Over the years, divorce has undergone an evolution -- from the days when wives nearly always received alimony -- to the beginning of no-fault divorces, starting in 1970. With the arrival of the millennium, a concept called collaborative divorce was born. Collaborative divorce is a sophisticated form of mediation that comes with its own set of rules.
The process of collaborative divorce requires a commitment by both spouses that they will do everything possible to avoid litigation. Settlement negotiations take place before you even file for divorce. After an agreement is reached, you can submit the agreement to the court, along with the complaint or petition, paving the way for expeditious uncontested proceedings. Collaborating couples sign a contract, promising to leave the court system out of their divorce to the greatest extent possible. This is in contrast to mediation, which takes place after one spouse has filed for divorce and which tries to facilitate negotiations in an adversarial proceeding.
How Collaborative Divorce Works
Because the law isn't involved until a divorce petition is filed, no legal requirement for pre-trial discovery exists in collaborative divorce. Instead, the two spouses agree to a voluntary exchange of information with full disclosure. Negotiations begin after review of the exchanged documentation, and specially trained attorneys guide the sessions. You and your spouse have your own attorney present at all meetings, unlike mediation in which your lawyer may or may not be permitted to attend the sessions with you. A mediator cannot legally advise you, but your lawyer can.
Collaboration may or may not involve a team of experts who help you reach an agreement that's beneficial to the whole family -- it depends on whether you need them. For example, you and your spouse might reach an agreement regarding property, debts and support issues, but you own a business together and you just can't seem to arrive at an equitable way to deal with this particular asset. You might call in an accountant to help you arrive at creative ways to divide ownership. If you have children, you might want to bring in a child psychologist who is trained in divorce to help you devise the best parenting plan possible. These professionals work for both of you, not one spouse against the other.
If It Doesn't Work
If the collaborative process fails and you and your spouse can't agree on all the issues, you must retain new attorneys before you can pursue divorce in a more traditional way, using the court system. Collaborative divorce negotiations are confidential – nothing you, your spouse, your attorneys or your experts say can be repeated later in court. Therefore, if your negotiations are unsuccessful and you have to file for a litigated divorce, your collaborative attorneys cannot represent you. You can't use the same experts, either.