Divorce Options: Collaborative Divorce

What are your divorce options?

Option 4: Collaborative Divorce

Collaborative Divorce is an alternative process to litigation which does not require fighting in court. From the outset of the case, lawyers and clients agree to focus exclusively on negotiation (Lande & Herman, 2004, p. 280).  According to Gaies (2018), a collaborative divorce has “three obligatory elements:” (1) each spouse must have their own lawyer, (2) both lawyers must agree to withdraw from the matter if either spouse goes to court; and (3) spouses must sign a Collaborative Participation Agreement (p. 11). The participation agreement is also what requires both attorneys to withdraw from the matter if they can’t resolve all of the couples issues out of court (which happens in less than 10 percept of matters) (Webb & Ousky, 2007). The participation agreement is what makes the collaborative process work (Webb & Ousky, 2007). Collaborative divorce is not about winning or losing in court; it is a problem solving approach (Webb & Ousky, 2007; Lande & Herman, 2004).

According to Gaies (2018), collaborative divorce “honors self-determination” and allows the spouses to make the decisions about how to handle their money, children, and all other important aspects of their lives (p. 13). No lawyers or judges make any decisions, only the spouses. No professionals make decisions for the spouses; however, the spouses are supported through the necessary and challenging decision making processes that divorce requires. For example, the team helps the partners look at their options to achieve a “solid financial outcome and a good co-parenting arrangement” that works the best for their family

Webb & Ousky (2007) state that the spouses coordinate their search for attorneys within the collaborative process. The formal steps which begin the litigation process (Summons, Petition, Answer, and Counter-Petition) are usually waived or postponed in order to allow the partners to “immediately focus on resolving the major issues” in their divorce (Webb & Ousky, 2007, p. 11). Let’s go back to the case of the family with $100,000 annual income as an example. A collaborative divorce team would work together to solve the problem of it costing $110,000 to live in two homes, possibility by generating more income or cutting down on costs, etc. (Gaies, 2018). The clients are in control of the process rather than the lawyers or the judge and they make the decisions with the aid of the collaborative team of professionals who are all committed to working toward problem-resolution.

Gaies (2018) states that collaborative divorce is more transparent, private, efficient, and family friendly than litigation. Collaborative divorces are transparent because during the very first 4-way team meeting, the spouses agree to share all financial information and “commit in writing that they will provide all bank and brokerage statements, copies of deeds, loan notes, W-2s, business records, appraisal reports, and other paperwork,” and will not hide any asset or debt (Gaies, 2018, p. 15). According to Gaies (2018), “in most cases a neutral financial professional gathers and organizes these documents,” and then “disseminates a summary of the data to the couple and their lawyers” (p. 15). Such transparency is what builds trust within a collaborative divorce. Transparency saves time and money because no one needs to fight over obtaining documents which eliminates the divorce process being placed on hold for extended periods of time (Gaies, 2018).

Collaborative divorce is also more private than other forms of dispute resolution. All parties involved commit to the “principle of privacy and the whole team monitors compliance with this rule” (Gaies, 2018, p. 15). According to Gaies (2018), collaborative divorce preserves relationships within the family as it restructure and it aids in developing and maintaining healthy co-parenting; it is less stressful than the litigation process; and it “maximizes the value of the families finances (p. 19). For example, creative financial arrangements such as dividing assets or sharing income in ways that reduce tax consequences can be achieved through the collaborative process which may not be available through the court (Gaies, 2018, p. 18-19). According to Gaies (2018), collaborative divorce is “generally far less expensive than traditional litigation” and often “produces a far more favorable outcome for most families” (p. 20).

Collaborative professionals are not required to be neutral and can therefore strongly present their client’s interests and positions. Collaborative lawyers are advocates for their clients and the disqualification agreement provides incentives for lawyers to satisfy their clients’ interests through negotiation (Lande & Herman, 2004). According to Lande & Herman (2003), collaborative law clients get the “best of both worlds,” i.e., strong advocacy and collaborative problem-solving negotiation (p. 282). The collaborative divorce process allows clients to hire “joint experts” such as accountants, appraisers, mental health professionals, and child development specialists who may attend the negotiation meetings (Lende & Herman, 2004, p. 283).

Collaborative divorce may be a good option if “both parties want or need lawyers to participate directly in the negotiations” (Lande & Herman, 2004, p. 285). If parties want to keep personal information confidential and out of the courts public record (Gaies, 2018). If both parties highly value “reaching an agreement and avoiding the adversarial pressures of contested litigation” and are willing to risk the increase cost of hiring new lawyers if one spouse decides to go to court (Lande & Herman, 2004, p. 285). Also, when both partners can recognize that having a civil relationship with your spouse after the divorce is a benefit. If partners want to build a functional post-divorce relationship and share the common goal of wanting to learn to work together as their family transitions and restructures, the collaborative process may be the best option (Webb & Ousky, 2007). When spouses have the desire to maintain their friendship with their ex-spouse, relationships with in-laws, mutual friends, or preserve the memory of the relationship, the collaborative process allows resolving the marriage to be achieved with dignity and respect (Webb & Ousky, 2007, p. 52).

Collaborative divorce is not appropriate for every family, e.g., when one partner is “threatening, controlling, and violent” or when one spouse is impaired by mental illness to the point of not being able to perceive reality (Gaies, 2018, p. 19-20). Partners must work along each other and want to problem solve to find solutions that work for them and their families. According to Gaies (2018), the primary downside to the collaborative divorce process is that the partners lose their lawyers if either partner decides to go to court. According to Lande & Herman (2004), losing lawyers whom they trust and have invested time and money to educate on their matter can be harmful to clients. Additionally, the disqualification agreement may cause harm to clients if they feel trapped and pressured to reach an agreement that they don’t feel is in their best interest (Lande & Herman, 2004).

Collaborative divorce may not be a good option if one partner feels that the other partner is “entirely untrustworthy” (Gaies, 2018, p. 15).  If spouses refuse to talk to or be in the same room with each other (Gaies, 2018). While collaborative divorce can be done without face to face interaction between the spouses, refraining from direct interaction during the process may result in slowing down the process and increasing the costs (Gaies, 2018). If one partner has “strong concerns” that the divorce will not be completed collaboratively without going to court, Gaies (2018) argues that this may not be the best option. If domestic violence is or has been an issue within the relationship is generally not recommended. However, according to Webb & Ousky (2007), domestic violence history does not rule out collaborative divorce. In the case of domestic violence history, collaborative divorce may still be an an option as long as both spouses commit to the collaborative process, acknowledge the history of violence, and are completely honest with their attorneys; however, if one partner is truly afraid of harm from their spouse, the collaborative process can’t work (Webb & Ousky, 2007, p. 46).

Written by Caitlin S. Lowry, PhD, LMFT

References

Gaies, J. (2018). A clear and easy guide to collaborative divorce. ISBN: 198573818X. (pp. 3-20).

Lande, J., & Herman, G. (2004). Fitting the forum to the family fuss: Choosing mediation, collaborative law, or cooperative law for negotiating divorce cases. Family Court Review, 42(2), 280-291

Webb, S., & Ousky, R. (2006). The collaborative way to divorce: The revolutionary method that results in less stress, lower costs, and happier kids—without going to court. New York, NY: Hudson Street Press.