Collaborative Divorce: Divorce Without The Courtroom

Yesterday I discussed divorce options with a new client. When we explored litigation her questions and body language made it clear she’d done her homework. However, collaborative divorce was an entirely new to concept to her.

What is collaborative divorce? 

Collaborative divorce is a transparent divorce process, which takes place outside the court system. An attorney represents each spouse, but each attorney agrees not to take the case to trial. Settlement discussions take place with both lawyers and spouses present, with the goal to reach a fair and lasting agreement.

Most people are unfamiliar with collaborative divorce, so if you’re interested in learning more this article will explore the process in depth. Ideally it will provide you with an understanding of the process, pros and cons, and if collaborative divorce is a good option for you.

Topics

• Collaborative Divorce Process
• Advantages Over Traditional Divorce
• Risks of Collaborative Divorce
• Role of Experts

Collaborative Process

The collaborative divorce process can be broken down into four steps:

1) Selection
2) Planning
3) Discussion
4) Settlement.

Selection

What’s unique about collaborative divorce is that both spouses must choose it. Because the process requires everyone to commit to open discussion and negotiation, if only one spouse is interested, it can’t be done. If you think a collaborative divorce is right for you, your first step is to talk to your spouse.

Hopefully, you’re comfortable explaining the process to your spouse. If not, send them a link to this blog post. Personally, I like to provide clients with names of other collaborative divorce lawyers.

I find it’s easiest for my clients to provide those names to their spouse. Other professionals can explain the process to their spouse in detail, which builds trust. They also have the experience to give the other spouse all the information needed to choose a collaborative divorce.

Another reason I recommend collaborative divorce attorneys is that it is a specialized process. Not every family lawyer is familiar with collaborative divorce. Most collaborative attorneys attend at least 16 hours of basic collaborative law training, as well as 40-hours of mediation training before taking their first collaborative case.

Once both spouses are on board and hire attorneys, it is time to sign a participation agreement. A participation agreement is unique to collaborative law and outlines the basic rules. For example, it states the requirement to disclose all information that would impact decision-making.

Arguably, the most important part of the document is the agreement that the attorneys may not take the case to trial. This forces the attorneys to stick with the collaborative process and not back out if negotiations stall. It also gives clients peace of mind that their attorneys are really committed to helping them reach a solution.

Planning

After the agreement is signed you’ll do initial planning with your attorney. In the planning stage you’ll explore overall goals and any issues that will need to be addressed to reach a positive outcome. Your conversation will allow you and your lawyer to decide if any additional assistance is needed.

A big component of this phase is information gathering. Important information can include medical records, background checks for people close with the children, and financial records. It is common for a neutral financial expert to get involved at this point.

TIP: If you don’t have a clear idea of your financial situation I recommend signing up for a Mint account. You can link your bank accounts and credit cards that you frequently use and the software will breakdown your spending habits and monthly expenses. The tool can help you plan for life after divorce and you can even set goals and budgets to keep you on track going forward.

Discussion

With all the information gathered it’s time to begin discussions. The goals and concerns you discussed with your attorney in the planning stage will be used to build an agenda and you and your spouse discuss options.

Be prepared to get involved. While your attorney will be there to support you and help facilitate conversation, the goal of the process is to allow you and your spouse to own the solution. This means you’ll offer options that you believe can work and your spouse will do the same.

By working together you’ll be able to understand your spouse’s concerns and goals and ideally discuss options that can work for both of you.

Settlement

After discussing options that will work for both spouses you should have the beginning of a settlement. At this point, the attorneys will help you spot possible weaknesses and strengthen the agreement. We’ll go over different scenarios that may result in trouble and find ways to ensure the agreement is built to last.

Once everyone is satisfied with the agreement, your attorney will draft the divorce forms for signature. If you’re in King County, your attorney can present the agreed forms to the judge on your behalf, so you’ll never need to set foot in a courthouse.

Advantages Over Traditional Divorce

Avoiding the Adversarial System.

Traditional divorce is based in the court’s adversarial system. This system pits parties against each other and even though families are involved, divorce court is no different. Parenting and life after divorce can be much more difficult after publicly badmouthing your spouse and a breakdown of trust.

Collaborative divorce allows people to avoid the adversarial process entirely. Instead of being adversaries, spouses work together to reach an agreement. There is no need to air dirty laundry and discussions take place in private.

Time and Cost.

Collaborative divorce is less expensive and takes less time than traditional divorce. Here are three reasons why.

First, experts are only paid once. To demonstrate, say you own a business. In a collaborative divorce a neutral financial expert would perform a business valuation. Both you and your spouse would have access to the valuation for the cost of one expert. Conversely, if you’re heading to trial, you’ll hire an expert for a valuation and so will your spouse. You’ll each individually pay for the same information and hire your expert to testify in court to support your case.

