What Is a Collaborative Divorce?
A collaborative divorce is a method of resolving disputes where participants work with a team of professionals to co-create their own agreements. Couples work together in a respectful way, keeping in mind the importance of protecting their children and other involved people from conflict. Decisions are made by the participants without the involvement of a judge or other decision authority. The key principles of collaborative divorce—also called collaborative practice or collaborative process—are:
- The voluntary and free exchange of information;
- The pledge not to litigate;
- The commitment to resolutions that respect your shared goals.
There are many differences between a contested divorce decided by a judge and a collaborative divorce decided by the participants.
First, neither the participants nor the attorneys or any of the professionals on the team appear in court. While the participants never give up the right to have a judge decide their differences for them, they, and the professionals, commit in a formal written agreement (“Stipulation to Proceed by Collaborative Law”) to resolve without going to court. By requesting a court hearing, the collaborative process ends.
Second, this is a voluntary process. Participants are not required to participate. The process can only move forward if both participants agree to cooperate. This does not mean giving up or giving in; it does mean being open to solutions that bring value to all involved—participants and their children. It’s a lot of work, far more than in a contested or litigated case, because the participants are responsible for the outcome, not the judge and not the lawyers.
Third, the discussions go beyond just the law and beyond today. Participants are educated on the law and are supported by the professionals to identify the real-life impact of their decisions. Final decisions tend to focus more on their goals and interests. While we do answer the questions the must be resolved today, to complete the divorce, we also work with a focus on the future – what impact will selling the house today have on the participants and their children next year, and the year after? Will it get them to where they want to be, or is it better to hold on to the house for a time and build up more equity, for example. We look at what the “end game” is.
All that said, collaborative tends to be more forward-looking with the goal that the decisions made today will set the participants and their families on a path for a successful future—however they define “success.”
– Diana L. Martinez, is a foremost collaborative attorney, mediator, lecturer & trainer.