreement.” The partners will then work with different adversarial attorneys for the court proceedings.

  1. Private meetings: Meet your attorney privately without your spouse and the other attorney to discuss your expectations. You should be open about the things you are ready to compromise on, your limits, and the outcome you expect. You both should have an initial discussion on the issues you would like to negotiate, including alimony or child support.
  1. Discussions/four-way meetings: A series of meetings and discussions take place between both the parties and their attorneys along with subject matter experts or other professionals (accountant, financial expert, child custody specialist, coach, therapist, or moderator) to reach an agreement.

Make sure the other professionals are unbiased (neutral) and committed to helping you reach a settlement outside of the court.

  1. Handling roadblocks: If couples find it difficult to resolve their issues, a licensed mediator can also be involved in the process. Mediators can strategically help couples reach an agreement.
  1. Filing of papers: Once a settlement is reached and couples decide not to move to the court, they can file their legal paperwork in a family or domestic relations court. Since the parties have gone through a collaborative law process, the paperwork is simple, brief, and an uncontested procedure.

What Happens If You Can’t Reach An Agreement?

Usually, before collaborative divorce proceeds, spouses and their representative attorneys sign an undertaking. This agreement requires the attorneys to withdraw from the case if the spouses do not reach an agreement and decide to file a lawsuit or divorce litigation.

Simply put, collaborative divorce attorneys will now not be eligible to represent either of the spouses in the court. Both parties have to work with new or different adversarial attorneys to represent them during the court proceedings.

Frequently Asked Questions

1. How long has collaborative divorce been around?

Collaborative divorce was introduced in 1990 by Stu Webb, a Minneapolis family lawyer. He believed that lawyers should help their clients by resolving their disputes with or without a divorce (1).

2. What are the disadvantages of collaborative divorce?

The disadvantages of collaborative divorce are (2):

  • The court does not give it a timeframe, so the cases continue until a settlement is reached
  • The practice is unsuitable for domestic violence, drug abuse, and mental health disorders

Collaborative divorce allows the couple to decide the terms and conditions of divorce with the help of collaborative attorneys without involving the court. It differs from the process of mediation, where a neutral third party who may not be an attorney helps spouses solve their issues regarding divorce. Collaborative divorce is less time-consuming and cost-effective than the one conducted through court proceedings. Moreover, the spouses may work together to reach an agreement, which is the best solution, especially when children are involved. They can also have a smoother co-parenting experience.

Key Pointers

  • A collaborative divorce is a legal divorce procedure that allows couples to negotiate all terms and conditions outside the court.
  • It involves the participation of attorneys representing both spouses and other professionals such as financial experts, accountants, child custody specialists, therapists, mediators, or coaches.
  • This divorce is less expensive and less time-consuming than the one which necessitates traditional court proceedings.

References:

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sanjana lagudu

Sanjana did her graduation in Pharmacy from Andhra University and post graduation in management from GITAM Institute of Management. It was during her first job, she recognized her skills in writing and began working as a freelance writer. Later, she completely moved into content writing and began working as a full-time content writer. Sanjana's articles in MomJunction cover topics related to... more

Rosalind Sedacca

(CDC )
Rosalind Sedacca is the founder of the Child-Centered Divorce Network which provides advice, programs, coaching and other resources for parents who are facing, moving through or transitioning after a divorce. She is the author of How Do I Tell the Kids About The Divorce? A Create-a-Storybook Guide To Preparing Your Children – With Love! This internationally acclaimed ebook is designed... more

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