Court-Free Divorce: How Collaborative Divorce Protects Families, Preserves Assets and Promotes a Peaceful Transition
- On July 12, 2016
Many people associate divorce with a fight-to-the-death courtroom battle where two people, who were once a couple, wage financial and emotional war on each other. There is often little regard for the undeniable victims of that war: the parties’ children, their finances and their happiness. When a judge decides the outcome of a litigated divorce, no one truly “wins.” After all, how could there be a “winner” when a person unfamiliar with the parties or their lives decides what is best for them, their children and their futures? Couples can, however, divorce with dignity, respect and on terms they establish together. Collaborative Divorce is an alternative to the courtroom that allows couples to move forward with their lives as former spouses and co-parents rather than adversaries.
Collaborative Divorce is a voluntary dispute resolution process, which is not only used for divorce but also for related issues such as alimony, child support, custody and parenting time, equitable distribution and separation agreements. Each party must be represented by an attorney, ideally an attorney trained in the interdisciplinary collaborative process. Prior to beginning a Collaborative Divorce, the parties are required to sign a participation agreement, which defines the nature and scope of the matter.
One of the touchstones of Collaborative Divorce is the parties must voluntarily disclose all relevant and necessary information and agree to negotiate in good faith in an effort to reach a settlement of the issues. The parties may, in addition to their respective attorneys, engage mental health and financial professionals who become part of the collaborative team. The communications among the members of the team are privileged and, therefore, protected from disclosure. A divorce coach, for example, may assist the parties in managing emotions during meetings and establishing goals and may also meet with the parties outside of joint meetings to resolve specific issues such as parenting time. The neutral financial professional offers impartial financial guidance and translates the information provided by the parties into spreadsheets and other forms to facilitate a resolution of the financial issues. The parties may also jointly retain other experts as needed.
Collaborative Divorce is about commitment. Couples commit to divorcing or separating respectfully and cooperatively. They commit to prioritizing the needs and well-being of their children. And the parties commit to work together to maintain control of the process and their respective futures and not relegate it to judges and the court system. The spirit of commitment and cooperation is at the heart of the Collaborative Divorce process and, for this reason, the parties’ engagement of their attorneys and other professionals on the collaborative team terminates if either party exits the collaborative process and commences litigation.
Virtually any divorce can proceed collaboratively, even if litigation has already commenced. The parties must both be willing to forego litigation or dismiss pending litigation and agree to participate in the Collaborative Divorce process by signing a participation agreement. While individuals may not be able to choose whether to divorce, they certainly can decide how to divorce. Collaborative Divorce offers an alternative to costly and painful litigation and allows parties to save time, save money and protect their children, their assets and themselves.