Not all divorces and child custody matters involve litigation. Many people choose the collaborative process, which is generally a less contentious, more constructive way to arrive at a divorce agreement and/or a child custody agreement.
What is collaborative divorce?
Collaborative divorce is a process through which spouses and their respective attorneys commit themselves to resolve all the issues of their divorce through negotiated agreement, without resorting to adversarial techniques or court proceedings. The collaborative process can also help unmarried parents of minor children to reach a child custody agreement and parenting plan.
Through the collaborative process, the spouses or parents work with their attorneys to communicate their interests, identify issues, set goals, develop options, and reach a resolution that is acceptable to both parties. Where appropriate, the process may also involve the input of neutral professionals, such as mental health counselors, financial planners, or accountants. For the collaborative process to be successful, both spouses must commit to the voluntary production of documents and disclosure of financial information, as well as information that could impact their parenting of children, such as any mental health or substance use issues.
The collaborative model incentivizes lawyers to facilitate an agreement, rather than foster conflict, and to get creative in developing solutions that meet the interests of the parties. Lawyers who represent the parties in collaborative divorce proceedings are disqualified from representing the parties in court. Therefore, if an agreement cannot be reached through the collaborative process, the parties would obtain new litigation counsel.
While some lawyers may refer to themselves as being “collaborative” in style, a lawyer must be formally trained in collaborative techniques and committed to the no-court aspect of the process in order to represent you in a collaborative divorce.
How does collaborative divorce work?
If you are interested in the collaborative process, you and your spouse or co-parent will each choose your own collaboratively trained lawyer to represent your needs and interests. Then, all involved will sign a participation agreement. The spouses or parents will then provide all necessary financial and other information and produce relevant documents. The parties will then participate in meetings to try to work out resolutions.
These meetings – which are held in an informal setting, such as a conference room or on Zoom, rather than the court – typically include the two spouses and their attorneys, as well as neutral financial or mental health professionals where appropriate. In some cases, the attorneys will meet on their clients’ behalf, without the clients being present.
After an agreement is reached, the attorneys will put it in writing, prepare all necessary court paperwork, and arrange for your divorce or child custody agreement to be filed with the court and presented for court approval. Often, there is no need for the parties to step foot in the courthouse.
What are the benefits of collaborative divorce?
The collaborative divorce process has many benefits. It allows you to have control over the decisions that will impact your family and to be creative in your problem-solving to arrive at solutions that you both can live with. You also control the timing of meetings. With litigation, the court dictates the schedule, and a judge decides the outcome.
Because of its non-adversarial nature, collaborative divorce can reduce stress and anxiety, allowing spouses or parents to focus on the important issues. The reduction in hostilities also encourages you to preserve the parts of your relationship that work and establish a cooperative framework for future dealings, which is particularly important for parents of minor children. Litigation by nature is often focused on the past and on blame, while collaborative divorce is a forward-looking process.
Collaborative divorce also allows you to resolve your private custody and financial issues in confidential meetings, rather than public court proceedings.
How does collaborative divorce compare to mediation?
Like collaborative divorce, mediation is a less adversarial alternative to litigation. With mediation, a neutral mediator – typically an attorney trained in mediation techniques – is chosen by the spouses or parents to facilitate discussions between them and help them arrive at an agreement acceptable to both of them. The parties may also consult throughout the process with their individual attorneys, who will prepare the initial paperwork and final documents for the court, but the individual attorneys will not be part of the mediation sessions. As with collaborative divorce, mediation sessions are held in a private, informal setting, and the mediator is barred from representing either party in any subsequent court proceedings.
There are some important differences between collaborative divorce and mediation. In the collaborative setting, the parties are never by themselves; they are fully represented in every meeting and throughout the entire process by their individual attorney. This makes it a more comfortable option for many clients; in mediation, we often hear that the parties have concerns about their ability to understand what’s being presented and make decisions in real time without the support of someone else. Sometimes, they question their ability to articulate their interests and advocate for themselves in mediation sessions based on the parties’ communication patterns in the past.
When is collaborative divorce not an appropriate option?
The collaborative process is not appropriate for all divorces or child custody matters. To engage in the collaborative process, parties must be able to be transparent about material information, including financials and other information that can affect the parenting of children. As disclosure is a voluntary process in collaborative divorce, the ability to volunteer information is critical. If one of the parties is unwilling to turn over financial statements or other relevant documents, there is no mechanism in the collaborative setting for compelling them to do so.
Further, collaborative divorce requires a commitment from the parties that they will not resort to adversarial tactics or threaten litigation, as in, “If you don’t do this, I will take you to court.”
Regardless of how you get divorced, there will be hard conversations and disagreements. You still have to deal with the difficult issues of child custody and the division of assets. But how you have the conversation and get to the resolution can have a major impact on your family dynamic, both now and in the future.
The collaborative divorce attorneys at Hartford law firm Ruel Ruel Burns Feldman & Britt have navigated a broad range of complex divorces and child custody matters in Connecticut, allowing for knowledgeable and compassionate representation. We understand this is a stressful time for you, and we are here to support you through all stages of the process. Contact Ruel Ruel Burns Feldman & Britt to discuss a collaborative divorce or another family law matter. Call 860-206-9096 or click here.