Collaborative Divorce is the application of well-defined “Collaborative Law” processes to divorce cases. It enables the conflicts during and after divorce to be negotiated and settled out of court .
Collaborative Divorce is one of the two leading alternatives to the traditional litigated divorce. (The other leading alternative is Early Stage Mediation. See Divorce Mediation.) Both of these alternatives are effective and efficient processes for getting divorced out-of-court, even if the two spouses have many areas of significant disagreement, and are barely communicating with each other.
Collaborative Divorce, however, is usually preferable over Early Stage Mediation if the case is complex financially or especially difficult in other ways. Collaborative Divorce is also preferred if there is a noticeable disparity in the abilities of the spouses to effectively represent their own interests in a negotiation.
In the Collaborative Divorce each spouse has their own attorney to represent their interests, to advise them on the applicable laws, and when necessary, to speak for them during the negotiations. The two attorneys also make sure that the essential financial information required by the State of Tennessee is collected and reviewed, as in any divorce. This is done so that the negotiated settlement can be evaluated as “fair” and be approved by the court, following the guidelines set by the laws of Tennessee on such matters as alimony, child support, and property division.
So far, all of this is the same as in a traditional litigated divorce, except for the important details of how it is accomplished. What is different is that the information can be gathered more smoothly and negotiations can happen more quickly and be conducted more effectively.
This happens because the two attorneys are focused 100% on helping their clients arrive at a fair settlement that will be approved by the court, rather than fighting with each other by posturing, escalating and/or delaying, in an attempt to gain some advantage in the court hearings and motions, which is common in litigated cases.
The two attorneys in a Collaborative Divorce case behave much differently because they have agreed formally at the start of the case, not to fight the case in court, and instead work exclusively toward settlement of the case. That is what makes it “collaborative,” not necessarily how the clients behave.
The clients can focus on their own separate futures and the needs of their children. This is an important point. The spouses are assumed to have conflicting needs and desires regarding their finances, their children or other matters of importance to them, throughout the entire case.
To help clients focus on their future during the divorce, the Collaborative Divorce process often includes assistance from a financial planning professional (typically a CPA), and from a professional divorce coach (a licensed mental health practitioner). Both of these professionals are neutral members of the Collaborative team, in contrast to the two Collaborative attorneys who are obliged to always represent the best interests of their own client.
The neutral members of the team often help conduct the necessary information gathering about the parties’ parenting and financial situation. They also assist the two spouses and the attorneys to schedule and prepare for meetings and negotiations. In this way, the extended team — two attorneys and two neutral professionals — improves the efficiency of the divorce process, while also giving necessary assistance and support to each of the spouses during the divorce process.
While the final settlement negotiations can be started and completed sooner in a Collaborative Divorce case than in a litigated case, a Collaborative Divorce case may still take several months, or longer, depending on the complexity of the case. During this time many crises can arise that require quick decisions to be made, such as:
- How will the children be told about the divorce?
- Who should move out of the house and when?
- Does the house need to be sold, and by when?
- When do the joint bank accounts need to be split?
- Has someone started dating and the affect on the children?
- How will the divorce be paid for?
- What will the temporary parenting plan be?
The Collaborative Divorce process is particularly effective for managing crises and conflicts that arise around questions such as these. Rather than filing motions in court to have a judge decide these temporary issues — as is done in a litigated case — the Collaborative process allows these issues to be resolved quickly by the parties, with the help of all the professionals on the team, in meetings that can be scheduled as needed.
In summary, the Collaborative Divorce process allows the parties themselves to make the final decisions about their divorce and their future. The clients avoid the risks, high costs and long delays of using the court system to make the decisions affecting the most personal and important matters of their lives.