Second, discussions are lead by the spouses, which cuts down on attorney time. In a traditional divorce attorneys handle negotiations. This means that the attorneys will go back and forth and continue to check in with their client to verify possible solutions. This is not as efficient as having all the decision makers in the same room at once. In addition, it’s common for spouses to communicate outside of sessions and they often make breakthroughs on their own, saving themselves significant attorney fees. In a traditional divorce, communication between parties is typically non-existent, so the chance of a solution being reached outside of formal negotiations is minimal.

Third, experts can save you money, since their hourly rate is typically less than that of a lawyer. For example, a Seattle lawyer may charge $350 an hour to review your financial information and create a fair property settlement for you. However, a neutral financial expert brought in to value your business, could also do this task at an hourly rate of $150.

Be aware, many Seattle firms will not allow their attorneys to practice collaborative divorce, since it doesn’t make the firm as much money. This is a completely logical business decision, but it should make you question whether the traditional divorce model is in your best interests.

No Court Dates.

Collaborative divorce takes place outside the courtroom. The attorneys will have a dedicated space for group meetings, which allows discussions to be held in private. At the end of the process your attorney can file your paperwork for you, so you’ll never have to set foot in a courthouse.

Control of the Outcome.

With collaborative divorce the outcome is in your control. This has two clear benefits. First, you won’t have to worry about the opinion of a family evaluator, judge, or other court official. You’ll be the person who decides the outcome.

Second, this control gives you a sense of ownership of the settlement agreement. Agreements made in this fashion are more likely to last because the people affected had a say in them.

Conversely, orders issued by a judge are often later brought in for modification. Judge’s are overworked and don’t have the time or personal knowledge of your situation to craft a perfect order. They’ll do the best they can in the limited time they have, but court orders can miss things, which will bring people back into the court system.

Risks of Collaborative Divorce

Starting over after failure.

The main knock on collaborative divorce is the risk of failure. Experienced family law litigation attorneys, may warn you that if negotiations stall and the collaborative process fails, then both spouses have to start over. Starting over, means you’ll need to hire a new attorney who will have to get up to speed on the case and the work you’ve done in negotiations is no longer usable.

While it is true that you’ll need to hire a new attorney, the work you’ve done is not wasted. First, spouses generally make some progress in discussions, even if they do get stuck on an issue. Progress means that some items will be resolved, saving both parties money in the litigation phase. Second, work done during the collaborative process by neutral third parties, such as financial advisors, can be used in litigation if both spouses agree. Incorporating this work product can save the spouses money in the litigation phase.

Keep in mind the risk of failure in collaborative divorce is low. When I attended the two-day basic collaborative divorce training, our instructor said only 11% of cases fall out of the collaborative process. Not to mention, of that 11%, some spouses reconciled and dropped the divorce all together.

Difference in bargaining power.

Sometimes there is a large power imbalance between spouses. One spouse may dominate the other in conversations, which can make the discussion phase difficult. If you are in this position, share this with your attorney, so that they can make sure your voice is heard during discussions. It is crucial that you have a chance to truly participate in crafting the settlement agreement.

However, not all cases with a power imbalance are suited for collaborative divorce. While not every collaborative divorce attorney agrees with me, I discourage spouses with a history of domestic violence from the collaborative process. If either party would have a reason to fear the other, I don’t think they can truly discuss their options and should rely on traditional divorce methods instead.

Role of Experts

In addition to an attorney, it’s often beneficial in collaborative divorce to bring in outside experts to address financial, emotional, and parenting issues.

Financial Experts

A financial expert can bring a wealth of knowledge to the divorce process. While your attorney will assist in property and debt division, a financial coach often charges less per hour and acts as a neutral party. This means that the financial expert works with both spouses and helps prepare a transparent financial forecast that can be used to predict financial needs in the future.

Real estate agents can be used in this role as well. Qualified real estate agents can perform home valuations. They’ll also be able to address refinancing issues and help spouses decide on the best timing of a home sale if necessary.

Mental Health Coach

Mental health professionals, often referred to as divorce coaches in the collaborative process, focus on emotional barriers in the divorce. Mental health advisors identify issues that may slow discussions and help everyone understand what can be done to improve talks. Sometimes they work with a spouse one on one and other times will sit in with the group to act as a facilitator during negotiations.

Child Specialist

A child specialist can help parents get a better understanding of the needs and wants of their children at the time of divorce. Child specialists, usually have a mental health background and are experts in working with children.

Typically they will interview the children. These interviews can be used to the stress of the child related to divorce, as well as a way to gain information that the child may not have shared with the parents. A specialist will then relay their findings to both parents and help them make the best decisions they can for the children.

Conclusion

I hope after reading this that you understand collaborative divorce and know if it a good option for you. If you’d like to discuss the process in more detail please give me a call at (206) 409-4086 or send me an email.

Cheers,
Justin