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A traditional contested divorce or marital separation proceeding is a civil lawsuit. One party files a Petition to commence the divorce proceeding and asks for everything the court could possibly award them. The other party then files a Response asking for everything the court could possibly award them. Lawyers then file respective documents, contentious claims, and motions, which may take the couple through a series of court hearings, and ultimately a trial, over a period of months or years.

A conventional separation, divorce or child custody proceeding is based on adversarial principles which often intensify the conflict between the parties. Family law litigators often perceive their roles as “winning” for their client. Winning in a divorce is often defined as being awarded the most money, being awarded the most time with the children, and being awarded spousal and child support. Parties choose, or often threaten, to use the court to resolve the marital disputes. When settlements are attempted, it can often lead to the lawyers engaging in contentious last minute negotiations “on the courthouse steps”. Couples working within the adversarial framework cannot avoid viewing each other as adversaries, and the divorce proceedings can quickly become a battleground. The conflicts inherent in litigation can take an immense toll on the parties’ financial situation, their emotional well-being and their children.

Collaborative Divorce was created by experienced family law litigators who were all too aware of the emotional toll contentious family law proceedings have on the parties and their children. The guiding principle of Collaborative Divorce is Respect. Collaborative Professionals are trained in non-confrontational techniques, which help keep negotiations productive and fair. The goal is to build a mutually constructed marital settlement agreement, and to resolve all issues between the parties without perpetuating disagreement. Collaborative Divorce is by definition a non-adversarial alternative dispute resolution approach to divorce. Your Collaborative attorneys and other professional team members agree not to go to court. The Collaborative attorneys and the other members of the team will help you negotiate in good faith. They will work with you and your spouse to achieve a mutual settlement outside the court system.

In Mediation, there is one “neutral” professional who helps the disputing parties try to settle the issues in their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, lacks negotiating skill, or is emotionally charged, the mediation can become unbalanced. As the mediator works to get the process “unstuck” he or she can be viewed as biased by one side or the other. If the mediator does not find a way to deal with the problem, the mediation can break down or the final agreement can be unfair. If there are attorneys for the parties, they may not be present at the negotiation/mediation sessions and their advice may come too late to be helpful.

Cooperative divorce is a relatively new concept which appears to use some of the key elements of Collaborative law, such as the voluntary and free exchange of information, the commitment to mutual respect and cooperation, and the desire to avoid going to court to resolve the divorce issues. Family law attorneys who offer the Cooperative Divorce process may or may not have been collaboratively trained, and the process will usually not include the disqualification agreement which forms the core of Collaborative Divorce. If the process breaks down without the pledge not to go to court, the same attorneys working with a divorcing couple on a settlement can quickly switch roles to that of conventional litigators and begin preparing the case for trial.

The disqualification component of a Collaborative Divorce proceeding distinguishes it from all other alternative dispute resolution processes. In order for a marital dissolution proceeding to be truly Collaborative, the parties and their Collaborative lawyers must sign a collaborative participation agreement. At the heart of this agreement is the commitment not to go to court. The Collaborative lawyers who have been involved in the collaborative process, along with the chosen collaborative team members, must all withdraw if the collaborative process ends. By agreeing to withdraw, the Collaborative attorneys help the divorcing or separating couple focus on decisions that must be made to finalize a marital settlement agreement. The assurance that neither attorney is “building a case” against the other party while they are participating in the negotiation process provides the parties with attorneys trained to work together to protect the rights of each party while keeping the commitment to settle. Each side has professional legal advice and advocacy available at all times during the Collaborative process. When particularly difficult issues arise during the marital dissolution, the Collaborative attorneys and other team members help keep the process focused on finding a resolution rather than preparing for a potential battle.

