Divorce and its related issues like property division, spousal support, child support, child custody, and visitation are usually resolved through traditional court litigation, which is by definition adversarial and confrontational. Sometimes the court litigation process is cut short when the parties reach a settlement agreement, but even if the divorce case settles short of battling it out in court, the process is divisive and promotes mistrust and isolation. The emotional impact of such an adversarial process on spouses and children during such a difficult personal time can be devastating and litigation can be extremely expensive.
Distaste and dissatisfaction with this negative model of marriage dissolution, especially disadvantageous when young children are involved, inspired Minneapolis family lawyer Stuart Webb in the 1990s to create the collaborative law process, a new out-of-court divorce procedure that emphasizes respect, cooperation, communication, and negotiation. Collaborative law is now utilized in many states and in several other countries (mainly Canada, some European countries, and Australia) as a positive alternative to litigation when people dissolve their family ties and create new arrangements for future structure and support. Attorneys are forming local and state professional collaborative law associations inspired by the International Academy of Collaborative Professionals (IACP).
There are a few basic principles upon which the collaborative model is based. First, the parties agree not to go to court, but rather to resolve their divorce issues by coming to joint agreement through mutual respect, cooperation, good faith, and negotiation. Each divorcing spouse is represented by his or her own attorney, trained carefully in the collaborative process and in positive negotiation techniques. The spouses and their lawyers enter into a participation agreement. Under the participation agreement, all parties agree to treat the others with respect and civility in a series of face-to-face meetings during which the couple’s issues are settled. If the negotiations break down and litigation becomes necessary, the spouses’ attorneys agree to withdraw from representation and the parties must retain new legal counsel.
Sometimes other non-legal professionals are brought in as part of the team. These professionals are also trained in the collaborative method and can include:
- Child specialists to advise about issues that may affect children’s well being or to assist with parenting plans
- Mental health professionals or divorce coaches to provide support to the divorcing spouses with issues like anxiety, depression, loss, conflict resolution, relationships, communication methods, or problem solving
- Financial professionals to provide accounting, appraisal, or actuarial services or to advise the separating couple on issues such as budgeting, child or spousal financial support, property valuation issues, or long-term planning
Some advantages to collaborative family law over litigation can include:
- More protection of the spouses and children from the negative emotional and psychological effects of splitting up a family
- More control over scheduling and timing issues
- Less dissemination of personal information in public court records
- Higher chance of attaining an agreement that is more acceptable and more advantageous to each party than they may have received in court
- The spouses set the agenda and priorities, not a judge
- More opportunity for creative problem solving
- Input from valuable nonlegal and legal professionals
- Depending on the circumstances, may be less costly
- Emphasis on openly sharing relevant information, rather than fighting to protect it
- Less stress for the children
- Parties are more likely to adhere to agreements they helped to create
If you are contemplating divorce, contact an attorney trained in collaborative law techniques to discuss whether the collaborative approach might be appropriate for you.
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