A Better Way for Families to Transition

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Collaborative Divorce Settlement Versus Traditional Adversarial Divorce

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A Collaborative Approach, A Better Way To Separate

A collaborative divorce is a non-adversarial approach to resolving issues that arise when there is a family dispute, whether between married or unmarried couples. Each party uses a separate attorney who is trained to provide legal advice and assist in resolving disputed issues fairly without the threat of going to court. This is accomplished through the use of conferences in which the couple and their attorneys and/or other collateral professionals meet to address relevant issues such as property division and child custody as well as financial planning issues such as post-separation support and child support. In fact, attorneys in a collaborative case pledge to stay out of court. With this approach, attorneys and both parties all agree to work together in a positive, respectful and cooperative manner to find creative solutions that meet the needs of the parties. Following this process, clients are more likely to communicate effectively, to co-parent in a way that is positive for the children, and to move forward with their lives whether or not children are involved.

The collaborative process for divorce builds on mediation as an alternative to traditional adversarial divorce in that attorneys try to help clients amicably reach agreement, but it is notably different from mediation in that each party has an attorney and thus has legal representation. Also, the conversations to try to reach agreement are held with a specialist on the topic at hand in the primary areas of divorce: legal, financial, and children. Thus depending on the issue the parties may be in 4-way meetings between attorneys and parties, 3-way meetings with the parties and a financial specialist, or 3-way meetings between the parties and a child specialist. Coaches are also utilized in some cases and can be vital to helping develop and supporting the parties’ abilities to reach agreement.

In the lingo of collaborative divorce, the Referral model is when the case starts with just attorneys and outside experts (typically financial or child specialists) are used as needed. Many collaborative attorneys and professionals encourage clients to use the Full Team model in which experts are included on the team from the beginning of the process to proactively avoid impasses. At Separating Better we encourage clients to familiarize themselves with the roles of the various professionals and choose the model that feels right to them based on their needs.

The most unique feature of the collaborative process is the signing of the collaborative pledge, in which divorcing spouses and their attorneys as well as all other professionals all agree the attorneys and professionals are disqualified from going to court. This disqualification removes the process from the adversarial court system, with the theory being that removing the threat of contentious litigation will take the fear, hostility, and negativity out of the negotiations and instead allow parties to utilize non-adversarial conflict resolution and interest-based negotiation to come to a fair settlement agreement.

Many traditional/adversarial attorneys will say, when asked if they do “collaborative divorce,” that they do “collaborative,” but they may simply mean that they are willing to avoid adversarial interactions and try to work amicably; however, it is not truly collaborative divorce unless parties and attorneys sign the collaborative pledge, so a better question would be at ask an attorney if they sign the collaborative pledge barring themselves from representing you in litigation. Another good question to ask is what specific training the attorney has had in collaborative divorce, alternative dispute resolution, and interest-based negotiation since these skills are not taught in law schools and must be gained through specialized trainings. Likewise it is very important that the financial specialist and mental health professionals acting as coaches and child specialists have specific specialized training in collaborative divorce.

Collaborative divorce minimizes or eliminates the negative consequences of adversarial litigation in the family arena by:

  • avoiding litigation and lawsuits
  • providing legal representation to each individual
  • providing specialists to address the multiple aspects of divorce, thus allowing parties to feel more certain about their agreement
  • jointly retaining experts as needed (for example, financial specialists, child specialists, and coaches)
  • coordinating problem solving
  • minimizing conflict between separating/divorcing individuals
  • protecting the co-parenting relationship
  • assisting couples in making sound and thoughtful decisions about the future for themselves and their children
  • addressing short-term and long-term financial concerns
  • minimizing the expense of divorce
  • protecting families from unnecessary resource depletion

Studies show that a collaborative settlement is reached faster than settlement in traditional divorce negotiation and greatly reduces the emotional trauma families experience in divorce, especially children. Studies also show it costs the parties less money to complete and reach settlement than traditional adversarial divorce, and costs much, much less money than litigation. It may seem counterintuitive that potentially involving more professionals could lower the cost of divorce, but a decade of research has shown this to be true, for two reasons. You meet with an expert on the topic at hand, and the process lowers conflict, both of which lessen the overall number of meetings.

Full Team Interdisciplinary Collaborative Divorce

Full team interdisciplinary collaborative divorce is based on the idea that building experts into the process from the beginning ultimately saves time, money, and frustration, and increases confidence in the outcome. The major areas of divorce are each attended to by a specialist in that area: experienced divorce attorneys will provide legal advice and representation to each spouse, a financial planner who is certified in divorce financial planning provides various short-term and long-term scenarios regarding division of property and cash flow (i.e., alimony and/or child support), coaches assist in promoting effective communication and keeping the process on track, and when children are involved a child psychologist who specializes in divorce provides information on the many issues related to children and divorce. Like all collaborative divorce models, this approach encourages non-adversarial conflict resolution and interest-based negotiation to come to a fair settlement agreement. The main difference between this approach and non-full-team collaborative divorce (i.e., the referral model) is that outside experts are built into this process from the beginning, which can result in less impasses and overall a process that flows very well as potential road bumps are preemptively identified and effectively handled by the expert team.

Referral Model Collaborative Divorce

The process begins with the two spouses and their attorneys. As needed, outside experts (child specialist, financial specialist, and/or coach) may be used. In the referral model of collaborative divorce, outside experts are not built into the team from the very beginning of the process, but rather are added as parties want additional information from an expert, need assistance coming to agreement on a topic, or when complications arise or the process stalls.

Is Collaborative Divorce Right For You?

Collaborative divorce is a viable option for clients if you would like to:

  • Keep your divorce private.
  • Control legal expenses.
  • Develop a working relationship for the future.
  • Protect yourself and your children from the stress of litigation.
  • Have an opportunity to be heard.
  • Have the flexibility as to where and when your divorce issues will be resolved.
  • Avoid the risk of an unpredictable outcome in a public court.
  • Make decisions about your financial and parenting arrangements instead of having a judge make those decisions for you.
  • Find a creative solution that addresses the needs of each spouse and members of your family.
  • Use an approach that seeks solutions through mutual cooperation rather than an adversarial process.
  • Bring healing and closure to the separation process rather than prolonging the trauma of divorce.

COLLABORATIVE DIVORCE

TRADITIONAL DIVORCE & LITIGATION

Exposure

Public

Private

Cost

Predictable

Unpredictable

Working Relationship

Cooperative

Adversarial

Stress

Low to Moderate

High

Opportunities to be Heard

Numerous

Limited

Scheduling of Meetings

Flexible

Rigid

Resolution of Personal Needs

Both Spouses Win

One Spouse Wins, One Loses

Certainty of Outcome

High

Low

Autonomy

You and your spouse make decisions about finances and parenting

Public court system makes decisions about finances and parenting

Solutions

Creative, Flexible

Standards

Popularity

Increasing

Decreasing