Collaborative Divorce

Family and Divorce Mediation and Collaborative Divorce

There are many reasons to mediate to resolve a family conflict or to attempt mediation prior to filing papers in a court action.  First and foremost, mediation does not pit you against one another as adversaries.  You work as a team, on the same side of the negotiating  table, to address the challenges your family will face as you transition to a new way of being or living.  By working as a team, as well as by working both informally and with experts (when needed) who can help you find optimal solutions, you are able to find better solutions overall.   You are also more likely to preserve that which is good in your relationship, without poisoning it with the bitter taste of adversarial litigation.

Another reason people consider mediation is because of cost.  A mediated divorce can be a bargain compared to the cost of litigation.  When both parties are committed to principles of fairness and to finding equitable solutions, all the family resources can be put into finding optimal solutions, wasting none on fighting.  However, the consequences of divorce are too serious to mediate solely because of cost.   Therefore, I encourage clients to think not in terms of cost but, instead, in terms of quality and value.  I am a mediator because I believe that in appropriate cases mediation produces a better quality result.  It just happens to be cost effective, because no resources are spent in legal jousting tournaments. 

There are cases where mediation is not appropriate.  Those are the cases where one or both parties are not committed to principles of fairness and fair play.  If mediation is not appropriate in a particular case, I will be among those who recommend protections that come with the judicial process. 

I have trained with nationally recognized mediators in the United States (including Zena Zumeta, Susan Butterwick, Carl Schneider, Eileen Coen, Richard Blackburn, Victoria Pynchon, Cotton Harness and Beth Padgett). I’m skilled in many types of mediation, including divorce mediation, elder mediation, and mediation of organizational and church conflict.   I am one of a few dozen IACP certified collaborative divorce lawyers in South Carolina.   

( To learn more about mediation in general, click HERE.  To learn more about collaborative divorce, click HERE for more information on my web site or  HERE for a link to the International Academy of Collaborative Professionals. )

After mediation, parties to a family legal matter such as divorce will still need to have their agreement approved by a court.  This is called an “uncontested” action.  Even though the court system is set up as an adversarial process, both parties to an “uncontested” legal action are able to voluntarily approach the court and request that the court approve their mutually consented agreement.  As such, neither party “contests” the requested outcome.   Please explore the many articles on this web site to learn more about divorce options and processes in general.  (Nothing on this web site should be seen as offering specific advice for your particular case, because each case is unique.)

To make an appointment to discuss your individual needs and circumstances, please fill out the contact form, below, or call for an appointment 803-414-0185.

I’m Thinking Divorce. Now What?

I.  The Decision to Divorce

If you’ve definitely decided to get divorced, proceed to step 2 below.  If you aren’t sure, however, then you really should consider professional marriage counseling.  Marriages can be returned to health, if both parties are willing to do the hard work to address root causes.  As a professional who has been involved in divorce processes for many years, I have observed that credentials of a marriage counselor are very important, and also so is finding a counselor who feels “right” for both of you.  Seek someone who is, at a minimum, professionally licensed as a marriage and family therapist (will have the letters LMFT after their name) or has a Ph.D. in counseling or psychology.  This is a bare minimum.  Unlicensed or unskilled counselors can do more harm than good.  A good  pastor is one who knows and adheres to their own professional limitations and boundaries.

Going to counseling is not a sign that either of you has an individual “problem.”  Nor is it a sign that either of you has “mental illness.”  Rather, licensed professional marriage and family therapists and psychologists have many skills and techniques that really can help.   Additionally, even if counseling is not able to “save” your marriage, professional counseling can assist with both the decision to divorce and the adjustments that will occur as a result of this major life event.  Most people find the assistance of a mental health professional extremely helpful during this painful episode in their lives.

