Collaborative divorce is a team-centered approach used to resolve family law disputes. While we use the term “divorce” to describe this area of law, collaborative practice can be used in many types of cases, including paternity, legal separation, annulment, pre- or post-nuptial agreements, and the dissolution of non-marital relationships.
The Team Approach
To begin a collaborative case, each party must hire a lawyer who is specially trained in the collaborative model. Attorney Sara Vanden Brook of The Law Center has completed the training and is a member of the Collaborative Family Law Council of Wisconsin.
The parties and lawyers sign an agreement to work together in a respectful, open manner, with a goal to reach settlement without relying on the court system to resolve disputes. The agreement must specify that each lawyer’s role is limited to representing their clients in settlement negotiations only. If, during the process, one or both of the parties choose to have a judge decide the issues, the collaborative lawyers must withdraw from further representation.
In some cases, the only team members are the two lawyers and the parties. Collaborative lawyers focus on supporting and educating their clients through the settlement process, rather than concentrating on structuring a lawsuit that pits the parties against one another. The attorneys work together to structure the team, gather information, and communicate at and between meetings.
Often, the team also includes licensed mental health professionals who act as coaches and child specialists. Coaches do not engage in therapy, but assist parties in managing and understanding their emotions through the process. Coaches can also address issues related to the new two-household co-parenting relationship, if applicable. A child specialist is a neutral third party who focuses exclusively on and advocates for the children’s concerns and/or their interests. The child specialist also acts as a consultant to the parents and the team to create a healthier environment for the children of the relationship.
Other team members, such as financial specialists, real estate professionals, and vocational experts, can be brought into the process at any time. The team members share a common goal to meet the unique needs of each family member by educating and supporting the entire family. Once an agreement is reached, it is put in writing and filed with the court. The court schedules an uncontested final hearing at which the court approves the agreement and grants judgment.
Collaborative Divorce Versus Traditional Divorce
The collaborative approach is very different from the traditional divorce practice of litigation. Litigation is an adversarial process in which openness and full-disclosure usually come only after lawyers use formal legal procedures, such as subpoenas and depositions, to obtain information from the other party. In the collaborative model, parties agree from the outset to be open and share information with one another, so these formal procedures are unnecessary. With this transparency, the parties are free to focus on and create their own solutions to restructure and transition their lives.
In traditional divorce litigation, there are specific deadlines and hearing dates. While many lawyers attempt to negotiate in a cooperative manner through the litigation process, settlement discussions are often confined to what a judge could order by statute if the case were to proceed to trial. The collaborative process is designed to move at a pace that meets the needs of the parties. The parties maintain control over the negotiation process and the eventual outcome without the risk of an unknown decision by the judge, or pressured last-minute compromises which may have unfortunate unforeseen consequences.
When Children are Involved
Traditional litigation of legal custody and physical placement disputes begins with at least one mediation session. If that fails, a custody study is done and recommendations are made to the court about what custodial and placement arrangement meets the children’s needs. If the parties disagree with the recommendations, the court must appoint a guardian ad litem, a lawyer who advocates for the best interest of the children (note that a guardian ad litem may be appointed at any time during litigation if the parties are unable to agree on child-related issues). In the collaborative process, on the other hand, parents choose licensed mental health professionals, rather than court appointed counselors and lawyers, to guide them in making decisions about and for their children.
High conflict and hostility between the parties is common when a relationship ends. The legal process of litigation can exacerbate an already stressful situation. The collaborative team acknowledges the conflict, hostility, and stress and works through the areas of disagreement to reach creative and productive solutions that work for the parties and their families. The Law Center team would be happy to speak with you about the alternative of collaborative divorce.