Collaborative Divorce Frequently Asked Questions

What is Collaborative Divorce?

Collaborative Divorce offers couples an opportunity to separate and formalize a divorce with a minimum of bitterness and animosity. Instead of going in front of a judge, the two parties and their attorneys sit down together to work out the details of the dissolution of their marriage, with the help of mental health and financial professionals. Each party has a lawyer to assist them. The team works collaboratively with the couple so that divorcing spouses can reach agreement about the following:

Division of Property
Spousal Support
Child Support
Children’s Living Arrangements
Marital Status

Both parties are represented by an attorney throughout the process. No court appearances are required, and all necessary paperwork can be completed by the attorneys.

What is a Collaborative Divorce Team?

The Collaborative Divorce team typically consists of:

A Collaborative Law attorney for each individual
A divorce coach, who is a mental health professional
A child specialist (if there are children)
A financial professional trained in divorce financial planning

Collaborative Divorce attorneys: Each spouse has their own attorney. Your attorney is pledged to help you throughout your divorce by working cooperatively with you and your Collaborative Divorce “team”. Your attorney is committed to protecting your rights, and serves as a true “legal counselor”; educating, mediating, and facilitating your legal process. Your Collaborative Divorce attorney will meet with you individually as well as in meetings with you, your partner, your partner’s Collaborative Divorce attorney, the coach and when applicable other members of the Collaborative Divorce Team.

Collaborative Divorce Coach: This mental health professional will support you and your spouse through the process and work with both of you to help reduce the stress and strain of divorce. The coach will meet with you to develop communication skills that will help you during and after the divorce.

Child Specialist: Because children are affected in different ways by a divorce, the child specialist meets with each of your children to see the divorce through their eyes, and assesses for you how your child is doing. The child specialist then meets with both parents to give feedback, answer any questions you may have, and give you input to help you design a parenting plan that fits your unique needs. If necessary, the specialist can provide direct help for your children throughout the divorce process.

Financial Professional: The Financial Professional will help you gather and organize all your financial information needed for the divorce process, as well as help you determine your immediate and long-term cash flow needs. As a neutral facilitator and educator, the Financial Professional will help you understand your financial resources, and help determine what your financial future will hold, depending on the settlement options possible. Depending on your preferences, the Financial Professional will meet with you jointly or separately.

Your attorneys and coach will help you decide which specialists are best suited to your individual needs.

The Team:

All team members work together to make the divorce process as easy as possible. Each is a specialist in their own field and thus can maximize your resources and minimize the time and money spent. Each hour is spent working directly on your case. There are no “billable hours” wasted on extraneous paperwork or sitting in court.

How does Collaborative Divorce compare to Litigation ?

Open Exchange of Information: In a Collaborative Divorce, all participants agree to an open, honest exchange of accurate information and necessary documents. Neither spouse takes advantage of the miscalculations or inadvertent mistakes of others, and works to ensure that the Agreement covers all necessary issues.
Custody: In a Collaborative Divorce, both parties agree not to involve their children in disputes. They agree to speak respectfully to, and about, each other in the presence of the children. The spouses negotiate and agree upon parenting decisions, rather than delegate that authority to others.
Experts: In a Collaborative Divorce, the spouses jointly choose and employ the services of a financial professional and any accountant, appraiser, mental health professional or other consultants whose services may be required, instead of each hiring his or her own adversarial experts.
Negotiations: In a Collaborative Divorce, the spouses acknowledge each other’s legitimate needs and work together creatively for their mutual good, and the good of the whole family, instead of striving for individual advantages.

I feel I am clearly in the right and that in a trial the judge will take my side. Why then should I opt for Collaborative Divorce?

For the most part, divorce judges believe it takes two to destroy a marriage. You may be disappointed if you assume you are “right” and your spouse is “wrong.” By trying your case before a judge, you risk the Court not seeing all the problems the same way you do, and you may lose control over decisions affecting the rest of your life. Judges do not have the time most people would like for them to devote to their case.

How expensive is Collaborative Divorce?

Because there are no court appearances and little paperwork, the total cost of hiring the Collaborative Divorce Team is usually less than the cost of hiring two lawyers to litigate a divorce. The actual cost depends on how long it takes to reach an agreement that is acceptable to both parties.

Can a lawyer represent a client zealously if it is agreed in advance not to go to court?

By entering into a Collaborative Divorce Participation Agreement, lawyers and their clients have thoughtfully agreed to limit the lawyer’s role within the contractual relationship to that of providing representation for settlement purposes only. Nothing in the Canons of Ethics precludes such a limitation. In stepping out of the adversarial process, the Collaborative Divorce lawyer does not give up the role of advocate for his or her client. None of the lawyer’s duties or obligations to a client are affected by this limitation.

How does a lawyer's assessment of the likely outcome of the client’s case, were it to be litigated, affect the way the lawyer approaches a Collaborative Divorce case?

