Rather than duke it out in court with your spouse, there are alternative forms of dispute resolution that can finalize your divorce with a lot less wear and tear on both of you.
Collaborative divorce is one of these methods and offers several advantages as both sides build a mutually beneficial consensus in drafting a settlement. This results in a more amicable outcome that can be particularly valuable when children are part of the equation.
- What is a Collaborative Divorce?
- What are the Differences Between Collaborative Divorce and Mediation?
- The Collaborative Divorce Process
- Is Collaborative Divorce Right for You?
- Collaborative Divorce FAQs
What is a Collaborative Divorce?
A collaborative divorce is a team approach to resolving differences in a divorce. Both sides retain attorneys and bring in other subject matter experts to calmly and rationally figure out possible options of settling a divorce without having to go to court. This saves time, money, and anxiety when a settlement can be reached.
Many states require either mediation or collaborative divorce in an attempt to resolve pending issues before moving forward with more formal court proceedings.
Under the right circumstances, it can be an effective and efficient way to end a marriage.
What are the Differences Between Collaborative Divorce and Mediation?
Although they are similar and both considered forms of alternative dispute resolution, there are some notable differences between collaborative divorce and mediation.
Collaborative divorce and mediation both focus on a cooperative approach to resolving disputes but the biggest difference is that with mediation, there is a single neutral entity that works with both parties to resolve differences.
Collaborative divorce is a team-centric approach. The professional team generally consists of two Collaborative lawyers, a neutral financial specialist, and a divorce coach (sometimes two). Additionally, you might bring on a Child Specialist. The child specialist serves as the voice of the child.
It’s important to note that with either process, the professional team has no no power to decide the case. They can only make suggestions, and free up logjams that may be causing problems getting in the way of reaching a settlement. This is different from arbitration or a trial, where outcomes are binding.
Mediation generally costs less than collaborative divorce because you only hire a single mediator instead of hiring attorneys and retaining the services of other professionals.
Although collaborative divorce is a bit more formal than mediation, both are still much less costly than legal negotiations and processes that lead to a trial.
Another difference to note is that with attorneys as part of the equation, collaborative divorce tends to be a bit more formal than mediation. This doesn’t mean reaching a settlement is more difficult. Instead, it means there may be more linear thinking and fewer options to consider.
Both mediators and collaborative lawyers receive special training in conflict resolution skills. This guides parties to better focus on negotiations with a high chance of success.
The Collaborative Divorce Process
There are several steps involved in a collaborative divorce process. The steps may vary a bit from case to case, but the basic process is similar to this:
Each spouse hires an attorney who is well versed and supportive of mediation and negotiations. There are often attorneys who specialize in collaborative divorces. You need an attorney who understands the give-and-take nature of this type of process.
Attorneys on both sides must sign an agreement that directs them to withdraw from the case if it can’t be resolved. If the case does go to the courts, both spouses will need to hire different attorneys to continue court litigation.
Depending on what your issues are, you’ll need to gather information based on what your attorney recommends. For example, if you’re dividing assets, you’ll need a complete list of marital property. Just as important, you’ll need to identify separate assets so that you can keep them without impacting how those assets are divided.
After you choose an attorney, you will meet with your attorney privately to discuss your approach, what’s important to you, and what you are willing to concede as part of the negotiation process. Compromise is the key and understanding what your limits are is vital prior to meeting with your spouse and their attorney.
For example, one spouse may want to keep their retirement account intact at all costs and would be willing to sacrifice their share in the family home to achieve this. Ranking your priorities is critical to understanding how to get what’s most important to you.
Once your goals and strategies are in place, you and your attorney will meet with your spouse and his or her attorney. Depending on the nature of your divorce, you will probably have several group sessions. It’s also possible that your attorney will bring in other professionals to assist with parts of the negotiations.
For instance, a pension expert can assist in placing the right values on those types of accounts, or a child specialist may be called upon to provide input when discussing custody and visitation issues. Both sides must trust that any outside experts are neutral and will provide unbiased input to resolve issues out of court.
Both sides then develop settlement scenarios that are used as the basis for creating a settlement agreement.
When you successfully resolve all the issues, you will need to file your divorce paperwork and your settlement agreement with the court. You have gone from a contested divorce to an uncontested divorce, and this makes the court portion a lot more streamlined.
Depending on the state, you may not have to attend a hearing at all or only a brief hearing where the judge will review your agreement, ask you a few questions, and approve the settlement, finalizing your divorce.
Is Collaborative Divorce right for you?
Let’s take a closer look at the pros and cons of Collaborative divorce so you can decide if it’s right for you.
The Advantages
You will have less stress in your divorce by approaching it as a problem to be solved instead of a battle to be won.
Many people cite the fact that they also have control over the process instead of letting a judge decide important issues for them. This also means the process is more discreet than a trial. You don’t have to air your grievances in public.
