What is a Collaborative Divorce?

collaborative divorce

In the long list of available options for divorce resolution, a couple may wonder what collaborative divorce is.  It is usually considered along with a variety of other alternative dispute resolution options for divorce, usually right around mediation and negotiation.  At first glance, some people may assume it is just the couple working together to separate their lives and create a collaborative plan for their lives after the divorce. While collaborative divorce does encourage the parties to work together to create a plan, it is a separate process with attorneys who help the parties come to a resolution for their divorce so that they may move forward.  Several key differences set collaborative divorce apart, making it a great option in some cases, but also making it difficult to use in others.  This article will explore the collaborative divorce process and highlight the benefits and issues that arise with collaborative divorce, helping those considering the process make an informed decision and the best one for their divorce.  

Divorcing Collaboratively Explained: 

Collaborative divorce is a process that allows divorcing couples to navigate the negotiation process without having to go to court.  The parties are aided in the negotiation by collaborative divorce attorneys who work with the couples and each other to create a solution that helps everyone involved.  Collaborative divorce views the parties and the people working with the parties as a team striving after a single goal—getting the parties to a negotiated divorce that will help them move forward effectively with their lives.  The attorneys will sign an agreement with the parties that both attorneys will withdraw if the parties are unable to reach an agreement and need to move forward with a lawsuit.  This helps the parties be honest with their lawyer and each other without worrying that the honesty will be used against them at trial.  The goal of the process is to help the parties avoid the adversarial process and work together.  

The Process: 

If the collaborative divorce concept is intriguing, it is also important to consider the process that the divorce will go through when a couple chooses a collaborative divorce.  The process involves several steps that will usually follow the order listed; however, the process can involve some stages where the parties will move between a few steps multiple times to work through different issues or scenarios. Yet even when that happens, the process will follow a sequence similar to the one below.  The steps in the process include: 

  1. Instigation: The process of collaborative divorce will usually begin with a conversation between the divorcing spouses to consider the concept.  Collaborative divorce is a voluntary process, which means that both parties need to agree to participate, and one party cannot force the other.  For the process to be started, one of the parties will bring up the option, and the other will agree, or both parties will be open to the idea.  
  2. Attorneys: After the parties have decided that they will use the collaborative process to resolve the dispute, they will need to hire collaborative lawyers to aid them in the process. It is important to hire an attorney that has experience with collaborative divorce and understands the process while working to get the party what they need.  A good attorney will know how to help navigate the process. 
  3. Participation Agreement: After the parties have hired attorneys, everyone will sign an agreement known as the participation agreement.  This will confirm that both parties are willing participants and outline the agreement between the parties that the attorneys that are hired must withdraw their representation if they cannot reach an agreement and need to go to litigation.  This means that both sides will need to get new representation if they need to go to litigation. 
  4. Preparation: Once an attorney has been hired by each party, the parties should meet with their attorneys separately to prepare for the process. This will include discussions about what they need to recover in the divorce, how the property should be divided, how custody will be divided, and how much the parents will pay in child support if necessary. This also includes sharing any information that will be necessary to the negotiations with the other souse.  
  5. Team: Along with preparing with each attorney, the parties will begin to assemble a team of practitioners that will assist in the process. Collaborative divorce is unique in that the parties can work with specialists like divorce coaches, financial experts, and child specialists to ensure that their agreement is the best possible decision for themselves and their children.  
  6. Four-Way Meetings: Once the parties have had a chance to prepare, they will meet with each other and their spouse’s attorney to begin the negotiation process.  At these meetings, the parties will begin to share their needs and wants from the divorce process and the lawyers will help their clients advocate for their position.  Each subsequent meeting will move the parties closer to resolution.  
  7. Agreement: Once the parties reach an agreement of some kind, the parties will sign a settlement agreement.  This will outline the terms of the divorce as the parties had agreed upon and will help the parties enforce the agreement between them.  If the parties agree that they will likely not reach an agreement, this will also be recorded and the attorneys will withdraw.  

The process is fairly straightforward as the parties and their attorneys begin to negotiate for their divorce, but it differs from other forms of resolution because it focuses on the parties working together to solve the dispute.  

Benefits of Collaborative Divorce: 

Collaborative divorce can be a wonderful option for divorce in certain situations and it can bring many benefits to the divorce process.  It is important to consider these benefits and the situations where collaborative divorce is a good option for a couple because it can illustrate the best options for a divorce.  Some of these benefits include: 

  • Control: Resolving a dispute through a collaborative divorce will give the parties a greater sense of control over the outcome of the divorce.  The parties can make the decisions for their divorce and control how disputes are handled through their agreement instead of leaving that to the judge.  This makes the process great for parties who want to control the outcome.  
  • Counsel: The collaborative process allows the parties to participate in a non-adversarial discussion to resolve the dispute while still having the help and support of an experienced attorney to aid their decision-making. This makes it good for couples that want to work together to resolve the divorce but need counsel.  
  • Inexpensive: If collaborative divorce is successful in helping the parties secure a resolution, the overall cost will often be quite a bit lower than a traditional litigated divorce.  Because of this, it can be a good choice if the parties are fairly certain they will be able to resolve the dispute and would like to save money. 
  • Calm: Litigated divorces can often be tumultuous and cause stress and harm to the parties and their ability to remain cordial as they co-parent.  Collaborative divorce allows the parties to work together and can relieve a lot of this stress and help the parties move forward in a better place. This can mean that it is good for parties that need to keep some sort of relationship with their parents after the divorce is finalized.  

This is not an exhaustive list, but it does highlight some of the reasons that collaborative divorce may be a good option.  

Issues with Collaborative Divorce: 

While there are many benefits to collaborative divorce, there are also some issues that may arise and could cause the process to not be a good fit in certain situations. These issues include: 

  • Deception: There is no formal discovery process in the collaborative divorce.  This means that the parties have to rely on each other to reliably turn over their information to help make decisions in the divorce.  Because of this, there are situations where one party may not be completely honest and withhold certain information.  This can make the process a poor choice if the parties cannot trust each other to reveal their information.  
  • Expensive: The collaborative process adds extra expense to the divorce if the parties are unable to reach an agreement through collaboration.  The parties will need to hire new attorneys and specialists for the litigation, which will be incredibly expensive. For this reason, collaboration may be difficult if the parties are financially restrained or there is a high likelihood that the process will not work.  

The theme with collaborative divorce is that the parties need to be willing to work together and have an open line of communication with each other.  If one party is unwilling to work toward a resolution or there is a history of abuse or harm between the parties, collaborative divorce is likely not the best option.  Yet when the parties are ready to work together to resolve their dispute, it can save a party time and money while causing significantly less stress for the parties to move forward and onto their next chapter.  


ADR Times
error: ADR Times content is protected.