You may be at a point in your life where you are facing the prospect of divorce. The realization you’re your marriage is ending can often be overwhelming and stressful enough, and facing the prospect of a long drawn-out court battle over the issues that matter to you may seem unbearable. That is completely understandable. Many couples find themselves feeling that way, and as a result, alternative methods of resolving divorce-related matters are becoming increasingly popular. Both in North Carolina and nationwide, the collaborative divorce process is gaining a great deal of attention as a helpful method of cooperatively resolving the issues couples face during a divorce, without all of the animosity of traditional litigation.
What is Collaborative Divorce?
Often, parties confuse collaboration with mediation and arbitration. While all three are methods of alternative resolution during the divorce process, they often function very differently in practice. In a collaborative divorce process, the parties voluntarily enter into a set of ground rules that they will apply as they attempt to resolve their disputes. Additionally, both parties are represented by attorneys, whereas in a mediation, this might not necessarily be the case. As part of the collaborative divorce agreement, both parties and their attorneys also agree in advance not to take their case to trial, as opposed to a mediation or arbitration situation which may occur just prior to trial, or even after trial has already begun. Typically, in a collaborative law process, if the parties ultimately cannot settle the case, they must both hire new attorneys prior to going to trial.
Collaborative divorce is also more of an ongoing and involved process than mediation or arbitration. Certainly, parties would often benefit greatly from utilizing mediation early on in the litigation process, but often do not do so. Instead, they often wait until discovery has been completed, or until the matter is nearly ready for trial before they sit down to attempt to work together toward resolution of their issues. Collaborative divorce, by contrast is specifically designed as early intervention, and its intentional focus is on cooperative settlement, instead of adversarial litigation. It therefore allows the benefits of having attorney representation, without the threat of a long, drawn-out court battle.
The Benefits of Collaborative Divorce
Collaborative divorce, when conducted as intended, and when the parties are committed to the process, can have any number of benefits for everyone involved. Some of those benefits include:
- Fostering an attitude of mutual respect between the parties;
- Using a cooperative, team-based problem-solving approach instead of an adversarial one;
- Allowing the parties to retain control over the matters that are important to them;
- Allows for open communication;
- Reduces attorney fees and court costs;
- Ultimately protects privacy, as it keeps sensitive, personal information out of the public court records;
- Usually allows a more personalized emphasis on the needs of children and other matters the couple cares particularly about;
- Generally reduces conflict and animosity between spouses
These benefits are only a few of many. As couples utilize the collaborative divorce process, they will certainly find other benefits unique to their particular circumstances. Consistently, collaborative divorce is proven to help couples reach settlement on their issues more quickly than traditional litigation, and almost always in a less costly manner.
The Collaborative Divorce Commitment
When parties agree to pursue collaborative divorce, they, along with their attorneys, agree to sign a document at the beginning of the process, outlining the general terms of the process that the parties agree to abide by as they attempt to resolve their issues. This is often called the Collaborative Divorce Commitment, or Agreement, and usually indicates that the parties commit to:
- Resolve their issues outside of court;
- Communicate openly and honestly about all important facts and financial matters;
- To disqualify their attorneys from further representation in the divorce process if the matter is not resolved collaboratively.
In North Carolina specifically, the parties often agree to sign a Collaborative Law Pledge before any negotiations begin. The pledge sets forth the obligations of the parties on important issues and is generally divided into ten sections:
- Section One – The Non-Adversarial Process: This section generally sets forth the goals to which the parties must agree – essentially, the idea that the “non-adversarial” process is best to resolve conflict, and that the focus will be on ensuring the future well-being of the parties and their families by maintaining an atmosphere of cooperation, integrity, honor, and professionalism.
- Section Two – No Court Intervention: Both parties agree not to have the court intervene in the matter, as well as to provide full and honest disclosure of all important information, whether it is requested or not. The parties also agree to participate in settlement conferences where they both express their needs and desires, and recognize the needs and desires of the other party.
- Section Three – Third-Party Intervention: The parties agree that any third parties, like accountants, therapists, or others who are brought in to resolve any issues that may arise will be retained jointly, and will be directed to work cooperatively to resolve the issues between the parties.
- Section Four – The Children: The parties agree to try to insulate the children from involvement in their disputes, and not to seek a custody evaluation unless it is agreed to by both parties. The parties will strive to resolve any parenting issues in the most amicable manner possible, and in the best interests of the children.
- Section Five – Limitations of Collaborative Divorce: The parties recognize that the collaborative divorce process does have some limitations, and that it is a voluntary process dependent upon the successful cooperation of the parties, and not always guaranteed to resolve the case.
- Section Six – Integrity and Good Faith: This portion of the pledge addressed the idea of “working to maintain a high standard of integrity,” and to “not take advantage of the other parties’ mistakes or miscalculations, but rather to disclose them and seek to have them corrected.” The idea of having both parties act with integrity and good faith is one of the key underlying goals of the collaborative law process, and is essential for its success.
- Section Seven – Withholding or Misrepresenting Information: If any attorney feels that his or her client has intentionally withheld or misrepresented information that goes against the principles of the collaborative process, he or she may withdraw from the case. Both parties must agree to this potential occurrence at the outset of the process.
- Section Eight – Attorneys Cannot Represent You in Court: The parties agree that the attorneys retained for the collaborative law process cannot represent them in court. If resolution between the parties cannot be realized through the collaborative law process, the parties agree to retain new attorneys for any litigation in court.
- Section Nine – Cancelling Collaboration: If either party decides that they no longer wish to engage in the collaborative process, then the process can be terminated via written notice to the attorneys involved. This portion of the pledge also explains that the collaborative law process may be terminated if either party files an action or a motion in court.
- Section Ten – Legally Agreeing to the Collaboration Process: The last section contains the wording of the actual Collaborative Law Pledge, which states, “We, the undersigned, pledge to comply with and to promote the spirit and written word of this document,” and provides that by signing the pledge, the divorcing couple promises that, “In an atmosphere of honesty, cooperation, integrity, and professionalism, we will focus on the future well-being of the parties and their families in reaching a settlement.”
While it is fairly easy to stay outside of court and to disqualify attorneys if the process is not successful, the commitment to communicate openly and honestly depends of course, entirely, on the parties themselves. When two spouses are truly committed to the collaborative process, and to being open and honest with one another, then the process has a much greater chance of being successful.
How Do I Choose an Attorney to Help Me Through this Process?
The attorney you choose should be there each step of the way to ensure that you understand the law, as well as your rights and obligations under it, and the legal effect of any decisions you are considering. An attorney trained in the collaborative divorce process should also be able to focus on positive communication methods between the parties involved.
Lawyers who wish to specialize in the collaborative divorce process must receive specialized training and instruction to develop their collaborative negotiation skills. Those searching for an attorney trained in the collaborative law process can consult the Carolina Collaborative Law group for a list of attorneys trained in the process, or can search for attorneys using popular search engines like Google, AVVO, Nolo, and others. Of course, word of mouth is also often one of the bets ways to find an attorney not only trained in the process, but successful at utilizing it. Don’t be afraid to interview more than one attorney to help ensure that you find one with the knowledge, experience, and practice style that best fits your personality and your needs.
Consult with Counsel Today
Collaborative divorce, when used effectively with a trained attorney who understands the process, can be an extremely helpful way to make a potentially stressful divorce less so. Those who choose collaborative divorce are able to have the benefits of sound legal representation, without the more combative and adversarial aspects of traditional litigation. It can be an excellent choice, and one worth strong consideration for spouses who believe that they can work together cooperatively during the divorce process. Don’t hesitate to ask an attorney trained in the process if it might be right for you.