Frequently Asked Questions
What is collaborative divorce?
Collaborative divorce is an alternative divorce option instead of traditional litigation. The process begins with spouses who wish to divorce without litigation where the parties agree to a participation agreement between both spouses who are each represented by a collaborative divorce attorney. It is negotiation based, and is a form of alternative dispute resolution. In a collaborative divorce process, the parties are in charge of the process, are free to decide the duration, raise and address issues the issues that matter most to them and their children and families, and settle them in a manner that avoids fighting and trial.
How does collaborative divorce differ from mediation?
While both collaborative divorce and mediation processes are both forms of alternative dispute resolution, the collaborative divorce process is driven by the divorcing spouses together with their respective attorneys. The parties agree that there will be no litigation and work together as a team to reach a settlement through a series of four-way meetings scheduled by the team in order to work though the issues. In mediation, a neutral mediator assists both parties in negotiations, but has no power to decide the outcome of the case. The mediation process is informal and there is no obligation to hire attorneys to represent the parties. Mediation is often a first step in litigation, whereas collaborative divorce takes the place of litigation. If the collaborative process fails, the parties must hire new attorneys to proceed with a litigation.
How does the cost of collaborative divorce compare with traditional divorce?
The cost difference is one of the most attractive benefits of collaborative divorce. In general, collaborative divorce costs a fraction of a traditional divorce because there no litigation, no formal discovery phase, no trial and no appearances until the very end when a settlement has been reached and the parties meet to present it to the court to be finalized. A traditional divorce can range in cost from five to six figures, especially where there is high conflict between the divorces spouses, which can cause the process to drag on for years and cost the parties considerable expense and stress. Alternatively, a collaborative divorce will usually cost anywhere between one-third to one-half of a traditional divorce litigation, which helps the spouses to avoid burdening their financial resources and diminishing future relations between themselves and children, and instead focus more on resolving their issues peacefully and more expediently.
How long does the collaborative divorce process take?
The collaborative divorce process is entirely driven by the divorcing spouses, who are free to create a flexible schedule and set a timeline that best suits their needs. Typically they create a schedule with their teams and will meet regularly to work through the outline of issues raised until a settlement is reached.
Can my collaborative divorce lawyer still represent me if my divorce ends up going to trial?
Since the collaborative divorce process is based on participation agreement that stipulates the attorneys will be disqualified should the collaborative process fail, the clients may not retain the collaborative attorneys in litigation. The clients must then retain new counsel to represent them in court, however if some progress has been made by the former team, this may lessen the scope of the dispute later in litigation. It is noteworthy that a vast majority of divorces that begin with collaborative process are settled successfully without litigation given the time, cost and effort invested by the divorcing spouses.
If there's no litigation in court in a collaborative divorce process, then who makes the rules?
A collaborative divorce process is an agreement between the divorcing spouses and their collaborative divorce lawyers as well as other specialists. Once the agreement is entered into, the group works together to outline the issues, set goals, establish timelines, raise and address issues that are important to each side and a negotiation process begins using a team approach. During a series of four or five-way meetings, the clients can address and resolve financial matters, determine the division of real and personal property, make custody arrangements, develop parenting plans, and settle any other relevant issues pertaining to the separation. Because there are no court formalities, the parties are free to brainstorm and identify creative ways to resolve their issues peacefully while avoiding the fight that often comes with traditional divorce litigation. If necessary, the clients may bring financial advisors, child therapists and divorce coaches to help them settle their issues for the benefit of all involved.
What if my ex wants to pursue a divorce trial instead?
Because the spouses initially agree to participate in the collaborative divorce process instead of a trial, it is best to work together if possible and proceed as agreed. However, if the process breaks down and one or both spouses are no longer able to continue abiding by the agreement, it may be necessary to terminate the agreement and the parties must begin a new process with new attorneys to resolve their differences. Not every collaborative divorce process is perfectly smooth and entirely amicable. When a couple initially pursues a collaborative divorce, they are aware and agree that if the process proves unsuccessful, they will have to start over with new attorneys and incur even more legal expense to pursue a litigation in court, which can be strong motivation to try and maintain the course toward settlement.
What other professionals participate in a collaborative divorce process?
In additional to the collaborative divorce lawyers, collaborative process also includes financial professionals, child and family specialists, divorce coaches, and real estate professionals. Depending on the scope of the interests and issues, the spouses will have the opportunity to identify other collaborative practice professionals that should be added to the team who can help facilitate communication, decision making and guide the process toward a reasonable and satisfactory settlement.
How are attorneys' fees paid for in a collaborative divorce process?
Attorneys fees in a collaborative divorce process are paid by their clients. Fee agreements will be included in the four-way participation agreement, which is signed by each client and their respective lawyer before the other meetings begin. Consistent with the overall collaborative divorce process, fees can be scaled depending upon how much time is needed or the number of meetings needed to resolve the issues between the clients. The more complex the issues, the longer the process may take, but compared with traditional divorce, which requires multiple and periodic court appearances, depositions, discovery and motions, the cost of meetings and fees for additional collaborative practice team members such as financial and family therapists are significantly lower than litigation.
What happens if the collaborative process breaks down?
Even though there are many benefits to a collaborative divorce process, such as cost effectiveness, expediency, privacy, and long term benefits to children and relationships, sometimes the participants find they cannot continue if there are serious conflicts or they reach an impasse that can only be resolved by a court. If this happens, the agreement must be canceled and the parties must seek new legal representation.
How does collaborative divorce affect my children?
Collaborative divorce is especially beneficial for families with children. The peaceful and non-adversarial approach of a collaborative divorce process provides parents with the opportunity to maintain friendly and objective relations with one another for the best interest of their children, facilitates the raising of issues that are personal and important to the process of moving forward as a divorced family, gives voice to each parent's individual concerns about co-parenting into the future as a team, and helps to preserve family financial resources that can better allocated toward children's needs instead of court costs and legal fees. Collaborative divorce further helps to avoid exhaustion of emotions, minimizing stress and anxieties that children often experience during an already difficult time. In general, children of amicable divorce experience stability, develop better coping mechanisms and maintain healthier relationships with both parents into their adulthood.
Do my children have to participate in the collaborative divorce process?
Throughout the collaborative divorce process, the clients will work with their collaborative divorce lawyers as well as mental health professionals, such as child or family specialists when needed. During coaching, a child specialist will determine what involvement is beneficial for the children. A primary concern of any divorce process includes the best interest of the children. In collaborative divorce process, children are benefited because their voice and concerns are strongly considered when determining the healthiest path forward. Since collaborative divorce focuses heavily on the parents' cooperation and coordinated problem solving, children have an excellent and valuable opportunity to learn effective communication skills as well as contribute to the healing process.