Collaborative Divorce

Collaborative Divorce is a non-adversarial process in which each person is represented by his or her own attorney. The spouses and their collaborative attorneys pledge to negotiate in good faith in a series of four-way meetings until an agreement is reached on all the issues. The spouses and their collaborative attorneys also pledge not to go to court (except for filing a non-contested divorce at the end of a successful collaborative divorce matter.) Each spouse is under a duty to fully disclose all relevant financial information and documents, past and present. Information is transparent so both spouses know the same information when making decisions. There are no financial secrets in the collaborative process. In collaborative negotiations, the spouses promise to negotiate in good faith to reach an agreement that is acceptable to both spouses.

When both spouses are at the same table talking, communication is more efficient. In the collaborative process, the clients are at the center of the communication. The clients also control how often they meet, when they meet, and what “homework” each will do before the next meeting. The clients are not controlled by anyone else’s agenda or calendar but their own.

Yvonne Homeyer is a collaboratively trained attorney who has worked with clients in both the attorney-only collaborative model as well as the integrated interdisciplinary Team approach. Her article entitled “Collaborative Law: Good News, Bad News, or No News?” was published in the St. Louis Bar Journal (Spring 2009). Ms. Homeyer serves as the Chairperson of the Missouri Bar’s Collaborative Law Subcommittee. She is the Vice President of the Collaborative Family Law Association based in the Saint Louis area and a member of the International Academy of Collaborative Professionals, the Association of Missouri Mediators, the Association of Family & Conciliation Courts, and the Association for Conflict Resolution.

Because the entire focus of the collaborative model is settlement and resolution, the spouses must hire new attorneys if they fail to reach an agreement during the collaborative process and move on to a contested divorce in court. This disqualification provision assures the spouses that their attorneys are focused 100% on resolution and have nothing to gain by creating impasse. These pledges, and other guidelines governing the collaborative process, are set out in a Participation Agreement which is signed by both spouses and both collaborative attorneys at the beginning of the negotiations. The Participation Agreement states that what happens during the collaborative negotiations will be confidential. Good faith and trust must be present for the collaborative process to function well.

Many couples using the collaborative divorce model choose to work not only with their attorneys but also with collaboratively-trained divorce coaches, a child specialist, and/or a financial professional. The collaborative model can therefore expand into a Team approach where the spouses’ emotional and financial needs are addressed as well as their legal needs. All of these collaborative professionals work with the couple under the umbrella of the Participation Agreement so that the work of all the collaborative professionals is confidential. When one or more collaborative professionals besides the attorneys are added to the collaborative Team, the process is sometimes called “interdisciplinary” collaborative divorce. It is up to the couple to decide if they want to work with the attorneys only or add other collaborative professionals to the Team.

If the spouses decide to work with divorce coaches, then together they can retain one neutral divorce coach or each spouse can retain his or her own divorce coach. The spouses and the divorce coach(es) also pledge to work together. The divorce coach can provide emotional support to the spouse and suggest new communication dynamics between the spouses. If there are two coaches, the spouses and their divorce coaches can meet in a four-way session to talk about issues that can best be addressed with both spouses together. Although the divorce coach is a mental health professional, a divorce coach does not provide therapy. The role of the divorce coach is limited to providing support and communication guidance within the limited context of the divorce.

A child specialist can work with the parents to bring the child’s perspective to the divorce process. A child specialist will meet with the children to gain insight into how the divorce is affecting them and to answer the children’s questions about the divorce process. The child specialist will then talk with the divorce coaches and the parents so that the parents gain greater understanding about the children’s needs and interests. The child specialist is hired jointly by the parents.

A financial professional would be hired by both spouses jointly and does not represent either spouse. The financial consultant therefore plays a neutral role. The couple can work with the financial consultant to prepare financial statements, create future budgets, project after-tax cash flow of each spouse after the divorce, and discuss tax issues. The financial professional cannot provide individual services to either spouse after the divorce. His or her role is limited to assisting the couple during the collaborative divorce process only.

In the collaborative process, the couple can expand their discussion to include any other issues that are important to them and their family. For example, a couple may want to discuss continued future relationships with the other spouse’s family, how each spouse will introduce new “significant others” to the children, how the couple will keep each other informed as to what is happening with the children, how the couple will handle future disagreements after the divorce, and other similar issues outside the scope of what the couple is required to put in their divorce agreement.

Although the spouses and their collaborative attorneys pledge to work together in a spirit of cooperation to reach an agreement, the attorney –client privilege remains intact. Therefore, all communications that take place just between a client and his or her collaborative attorney are protected by the attorney-client privilege.

When the couple has reached an agreement, their collaborative attorneys will prepare the Settlement Agreement (also called the Separation Agreement) and, if there are children, a Parenting Plan. The attorneys will also prepare the additional documents needed by the court to file a Petition for Dissolution of Marriage. Because the matter is settled, the collaborative attorneys will continue to represent their clients in court for the purpose of getting their clients divorced according to the terms in the Settlement Agreement and Parenting Plan.

If real estate, retirement pensions, or other deferred compensation accounts are involved, then legal documents such as deeds and Qualified Domestic Relations Orders may also be needed. The collaborative attorneys will also prepare such additional documents when necessary.

The collaborative process may be a good choice for couples who want to resolve their divorce issues out of court in a respectful way and who also want to have their individual attorneys participate in the negotiation sessions. In the collaborative model, the spouses can also hire additional collaborative professionals such as divorce coaches, a child specialist, and a financial professional to work with them and their attorneys.

Two recent books written by experienced collaborative professionals may provide additional insight into the collaborative divorce process:

  • Collaborative Divorce: the Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, by Pauline H. Tesler and Peggy Thompson.
  • The Collaborative Way to Divorce: the Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids — Without Going to Court, by Stuart G. Webb and Ronald D. Ousky.

The collaborative model can be used not only in divorces but also for Legal Separation, Paternity matters, Motions to Modify (child support, custody, or maintenance), or any other family law matter.

Of course, there are no guarantees that a couple using the collaborative model will reach an agreement that is acceptable to both of them. In the event that they fail to reach an agreement in the collaborative process, their collaborative attorneys must withdraw and each spouse must retain a new attorney for the contested divorce in court.

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