You’ll save time and money when you cooperate. Going this route can shave months off of a divorce that would be litigated. More cooperation also means less in legal fees. You won’t get tied up going to endless court hearings, meetings with attorneys, and others trying to unwind your marriage.
Another big advantage is that you get all the benefits of professional legal advice without the conflict that attorneys often create. That advice extends even further depending on which experts are used. But the bottom line effect is that you wind up with a collective high powered mastermind protecting your interests.
When children are involved, collaborative divorce often makes it easier to come up with an effective and acceptable parenting plan. This creates the foundation for a long-term healthy co-parenting arrangement that benefits everyone.
And finally, when you have more control over the process, you’re more likely to stick to the agreement that both of you crafted. Active participation creates buy-in for the outcome.
The Disadvantages
Attorneys for both sides are required to sign a “no court” agreement with their clients. This means that if the collaborative divorce process fails, the attorneys can’t represent the spouses in court.
Spouses will need to find new attorneys and start the process over again, possibly costing a lot more money. This can also extend to other advisors and experts already connected to your case. As a byproduct, this will also create delays in finalizing your divorce.
One of the criticisms of collaborative divorce is that lawyers by nature are fairly locked into the legal process. This means they may not be as creative in finding solutions that perhaps a mediator might be. Their approach may be more rigid. Mediation generally has more flexibility.
Another concern is that if the collaboration process fails, it could lead to a more adversarial process going forward. With a failed attempt looming, both parties may have some resentment towards their collaborative lawyer, and to the other side.
However, if you get a sense that the collaborative process isn’t going well, you may have to start developing an exit plan that will require more time, effort, and money, leading to more stress in your life.
One other thing to note is that while many states have laws to protect confidentiality in mediation, there are no similar laws that currently exist for collaboration.
While you have attorney-client confidentiality with your own attorney, the four-way meetings are not considered confidential. To correct this, it may be wise to sign a confidentiality agreement with all participants as you enter into the process.
Collaborative Divorce FAQs
Who should consider collaborative divorce?
You are a potential candidate for collaborative divorce if you and your spouse want an amicable process, and you’re willing to actively provide information to the other side. You must also be willing to voluntarily abide by the decisions that are reached.
If you want greater control of the outcome, and you want to have a say in the timing of your divorce, then the collaborative process is a good choice.
How long does a collaborative divorce take?
It depends on how quickly you and your spouse want to move forward. You can control the speed and the nature of the discussion.
Some couples can reach an agreement in a few months. More often, the entire process takes 9 to 12 months. Expect to spend at least four to six group sessions, and possibly more depending on the complexity and nature of your issues. Bringing in additional experts may also lengthen the process.
Sometimes, scheduling issues can slow the process down, or when either spouse has to travel a long distance. The process may take longer when a particular asset needs to be sold, such as a house or a business, or pension needs to be appraised.
After your settlement is drafted, it must be approved by the court. if any issues are flagged, this could also add time until you resolve them to the court’s satisfaction.
How much does a collaborative divorce cost?
The short answer is, “a lot less than going to trial.”
There is no definitive answer to this question because every divorce is different. In addition to hiring attorneys, you will need unspecified additional experts to create an optimal team to resolve your differences.
Each expert, including the law firm or the collaborative practice you hire to represent you, will have hourly rates or a retainer arrangement. Divorce lawyers will range from $200 to as much as $1,000 or more per hour.
Factoring in these variables, it’s not uncommon for a collaborative divorce to cost $20,000 to $50,000.
It’s also important to remember that if the collaborative negotiations fail, you’ll also have to pay an entirely different law firm to represent you in your divorce.
Will we still need to go to court?
In many cases, the answer is no. Depending on the jurisdiction, you may only need to appear for a brief hearing where the judge will review your case and approve your final settlement.
Should I discuss divorce issues with my spouse outside of the collaborative framework?
If you and your spouse can comfortably discuss issues without filters, this will speed up the process and save money. The goal is to reach decisions that are mutually beneficial by whatever means necessary.
However, if you can’t discuss issues peacefully, avoid engaging with each other. You could do serious harm to the collaborative process and you’ll be looking for divorce attorneys to represent you instead.
Where can I find a collaborative divorce attorney near me?
Attorneys are specially trained in the collaborative process. They are not generalists. That means, to get the best possible outcome, you need to find an attorney who specializes in this area of law.
One of the best places to find a collaborative divorce attorney is to visit the International Academy of Collaborative Professionals website. You can use the organization’s Directory search tool to find a professional near you.
Avvo is another site that allows you to search by location and provides starred rankings to help guide you.
You can ask a friend or family member, do a Google search, or contact your state bar association for a referral as well.
Check out some of our other popular articles on the divorce process.