If your spouse has asked you to attend counseling with them, do you love them enough or are you committed enough to make this effort to save your marriage?  Maybe you don’t see a problem, but that’s not the point.  Listen to your spouse’s cry for help.  They are extending an opportunity to you to try and fix things.  Even if you don’t feel so loving toward your spouse right now, there is a chance that working on your marriage might fix some issues.  The feelings might return.   Also, if you tried counseling and it didn’t “work,” consider that you might need to try a different counselor.  Over the years, I’ve seen many cases where things didn’t “click” with one counselor, but they did with another.  There are many styles of counseling.  Some schools of thought put more emphasis on “doing” while others put more emphasis on “gaining insight,” and others are a blend.  Some styles work better for one person while a different style works better for another.   And in some cases, it’s just a matter of personality.   Isn’t your family worth the effort, to make a really good try?

But, if you really have tried and the decision has been made, then …

2.  The Emotional Process of Separating

Sadly, sometimes counseling cannot save a marriage, or relationships may be so toxic that it really is best if people decide to separate.   Separation is not just a one time event.  It is a process that involves separation of emotional, financial, physical and parenting lives.   As a practical matter, separation happens by degrees and over a period of time.  Often, the person who first physically leaves a marriage may not have been the first one to leave in an emotional sense.    The process of separating will, eventually, require rearrangement and separation of not only emotional attachment, but also physical living space, finances and bank accounts, property, and parenting arrangements.  Other issues couples will face during the process of separation are things like when and how to tell the children and other family members, and timing of the various business and property transitions.

The process of deciding to separate also includes making a decision about that will be used in obtaining a divorce and making this final separation into a legal event, with a complete and legally binding marital separation agreement.  In my opinion, it is very important to separate the emotional aspects of divorce from the business and legal side.  This is challenging to do, but it is important.  Acting upon emotional needs or impulses in the legal process is both counterproductive and expensive.   Most people find assistance of an individual counselor more  helpful in dealing with divorce than the financially expensive and emotionally unsatisfying alternative of playing out these issues through the court system.

3.  Deciding on a Process 

The legal and business side of divorce is divided into two stages.

A.  In the first stage, a couple negotiates how they will separate their joint lives to create two separate and independent lives.   This involves emotional adjustment, physical changes in living arrangements, financial adjustments in the family budget, division of property, and renegotiation of parenting arrangements.  After these issues are negotiated, most people formalize their agreement by entering into a Marital Separation Agreement (often called a MSA).

B.  In the second stage, a court is asked to approve the arrangement.   The court is only required to be involved in the decision process regarding the settlement agreement if the couple cannot agree on their own, or if one party is using an imbalance of power (physical, financial, emotional) to perpetrate an unfair situation.  If a couple is committed to principles of fairness, on the other hand, it is generally far preferable for them to negotiate their own agreement.  Once the agreement is reached, it can be presented to the court for approval.  But how can settlement be reached?  What should be in the settlement agreement?

4.  Negotiating a Marital Separation Agreement

How can you be sure your agreement has covered the things it needs to cover and that it is fair?    This concern for fairness is good justification for seeking help from a divorce professional.

A.  Mediator      A professional divorce mediator has training in the substantive issues of divorce and helps parties reach agreement about their divorce settlement.  A divorce mediator may also suggest use of additional professionals who can assist in the process of deciding key issues and also keeping the best interest of the children at the forefront of consideration.  After the mediator helps you reach a settlement, then you will still need to go to court to have your settlement approved by the court and made  into a final divorce decree.  However,  use of a mediator to reach the settlement bypasses the sometimes ugly and expensive adversarial litigation process that is involved when you ask a judge to decide how your personal affairs should be divided up.   Mediation is not for everyone.  For mediation to work, both parties must be committed to principles of fairness and they must have ability to make their own, voluntary decisions for themselves.   You are currently visiting the web site of a divorce mediator.

B.  Collaborative Divorce Attorney    In collaborative divorce, both parties have an attorney who negotiates for them and helps them decide what other professionals may be needed to assist in reaching a fair divorce settlement that also takes into consideration the best interest of the children.  A collaborative divorce attorney should be certified by the International Association of Collaborative Professionals (IACP).  In addition to being a divorce mediator, I am a collaborative divorce attorney certified by the IACP.

