The Basics of the Collaborative Approach

What is Collaborative Divorce?

It’s an alternative to a standard divorce. It differs from a standard divorce in that:

• Both parties have their own lawyer specifically trained in collaborative divorce. The lawyer’s job is to help their client settle their disputes without going to court. If they can’t do that successfully, then the lawyer is not allowed to continue on and represent their clients in the coming litigation.
• Everyone who participates has to agree to work together in good faith and be on their best behavior. Instead of taking advantage of the other party’s mistakes, you help to correct them.
• Children are insulated from the process instead of being subjected to the professional custody evaluation process common in custody disputes.
• The idea of a court case is taken completely off the table, and if either party threatens legal action then the collaborative process ends. Everyone’s goal is to come to a mutually beneficial agreement.

Once an agreement is reached the lawyers prepare and process all of the important paperwork. In Collaborative Practice, the parties pay their team from marital funds so that neither party is disadvantaged by the inability to pay.

Common questions about Collaborative Divorce

Does it ever involve experts other than the attorneys? Yes, it often involves a Financial Specialist, a Child Specialist, and a Divorce Coach for each of the parties. They are sometimes referred to as the “Collaborative Team”.

How would Collaborative Divorce be different from mediation? In mediation, there is only one neutral professional to help the couple to come to an agreement and that professional can’t give legal advice. So if one person were a better negotiator or if a party was overcome with emotion then the negotiation would become one-sided. In a Collaborative Divorce, each party has expert advice and the support they need to move through any problems and keep things productive.

Wouldn’t mediation be cheaper since there is only one lawyer instead of two?  In the short term, yes, but mediations are not a quick process. In the Collaborative process, there are two experienced attorneys working to come to an agreement, and things will get done fairly quickly. But in mediation, there is only a neutral party who cannot give advice, so things tend to drag on and the billable hours can get out of control. Plus, if you and your spouse cannot keep a cool head and discuss your issues rationally then mediation may not even be an option.

Is it more expensive to go through the Collaborative process or to take the case to court? Litigation is almost always the more expensive option.

What is an Interdisciplinary Team Model? The Interdisciplinary Collaborative Team Model is a multi-disciplinary team approach to dispute resolution (usually ending in separation and divorce), which includes attorneys, coaches, a Financial Specialist, and when there are minor children, a Child Specialist all working interactively as co-equals. Professionals on the team all subscribe to the same core values and shared beliefs, consistent with the International Academy of Collaborative Professionals (IACP) ethical guidelines, that none of the team members will be involved in any court process concerning the shared case, and that all members will withdraw from the case if it changes into a court process.  This ensures that all of the professionals involved are working to keep the case amicable and out of the courts.

What does a Divorce Coach do? The Divorce Coaches help the couple to learn the negotiation and self-management skills that will allow them to come to a successful agreement. They also work with the couple to craft a parenting plan that will benefit them and the children.

What does a Child Specialist do? Essentially, the Child Specialist acts as the children’s voice in the proceedings. They look out for their needs and help the parents make informed decisions regarding their children.

What does the Financial Specialist do? The Financial Specialist is there to help the couple gather all the necessary financial information and to answer questions along the way. This helps the couple to make informed financial decisions on any important issue and understand the ramifications of those decisions.

What if one side doesn’t play fair and hides information? It is rare but it can happen. Since attorneys stake their reputations on the outcomes of these cases, then they will generally remove themselves if they think their client is acting in bad faith.

How does Collaborative Practice minimize the hostility often present in divorce? The Collaborative process is guided by respect. By setting a respectful tone, Collaborative Practice encourages the divorcing spouses to demonstrate compassion, understanding, and cooperation. In addition, Collaborative professionals are trained in non-confrontational negotiation to help keep discussions productive.  The goal is to achieve an amicable, mutually beneficial divorce without going to court.

Is a Collaborative approach best for everyone? It isn’t for every client but it is worth considering if:

• You want a civilized, respectful resolution of the issues.
• You would like to keep open the possibility of a respectful relationship with your partner down the road.
• You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.
• You want to protect your children from the harm associated with litigated dispute resolution between parents.
• You and your partner have a circle of friends or extended family in common that you both want to remain connected to.
• You have ethical or spiritual beliefs that place a high value on taking personal responsibility for handling conflicts with integrity.
• You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.
• You value control and autonomous decision-making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a judge.
• You recognize the restricted range of outcomes and “rough justice” generally available in the public court system and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.

Why is it so important to sign on formally to the official Collaborative Practice Agreement?  It helps to level the playing field and make sure everyone, including the lawyers, is fully committed to the process and that neither side will try to threaten litigation or take unfair advantage.

How long does it generally take if I choose the collaborative option? Less than if you take it to court but every case is different. If you are concerned with a timetable then contact us and let our attorneys discuss the particulars of your case with you.

A breakdown of the Collaborative Practice Agreement

A typical Collaborative Practice Agreement contains the following:

The disqualification clause – This clause prevents your attorney from continuing to represent you if they fail to bring the collaboration to a successful end. It is one of the things that helps to motivate them to get you to an agreement.

Filing of papers – Since filing of papers is an adversarial process, it is strictly forbidden by the agreement except in rare circumstances.

Restraining orders – To prevent one spouse from taking advantage of the other, a few things are off limits:

• Neither spouse can remove a minor child from the state.
• Neither spouse may sell, liquidate, borrow against, or otherwise dispose of any property, except in the ordinary course of business or for the necessities of life.
• Neither spouse can terminate or change any insurance policies.
• Neither party can incur any debts or liabilities for which the other may be held responsible, other than in the ordinary course of business or for the necessities of life.

Statements of spouses – In order to encourage the spouses to talk freely without being concerned about whether their words will someday be used against them in court, the Collaborative Practice Agreement and Statement of Understanding provides that all statements by the spouses are privileged and cannot be used as evidence in any subsequent court proceeding unless they present a danger to another’s health or safety.

Disclosure – Georgia law requires the spouses to disclose all relevant information regarding their property and income to each other.

Termination – Since the collaborative process is purely voluntary, either spouse can terminate the agreement at any time.