Collaborative Divorce Process

by Kelly Mroz
In collaborative divorce, spouses resolve issues through negotiation rather than go to court.

In collaborative divorce, spouses resolve issues through negotiation rather than go to court.

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Collaborative divorce offers spouses the option of obtaining a divorce and resolving divorce-related matters without the nastiness of litigation, but with all the support that comes with each party having their own attorney. In collaborative divorce, spouses and their attorneys agree to share information openly and work to resolve all divorce-related issues through negotiation, not in court. Collaborative divorce is available in every state, but the process may vary somewhat from state to state.

Getting Started

To start a collaborative divorce, both spouses must agree to participate in the collaborative process and hire their own collaborative attorney. The spouses and their attorneys meet and sign an agreement outlining the spouses' rights and responsibilities during the collaborative process. Agreements may vary slightly by jurisdiction, but hold certain key concepts in common: the parties will negotiate in good faith, disclose all relevant information and communicate openly. If divorce, support or custody matters are already pending, the spouses agree to withdraw or suspend the actions. Unique to collaborative law, spouses agree that if negotiations break down, the collaborative attorneys will not represent them in court.

Collaborative Team

The spouses and attorneys determine whether other professionals may be beneficial to have on the collaborative team. One option is a 'coach' or 'neutral.' Typically an attorney, mediator or mental health professional, this team member is designated to favor neither party, keep negotiations on track and help parties resolve difficult issues. A mental health professional can serve in any role needed in the case, but most commonly she is used as a child specialist. In this role, the mental health professional meets with the children and helps parents make informed choices in the children's best interests. Financial professionals are also frequently added as team members, to provide clarity and information on a variety of financial issues.

Goal

Although divorce litigation can sometimes tear families apart, collaborative divorce focuses on rebuilding trust. Spouses, not the court or attorneys, make the decisions. Each spouse is encouraged to identify his or her needs and priorities so that settlement discussions can focus on these issues, rather than on the expectations spouses may have if they went to court. The goal is for the spouses to build the best possible settlement for their family, while treating each other respectfully.

Agreement

If spouses are able to reach an agreement, the collaborative attorneys divide up the work of drafting the contracts and processing the legal documents necessary to finalize the matter. The divorce is processed as a mutual consent divorce. The final marital settlement agreement may include a provision that if there are disputes about the agreement in the future, the parties agree to first attempt to resolve the matter by resuming the collaborative process, before resorting to litigation.

If The Process Fails

The collaborative divorce process doesn't always work. Either party may stop the process at any time. The contract signed at the first meeting explains what happens if either party no longer wants to proceed with the collaborative divorce. Typically, the parties must find new attorneys because the collaborative attorneys are not allowed to participate in any kind of divorce litigation involving the spouses.