Collaborative Divorce

Are you considering divorce?  If you are, I’m very sorry that you are facing this decision.  You are not alone, however.  A large percentage of marriages do, in fact, end in divorce.  Reality being what it is, I would like in this article to discuss the benefits of collaborative divorce.  I believe that collaborative divorce is among the best options for ensuring that everyone in the family lands on their feet and recovers as quickly as possible.  You can also learn more about collaborative divorce at the web site of the International Academy of Collaborative Practitioners (IACP).

When you married, most likely you never expected it would end in divorce.  The end of a marriage is like a death.  No matter when or how it happens, you are never quite as prepared emotionally as you would wish.  For some people, it is worse than others.  Brace yourself, because you may experience an emotional roller coaster as you engage in the divorce process.  Some of your feelings, and the power of those feelings, may surprise or overwhelm you:  not just anger, disbelief, or sadness, but also relief and happiness, and sometimes all of the above!   These feelings are natural.  A person going through divorce experiences a grieving process similar to the grieving process one goes through at any other time of loss.  The loss from divorce is not just a change of living circumstances, but also of hopes and dreams for your future and for that of your children and family.  (For some articles discussing feelings of grief related to divorce, click HERE or HERE.)

Fortunately, life does go on.  While you can expect for all parties (including your children) to be changed and affected by divorce, there are ways to minimize the harm.  Chief among the things you can do to minimize the harm is to set aside anger, desire for revenge, and dwelling on the past.  Assuming that you have tried your best to make the marriage work, if you’ve decided to end it then it is now time to shift your focus to getting yourself, your children, and yes even your ex-spouse moving forward toward a new, separate life.  Once the decision has been made to end the marriage, the sooner you can put that ending behind you and move to a new beginning, the better.

Yes, I can tell you good news:  there is hope for a happy ending.  However, to get there may involve breaking the traditional mold.  The model for a traditional divorce is not one of happy endings.  Rather, the traditional model for divorce is that of a battlefield.  In this battle, each of you is represented by a gladiator (attorney) who engages in combat on your behalf to prove that one side is good and the other is evil.  Then, after all the evidence has come to light, a neutral party (the judge) decides who is right or wrong and renders judgment.  In this model, neither party is concerned with what happens to the “other side” – to show concern is to expose a soft underbelly of weakness.  This courtroom drama, adversarial model relies heavily on taking positions, posturing, getting ready for battle, ambushing your “opponent,” and spending resources to convince some outsider (the judge) of the merits of your case so that they will rule in your favor. Collaborative divorce, in contrast, is an entirely different paradigm.

The philosophy of a non-adversarial divorce (whether a collaborative divorce or a mediated divorce) is that the best approach to separating your lives is not to engage in a battle that leaves your spouse – a person you once loved enough to marry – as a casualty on a battlefield.  Parties who choose collaborative divorce recognize that sometimes tragedies do happen.  Parties to collaborative divorce have made a decision to separate, they recognize that sometimes it’s not a matter of good versus evil in the other person.  Rather than seeking to find fault or cast blame, they are committed to moving forward in a way that enables both of them to land on their feet and continue to work as a team in their parenting relationship.  It is better for children, as well, when parents continue to work together and act as a team rather than fighting with each other.  (Numerous studies document the negative effect on children of high conflict divorces.  For examples, click HERE or HERE.)  The goal of collaborative divorce is to enable all members of the family – husband, wife, and children — to get back on their feet and to enable them to keep moving forward with their lives with as little trauma as possible.

Because of its unique nature, collaborative divorce can only be considered at the very beginning of the process, before parties have taken steps toward traditional, adversarial divorce litigation. Once positions have been staked out through filing of adversarial divorce papers in court, it’s too late to engage in a non-adversarial, collaborative divorce process.  If you are in the “considering” or “pondering” stage of wondering what to do now that you’ve decided to divorce, I’m so glad you found this page!  I hope that you will seriously consider the benefits of the collaborative model of divorce.

The distinctive tone of a collaborative divorce is set by the fact that both parties considering a collaborative divorce must agree ahead of time that they will negotiate a settlement outside of court. In other words, for you to have a collaborative divorce, you must agree not to go to court. If the parties don’t do this, it’s not a collaborative divorce.

This does not mean that either of you gives up your rights. Each of you still has your own lawyer who represents you zealously.  The main difference is that the two divorcing people – those most directly affected by the long term outcome of the divorce – remain in complete control of their own case instead of handing the decision over to a judge.  The two of you, with help from your attorneys, negotiate and reach a settlement. While every attorney will attempt a negotiated settlement, to some degree, the difference is the degree of commitment. In a collaborative divorce, all the eggs go into the basket of reaching a fair, lasting, comprehensive settlement that suits the two of you, keeping you in control of your fate instead of placing it into the hands of the court.