C. Litigation Attorney   If one side is not committed to fairness, then the court system will be needed to enforce principles of fairness, using methods such as interrogatories, depositions, requests for production, motions, and hearings.  Generally speaking, this is the method that most attorneys are trained in and will turn to by default.   This tends to be the most adversarial and expensive method for reaching a divorce settlement.  Because I focus my practice on non-adversarial cases, I do not generally accept litigated cases.

D.  Do-It-Yourself    Parties often decide on a settlement between themselves.   If they agree on everything, their divorce is “uncontested” and the legal process to have the settlement approved is relatively simple.  However, mistakes can be costly.   What if a party does not realize, for example, the extent of marital property, or what if they fail to make provisions for proper distribution of the marital property?  What if they do not even realize what the options are?  Even when parties think they have reached a full and fair settlement, it is wise to get feedback from a professional, asking them candidly if the settlement has covered all the issues and appears to be even-handed.  I am willing to review DIY agreements and papers on an hourly basis.

e. A divorce professional can assist couples in determining which process is most appropriate for their need.  For a consultation or initial appointment for a mediated or collaborative divorce, call 803-414-0185.

5.  Getting the Settlement Approved 

Most cases, including cases that start out being litigated in the court system, reach settlement without necessity of a full-fledged trial.  However, the divorce cannot be finalized until papers are filed in court and the settlement has been approved by the family court.  So, regardless of which process is used to decide on a divorce settlement, eventually papers must be filed to ask the court to approve the divorce.  The question is, when will papers be filed.  In an ordinary, litigated divorce papers are filed at the very beginning, to get the process started and includes asking a judge to decide the issues in the case.   In a mediated or collaborative divorce, in contrast, papers are not filed until after a settlement has been reached.

To make it clear, in a litigated divorce, “papers” are filed right away, thrusting the parties into an adversarial posture of A versus B.  In a mediated or collaborative divorce, “papers” are not filed in court until after the parties have entered into their own, voluntary Marital Separation Agreement.   I do not think that most parties, when they consult an attorney about divorce, realize that “filing papers” immediately is not necessarily the only option!*     This may seem like a small matter, but it illustrates a very big difference between litigated and mediated divorce.  Litigated divorce assumes the parties will not be able to reach their own agreement and starts out the process  by asking a judge to decide.  This results in a process that is driven by the need for “evidence” in a “court” and requires the expertise of an attorney familiar with judicial procedures, taking control away from the parties themselves.  In mediation and collaborative divorce, although professionals are consulted and direct the process to a large extent, the parties remain in control and all decisions are voluntary.  Thus, mediation and collaborative divorce keep private family decisions within control of the parties, while litigated divorce takes that control away and places it in the hands of a family court judge.  In some cases that judge is needed.  In many cases, the parties are better served by and end up happier with a process that keeps them in control.

6. Obtaining a Final Order of Divorce

When the court approves the settlement and the divorce, it will issue a Divorce Decree.  Generally, an attorney drafts this for the judge’s signature and also takes care of filing the needed official paperwork to make it final.  When cases have been mediated by other mediators, or in cases where there truly is nothing left that is contested, I am happy to assist in legal representation to draft any separation documents that are needed, file legal papers to obtain the final decree, appear in court, and finalize the divorce decree.

After this, the couple may still have business affairs to finalize, and then the next stage of life begins, which is

7.  Post Divorce Life

After the divorce, each of you will have separate physical, emotional, and financial lives.  If you have children, however, you will still be tied together not just by your children, but also by grandchildren and a shared hope for all of the future generations of  the family you share.   The quality of your divorce process will be reflected not just in the sustainability and fairness of your financial divorce settlement, but also hopefully will contribute to the well being of future generations.   My personal observation of the processes and of the long term effects of divorce on families is the reason that my practice is limited to the non-adversarial methods of reaching divorce agreement.

