Beyond the win/loss mentality

Because much of today’s family law is based in the litigation model, many families facing divorce start thinking of their stories in terms of “sides,” where one will be a winner and the other will be a loser at the end of the divorce. Collaborative divorce attempts to move beyond that mindset and focus instead on finding a solution that both parties can work with for the long term.

For families thinking about using the collaborative process, it’s important from the outset to avoid the win/loss mentality. One way to do that is to relax and focus on listening instead of talking. To find the common ground, it’s essential that you hear and understand what your spouse is saying and feeling. You should also listen to what your attorney and the other collaborative divorce professionals are advising. It’s essential that you trust that your attorney, your spouse, your spouse’s attorney and anyone else that may be involved in the process are all working together to ensure you’ll find a solution that works for everyone.

Another tip that can help you stay away from the win-lose dichotomy is to be patient. It may take longer than you expect for everyone to share their thoughts, feelings and insights. Several meetings may be necessary, but the collaborative divorce process is designed to be as efficient as possible while still honoring the parties need to create a decision that is not rushed.

What is co-parenting?

One of the many reasons that families decide to use the collaborative divorce process is because it can help parents find sustainable, long-term solutions for raising their children. Many parents can’t bear the thought of raising their children without the other parent, and many collaborative law professionals will be able to help them find a solution that prioritizes joint parenting decisions and shared decision making.

The term co-parenting, which describes any parenting situation where the parents are not legally married, is a term that can effectively describe the new dynamic that families in the collaborative law process may create. The focus of co-parenting is to focus on creating stable relationships between the children and both parents, unless there is a recognized need to separate him/her from one or both parents. This concept is based on the idea that being a parent is a commitment someone makes to one’s children not to the other parent.

Co-parenting requires both parents to be flexible, open-minded, and willing to continually work with the other parent in the best interest of the child or children, yet co-parenting can be a great way to keep children as the focus and priority that they should be as parents work through a divorce. Collaborative divorce professionals are skilled in working with their clients and opposing counsel to create co-parenting agreements that suit their clients. If you have questions about co-parenting, ask your attorney to give you his or her insights.

Can all divorces use the collaborative law process?

While collaborative law can be a useful process for just about all types of divorce, there are a handful of cases that may not be a good fit including cases where domestic violence is present. Additionally, if one or both of the parties suffer from severe mental illness or have other mental issues, collaborative law may not be optimal. However, many of these cases will have difficulty finding a good solution in the traditional court system as well. Some divorce cases don’t have an ideal approach.

However, if you are interested in a collaborative divorce and your spouse is not, you should not lose hope. While the collaborative divorce process can only work if both spouses agree to use it, many spouses are initially reluctant because they don’t know how collaborative law works or how it differs from the traditional model.

Encourage your spouse to research collaborative divorce to learn more about it by researching it online and asking his or her attorney about it. Once people learn about this alternative to the traditional route of divorce, they are often encouraged to pursue it.

Collaborative divorce professionals: a diverse group

If you are planning to use the collaborative law process for your divorce, you should be aware that you’ll likely encounter more than just attorneys as you work through your case. Collaborative law, unlike the traditional litigation method, seeks to work through a divorce in a holistic manner, meaning that you and your soon-to-be-ex can meet with a professionals who can help you strategize and make a long-term plan for years ahead.

These professionals can include attorneys, financial advisors, therapists, real estate agents, and more. Each of these professionals can be valuable resources throughout the process so that you can be sure you’re making the right decisions not only at the end of your marriage but for years to come. There are many professionals other than attorneys who are familiar with and are trained in the specifics of collaborative law, so ask your attorney if any of the following might be a good resource for your case:

Financial advisors

For couples who have a large number of assets, or a closely linked finances, or need to determine spousal support, a financial advisor can be an ideal expert to help you determine how your short and long-term financial situation can be protected. . These professionals, are trained to help you crunch numbers and analyze a range of scenarios as they pertain to potential settlements, maintenance orders or division of marital property.

Therapists

Trained mental health professionals may be a valuable resource for divorcing couples whose emotions are interfering with the communication and planning that must take place during the collaborative law process. These experts may meet with individuals or couples to help them identify emotional triggers, communication barriers, and best practices to move beyond the emotion to focus on collaborative planning for all involved.

Mediators

Depending on a range of issues, collaborative divorce cases may involve the work of a mediator, or a third party neutral, who has expertise in family law. The role of a mediator is to be a neutral voice for both parties who will still utilize their own attorneys to advocate for a particular position.

Other professionals

In recent years, many additional professionals including real estate agents, life coaches and others have begun to lend their services to couples who are navigating the collaborative law process. Each of these types of professionals may be able to offer his or her unique expertise and insights to you as you begin planning for your life after marriage.

Privacy: A Benefit of Collaborative Divorce

One aspect of collaborative divorce that many people don’t realize is the privacy that the process offers. In the collaborative process there is a level of privacy that the traditional model doesn’t allow. No one has to appear in a public courtroom in front of strangers. The traditional litigation model opens up a couple’s divorce to the public record, oftentimes including personal, financial, and social information that many people may want to protect.

(in Colorado divorce records are not public. They used to be. For that reason alone, many celebrity couples are beginning to use the collaborative process for their divorces.

Collaborative divorce: not just for low-conflict couples

While many people think that collaborative divorce may only work for couples who have low-conflict personalities or low-conflict issues in their relationships, that’s an inaccurate perception as the term collaborative doesn’t mean that the spouses have to feel friendly toward one another. It also doesn’t mean that couples need to be in agreement on all aspects of their divorce.

