The collaborative law process is a court-free way of getting divorced. In a collaborative divorce (or separation), you do not need to appear before a judge. Instead, both spouses or domestic partners work together with a team of professionals – including attorneys, therapists, child-custody specialists, and financial experts – to settle all aspects of the divorce or separation by written agreement.
Collaborative divorce is non-adversarial. Meaning, you don’t fight against your spouse or partner to win an advantage. This doesn't mean you will be expected to readily agree on everything. The purpose of collaborative law is to help you and your spouse or partner find solutions to your disputes -- the amount of spousal support or who gets the family home, for example -- without involving a judge.
To begin the collaborative process, both spouses or partners must sign a contract agreeing to resolve all issues outside of court. By taking the matter out of court, neither of you will need to take depositions, answer subpoenas, or testify. For the process to work, however, both of you must also agree to be fair, reasonable, and respectful toward each other.
Also, you must freely and honestly provide all information and records pertaining to the divorce or separation. For example, you will have to tell your spouse or partner about all your financial assets and debts – even the ones you might have kept secret during the marriage or partnership. If you suspect your spouse or partner won’t come clean, or will be unable to shake a grudge, then you may be better off pursuing a regular divorce where a court can order the disclosure of information and production of documents through a legal process called "discovery."
(See Hiding Money and Assets in a Divorce to find out how your spouse might try to conceal assets, and how they would be uncovered during divorce.)
Although experts – like accountants or appraisers – may be used in a regular divorce, in collaborative divorce these experts are neutrals. Any information these professionals share during the collaborative process is confidential and can’t be used later in court if negotiations break down.
Your lawyers, too, will approach collaborative divorce differently than they would a regular divorce. In collaborative law, the lawyers educate their clients on the law and advise them, separately, on options to find middle ground. Likewise, the lawyers work with each other toward settlement. These lawyers tend to have special training in the collaborative process and must agree ahead of time to withdraw as counsel if in the end, you can’t reach an agreement.
This commitment by the lawyers to withdraw if the process fails is an important element. It motivates them to find creative solutions that keep you out of court. In turn, you maintain control over the decisions impacting your separate lives, rather than asking a judge to decide for you.
In mediation, the couple resolves the divorce or separation with the help of a mediator. The mediator can explain the law and help you communicate better with each other, or at least redirect your point of view. The mediator can’t give legal advice, however, like your collaborative divorce lawyer can. Likewise, the mediator can’t make a decision for you, like a judge would in a regular divorce.
In contrast to collaborative law, you don’t have to settle everything to complete mediation. Even where couples can’t agree on all of their disputes, mediation can be helpful in resolving some of the issues. This, too, can shorten a regular divorce by leaving less for the court to decide.
If you would like to read more about the difference between mediation and collaborative divorce, see Mediation vs. Collaboration: Factors to Consider in Choosing the Right Approach for You.
Collaborative law can be a good choice if you want to take an active role in creating solutions to your divorce or separation issues. It can be quicker, less expensive, and less stressful because you avoid formal court procedures and appearances. If you have children, it may also make it easier on them when you are willing to work together with the other parent.
By the same token, collaborative law isn’t for everybody. Spouses or partners must be able to rebuild enough trust between each other to work together. Similarly, it is not a good fit if there has been domestic violence within the relationship because of likely intimidation.