Because parties to collaborative divorce put all their eggs in the basket of reaching their own agreement, dispensing with the judge, there is no need to convince some other person of the merits of one’s own case. You and your ex-spouse are no longer opponents on a battlefield but rather merely two people who need to disentangle your lives with as little trauma and damage to everyone as possible. The goal is no longer to ambush or do battle with the other person, but to move on, to heal, and to develop solutions that work for everyone. Instead of spending thousands of dollars on discovery and depositions and posturing for the court, you focus your resources on finding the best way forward for everyone in a way that works to keep everyone as intact as possible.

In collaborative divorce, the parties agree to cooperate to the extent of committing to full disclosure, to an effort to be fair to one another, and to avoiding court. When the going gets rough – when parties need help to decide on issues or when they fail to agree — their collaboratively trained attorneys pull in professionals from other disciplines for advice and guidance. 

For example: A child specialist might consult with the family and make recommendations about custody and visitation. A financial expert might be called in to evaluate the family financial situation and make suggestions about dividing assets and ongoing financial arrangements. A divorce coach might be helpful for a few sessions, to assist a spouse who might have difficulty coping with feelings of anger or rejection.  If one spouse is a displaced homemaker or has a much lower income, the parties may invest in some career counseling designed to help that person get back on their feet financially.  Each of these professionals is available to be part of the collaborative team, which communicates with each other and helps the family through the divorce transition. The analogy often used is to a race car which pulls into a pit: the team of professionals takes care of all the family’s needs at once and helps get the car back on the road as quickly as possible, in as good a condition as possible.

In my opinion, collaborative divorce is the Rolls Royce of divorce options. It gives both of you the full benefit of a zealous advocate as your counsel. It also enables you to utilize the resources of professionals who can truly help get things sorted out in the best way possible, leading to faster healing from this trauma. And it also lets you avoid the tens of thousands of dollars that come with the turf of a litigated divorce. Seriously! Litigated divorces are that expensive!  (For a more detailed article about the cost of divorce, click HERE.)  I’ve read that a typical, litigated divorce involving property disputes and battles over children costs somewhere between $20,000 and $40,000. A collaborative divorce typically costs between $7,000 and 10,000. “Why is there such a difference in cost,” you might ask?

At the outset, the cost may appear the same. The attorneys, the professionals, all charge the same hourly rate no matter what type of divorce you pursue. The difference is the number of hours — what must be done to “prove” one’s case and “protect” one’s interest and force the other side to comply with discovery in an adversarial divorce. The posturing, positioning, and proving involved in litigation escalates conflict, polarizes the parties and forces everyone to build walls and fight battles instead of coming to agreement. In collaborative divorce, you skip this nastiness. You share experts, share information, and there is no posturing for court. So even though you may use the same professionals as you would in a litigated divorce, you eliminate the court costs, eliminate double fees, and eliminate the added attorney hours that come with escalation of conflict.

There is a “catch” to collaborative divorce, however. This “catch” is necessary to give both parties assurance that each of you is negotiating in good faith.  And here’s what it is:

How can you be sure that the “other side” is fully committed to the collaborative process? It would be a “worst case scenario,” in the legal sense, if one person used the full disclosure inherent in the collaborative divorce process to learn everything about the other person’s case and then went to court and used all of that to pummel the other person in a courtroom battle. For this reason, the “catch” of collaborative divorce is that it requires a 100% commitment to the process, on the part of all parties and professionals. No one is allowed to play the game with their fingers crossed behind their back, so to speak. To prevent the possibility of one party double-crossing the other, the rule in collaborative divorce is that if one party withdraws and decides to go to court, all attorneys and professionals involved up to that point must withdraw. If one person withdraws, both parties must start over with new professionals, and none of the collaborative professionals may testify in the new proceeding.  The purpose of this rule is to ensure total commitment to the process.  Withdrawal does happen, but only rarely – less than 5% of the time.  Most parties who engage in collaborative divorce end up being quite satisfied with it.

Be aware that some attorneys will claim to offer a collaborative divorce, but in fact they are neither trained and certified, and this also means they’re not absolutely committed to the “no court” rule.   An attorney who is trained and certified, in contrast, has demonstrated their deep commitment to helping clients get through divorce with as little harm as possible, to assisting you in moving ahead with your new lives in as healed and whole position as we can help achieve. For a true collaborative divorce, you must seek out and utilize a collaborative practitioner.

How can you find a collaborative divorce practitioner?  The IACP has a link on their web site, HERE, which will enable you to find a certified collaborative divorce practitioner.

In conclusion, I’m sorry that your marriage may be ending and that you are investigating options for divorce.  However, it’s my experience that healing and hope are possible.  Divorce need not leave you or your spouse as a casualty on the battlefield of a protracted courtroom battle.  By making wise choices, you can separate your lives without undue damage to you, your spouse, or your children, and you can both continue to work as a team to parent your children.  Life will go on!  The choice is up to you:  will you move forward in a way that is healing, or will you move forward in a way that slings mud from past anger and hurt.  I hope you will consider collaborative divorce seriously as you ponder your many options.