In summary, Cooperative Divorce, Mediation, and Collaborative Practice all rely on the voluntary, free exchange of financial information and the commitment to resolve the marital dissolution issues in a manner that reflects the interests of both parties. If the mediation process or the cooperative divorce process does not result in a full settlement, the parties may chose to use their respective lawyers in litigation. In Collaborative practice, both parties and their collaborative attorneys sign a collaborative agreement pledging not to go to court. The collaborative agreement states that the collaborative lawyers and other profession team members will be disqualified from participating in litigation if the collaborative process is terminated before reaching a marital settlement agreement. Many Collaborative professionals believe that when court is no longer an option, a settlement is more likely to be pursued and everyone must ‘retool’ to learn the additional skills needed to resolve disputes without resorting to court. Your choice of mediation, cooperative divorce or collaborative divorce should be made after you have received and considered appropriate professional advice.

A Collaborative Team is a group of collaboratively trained professionals (family law attorneys, child specialists, mental health professionals/coaches, and financial specialists) with whom you and your spouse choose to work to resolve the issues in your Collaborative divorce proceeding. All Collaborative professionals have received training in the collaborative process and have experience in helping divorcing couples select the best Collaborative team model. The decision to add a particular Collaborative professional to the Collaborative team is normally made early in the process, and is based on the parties’ unique challenges and issues.

The Collaborative Divorce process is versatile and flexible, offering those who decide to divorce collaboratively a variety of ways to resolve their family law issues. The mental health, child development and financial experts are available to assist the parties’ collaborative attorneys based on the particular needs of the family. The level of cooperation between the clients, the financial resources available to “invest” in a healthy divorce, whether the parties anticipate child custody, child support and other child-related issues, and the complexity (emotional and financial) of the situation all help determine which Collaborative professionals are needed in a particular divorce proceeding.

The Collaborative Divorce process allows each professional to apply his or her specific education, training and experience to the parties’ issues. If the dissolution issues are strictly legal, the team may simply consist of the clients and their respective collaboratively trained family law lawyers. However, divorce, separation, child custody, support, and the division of property often create challenging emotional, financial and child-related issues for the parties, which are best resolved utilizing the interdisciplinary Collaborative Team approach.

Therefore, in addition to you and your spouse’s Collaborative divorce lawyers, you may need the support of other Collaborative professionals to help keep your discussions productive:

One or two coaches (collaboratively trained marriage and family therapists or Psychologists) can help you and your spouse improve communication and manage conflict

A neutral financial specialist (a collaboratively trained accountant or certified financial planner) can help you compile and decipher financial information. The financial neutral also can create future projections for realistic settlement options.

A neutral child specialist (collaboratively trained marriage and family therapists or psychologists) can help protect the well-being of the children, provide insight into the children’s issues, and help craft parenting plans. Additionally, the child specialist can educate and support the parents with respect to parenting issues following divorce or separation.

Although we stress that our clients should not view Collaborative Divorce as a “low cost” alternative, experience across the country suggests that financial savings over a traditional adversarial divorce are in the range of 20 – 40%. This assumes an adversarial divorce with an out of court settlement. The costs can be much higher when a contested divorce proceeding actually goes to trial. In short, Collaborative Divorce is no more (and may be less) expensive than traditional family law litigation, and the Collaborative services provided and results achieved are much better.

All marital dissolution and separation proceedings, child custody issues, spousal support issues, child support issues, property division, divorce litigation and divorce settlements are subject to the California Family Code. Under California law, parties going through a marital dissolution proceeding have an affirmative duty to disclose all relevant information and documentation to one another. Unfortunately, in litigation, a great deal of time and money is often spent enforcing this duty. In Collaborative Divorce, the goal is to create a cooperative, rather than adversarial, process. The parties agree in writing to disclose fully and immediately all relevant information and documentation. Undermining behaviors, such as keeping secrets, hiding information, or any tactics that delay the process, are not permitted. All information is shared openly. The Collaborative Attorneys and the parties work together to create win-win solutions for the entire family.

Collaborative Divorce attorneys take an enlightened approach to helping their clients. They understand that to assist their client effectively, they must help the entire family. Collaborative Divorce lawyers go through their own professional “paradigm shift.” Instead of being dedicated to “winning” the most for their own client (no matter what the human or financial cost), collaborative lawyers are dedicated to helping their clients achieve the healthiest outcome for every family member.