If you are interested in a divorce process that you maintain control over, in which you reach your own voluntary settlement, and which enables you to continue to co-parent with as little “collateral damage” to your family as possible, and if you feel both parties are committed to principles of fairness, please feel free to use the contact form on this site to request an appointment to discuss your options in person.

 

*Divorce law varies from state to state.  Information on this web site should be taken with that in mind:  it is information designed to be helpful, but it is not legal advice.  Learn as much as you can about these topics by researching on the internet, but do not rely on information until you have consulted with a qualified professional who is licensed to practice in the jurisdiction where you reside.  Information on this site is specific to the State of South Carolina, in the United States.

WHAT IS COLLABORATIVE DIVORCE?

In collaborative divorce, each party has their own attorney who gives them guidance and assistance in negotiating their divorce settlement.  But unlike a traditional, litigated divorce, the parties enter into a formal agreement saying that they will negotiate and reach their own settlement prior to filing divorce papers in court.  What this does is ensure that decisions stay in the control of the parties rather than putting decisions in the hands of a judge.  It is also the opposite from a traditional, litigated divorce in which the very first step is to “file papers,” which effectively disempowers the parties by asking the judge to make all decisions for them.  The collaborative divorce agreement also has safeguards built into it which prevent one party from negotiating with their fingers crossed behind their back, so to speak, which can be a risk of negotiations during traditional litigated divorce proceedings.   After a complete settlement is reached, court papers are filed and the couple obtains an uncontested divorce which incorporates their agreement into the divorce decree.  By reducing conflict, resources found on the web page of the International Academy of Collaborative Professionals indicated that (even with the cost of the consulting professionals)the cost of a collaborative divorce is generally about half the cost of a traditional, litigated divorce.   Of course, “cheap” is not the goal.  The goal is a quality result that is fair and will be workable for all parties in the long run.

What if the parties cannot make decisions on their own?  This rarely happens because of the powerful disupte resolution model employed by collaborative divorce.  First of all, collaborative divorce attorneys are specifically trained in positive models of negotiations which are designed to help both parties identify and meet their most fundamental needs and interests.  To help in the process or reaching agreement and also to ensure the long term sustainability of the result, the parties also agree to consult (as needed) with neutral experts who are also certified as collaborative professionals.  Professionals become certified in the areas of finance (for issues involving support and property division), mental health (including divorce coaches and child specialists), and mediation, as well as in legal representation (attorneys).  In general, so long as parties agree, they can use any type of neutral professional they choose for expert feedback and advice.   The Collaborative Divorce model is an extremely powerful method for helping families stay in control of their own destiny and it also focuses resources on finding solutions to challenges rather spending resources battling in court.

To become certified as a collaborative professional, individuals who are already licensed in their relevant field of expertise must take an additional training course which equips them to work as a team with other professionals to guide the divorce process.   If anyone tells you they offer collaborative divorce, ask if they are certified by the International Academy of Collaborative Professionals, as this is an important measure of professionalism and quality.

For help deciding if collaborative divorce is an option in your case, call 803-414-0185 for a consultation, or fill out the contact form below.

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Collaborative Divorce: Invest in Family Solutions Rather Than Conflict

Are you considering divorce?  If so, I hope this article will give you pause to think of the many different ways you could proceed, in order to obtain your objective.  While every divorce will require some sort of court action to get the divorce finalized, not every divorce requires that you engage in litigation.

Imagine if you went to a doctor and they prescribed the same treatment that would have been prescribed in 1910, without considering any newer methods of treatment that might work better.  Would you just take that doctor’s advice, or would you seek a second opinion?  In my view, an attorney who sets every client up for a litigated divorce is like that doctor.

