Imagine negotiating your entire divorce without ever stepping foot inside a courtroom. Imagine negotiating with two attorneys interested in a mutually-beneficial result. Imagine also meeting with a child psychologist or counselor during the process who will assist you in formulating a parenting plan in your child’s best interests, as well as yours and those of your spouse. Imagine it all costing less than a fully litigated divorce. This isn’t a dream. This is the concept of a collaborative divorce.
Collaborative divorce was pioneered in 1990 by attorney Stuart Webb of Minneapolis. He started the process as an alternative to litigation after many years in battling on behalf of family law clients in the courts. An apparently successful litigator, he mused that there must be a better way of divorcing people than by solely attacking them at great financial and emotional expense. He found that negotiation and interest-based negotiation achieved the desired goals without the forced process of decimating the other party.
Collaborative divorce utilizes interest-based, rather than position-based, bargaining. In interest-based bargaining, the parties focus of meeting each parties’ respective concerns and interests in a cooperative manner. Conversely, position-based bargaining is the typical approach to negotiating a divorce whereby each party assumes a position that he or she ultimately proves reluctant to move away from. At Sandia Family Law, we strongly support interest-based bargaining because it allows both sides (and both attorneys) to retain more respect.
To start a collaborative divorce, each party retains his or her own collaboratively trained attorney. Both attorneys and their clients will meet to sign a collaborative divorce contract. In this document, the clients both promise to cooperate in reaching a mutually-beneficial end result. The parties also promise to avoid litigation and court intervention. If either party chooses to leave the collaborative process, the parties must hire new attorneys and additionally forego all of the work-product obtained as part of the process, effectively starting over from scratch. The prospect of such a setback is a very expensive consequence, and generally serves as a good deterrent to either party leaving the collaborative process without an agreement.
The parties will next meet with the divorce coach. This can be a counselor, financial advisor or social worker, chosen as part of the team and based on the recommendation of the attorneys. The divorce coach, after meeting with both parties, can assess the more difficult issues, the hot-button topics and various other complications and then reports findings to the attorneys. For instance, the divorce coach may ascertain that one party’s deep betrayal will necessitate moving the case very slowly. Collaborative divorce, fortunately, allows the parties to take that slower approach if the need is warranted. Meeting the perceived-slighted party’s needs in such a way will generally garner more cooperation later in the process when it will be much needed.
The remaining two members of the team are the child specialist and the financial specialist, each of whom will bring their own area of expertise to the case. In a litigated divorce, the attorneys will generally do everything from trying the custody and visitation issues to gathering and analyzing all of the financial documents and presenting everything to the judge at the trial. In even more problematic cases, each side will hire their own expert to present such issues supporting their side to the judge. Alternately, in a collaborative divorce, the child specialist and financial specialist do all the busy work for the attorneys and in a manner perceived as more objective.
The child specialist is generally a child counselor or child psychologist who meets with the parties, and sometimes the children, in an attempt to formulate a parenting and visitation plan amenable to all parties. The child specialist may help the parties formulate a plan in the child’s best interests that works around parties’ work schedules or the children’s extra curricular activities. The child specialist may recommend certain plans if the child is particularly young, or may indicate to the parties what a judge may typically do in such cases.
The financial specialist has the tedious job of gathering all of the pertinent financial documents and organizing them for the team. This would include the parties’ income documents, retirement statements, credit card and loan statements. The financial specialist may help the parties value their home, calculate child support and alimony worksheets and budgets for analysis by the attorneys. This person’s work saves the attorneys many hours of time, as well as saving the parties potentially thousands of dollars with the utilization of only one individual gathering one set of documents for analysis by the entire team.
During the entire process, the parties will meet together in an attempt to reach agreements on all issues related to the case. In more complex (emotionally or financially) cases, several meetings may be required that involve all of the professionals. In others, two or three meetings can allow the parties to reach full agreement. At the end of the process, one of the attorneys will draft the documents and everything is signed. The entire process generally takes anywhere from two to eight months.
There are many reasons to choose a collaborative divorce. Collaborative divorce prioritizes your children. It allows both parties to retain respect for themselves and each other. It allows the parties to retain control over the proceedings. It is generally less expensive than a fully litigated divorce. Finally, there is significantly less stress involved both all involved.