First, What is collaborative divorce?
Collaborative divorce is a voluntary process that a couple can pursue. It is one of the alternatives to divorce through the court process. While only a judge can dissolve the marriage, a couple seeking divorce have many options to pursue in reaching a resolution of their marital issues such as custody, a parenting plan, support and division of marital assets and debts.
Second, what options are available to resolve marital issues so that a divorce can be quickly, inexpensively, and efficiently processed by the court in what is called an uncontested divorce proceeding? Couples have many options such as:
- Direct Negotiation of a Settlement: A couple can potentially sit down together and resolve (come to agreement on) their marital issues before each meet with a lawyer to discuss the couple’s agreement for a lawyer to draft a formal marital settlement agreement (a contract between them), a binding and legally enforceable contract.
- Mediation: A couple can opt to mediate their marital issues. This involves the couple (usually alone, i.e., without lawyers present) engaging in confidential, private meetings with a neutral mediator (some being lawyers, some being retired judges, and some being non-lawyers who have taken mediation training). The mediator’s role is not to provide legal advice but to walk the couple through all the marital or legal issues they must resolve to reach agreement on all such marital issues, to keep the peace in the process, to keep the couple on track to prevent the meetings from devolving into marital arguments and from going down rabbit holes that waste time and money, and to ultimately draft a memorandum of understanding (an “MOU”) that outlines all the agreements reached in mediation. That MOU then can be used as a basis for attorneys to draft a formal marital settlement agreement (“MSA”) which is a legally enforceable contract between the spouses.
- Collaborative Divorce: A couple can engage in the collaborative divorce process. This involves first each spouse retaining an attorney trained in collaborative divorce and, second, signing a collaborative divorce participation agreement. The couple and their attorneys and usually a divorce coach (such as a marriage and family therapist, social worker or psychologist, for example) then meet (either in person or via Zoom) in a series of confidential meetings (such as is done in mediation) with the goal being to reach a consensual and durable (long-lasting) agreement from which the lawyers then draft a marital settlement agreement (a legally enforceable contract) that governs child-related issues (such as custody and a parenting plan and child support, among other items), spousal support (also called alimony), and division of marital property and debt.
- Attorney Negotiations: A couple can go the traditional route with each hiring their own attorney and with the attorneys then negotiating terms of settlement with the authority of their client. Sometimes this can include the couple and their attorneys engaging in a “four-way” meeting where everyone meets and discusses terms of settlement that might be acceptable to both spouses.
- Trial: The final option is to go to trial. This is not just filing for divorce and having a judge make decisions for the couple and their children. Rather, it involves going through the litigation process of filing formal pleadings with the court, engaging in “discovery” which involves answering under oath written questions from the other spouse’s lawyer, exchanging documents (many of which are financial in nature), and possibly even depositions (oral question-and-answer sessions at an attorney’s office with a court reporter present who transcribes each attorney question and the witness’s (deponent’s) answers which are then presented to everyone in the form of a ”transcript” (a booklet (which can be electronic) containing all the questions and answers from the deposition). Part of the discovery process also can involve obtaining appraisals of all assets to determine their current value (such as real estate, businesses, professional practices, and pensions).
As you might suspect, going from #1 to #5 involves increased expense in terms of legal fees. It also makes negotiations more remote compared to the couple sitting down together and working on terms of settlement (which is what is done in mediation as well, but with the mediator’s assistance).