The collaborative divorce process is a forward, goal and family-focused, process where parents, spouses, or partners create their own agreements with the help of a professional team skilled and experienced in mediation and collaborative processes.
A collaborative divorce addresses each aspect of a divorce: family, emotions, communication, financial, and legal. This process is best for people who would like to resolve in a confidential process, have more of a voice in their outcome, and still have the benefits of working with their own legal advisor.
The collaborative divorce process formally starts with the signing of a Stipulation to Proceed by Collaborative Law. This agreement outlines the commitments and responsibilities of every participant in the process.
Once the agreement is filed, it becomes an order of the court. The process formally ends in one of two ways:
- By final agreements through a judgment; or
- By termination of one or both parties by notice or by filing a request for a court hearing.
Who is Involved in a Collaborative Divorce?
By law, the process requires not only this formal written agreement, signed by both parties, but also two lawyers (one representing each party). While not legally required, most collaborative practitioners also include on the collaborative team Divorce/Family specialists (mental health professionals, often one for each party or one neutral to both), a child specialist (when there are children, adult or minor, and/or grandchildren), and a neutral financial specialist.
At first glance, it seems like a lot of professionals get involved. However, the process is designed to cost a fraction of what a contested divorce would cost.
Initial Collaborative Commitment Agreement Meeting
The collaborative divorce process is structured from the first “Collaborative Commitment Agreement Meeting” during which goals and expectations are discussed, meetings with each professional are scheduled, and in some cases, a target completion date is set.
Before any decision-making meeting, each party is prepared by a collaborative lawyer and coach. Gone are the days of “brainstorming” on the fly. With new developments in cognitive processing research, the collaborative process has evolved to focus on the best ways people work through emotions—fear, anger, frustration, anxiety—to process complex financial and legal information.
Separating from a spouse takes time, education, and preparation. This includes working with the right professional for the task.
In this first meeting, urgent issues are addressed, any existing agreements are confirmed, and the parties will decide if they are ready to file the opening legal documents (petition and/or response) or will complete service of these if they have already been filed.
Once the formal process is started, the parties work with a Divorce/Family Specialist first to emotionally prepare for the transition and to work on efficient and effective communication. At the same time, they will work with the Child Specialist to identify any signs of divorce stress in the children and create tools and strategies to manage these. They can also start working on a parenting plan for sharing time with minor children.
While this is happening, the financial neutral is working with both parties to gather needed and required financial information and documents.
The financial information and documents serve two purposes: (1) Legally required financial disclosures and (2) an understanding of the real financial picture. The latter is used to assist parties in balancing awareness about current finances.
The goal is to help both parties create realistic financial goals moving forward, and then to begin running projections. Asking questions that begin: “What will it look like if…? “
The financial neutral, if so qualified, can also help the couple minimize tax consequences and maximize any potential tax benefits.
If there is a need, the lawyers can prepare legal documents as the parties move through the process. Often, at the first meeting, the parties will ask for temporary agreements to be put in writing. Or there may be an urgent concern that requires a temporary stipulation.
The lawyers usually take a back seat until there is enough financial information to begin preparing the required financial disclosures. They meet with the Neutral Financial specialist and with their clients to make sure they have a complete picture.
Attorneys make sure their clients understand the legal aspects of the financial disclosures and information. The lawyers really don’t “kick into high gear” until the gathering of financial information and documents is completed and the mental health professionals confirm that the couple are ready and focused.
Final Co-Creation of Agreements
By this time, there is often already an agreed upon parenting plan. The final session tends to focus primarily on how to allocate assets, debts, and income.
In the preparation phase for the final co-creation of agreements meeting, we typically already have:
- The questions that need to be answered;
- The goals each party wishes to achieve; and
- Three options* for resolving those questions in a way that brings value to each party and to their children.
*These options are often generated by each party individually working with a neutral financial, exploring different projections. There is no guessing and all options are based on personal goals and concerns, legal information, and financial understanding.
After the Agreement
Once the agreements are confirmed, the collaborative lawyers work together to create the judgment documents for signing and filing. Once the judge signs the judgment documents, the couple’s agreements become orders, binding and fully enforceable as if the judge had ordered it him or herself.
The final phase is follow-up: the professionals will check in with the couple to make sure they have completed their post-divorce tasks—there are many—and see how everyone is doing. If there is anything that was missed or needs further discussion. If it isn’t working out the way one or the other hoped or expected the couple can reconvene their collaborative team.
Why Does Collaborative Divorce Work?
In a 1995 study, Dr. Wendy Hutchins-Cook found that it takes much longer, if it happens at all, for couples and families to return to a normal baseline family health level after a contested trial process in a divorce when compared to a mediated divorce, resolved by the couple themselves.
Anecdotally, in speaking with a retired Orange County family court judge, he commented that couples who successfully complete a collaborative divorce process never show up in his courtroom to change their agreements.
That’s not to say that in every case there are no regrets. In rare cases, one spouse may change their mind and try to undo their agreements. This might be due to something that happened after the process, or information that was not disclosed during the process.
But in the vast majority of cases that do need changes to their agreements, couples who worked through a Collaborative process have learned skills to resolve without going to court, and still prefer to stay out of court. If they can’t resolve the issue themselves, they re-engage their collaborative team.
A successful process depends on the couple managing their own emotions. depends on the couple being willing to work on managing their own emotions and improving their communication skills. This is why the Divorce Specialist (therapist) is so critical.
When spouses finally sit down together, with the full professional team, to review these options and make final decisions, the goal is that both parties are now working together to resolve the questions that remain. They are working together rather than against each other.
The ability to work together takes dedication, preparation, cooperation, and patience – it doesn’t happen overnight. And recent studies show that co-creating their own agreements tend to be better for the individuals and the family as a whole, and the parties tend to comply with their agreements more than if a judge imposed orders based on legal interpretation and entitlements rather than the parties’ goals.
The results of a collaborative divorce are not necessarily what each party may have received in a contested court trial, but they are what each party felt they could live with—as parents, and as individuals.
About the author
Diana L. Martinez has received “Super Lawyer” designation each year since 2016, is a Eureka Award recipient and is a faculty trainer with the International Academy of Professionals. She is an experienced collaborative divorce lawyer handling cases throughout California, with offices in Corona, Riverside, Newport Beach and San Diego.