Collaborative family law takes a less-adversarial approach to divorce
Collaborative Family Law has become increasingly popular in the past few years. Mainly seen in the family law context – especially in divorce cases – collaborative family law is a way for both parties involved to go through their separation while maintaining their dignity, honor, and civility. Instead of going through the court system, the goal is to resolve all issues without resorting to litigation. With the collaborative approach, couples going through a divorce are supported not only by their respective attorneys, but also by a team of professionals, experts, and specialists as they work through the legal, financial, and emotional issues such proceedings.
One reason why a couple facing a divorce might want to consider the collaborative approach is because it is designed to minimize conflict, which may prove beneficial to all of the parties seeking resolution to their claims and issues. Collaborative divorces involve not just the clients and their respective attorneys, but may also include financial coaches, a collaborative mediator, a collaborative divorce coach, and, if necessary, a child specialist. Many of these individuals can be neutral parties – for example, the child specialist would work with both parties to remind them during the course of the proceedings that both parents must remember to keep the best interests of the child at heart while agreeing upon the divorce settlement.
Once both parties have found collaborative divorce attorneys, both the clients and their respective counsel must sign a Participation Agreement, which requires parties to, among other things: provide and/or exchange financial information so everyone is on the same page regarding the state of the couple’s finances; foster an atmosphere where both parties may speak openly and freely about their concerns and needs; reach a written agreement outside of contested court proceedings; avoid acting in an adversarial manner, such as hiding information or not behaving cooperatively to insure the best results are reached; and authorize counsel to use the written agreement to obtain a final decree from the court. Further, all parties agree that should the process break down such that it is no longer constructive or conducive to producing results in keeping with the collaborative method, both attorneys must withdraw and their clients must seek new counsel.
Should the parties involved succeed in creating a divorce settlement that takes into account their needs (and the needs of any children involved), that settlement is taken to the court for its final approval. Once approved, the divorce is final and the parties are bound to the agreement. Again, should the process break down (i.e., should any of the parties involved break the Participation Agreement described above) and the attorneys see that litigation may become a reality, the attorneys have a duty to withdraw, and their clients must find new counsel, essentially starting all over again.
Although many couples who seek to use the collaborative approach to their divorce may do so at the beginning, it is not required. The proceeding may begin in court, but if both the attorneys and clients are willing, they may switch to the collaborative approach. Some may choose to stay the court proceedings while trying the approach, while others may choose to keep proceedings as they are while attempting to structure a settlement.
When compared to the standard divorce proceeding, the collaborative approach might be more attractive in that it allows the parties to retain much more control over its course; the same is true when comparing this collaborative approach to mediation and arbitration. Also, since parties must act honestly and cooperate to the best of their ability, it is possible that a proceeding that may take years to run its course through the court system may take a much shorter period of time, thus making the collaborative approach cost-effective. It is important to remember, however, that each couple brings its own unique issues and perspectives to the table when seeking a divorce, and so the savings, should it come to fruition, may vary depending on the situation. The collaborative approach is not for everyone, however. Couples with a history of domestic violence, drug and/or alcohol abuse, or those with significant mental disabilities or severe personality disorders might not be best served by the collaborative approach. However, those couples may always try it out if so desired, and may switch to the more traditional methods if need be.