What is Collaborative Divorce?
Did you know Colorado has a 12% divorce rate in 2021? When exploring divorce options in Colorado, it is not unusual to wonder, what is a collaborative divorce?
A traditional litigation divorce process usually requires both parties to invest in great time, energy, and money. Added to that, the participants undergo a significant amount of psychological stress and disruption in their everyday lives. This is where a couple wanting separation might consider pursuing a collaborative divorce instead. It is a viable but compromising alternative to courtroom divorce proceedings.
Without the involvement of the court or a neutral third party, collaborative divorce helps reach negotiations between the two participants with the help of their respective attorneys. Agreements are mutually and professionally worked out, keeping in mind the long-term interests of both parties. The divorce proceeding is more respectful to both spouses and their children. It also has less overall traumatic impact on their mental health.
Features of a Collaborative Divorce
No Court
A collaborative divorce is different from a mediation in that the latter involves a mediator in court. Both parties sign a no-court agreement in a collaborative process. The no-court approach encourages problem-solving by the individuals themselves without outside interference. In case the dispute is not resolved and either of the clients wants to switch to traditional litigation and go to court, the attorneys representing them are considered disqualified.
Four-Way Talks and Neutral Parties
Negotiations by way of four-way conferences between the parties and their attorneys are the general course of method in a collaborative divorce. Resolutions regarding child custody and financial assets (here’s how Colorado's marital property laws are outlined) are made with the help of attorneys. In addition, neutral parties such as accountants, psychologists, etc., may also be present to give their advice on relevant matters.
Active Participation
Because the process requires that the two spouses are involved in making decisions, the power of how to make settlements is in their hands, without a third party intervention.
Open Communication
The backbone of collaborative divorce is in direct and difficult conversations between a couple to make decisions. Disclosure of all financial documents is essential in a collaborative divorce to move forward with negotiations between the two participants. Open, honest communication is key toward coming up with solutions that are in the interest of both.
Minimal Psychological Trauma
In a contested divorce, both parties often have to face excessive emotional trauma because of the hostility involved. In a collaborative process, however, there is a conscious decision to work toward negotiations and settling matters. There is less drama, mudslinging, and competition between the spouses. A collaborative divorce helps ease the emotional aspect of separation.
Team Work
To come to results in a collaborative divorce requires realistic team work. Lawyers are responsible for educating their clients on the law and the information needed in the divorce process. The interest of both the parties is at the helm in the discussions, as opposed to an adversarial approach where one party tries to one-up the other to win the case.]
Privacy
Confidentiality is another important principle in this approach. Active participation of the participants requires that they are committed to the decision-making process. Financial as well as personal details are kept out of public purview. The contract between the participants iterates the same.
Customized Planning and Agreements
The decisions made in a collaborative divorce suit the needs of the spouses and take their unique situations into account, especially as they are active participants in the decision-making process. Without the interference of a mediator, conferences are held as per convenience. Negotiations do not move forward unless the process satisfies both the parties.
Trained attorney
A collaborative divorce attorney should have specialist training. He or she must know how to handle delicate negotiations and facilitate the process for their client, while having a realistic idea of the foreseen outcome.
Steps to a Collaborative Divorce
- The first step of the process is to get more familiar with what collaborative divorce is. Knowledge from the internet and acquaintances will help the divorce candidates decide if this alternative approach is what they wish to take up.
Next, both spouses agree to hire collaborative attorneys to start the process. The trained attorneys will help lay out the plan and fill the participants in on important information, as well as the relevant law of the state. An initial agreement is also signed by both parties in which they agree to work with each other for a mutually beneficial outcome. They also agree not to go to the court in the middle of the process.
The following step is to gather documents and relevant information. Both parties must voluntarily disclose financial records and other data needed with the help of their attorneys.
The four-way meetings may have neutral experts present, such as financial experts, counselors, divorce coaches, etc. Hiring or taking their services is a natural part of the collaborative process. A divorce coach will help make the negotiations go smoothly, while a child specialist will assist with child-related and parenting issues. A financial expert will analyze the finances and help settle the asset ownership decisions.
- With the help of the trained attorneys, the spouses must come to settlements regarding the divorce. Negotiations will take place at this stage. Identifying common goals and making decisions regarding important assets, children, etc. is carried out at this stage.
- Finally, after the negotiations are over, the couple signs a final agreement drafted by their respective lawyers. The final divorce papers are filed in court where a judge signs them. The marriage would then come to a dissolution.
Pros of a Collaborative Divorce
When the parties go into a collaborative divorce with the right mindset, it minimizes stress and hostility. Conferences take place as per convenience and out of the public eye. Data is confidential and privacy is respected. It could be that only a few people are involved and the process is over, with the least number of hiccups.
