Collaborative law can provide a viable alternative to traditional divorce litigation
The stereotype of the traditional divorce process in which the parties engage in a high conflict trial is often part of true life. Sometimes resorting to litigation is unavoidable or preferable, but often settling personal family issues out of court is a better option. A newer process for negotiating the terms of a divorce agreement is collaborative divorce with its positive focus on ending marriage with respect and creativity.
Conceived of by a Minnesota family lawyer who had grown weary of the adversarial nature of courtroom divorce, the collaborative process is instead conducted in a series of four-way meetings between the divorcing parties and each of their respective attorneys, who have received extensive training in collaboration. The participants are free to create solutions unique to the family’s needs that might never have been part of a judicially conceived divorce order.
The process begins with the execution of a participation agreement in which the parties agree to confidentiality, honesty, voluntary disclosure of assets and, significantly, to proceed with respect and dignity through difficult negotiations. They also pledge to devote themselves to settling outside of court and agree that if the collaborative process breaks down, each party must hire a new attorney to begin another divorce method like mediation or litigation.
When an issue requires the services or knowledge of a nonlegal professional, the parties can jointly hire neutral experts to participate in the collaborative meetings such as:
- Financial planners or accountants to inventory financial assets; analyze past and future debts and expenses; project future wages and other kinds of income like that generated by retirement assets; consider issues of child support and alimony; evaluate tax implications of settlement options; and more
- Insurance experts to analyze future insurance needs and costs
- Appraisers, real estate brokers and other asset specialists to place values on real estate, personal property, family businesses, professional practices, executive perks, securities, partnership interests and more
- Child specialists to ascertain the interests and needs of minor children, recommend future parenting and custody arrangements, coach the parties in parenting techniques and more
- Divorce coaches or therapists to help the parties through negotiation impasses, enhance communication techniques, support the parties emotionally and more
Collaborative divorce can have many benefits. For example, divorcing parents can emerge with a stronger relationship that will enhance their ability to co-parent later between two households. The process can be cheaper than litigation as long as the parties proceed with efficiency and focus. Instead of being at the whim of the court’s schedule, the pace and scheduling of meetings is controlled by the participants. In contrast to a public court proceeding, collaboration is confidential and private. Finally, the emotional benefit of not having to engage in an adversarial and unpredictable trial is significant.
Of course, collaboration is not the answer for all divorcing parties. When one of the spouses has a history of dishonesty, abusive behavior, substance abuse, emotional control or another similar dysfunction, the collaborative process is probably not the answer.
Anyone facing divorce should speak with a collaboratively trained lawyer to understand the pros and cons of collaboration and other divorce processes considering the particular needs of the client and his or her children, if applicable.
Fort Worth, Texas, attorney Wayne Ward of the Law Office of V. Wayne Ward represents divorcing parties in the collaborative process as well as in mediation and traditional divorce litigation.