In 1910, there was no such thing as a “no fault” divorce.  To get a divorce, a party would have to prove some evil or despicable act on the part of their spouse, such as adultery or habitual drunkenness or spousal abuse.  The adversarial system of divorce was set up in this environment:  one party would go to court to prove that the other was bad and convince the judge to grant a divorce based on that evil.  The party at fault would also be punished in some way, such as by forfeiting alimony or losing custody of their children.  The parties employed attorneys who were like gladiators, fighting on their behalf to prove their case to the judge, who would make a decision about who “won” the case.

There are still divorcing couples, and attorneys, who think in terms of this paradigm.  In some cases, the parties are angry, bitter, seek revenge, and want to fight.  They would rather spend their last dime on lawyers than see any dimes go to their former spouse.  The model of litigated divorce will ensure that these parties get what they want, with plenty of pain and bitterness to share.  In many other cases, however, divorcing spouses seek merely to disengage from the marriage in a way that is fair to everyone.

How can people obtain a divorce without all the fighting?  Some people just decide to “call it quits”.  They don’t use any helping professionals at all.  Others may employ just one attorney to draft up their agreement and file the paperwork with the court to get their divorce.   Sometimes, there is also the challenge that parties cannot agree on terms.  So, some couples use a mediator to help them negotiate and then draft a separation or divorce agreement.

These solutions all help ensure that divorcing parties remain relatively amicable, but there is still the underlying issue of fairness.  Some attorneys who advocate litigated divorces argue that it is the only way to ensure that everyone gets what they deserve.  And truly, fairness is a deep concern.  Going to court is not the only way to ensure fairness, however.

Certainly, divorce is complicated and has serious legal ramifications.  Mistakes regarding alimony, pensions, child support, or health insurance can be very costly and difficult to fix.  How does one ensure that a divorce, a very serious legal matter, is fair to everyone and leaves them in the best situation possible, given the circumstances? One good way is by using a team of collaborating professionals to guide the parties through this challenging process.

The collaborative model of divorce enables parties to separate (and divorce) in a way that feels fair, avoids wounding each other any more than necessary, enables them to continue work together and to parent their children as a team, and leaves each with financial and emotional resources to deal with the challenges of single life ahead.  I believe so strongly in the collaborative practice model of divorce that it is the only one I will use.  I am willing to mediate divorces, but only if the couple agrees ahead of time to consult with professionals as needed to ensure that their divorce agreement is as good as it can be.

When I did my IACP training in the collaborative model of divorce, the trainer used the example of a pit crew to teach how collaborative divorce works.  Imagine a picture of a race car that has pulled into a pit stop. While the car is stopped, one member of the pit crew changes the tire; another changes the windshield wipers; and a third one changes the oil. The goal is to restore the car to great condition and get it back on the road as fast as possible. In the view of collaborative practitioners, the family during a divorce is like that car.  Professionals are like members of the pit crew.  Each professional has a discrete function that helps the family.  Just like that pit crew, the collaborative professionals work as a team (all neutral), with just one goal: to get the family back on the road again and in good condition.

Each family, and each divorce, is unique.  It may be that a team of professionals will not be needed.  Some couples are able to reach agreement on all issues without help, and others may only need help with one or two aspects of their divorce.  But in situations where outside experts would be helpful, the collaborative practice team can include child specialists (who can help develop a parenting plan), financial specialists (who can help with budgeting and support issues), divorce coaches (who can help with emotional adjustment), tax attorneys, even career counselors (who can help spouses who need a change of career direction to increase earning capacity).

When services of these professionals are utilized, those services benefit the family permanently:  A good parenting plan will make visitation and custody arrangements run smoothly for years. A good financial plan will help ensure the fiscal integrity of each spouse. A good divorce coach will get the divorcing parties through the emotionally bumpy parts. A good career planner will get a displaced homemaker back on her feet faster. By solving things right the first time, in a way that is healthy and healing for everyone, the family puts its money into resources and solutions that will benefit the family for years.

Divorce professionals should help parties untangle their lives in ways that enable them to move on, and in the best position possible.