Traditional court cases may turn ugly very soon, since the attorneys are constantly trying to sway the opinion of the judge. In a contentious setting, the spouses are also more likely to act out with hostility, which may quickly turn to anger, character assassination, and accusations. Proceedings in a collaborative divorce, however, are meant to be peaceful, civilized, and focused on reaching hands-on solutions.
Additionally, the presence of specialized neutral facilitators such as financial experts, child psychologists, divorce coaches, means that the participants come to an understanding regarding certain matters with the help of expert advice.
All in all, a collaborative divorce could be less frustrating than going to court sessions that are overwhelming and wrought with tension. This is especially true as the onus of how the process goes is in the hands of the participating couple.
Cons of a Collaborative Divorce
A collaborative divorce requires commitment and trust, which could be a lot to ask for when a marriage is headed for divorce. If the participants have stubborn demands and act from a place of hostility, it is impossible for the process to work.
Another bedrock of this approach is compromise, and not all spouses would be willing to gain less out of divorce. Since it is not a contentious approach focused on winning, parties are asked to agree to mutually beneficial options. Assets, child support and custody may be evenly worked out, which may not be what one of the spouses wants. In the traditional court process, the presence of a mediator also demands that the spouses obediently respect the decisions made. Going by the nature of active participation in a collaborative divorce, however, some spouses may end up fighting with each other for what works in their favor.
While collaborative divorce is touted as being cost-effective, it may sometimes be more costly than a traditional litigation proceeding. This is especially the case when both parties fail to be in alignment with their interests and outcomes. Costs may vary depending on the case and the presence of neutral facilitators. If the approach drags out for long and eventually fails, it may prove to be very expensive.
Collaborative divorce is a voluntary process that does not guarantee success. In certain cases, intervention by a third-party mediator may prove to be more effective and less time-consuming instead. When it is certain that working together will fail and not lead to solid decisions, it is better to go for traditional court proceedings from the get go to avoid unnecessary costs.
Who a Collaborative Divorce is Suitable For
The best clients for collaborative divorce are spouses who are eager to find amicable, civil, and realistic solutions to what could otherwise be a traumatic in-court divorce proceeding. These spouses are willing to compromise and have the interests of each other and the children in mind. It is also imperative that they are willing to work together to reach workable solutions, as no court or mediator will be available to them to dictate the terms.
A collaborative divorce safeguards the privacy of the individuals involved. It is the best route for high profile cases that are otherwise likely to be in the public eye in the traditional court litigation process. Even if the costs for hiring professional facilitators rise, the signed agreement ensures the confidentiality aspect.
Who a Collaborative Divorce is not Suitable For
Collaborative divorce works for clients who want a respectful and mutually beneficial divorce process. It is not for everybody. Candidates whose purpose is to gain monetarily or those who are not set on accepting compromises will find it hard to find the collaborative process comfortable. The entire process should be conducted civilly to reach practical solutions in dissolving the marriage.
Often divorce can be a painful experience. In cases of abuse, this approach may not work. Sociopaths and narcissistic personalities would be difficult to negotiate with. Also, if there is a feeling of animosity and hatred between the spouses, this method may fail to garner any positive results.
At the same time, if either of the spouses are likely to flout the signed contract by engaging in giving misinformation, breaking confidentiality, going public or to the court, defaming, etc. this approach of divorce is not suited for them. The process requires trust and transparency on the part of the participants.
Often, spouses who feel inferior or disadvantaged in the relationship may fail to feel at level grounds in the negotiation setting. Consequently, the negotiations may fail, leading to a move to contested litigation and consequently change of lawyers.
Failure of a Collaborative Divorce
If the two parties encounter failure in the negotiation process, it can quickly derail a collaborative divorce. This often happens when either or both spouses refuse to be open in their communication. Some reasons why a collaborative divorce fails are:
Withholding information
Failure to disclose financial documents regarding assets and other relevant details by a participant may stall the process. The other spouse would then want to search for alternatives and terminate the collaborative process.
Dishonesty
Any breach of the initial agreement signed by the participants could lead to a failure of the process. Falsifying information or breaking the confidentiality clause often results in this.
Not committing to the process
Often, one or both of the spouses may not go along with the process. Missed meetings, lack of compromise, unwillingness to negotiate, etc., are some examples of this behavior. As this contradicts the collaborative agreement signed by the two parties, it could directly lead to failure.
What Next
If the collaborative process fails, it is time to change lawyers. The contract is terminated. The collaborative divorce attorneys can no longer represent their clients and must withdraw, since the information shared in the process was confidential and cannot be used to their client’s advantage.
Participants then have to look for alternatives to go about the divorce proceedings. They can file for a divorce petition in court. The couple will have to hire new divorce attorneys and head for traditional contested litigation instead.