Collaborative lawyers do not work as “hired guns”. They do not take advantage of mistakes inadvertently made by the other side. They expect and encourage the highest good-faith problem-solving behavior from their clients and themselves. Collaborative attorneys trust one another. Respect and integrity are hallmarks of the Collaborative Divorce process. Collaborative family law attorneys strive for cooperation and integrity, encouraging each party to aspire to those same standards.

Collaborative Divorce was designed to deal more effectively with divorce issues, while maintaining an absolute commitment to a full marital settlement agreement. Each party receives expert legal advice from a family law attorney, and has the assistance of legal counsel throughout the process. It is the job of the collaborative family law professionals to work with the parties to insure they remain reasonable, positive and productive.

Collaborative Divorce encourages creative problem solving, and engages the strengths of all the Collaborative team members and the parties to achieve the resolution most suitable for the family. Collaborative Divorce attorneys are sensitive to this reality – that to benefit their own client, they must also be supportive of a good settlement for the other party. This is the special characteristic of Collaborative Divorce that is not found in other alternative dispute resolution processes.

No single approach is right for every divorcing couple, and how you will proceed should be discussed with a professional. In contrast to the often destructive and adversarial components of conventional divorce litigation, Collaborative Divorce is the healthiest divorce model because it appropriately addresses all of the dissolution issues and helps the parties develop more effective ways of dealing and communicating with one another. Collaborative Divorce may be right for your family if you and your spouse:

Collaborative Divorce was designed to deal more effectively with divorce issues, while maintaining an absolute commitment to a full marital settlement agreement. Each party receives expert legal advice from a family law attorney, and has the assistance of legal counsel throughout the process. It is the job of the collaborative family law professionals to work with the parties to insure they remain reasonable, positive and productive.

• Want an opportunity to receive emotional, financial and legal help to guide you through your divorce.
• Are concerned about containing the financial and emotional costs of divorce.
• Have children and want to make certain their needs are addressed during the divorce proceeding.
• Want to minimize the conflict that often accompanies divorce and are willing to do what is necessary to be successful in this regard.
• Want a confidential divorce process without adversarial attorneys and without going to family law court.
• Are concerned about your post-divorce relationship with each other.

You can start by sharing this information with your spouse. In order to proceed collaboratively when addressing the “business” of your divorce, you both need to agree upon the Collaborative process. If you decide you would like to resolve your divorce using the Collaborative Divorce process, you and your spouse will each select and meet with a Collaborative family law attorney; or you may decide instead to meet jointly with a Collaboratively-trained mental health specialist or neutral financial specialist first for an initial consultant. He or she will then refer you to our list of Collaborative lawyers.

It is important to understand how Collaborative attorneys work under this process. They do not work as “hired guns.” They do not take advantage of mistakes inadvertently made by the other side. They expect and encourage the highest good-faith problem-solving behavior from their clients and themselves.

Collaborative attorneys trust one another. Respect and integrity are hallmarks of the Collaborative Divorce process. Collaborative family law attorneys strive for cooperation and integrity, encouraging each party to aspire to those same standards.

When you and your spouse meet privately with your respective lawyers, you can discuss your goals and your concerns, and determine whether there are any issues that would benefit from immediate attention. Your Collaborative family law attorney will review all your options and make sure there are no barriers to the Collaborative process such as domestic violence, drug abuse, safety issues, or mental health concerns.

Once you, your spouse and the professionals believe the Collaborative process is appropriate for your circumstances, your lawyers will then draft the Collaborative agreement that will cover the core principles of the process:

• Disclosure of documents: the free and voluntary exchange of information.
• No court: the pledge of no court and the voluntary withdrawal of attorneys and all team members if either party no longer wishes to pursue settlement and decides to go to court.
• Mutual respect by all involved parties.
• Determination to find win-win negotiated solutions to settle all dissolution issues.

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