It’s no secret that going through a divorce can be challenging, contentious, and expensive. Most divorces don’t rise to the level of drama presented on primetime television, but that doesn’t mean it’s a walk in the park, either. Divorces commonly require attorneys, time, money, and in some cases, a lengthy trial.
Courts in every state encourage couples to work together to resolve divorce disputes, and when you can agree, you’ll notice that the process is much more comfortable. If you and your spouse can’t agree to all the terms in your divorce, you may find it helpful to hire a mediator—or, neutral third party—to facilitate a conversation and resolve your disputes.
Some states offer couples divorce alternatives, like a legal separation, but again, you’ll need to be on the same page as your spouse for this legal process to work. If tensions are high and there’s no possibility for an agreement, you’ll need to follow the traditional divorce process in your state.
A collaborative divorce is a legal divorce process that allows couples to negotiate all the terms of a divorce, without the need for mud-slinging or fighting in court. Couples will use a combination of mediation and negotiation to reach an agreement on the critical terms of divorce, like property and debt division, child custody and child support, and spousal support.
The collaborative divorce process first begins with a conversation between divorcing spouses to ensure that both are willing to negotiate and work together in the collaborative process. If either party is unwilling to participate, a collaborative divorce won’t work.
The next step is for each spouse to hire an attorney. When you choose an attorney, it’s essential that you hire someone experienced in collaborative divorce and willing to use alternative dispute resolution, like mediation, rather than someone who wants to go to court and ask the judge to decide your unresolved issues.
Experienced collaborative divorce attorneys are well-versed in how to make a win-lose divorce a win-win settlement for both parties. That said, your attorney should zealously represent only your interests, meaning if you aren’t comfortable with a term of your divorce, your attorney will advocate to change it for your benefit.
Next, meet with your attorney privately to discuss what you want from the divorce. Your conversation should include how you would like to divide your assets and debt, how you would like to handle custody, visitation, and support for the minor children, and whether either spouse will support the other after the divorce. If either spouse owns a 401k or pension plan, you must also discuss with your attorney your preference in whether you and your spouse should split these accounts.
You and your attorney should also begin assembling your collaborative divorce team, including a divorce coach, financial specialist, and child specialist. These specialists will work with both you and your spouse, so they will be joint specialists. You may not need all three types of specialists, but if you have minor children, you'll likely have a child specialist at a minimum. With the attorneys and specialists in place, you will have your collaborative divorce team, who will work together in order to help you and your spouse find the best options and reach the best resolutions for your family.
Once you’ve met with your attorney, it’s time to meet with your spouse and your spouse’s attorney in the first of many four-way meetings. At your initial meeting, both parties (and their attorneys) will typically sign a “no court” agreement, which allows both attorneys to withdraw from your case if either spouse exits the collaborative divorce process to begin litigation in court. Additionally, the “no court” agreement holds each party accountable and is a strong incentive for the spouses to negotiate, even when the conversation gets difficult. If your lawyer or professional team withdraws from the case, you’ll need to hire a new team, which will be extremely expensive.
At subsequent meetings, each of you will meet with your attorneys and/or professional team to revisit your wants and needs during the divorce process. Each time you and your spouse meet for a four-way meeting, you should be making progress toward the end goal of a mutual settlement in your divorce.
You must voluntarily provide your spouse with any information necessary to continue negotiations, such as tax returns, employment and salary information, and all other information regarding assets and debts. For example, if you contributed to a 401k during your marriage, it will be your responsibility to provide your spouse’s attorney with the most up-to-date financial information from the account. There is no divorce discovery in collaborative divorce, so you have to rely on your spouse's word that he or she has provided you with all relevant information. If you suspect your spouse will try and hide information from you, collaborative divorce may not be right for you.
Hiding financial assets in a divorce is not common, but if you don’t disclose your assets during the divorce and your spouse discovers your deception later, the court may reopen your divorce to alter the settlement.
Once you and your spouse have negotiated the terms of your divorce, your lawyers will draft a settlement agreement for both parties to sign. Be careful not to sign the document unless you agree to each of the divorce terms. If the judgment is fair and reasonable to both spouses, the judge will sign it, and it will become your final judgment of divorce.
Whether a collaborative divorce is right for you depends on each spouse’s opinion on the process, willingness to negotiate, and ability to work together. If you and your spouse have a history of domestic violence or you’re unable to communicate, it’s likely that you’ll need to file for a contested divorce, which typically focuses on what each spouse is entitled to by state law.
On the other hand, if you are both willing to set aside your differences and discuss your divorce rationally, you may save time and money using the collaborative process.
Divorce is messy, and both spouses will probably experience intense feelings through the process of ending a relationship. It’s unlikely that both spouses will walk away from the process feeling like they received everything they wanted, but, a collaborative divorce allows the couple to retain the power to decide how to proceed with the essential divorce issues without third-party intervention (i.e., the judge.)