While the Participation Agreement prohibits threatening litigation, the lawyer’s advice to his or her client as to the strengths and merits of his or her claim will always include an assessment of the likely outcome if the case were to be litigated. Consideration of the law and your legal rights are always appropriate in analyzing what a fair and appropriate outcome in a collaborative process might be. Along with this assessment, of course, will be consideration of all of the costs and risks of litigation.

How is a lawyer's relationship with a client different in the Collaborative Divorce process, and how do lawyers prepare clients for it?

First, the lawyer never ceases to be the client’s advocate and the client is so assured. By entering into the Participation Agreement, the client has already decided and declared the intent to neither threaten nor pursue litigation (an entitlement, however, which the client never waives). Now the objective is to discern and attempt to satisfy the interests of all parties. To that end, all parties and counsel must cooperate. Counsel will encourage their clients to speak candidly about their own needs and desires, and to listen carefully to those expressed by others. Collaborative Divorce lawyers remind and reassure their clients that by treating the other side’s interests with respect, they are serving their client’s goals and interests. Collaborative Divorce lawyers are trained in collaborative communication skills and will assist the parties in this endeavor. The Divorce Coach provides training in communication skills to the divorcing couple.

How do you deal with case management deadlines?

It is anticipated that most Collaborative Divorce cases will be resolved prior to, and without, any court filings. However, for cases that have already been filed at the time the Participation Agreement is signed, it is possible to obtain an extension of time in the litigation to allow the Collaborative Divorce process to be utilized.

How does the practice of Collaborative Divorce affect attorney fees?

Representation and fee agreements between attorney and client are not directly affected by the Collaborative Divorce process.

Is the Collaborative Divorce lawyer required to divulge even non-discoverable information during the Collaborative Divorce process?

Unless otherwise agreed, by signing the Participation Agreement, the Collaborative Divorce lawyer and his/her client agree to provide good faith responses to any good faith questions or requests for information by the other party. In this context, a good faith question or request for information is one that is reasonably calculated to assist in assessing the merits and/or value of a party’s claim or to otherwise further the process of reaching a settlement of all issues. Since this approach uses a standard for disclosure that is different from that used in traditional discovery, a Collaborative Divorce lawyer could potentially be obligated to divulge some information that he/she might have avoided disclosing in a traditional discovery context.

Is a collaborative lawyer required to disclose information that the other side has not requested, but which may be important to the case?

Yes. The informal good faith question/good faith response approach is intended to require any party to disclose information that may be relevant to the settlement of the case. However, if the client has not authorized, and refuses to authorize their attorney to reveal relevant information, the lawyer may not reveal it to the other side. If the lawyer believes that such refusal to disclose violates the good faith requirements of the Participation Agreement, then the lawyer will be required to withdraw from the case. In the Collaborative Divorce process, the goal is to provide the parties with the information needed to resolve their dispute.

What if, some time after entering into a settlement as a result of a Collaborative Divorce process, a Collaborative Divorce lawyer discovers that the other party failed to disclose information that should have been disclosed?

In this respect, a Settlement Agreement reached via a Collaborative Divorce process is no different from any other negotiated Settlement Agreement, and the former is no more or less susceptible to being annulled for such a reason than the latter. To address this concern in any Settlement Agreement reached during the Collaborative Divorce process, the attorneys and the parties may wish to recite the material facts upon which the settlement is based.

What if the settlement is not achieved cooperatively?

In the event the parties are unable to arrive at a settlement through the Collaborative Divorce process, the lawyers will withdraw from the case and the parties are free to retain trial attorneys to pursue their matter in court. The result is that the parties will have had the best representation for each phase of the proceeding, and, therefore, possibly save time in a subsequent, costlier trial. The Collaborative Divorce lawyers will assist in an orderly transition to trial counsel to insure the least duplication of effort that is possible.

With thanks to the Hudson Valley Collaborative Divorce and Dispute Resolution Association for excerpts from their FAQs.

Is Collaborative Divorce Right For You?

It may be if:

You want emotional, financial and legal help to guide you through your divorce.
You have children and want to make sure their needs are addressed.
You are concerned about containing the costs of divorce.
You want to contain the conflict that often accompanies divorce.
You want a confidential process without adversarial attorneys and without going to trial.

What Are the Benefits of Collaborative Divorce?

Collaborative Divorce focuses on all involved parties reaching a mutually agreed upon settlement of their disputes. The process results in valuable benefits. It creates a cooperative environment where communication remains open, and provides a setting where you can work with your spouse to meet your children’s needs-regardless of their ages. That helps set a tone for open communication and reduced conflict in the future.

Collaborative Divorce establishes a team, instead of starting a fight. Your lawyer advises and supports you; your spouse’s lawyer advises and supports your spouse. The divorce coach, the financial professional, and the child specialist work with you and your lawyers. By all working together you retain control of the process.

In matters requiring expert opinions, both parties can jointly hire one independent consultant. That helps shorten the duration of the case and reduce the overall expense.

You and your spouse shape the agreements together, which means you both are more likely, to abide by the agreement. The Collaborative Process diminishes the parental conflict the adversarial system generates and helps protect children from facing the anguish and divided loyalties that result, both during and after the divorce.

