In a collaborative divorce, the objective is for clients and their lawyers to negotiate a fair and equitable settlement, without the participation of the court. The emphasis is upon complete and voluntary disclosure of financial and other information and resolution of marital issues with minimal conflict.
However, the collaborative divorce process may not be the best option where, for example, there is a “power imbalance” between spouses or where a party is prepared to mislead or downright lie to conceal information about finances. Other situations which indicate that a more “traditional” approach to divorce may be preferable, include uncontrolled substance abuse problems.
In a collaborative divorce, you and your spouse will be separately represented. While each lawyer will advocate for the interests and concerns of his/her client, the attorneys are not authorized to represent the parties in any court (other than filing documents for an uncontested divorce). Thus, if the collaborative process is not successful, the parties will be required to engage new counsel to represent them in litigation.
In some cases, a Summons for Divorce may be filed to establish a date so that property will be subsequently characterized as “separate” rather than “marital”. This is known as an effort to “stop the equitable distribution clock from running out.” As the parties to a collaborative divorce are delaying the date of filing the Summons, a written agreement may establish a “cutoff date” for property and liabilities to be considered “marital”. As the cutoff date may result in prejudice if negotiations are lengthy, the agreement may also provide for that date to be nullified at a certain point in time.
The court system is often perceived as more intent upon disposing of cases, than resolving them. Thus, the collaborative divorce process aims to achieve settlement entirely outside the jurisdiction of the court. The objective is to reach a consensus about facts, concerns, goals and priorities, rather than deferring to a judge for a decision.
There is a distinct advantage for parties to take control of their own destinies. Two people may incorporate provisions in a settlement agreement which a court lacks the authority to dictate or does not have time to resolve. For example, a settlement agreement (whether achieved through the collaborative process or otherwise) may include a decision making process addressing the needs of adult children who are disable, or provide for therapeutic intervention for a troubled family member or may set forth details of child raising which will likely not be addressed in a court’s post-trial Decision.
In my experience, most attorneys seek to negotiate “collaboratively” with their counterparts, while maintaining their ethical obligation to represent and protect their client’s interests. However, the utilization of a formal collaborative approach to the resolution of marital disputes may encourage divorcing couples to be more open minded to creative solutions to financial, property, custody and other issues, which may then be incorporated in a settlement agreement.