Couples seeking divorce or legal separation typically face great uncertainty in the court system and the threat of contested litigation. An already frustrating event can be even worse for both parties with a lengthy negotiation period or trial – not to mention a dissatisfying settlement in the end.
Collaborative law, a more uncommon alternative to the “nasty divorce,” is relatively new to our community. But this highly specialized area of the law has spread rapidly through the United States since the 1980s and has been particularly positive for those seeking a healthier and more efficient divorce or separation.
Nancy Richardson, an attorney with Stewart, Melvin & Frost, is trained in the specialized field of collaborative law and explains the details and advantages of Collaborative Law.
Question: What is Collaborative Law?
Nancy: Collaborative Law is a process, similar to an enhanced mediation, whereby a couple seeking divorce or separation voluntarily agrees to work with their individually hired attorneys and other counselors, such as a financial professional, to reach an agreement outside of the court system.
Each member of the collaboration team is trained and experienced in collaborative law and a number of special issues related to divorce. The main objective is to resolve the dispute through face-to-face collaboration – officially referred to as one means of “Alternative Dispute Resolution” – to seek alternatives to court or litigation.
Additionally, the couple is guided to work together on a plan that will allow for a more successful transition from one household to two households with their newly divided assets. This is where a financial professional would get involved with the collaboration team.
The collaboration team may also include a child specialist or psychologist when children are involved. The specialist focuses on the child’s point of view, well-being and adjustment to the divorce and can also assist the parents in communicating with each other in a manner that does not pull the child into their conflict.
The entire team – the couple, their lawyers, a financial professional, and child specialist – work together to develop a healthy and beneficial resolution without the stress of litigation and an unfavorable settlement in court.
Question: What if one of the participants – either the husband or wife – chooses to withdraw from the agreement?
Nancy: If either of the individuals chooses to withdraw before a resolution is reached, then the case is terminated where it stands. Each person must then find new attorneys and go through the traditional path of the court system.
The reason for securing new attorneys is because the sharing of information in the collaboration process creates a conflict of interest that prevents representation of either party in an adversarial proceeding.
Question: What are other benefits of Collaborative Law aside from avoiding the courtroom?
Nancy: A judge cannot be a miracle worker. In a divorce proceeding, the judge only has a brief introduction to your case and no time to dive into the history of your marriage, your financial situation, or what is in your heart. Consequently, this limited perspective typically leads to a final decision that does not satisfy either party.
On the other hand, Collaborative Law offers a greater potential for reaching mutual agreement. You work with a team that spends more time focused on each party’s personal goals and listening to their specific wishes for a settlement.
Many couples going through divorce refuse to compromise with each other and think they can get a better deal by going to court. Unfortunately, they usually learn a hard lesson. The judge does not have to live with the final settlement decision – unlike the two individuals in the divorce.
Collaborative Law is a process based on cooperation between the two parties, which allows them to reach a reasonable settlement that each party can live with.