What is the role of attorneys in a collaborative divorce?  In many cases of collaborative divorce, each spouse is represented by an attorney.  The two attorneys guide negotiations and decide among themselves what experts are needed.  Each attorney acts as an advocate for his or her client in negotiations.  A mediator is called in only if the two attorneys or their clients fail to agree on issues.  This model works well, especially when there is some reason for a spouse to need more protection, for instance in complex cases or where challenging issues are involved.

In other cases, the spouses may choose to share a mediator and negotiate on their own.  In the scenario of a mediated, collaborative divorce, the mediator guides the discussion and enables the parties to reach their own settlement without attorneys directing the negotiations.  This does not mean that attorneys have no role whatsoever.  Rather, the attorneys become more like consultants who are asked for advice now and then, or to review the overall agreement after the conclusion of negotiations.  At the conclusion of a mediated, collaborative divorce process, the parties may get their divorce finalized in court by themselves, or they may engage a single attorney to walk them through the process.

In either scenario, the professionals in a collaborative divorce are all, 100% committed to getting the family through the divorce in a way that avoids going to war.  The most tangible evidence of this commitment is the agreement that each collaborative professional makes:  (1) to act as a neutral, (2) to share information, and (3) to withdraw completely from the case if either party pursues litigation.  These ground rules ensure that each professional (and each party) is “on board” with the agreement to be fair and to work through issues in a way that keeps the spouses in control and out of court.

I am sold on the value that these professionals add.  The collaborative approach to divorce is also cost effective.  It is not “cheap” in the sense of paying a lower fee for professional services or because a family is cutting corners on quality.  The reason it costs less is because it works better.  The collaborative model reduces conflict, keeps the family on track toward the goal of resolving issues fairly, and provides services that will benefit the family for the long haul.  Instead of paying two lawyers to battle in court over legal positions (with conflict escalating as the parties position themselves into battle mode), the spouses put their precious family resources into services that actually improve their situation.  That, in my opinion, is a wise investment.

Collaborative Divorce

Are you considering divorce?  If you are, I’m very sorry that you are facing this decision.  You are not alone, however.  A large percentage of marriages do, in fact, end in divorce.  Reality being what it is, I would like in this article to discuss the benefits of collaborative divorce.  I believe that collaborative divorce is among the best options for ensuring that everyone in the family lands on their feet and recovers as quickly as possible.  You can also learn more about collaborative divorce at the web site of the International Academy of Collaborative Practitioners (IACP).

When you married, most likely you never expected it would end in divorce.  The end of a marriage is like a death.  No matter when or how it happens, you are never quite as prepared emotionally as you would wish.  For some people, it is worse than others.  Brace yourself, because you may experience an emotional roller coaster as you engage in the divorce process.  Some of your feelings, and the power of those feelings, may surprise or overwhelm you:  not just anger, disbelief, or sadness, but also relief and happiness, and sometimes all of the above!   These feelings are natural.  A person going through divorce experiences a grieving process similar to the grieving process one goes through at any other time of loss.  The loss from divorce is not just a change of living circumstances, but also of hopes and dreams for your future and for that of your children and family.  (For some articles discussing feelings of grief related to divorce, click HERE or HERE.)

Fortunately, life does go on.  While you can expect for all parties (including your children) to be changed and affected by divorce, there are ways to minimize the harm.  Chief among the things you can do to minimize the harm is to set aside anger, desire for revenge, and dwelling on the past.  Assuming that you have tried your best to make the marriage work, if you’ve decided to end it then it is now time to shift your focus to getting yourself, your children, and yes even your ex-spouse moving forward toward a new, separate life.  Once the decision has been made to end the marriage, the sooner you can put that ending behind you and move to a new beginning, the better.