You can schedule meetings without waiting for court dates. That means you generally spend less time and, as a result, less money to reach closure. It also means you reduce the fear and anxiety associated with court proceedings.

Your issues stay within the Collaborative Divorce setting. That gives you more privacy, greater confidentiality and less stress during an already stressful time.

I am so angry right now, I don't think I can talk with my spouse.

The Collaborative Divorce process takes this into consideration and uses the attorneys, the divorce coach, and structured agendas to make talking to your spouse easier. If you or your spouse’s anger is so strong that you cannot think straight or act rationally, you may not be a good candidate for Collaborative Divorce. However, communication problems are expected in troubled marriages. Collaborative Divorce is designed to improve communication.

What is the end result of a Collaborative Divorce case? How are interests, rights, and agreements secured?

With the advice and assistance of counsel, a coach, a financial professional, and the child specialist, parties can conclude their discussions, and secure an agreement. Generally, people agree upon a full settlement of all issues relating to the children, finances, assets and liabilities, and a divorce judgment incorporates that agreement as part of its order.

How do I get started?

Share this information with your spouse. If both of you want to try Collaborative Divorce, here are the steps to follow as you begin the process:

Each of you selects a collaboratively trained attorney. An informational meeting can help you decide whether the Collaborative Divorce Process is right for you.
Both spouses and their attorneys attend the first collaborative meeting to sign the Participation Agreement that governs the process. If temporary measures are required to maintain stability during the negotiation process, these will be included in the Participation Agreement.
Each of you meets individually with your respective attorneys and the Divorce Coach to identify and discuss the issues in your particular situation.
Both spouses, their attorneys and the Divorce Coach attend subsequent collaborative negotiations until you reach agreement. The Divorce Coach helps each spouse prepare for effective participation in the negotiations.

Can a party quit during the process?

Nothing in the Participation Agreement precludes a party from terminating the Collaborative Divorce process and pursuing litigation. However, the client will have been advised at the outset that doing so will require them to hire other counsel. Of course, the other side also will be trading their Collaborative Divorce lawyer for a litigator.

Why must a lawyer resign if the other side decides to go to court?

Thus, all participants are equally and fully invested in finding the solutions to all problems. More subtly, it is believed that the way people participate in negotiation, and especially the way lawyers participate, is affected by the certainty that that lawyer will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to do so, ceases to be a viable tactic.

Can one lawyer practice Collaborative Divorce if the other side has not signed a Participation Agreement?

No. It is assumed that the parties will proceed on a Collaborative Divorce basis only when all lawyers and clients have signed the Participation Agreement. While it may be a useful strategy for one party to approach another through their Collaborative Divorce lawyer with a Participation Agreement already signed, demonstrating a clear intent to seek resolution through nonadversarial means, the Collaborative Divorce Team will not proceed with the collaborative divorce process unless the second spouse agrees to come on board fully.

How do you deal with Statute of Limitations?

There are very few divorce cases in which a statute of limitations is an issue. However, in Collaborative Divorce cases counsel and parties will cooperate with each other fully to prevent the necessity of any court filings while the collaborative case proceeds. This may involve agreements to toll the Statute of Limitations, if necessary. The Participation Agreement provides for some limited court filings, as agreed upon and necessary to protect the parties’ interests, while the Collaborative Divorce case is in progress.

What can Collaborative Divorce lawyers do if negotiations reach an impasse?

Lawyers participating in the Collaborative Divorce Team have agreed to act as mentors for each other, to assist in reviewing problem cases or situations. Additionally, Collaborative Divorce participants can agree to employ experts to advise both sides as to disputed facts or law. Finally, Collaborative Divorce team members and parties can hire a mediator or consultant at any time.

lf information is requested in good faith but is otherwise protected from disclosure by a privilege, must a collaborative divorce lawyer disclose it?

The informal good faith question/good faith response approach is not intended to require any party to disclose privileged information. Certainly a party is free to do so.

What happens if a party doesn't fulfill its disclosure obligation under the Participation Agreement?

Participation in the Collaborative Divorce process is based on the requirement that the parties to the Participation Agreement (both attorneys and clients) have acted in good faith and have provided accurate information as required under the good faith question/good faith response approach. Thus, a party’s refusal to fulfill its disclosure obligation under the Participation Agreement will make it impossible for the parties to reach a fair resolution. When an attorney learns that his/her client has withheld or misrepresented information that should have been disclosed, the Participation Agreement requires the Collaborative Divorce lawyer to withdraw.

Will my lawyer tell me to give up on the Collaborative Divorce process, if appropriate?

Yes. A lawyer, in zealously representing a client in the Collaborative Divorce process, is obligated to tell their client if they believe a fair and satisfactory agreement cannot be achieved through the process, or if they believe that the information provided by the other party is insufficient and/or unreliable. Before terminating the process, these problems will ordinarily be discussed by each attorney with their own client, and by both parties and their attorneys, in an effort to obtain full cooperation from both parties in the process.