Divorce can be emotional for everyone, and the traditional divorce process can increase the conflict between couples, and in many instances it can lead to lengthy and costly litigation. In contrast, the collaborative divorce process was designed to deal with people who are in the throws of their emotions. The goal of collaborative divorce is to heal raw emotions rather than to encourage them. Additionally, the process is ideal for couples who are struggling to resolve significant conflicts.

Collaborative law attorneys are trained to help people work through these conflicts and emotions so that they can develop long term solutions for their families. These attorneys work to move emotional spouses toward rational decision making and calm conflict resolution. They are primed to help people be attentive listeners, to help them focus on problem solving instead of blaming behavior and because both parties agree to stay away from court, the collaborative process doesn’t carry the threat of continued or costly litigation. If you’re uncertain about whether collaborative divorce will work for you and your soon-to-be-ex, you can meet with an attorney specializing in collaborative divorce to discuss the process and your situation and then discuss the options with your spouse.

The pros and cons of collaborative divorce

In weighing whether to use the collaborative divorce process, it’s important to consider the pros and cons of using an alternative to the traditional model. Below is a brief list of pros and cons that you and your ex may consider in deciding which process will work for you.

Pros

1. Shared understanding: Because the process is voluntary, you and your spouse begin on the same page, with the shared goal of avoiding litigation.
2. Independence: Choosing the collaborative law process ensures that you and your spouse will drive the ultimate outcome of the case. Your ultimate agreement will not be the result of a judge’s decision, but instead the result of your collaborative decision making.
3. Saved time: The collaborative divorce process can save you countless hours of waiting that the litigation process can require
4. Confidentiality: The collaborative process can often mean that your ultimate agreement does not become part of the public record.
5. You both choose lawyers that have been collaboratively trained, and have made a paradigm shift into a collaborative problem solving process mode rather than an adversarial paradigm. You both benefit when your lawyers work together instead of fight each other with motions, depositions and discovery requests.

 

Cons

1. Discord: One concern for choosing collaborative divorce is that if the process ultimately doesn’t work for you and your spouse, and you are unable to settle or agree to the ultimate decisions in the collaborative process, you and your spouse will have to hire new attorneys to represent you through the traditional litigation model.
2. Trust: The collaborative process requires that you trust your spouse to be open and respectful. If that’s not possible, you and your spouse, may not be able to reach a combined, mutually agreed upon agreement.
3. Your attorney will have to submit your agreement to the court to obtain a judge’s approval regarding parenting matters, maintenance awards or other aspects of your agreement. This usually does not require a court appearance but may in rare cases.

Each case is different, so before you decide whether collaborative divorce will work for you or not, discuss the options with your spouse and a collaborative attorney. There may be additional pros and cons to your unique situation that will help you decide the best path for your situation.

How did collaborative divorce get started?

Since its inception in 1991, the collaborative law movement has spread worldwide, and almost all states now have some way for couples to use collaborative law concepts and tools in working through their divorce. Collaborative Law was created by Stu Webb, a Minneapolis divorce attorney who had a horrible trial against his best friend. He decided there had to be a better way to help divorcing couples.   While collaborative law isn’t for all couples, an increasing number of people and attorneys are turning to it because it offers a lower conflict, lower stress alternative to litigation.

The collaborative divorce process is still a relatively new alternative to the traditional litigation model. The process began to gain traction among practitioners beginning in the late 1990s, after a group of northern California lawyers, therapists, and financial planners founded an organization focused on collaborative law. The aim of collaborative law is to empower couples who have decided to divorce to avoid contested litigation, and further, to work together in finding a solution that works for both of them for the long term.

What’s the difference between collaborative divorce and mediation?

Most people who are beginning the divorce process have had little to no contact with the judicial system before. So it can be a daunting process to find an attorney and make decisions about your future without your spouse. If you’re contemplating a divorce, there are a few key terms you should be aware of so that you can be your own best advocate throughout the process.

One key thing to remember is that there is a difference between collaborative divorce and mediation. While both of these terms refer to an alternative dispute process, only collaborative divorce begins and stays out of the traditional court process. Mediation is an alternative dispute process that is usually used after the traditional process has already begun, which in some cases can be months after the divorce was filed. That means that you and your ex will have already gone to court, gone through discovery, and possibly spent significant amounts on litigation.

In contrast, the collaborative process never enters the traditional court model. So the chances of saving money, encouraging a respectful dialogue, and working through the process greatly increase.

The processes also differ because mediation does not emphasize a joint conversation, while collaborative divorce prioritizes an open, joint discussion. During mediation, a mediator will bring both parties, and their lawyers together to set an agenda. He or she will usually then separate the parties and shuttle back and forth between them to find a solution. Collaborative law keeps the parties, lawyers, and other professionals together throughout the process to foster a solution that will work for all involved.

Who should choose collaborative divorce?

The collaborative divorce process isn’t for all couples, in fact, it works best for those couples who agree from the outset that they want to work together to find a long-term solution that will work for them. Because collaborative divorce requires an open and honest dialogue, the process works best for those couples who respect one another and can work together throughout the process.

If you’re uncertain about whether the process could work for you, consider the following questions and then talk to your spouse and an attorney about whether you think it could work.

• Do you want to avoid the court process?
• Are you interested in ending your marriage in a respectful process that is individually tailored to you and your spouse?
• Do you want to keep control over the divorce process and the decisions that can affect your life for years to come?
• Have you and your spouse recognized the need for a continued, respectful and working relationship after your marriage ends?
• Do you want to protect your children from what can be a potentially difficult process in the courtroom?
• Are you prepared to work through the potential conflicts with your spouse with respect and integrity?

The New York State judicial system’s Collaborative Family Law Center has posted a series of useful questions and answers that may help you think further on this topic, but if you’ve seriously considered the above questions, collaborative divorce may be a good solution for you. Learn more by speaking with a local, collaborative divorce attorney.