What Is Collaborative Divorce And How Does It Work?

What Is Collaborative Divorce And How Does It Work

Image: Shutterstock


Couples experiencing separation or divorce can decide on how they would like to proceed during the process. Some couples may mutually resolve issues and agree on the division of property or child custody outside of the court. In such a case, they may only need help in preparing or filing the legal paperwork to finalize the divorce proceedings. Others may resort to divorce litigation with attorneys representing both sides, when they are not able to reach any agreement.

Some couples fall in the middle. They have differing opinions on the division of property or child custody 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.

This MomJunction post tells you about collaborative divorce, what it entails, and what its benefits are.

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.

Collaborative divorce can help spouses save time and money compared to the traditional litigation process. Moreover, it allows spouses to work together to reach an agreement, which is the best solution for each party, especially when children are invovled.

Have any useful experiences to share about collaborative law divorce? Feel free to write in the comments section.