Collaborative Law and Divorce
What is “Collaborative Law”?
Divorcing couples are increasingly making use of collaborative law methods to settle their divorce issues in a cooperative, positive manner rather than a confrontational one.
In the collaborative divorce process, the parties agree to avoid litigation and make their own decisions based on their respective needs. The parties are still guided by their own individual attorneys, who all work together to achieve a mutual agreement.
Most of the discussions take place at what meetings called joint sessions or 4-way conferences. During these meetings, each spouse and their respective lawyer discuss matters related to the divorce, such as child custody and property divisions. The couple will then submit their final agreement to a judge for approval, so that it will be enforceable under law.
What is Contained in a Collaborative Participation Agreement?
The collaborative participation agreement is basically a contract that determines how the parties will during joint sessions. State laws may vary regarding collaborative agreements; however, most collaborative participation agreements will contain the following provisions:
- The parties will make their best efforts to negotiate a final divorce agreement without resorting to litigation
- Each party must truthfully disclose any information or documents necessary for reaching an agreement
- If expert opinions are necessary, then all parties will agree on a neutral expert
- In the event that litigation does become necessary, the collaborative lawyers must withdraw from the case and be replaced with new lawyers who will represent each individual party in court
The collaborative agreement can also spell out which divorce matters need to be resolved during the process, and can be tailored to the parties’ individual needs.
What if the Parties Cannot Reach an Agreement after Collaborating?
If the parties are unable to reach an agreement, they are generally free to pursue litigation in court. Although they must make their best efforts to avoid threats of litigation during collaboration efforts, the participation agreement usually does not prevent the parties from terminating the collaborative law process and choosing to file a lawsuit.
Thus, the parties are free to terminate the collaborative law meetings and seek litigation. However, they are required to provide written notice to the other party and to all the lawyers involved stating their intention to withdraw from the process. The collaboration agreement usually contains termination provisions that dictate how this should be done.
The clients are advised from the beginning that will have to obtain new lawyers if they cannot reach an agreement and choose file for divorce hearings in court.
The reason that the attorneys must withdraw from the case is that in a collaborative divorce, the two attorneys are actually working together to reach a common goal. During the process they may be sharing information that they would otherwise be off-limits during a regular trial. In a normal trial, the attorneys must represent their clients in an adversarial manner, and as a result they must keep certain information private from the other attorney.
What are Some of the Benefits and Disadvantages of Collaborative Law?
Some of the benefits associated with collaborative law are:
- The process is cooperative rather than confrontational in nature
- Collaborative law is generally quicker and less expensive than the traditional litigation route
- The process may spare the parties many of the stresses and pressures associated with litigation
- Helps to foster a better relationship between the parties in the long run
Some disadvantages of collaborative law are that it can be more expensive if an agreement is not reached and the parties must pursue litigation. This will involve more costs such as court fees and additional attorney fees. Also, collaboration is not always available for all divorce cases, especially those involving domestic violence or child abuse
Do I Need a Lawyer for Collaborative Law and Divorce Matters?
You may wish to contact a divorce lawyer if you are considering collaborative law methods for divorce. Your lawyer can represent you during the collaborative law proceedings. They can help formulate a collaborative participation agreement that suits your needs. You will need to hire a different attorney if collaborative law efforts are unsuccessful and the case must be litigated in court.
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Last Modified: 08-09-2011 11:08 AM PDT
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