Collaborative Divorce: Understanding the Procedures

A collaborative divorce is a process where both spouses, along with their respective attorneys and other professionals, work together to reach a mutually agreeable settlement outside of the courtroom. The goal is to resolve the divorce in a non-adversarial and cooperative manner, focusing on communication, problem-solving, and finding solutions that meet the needs of both parties. 

It is also generally a much less expensive alternative to divorce. Rather than paying family law attorneys to go to court for their clients, collaborative divorce is a “cheaper divorce” during a time when the finances of a couple will be going through

Here's a step-by-step breakdown of how the collaborative divorce process works:

1. Initial Consultation and Agreement to Collaborate

• Selecting Collaborative Attorneys: Each spouse hires a collaborative divorce attorney. These attorneys are specially trained in the collaborative process and are committed to resolving the divorce without going to court. Both parties agree to work together cooperatively rather than engaging in litigation.
• Signing a Participation Agreement: Before starting the collaborative process, both spouses and their attorneys sign a participation agreement. This document outlines the ground rules for the collaborative divorce and confirms that both parties are committed to resolving the divorce amicably. The agreement also includes a clause that requires both attorneys to withdraw from the case if the collaborative process fails and the case goes to court. This ensures that both sides are committed to making the process work.

2. Team FormationIn a collaborative divorce, the collaborative team is usually made up of:

• Two Collaborative Attorneys: One attorney for each spouse. These attorneys guide the clients through the process, help with legal advice, and advocate for their client’s interests while promoting cooperation.
• Financial Professionals: A neutral financial expert (such as a financial planner, accountant, or forensic expert) may be brought in to help both parties understand the financial aspects of the divorce, including asset division, income, taxes, and spousal support. This ensures that both parties are well-informed when making financial decisions.
• Mental Health Professional: If there are children involved, a neutral mental health expert (such as a child psychologist or counselor) will be brought in to help work through any issues related to parenting plans. The specialist ensures that the children's needs are considered and that a parenting plan is developed in their best interests. This same specialist helps spouses manage the emotional challenges of divorce, improve communication, and keep the process focused on problem-solving rather than conflict.

3. Information Gathering and Full Disclosure

• Open Communication: One of the core principles of the collaborative divorce process is transparency. Both parties agree to share all relevant information regarding finances, assets, debts, and any other pertinent information. This full and honest disclosure ensures that both sides have all the information they need to make informed decisions.
• Gathering Documents: Both parties will provide financial statements, tax returns, bank records, and other documents that are necessary to fairly divide assets and debts. The goal is to avoid surprises or disputes about financial matters later in the process.

4. Meetings and Negotiation

• Joint Meetings: The collaborative divorce process typically involves a series of joint “team” meetings with both spouses, their attorneys, and any other professionals involved (such as the financial expert and mental health neutral). During these meetings, everyone works together to discuss and resolve the issues at hand.
• Open Dialogue and Problem-Solving: The meetings are designed to be non-adversarial and focused on finding solutions that are fair to both parties. Instead of a contentious back-and-forth (like in litigation), the process is based on problem-solving, brainstorming, and exploring creative solutions that meet the needs of both spouses.
• Focus on Interests, Not Positions: Rather than focusing on rigid positions (e.g., "I want 50% of the assets"), the collaborative process encourages both parties to express their underlying interests (e.g., "I want financial security and stability for my future"). This approach often leads to more flexible, creative solutions.

5. Resolving Key IssuesThroughout the collaborative process, the team will address various issues, including:

• Division of Assets and Debts: The couple will work together to divide their assets, such as real estate, retirement accounts, personal property, and other valuables. A financial expert may help ensure a fair and balanced distribution.
• Spousal Support: If applicable, spousal support (alimony) will be discussed and agreed upon, with the goal of providing fair financial support to one party when needed.
• Parenting Plan and Child Custody: If there are children involved, the collaborative process will focus on developing a parenting plan that outlines visitation schedules and decision-making responsibilities. 
• Child Support: The parties will also agree on child support terms, ensuring that both parents contribute financially to their children’s upbringing in a fair manner.

6. Final Agreement and Legal DocumentsOnce all the issues have been addressed and a mutually agreeable solution is reached, the collaborative team will help both spouses draft the final divorce agreement called Marital Settlement Agreement. This document will cover all aspects of the divorce, including:

• Property division
• Spousal support (if any)
• Parenting arrangements and child support
• Other relevant terms

The agreement is reviewed by both spouses and their attorneys to ensure that it is fair and in compliance with state law.7. Finalizing the Divorce

• Court Approval: After the final agreement is drafted and both parties agree to the terms, the marital settlement agreement is submitted to the court for approval. Since collaborative divorce is a negotiated settlement, the judge will typically approve the agreement without a trial, and a final divorce decree is issued.
• Minimal Court Involvement: One of the key benefits of collaborative divorce is that it minimizes or eliminates the need for court appearances. Most of the work is done outside of court, with the court only involved in finalizing the divorce and signing off on the settlement.

Benefits of Collaborative Divorce:

• Less Conflict: Because the process is designed to be cooperative, it tends to reduce the emotional strain and conflict often associated with traditional litigation.
• Greater Control: Both parties have more control over the outcome, as they are directly involved in the negotiations.
• Confidentiality: Collaborative divorce is private, and all discussions and documents are confidential, unlike traditional divorce proceedings, which are part of the public record.
• Preserved Relationships: The focus on respectful communication helps maintain a better relationship between the spouses, which is particularly beneficial when children are involved.
• Cost-Effective: While it can be expensive, collaborative divorce may be less costly than going through protracted litigation, especially when the process moves efficiently.

Conclusion:In summary, collaborative divorce is a structured yet flexible process aimed at helping couples resolve their divorce in a cooperative and respectful manner. By using a team approach that includes legal, financial, and emotional professionals, it focuses on reaching mutually beneficial solutions while avoiding the contentiousness and costs of traditional litigation. However, it requires both parties to be committed to working together and being transparent. If successful, it can lead to a quicker, more amicable resolution and a stronger foundation for co-parenting or moving forward post-divorce.Rachel Borntreger and Jason Borntreger both practice collaborative law. Rachel Borntreger has been passionate about the benefits of collaborative law for over a decade, and Rachel is the founder of the local non-profit, Capital Collaborative Group.