Yes, I can tell you good news:  there is hope for a happy ending.  However, to get there may involve breaking the traditional mold.  The model for a traditional divorce is not one of happy endings.  Rather, the traditional model for divorce is that of a battlefield.  In this battle, each of you is represented by a gladiator (attorney) who engages in combat on your behalf to prove that one side is good and the other is evil.  Then, after all the evidence has come to light, a neutral party (the judge) decides who is right or wrong and renders judgment.  In this model, neither party is concerned with what happens to the “other side” – to show concern is to expose a soft underbelly of weakness.  This courtroom drama, adversarial model relies heavily on taking positions, posturing, getting ready for battle, ambushing your “opponent,” and spending resources to convince some outsider (the judge) of the merits of your case so that they will rule in your favor. Collaborative divorce, in contrast, is an entirely different paradigm.

The philosophy of a non-adversarial divorce (whether a collaborative divorce or a mediated divorce) is that the best approach to separating your lives is not to engage in a battle that leaves your spouse – a person you once loved enough to marry – as a casualty on a battlefield.  Parties who choose collaborative divorce recognize that sometimes tragedies do happen.  Parties to collaborative divorce have made a decision to separate, they recognize that sometimes it’s not a matter of good versus evil in the other person.  Rather than seeking to find fault or cast blame, they are committed to moving forward in a way that enables both of them to land on their feet and continue to work as a team in their parenting relationship.  It is better for children, as well, when parents continue to work together and act as a team rather than fighting with each other.  (Numerous studies document the negative effect on children of high conflict divorces.  For examples, click HERE or HERE.)  The goal of collaborative divorce is to enable all members of the family – husband, wife, and children — to get back on their feet and to enable them to keep moving forward with their lives with as little trauma as possible.

Because of its unique nature, collaborative divorce can only be considered at the very beginning of the process, before parties have taken steps toward traditional, adversarial divorce litigation. Once positions have been staked out through filing of adversarial divorce papers in court, it’s too late to engage in a non-adversarial, collaborative divorce process.  If you are in the “considering” or “pondering” stage of wondering what to do now that you’ve decided to divorce, I’m so glad you found this page!  I hope that you will seriously consider the benefits of the collaborative model of divorce.

The distinctive tone of a collaborative divorce is set by the fact that both parties considering a collaborative divorce must agree ahead of time that they will negotiate a settlement outside of court. In other words, for you to have a collaborative divorce, you must agree not to go to court. If the parties don’t do this, it’s not a collaborative divorce.

This does not mean that either of you gives up your rights. Each of you still has your own lawyer who represents you zealously.  The main difference is that the two divorcing people – those most directly affected by the long term outcome of the divorce – remain in complete control of their own case instead of handing the decision over to a judge.  The two of you, with help from your attorneys, negotiate and reach a settlement. While every attorney will attempt a negotiated settlement, to some degree, the difference is the degree of commitment. In a collaborative divorce, all the eggs go into the basket of reaching a fair, lasting, comprehensive settlement that suits the two of you, keeping you in control of your fate instead of placing it into the hands of the court.

Because parties to collaborative divorce put all their eggs in the basket of reaching their own agreement, dispensing with the judge, there is no need to convince some other person of the merits of one’s own case. You and your ex-spouse are no longer opponents on a battlefield but rather merely two people who need to disentangle your lives with as little trauma and damage to everyone as possible. The goal is no longer to ambush or do battle with the other person, but to move on, to heal, and to develop solutions that work for everyone. Instead of spending thousands of dollars on discovery and depositions and posturing for the court, you focus your resources on finding the best way forward for everyone in a way that works to keep everyone as intact as possible.

In collaborative divorce, the parties agree to cooperate to the extent of committing to full disclosure, to an effort to be fair to one another, and to avoiding court. When the going gets rough – when parties need help to decide on issues or when they fail to agree — their collaboratively trained attorneys pull in professionals from other disciplines for advice and guidance.  DSCN1598

For example: A child specialist might consult with the family and make recommendations about custody and visitation. A financial expert might be called in to evaluate the family financial situation and make suggestions about dividing assets and ongoing financial arrangements. A divorce coach might be helpful for a few sessions, to assist a spouse who might have difficulty coping with feelings of anger or rejection.  If one spouse is a displaced homemaker or has a much lower income, the parties may invest in some career counseling designed to help that person get back on their feet financially.  Each of these professionals is available to be part of the collaborative team, which communicates with each other and helps the family through the divorce transition. The analogy often used is to a race car which pulls into a pit: the team of professionals takes care of all the family’s needs at once and helps get the car back on the road as quickly as possible, in as good a condition as possible.

In my opinion, collaborative divorce is the Rolls Royce of divorce options. It gives both of you the full benefit of a zealous advocate as your counsel. It also enables you to utilize the resources of professionals who can truly help get things sorted out in the best way possible, leading to faster healing from this trauma. And it also lets you avoid the tens of thousands of dollars that come with the turf of a litigated divorce. Seriously! Litigated divorces are that expensive!  (For a more detailed article about the cost of divorce, click HERE.)  I’ve read that a typical, litigated divorce involving property disputes and battles over children costs somewhere between $20,000 and $40,000. A collaborative divorce typically costs between $7,000 and 10,000. “Why is there such a difference in cost,” you might ask?

At the outset, the cost may appear the same. The attorneys, the professionals, all charge the same hourly rate no matter what type of divorce you pursue. The difference is the number of hours — what must be done to “prove” one’s case and “protect” one’s interest and force the other side to comply with discovery in an adversarial divorce. The posturing, positioning, and proving involved in litigation escalates conflict, polarizes the parties and forces everyone to build walls and fight battles instead of coming to agreement. In collaborative divorce, you skip this nastiness. You share experts, share information, and there is no posturing for court. So even though you may use the same professionals as you would in a litigated divorce, you eliminate the court costs, eliminate double fees, and eliminate the added attorney hours that come with escalation of conflict.

There is a “catch” to collaborative divorce, however. This “catch” is necessary to give both parties assurance that each of you is negotiating in good faith.  And here’s what it is:

How can you be sure that the “other side” is fully committed to the collaborative process? It would be a “worst case scenario,” in the legal sense, if one person used the full disclosure inherent in the collaborative divorce process to learn everything about the other person’s case and then went to court and used all of that to pummel the other person in a courtroom battle. For this reason, the “catch” of collaborative divorce is that it requires a 100% commitment to the process, on the part of all parties and professionals. No one is allowed to play the game with their fingers crossed behind their back, so to speak. To prevent the possibility of one party double-crossing the other, the rule in collaborative divorce is that if one party withdraws and decides to go to court, all attorneys and professionals involved up to that point must withdraw. If one person withdraws, both parties must start over with new professionals, and none of the collaborative professionals may testify in the new proceeding.  The purpose of this rule is to ensure total commitment to the process.  Withdrawal does happen, but only rarely – less than 5% of the time.  Most parties who engage in collaborative divorce end up being quite satisfied with it.

Be aware that some attorneys will claim to offer a collaborative divorce, but in fact they are neither trained and certified, and this also means they’re not absolutely committed to the “no court” rule.   An attorney who is trained and certified, in contrast, has demonstrated their deep commitment to helping clients get through divorce with as little harm as possible, to assisting you in moving ahead with your new lives in as healed and whole position as we can help achieve. For a true collaborative divorce, you must seek out and utilize a collaborative practitioner.

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How can you find a collaborative divorce practitioner?  The IACP has a link on their web site, HERE, which will enable you to find a certified collaborative divorce practitioner.

In conclusion, I’m sorry that your marriage may be ending and that you are investigating options for divorce.  However, it’s my experience that healing and hope are possible.  Divorce need not leave you or your spouse as a casualty on the battlefield of a protracted courtroom battle.  By making wise choices, you can separate your lives without undue damage to you, your spouse, or your children, and you can both continue to work as a team to parent your children.  Life will go on!  The choice is up to you:  will you move forward in a way that is healing, or will you move forward in a way that slings mud from past anger and hurt.  I hope you will consider collaborative divorce seriously as you ponder your many options.

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