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Unique Features of Collaborative Divorce

Introduction to Collaborative Divorce - Buy nowA client who comes to you for help with a divorce will have many questions: How long will this take?  How much will this cost? Do I have to go to court? Is there any way we can still be friends when this is all over? The answers to these questions will depend, in large part, on the divorce process chosen by the parties.

As explained by Holly Wanzer in her new book, Introduction to Collaborative Divorce, the collaborative law process is marked by several key characteristics that differentiate it from other process options including, most notably, litigation.

1. Collaborative Process is a Voluntary Process

There is no reasonable way to force divorcing spouses to cooperate. Courts order divorcing couples to mediation every day, but it does not change the hearts and minds of people determined to see mediation fail.  Any process that is compelled is an outside force working in the lives of participants in a way that those participants did not choose.  A collaborative divorce is different. Engaging in the collaborative process requires an affirmative commitment, made after informed consent to participation.  The choice to participate in the collaborative process – to be on the same team as your spouse – is the first step in making the divorce process less overwhelming, by taking back some control.

2.  Commitment to Collaborative Process is Memorialized in a Separate Written Agreement

The spouses memorialize their commitment to the collaborative process by signing a Collaborative Process Agreement, which governs the way the divorce process operates and defines the roles and responsibilities of the participants.  Compare this to a traditional, litigated divorce. While it is common for divorcing individuals to sign agreements governing the attorney/client relationship with their own attorneys, the parties typically do not sign agreements with one another, defining the divorce process itself.  In a litigated case, there is no need for such an agreement because the litigation process is defined by outside forces over which the parties have no control. The rules of law and of evidence apply. The parties need not agree to these rules, as they are already in place and will operate, for better or worse, to affect the outcome of the case.  With the signing of the Collaborative Process Agreement, participants acknowledge that they are doing things differently and operating under a different set of rules.

3.  Mandatory Attorney Withdrawal Means No Litigation . . . Ever

The most controversial and most discussed characteristic of the collaborative divorce process is the provision of the Collaborative Process Agreement which requires both attorneys to withdraw if the collaborative process fails and either party pursues litigation. This single characteristic of the collaborative process has convinced some practitioners that the collaborative process is something to be treated with suspicion and caution.  In truth, it is a powerful tool and motivator to keep parties engaged in the process. Each party stands to lose his or her chosen advisor and representative.  Each attorney stands to lose a valuable client.  Now everyone at the negotiating table has a vested interest in success.  No other divorce process so explicitly and thoroughly eliminates the prospect of ending up in court.

4.  Collaborative Process Operates Within a Win/Win Paradigm

In litigation, each side of the dispute seeks to move his or her personal agenda to achieve a win.  That win only comes at the expense of the other party who must lose.  This breeds a distinct lack of trust between the participants.  “If I can only achieve my goals by defeating you, I will be suspicious of each action you take and will scrutinize even the extension of an olive branch, in case it is a ruse.” This lack of trust creates a difficulty in coming to agreement about even the most basic concepts and procedures.  The collaborative process, by comparison, is based upon a win/win paradigm.  Every person involved in the process is tasked with meeting the reasonable goals and interests of both parties and their children. Thus, collaborative law comes closer to arriving at a “total family” solution than any other process because it seeks to move the entire family to resolution.

5.  Collaborative Approach is a Team Approach

One focus of the collaborative process which distinguishes it from other divorce processes is the focus on putting together the right team.  The divorce process is a legal process, but it also is a human process, a financial process and a logistical challenge.  Often, participants need alternative housing, asset transfer assistance, and assistance with making sounds decisions about the needs of their children.  While there are legal aspects to these issues, there are also non-legal aspects which require the knowledge and experience of outside experts.  The collaborative process embraces the concept of bringing outside mental health professionals and financial professionals into the process and making them members of the team.

6.  Parties Agree to Voluntary Disclosure of Material Information

In a litigated case, interrogatories and requests for production of documents are common ways to gather information about marital assets and debts, income, expenses, and a parenting-time schedule.  Other discovery tools, such as depositions and requests for admission, also have their place in the litigation process. While discovery is a necessary and useful part of the litigation process, it has its limitations and drawbacks.  It is a reactive process.  Nothing is volunteered, and if questions are inadvertently omitted or poorly worded, material information may not be revealed.  Because discovery occurs in the context of a “win/lose” paradigm, the questions are treated with suspicion and the answers are carefully couched to reveal as little as possible.

In a collaborative case, the participants agree to engage in a proactive information-sharing process.  Instead of waiting to be asked for material information, that information is voluntarily placed in the center of the table for review by all.  The “win/win” paradigm of the collaborative process makes this a less frightening prospect. If the goal is to reach the best solution for all parties and for their children, it follows that the best solution can only arise from a full understanding of all material facts and circumstances.  If both parties can “win,” then information ceases to be a weapon where denial can lead to victory or defeat.  Instead it becomes part of the total conversation necessary to tell a complete story of a changing family.

About the Author

Holly J. Wanzer is the Founding President of the Board of the Central Indiana Academy of Collaborative Professionals and continues to serve on the board as Immediate Past President.  She is a member of the International Academy of Collaborative Professionals, which provides innovative alternatives to litigating divorce and family law matters with an emphasis on co-parenting and resolving cases without court intervention. Ms. Wanzer is a frequent speaker on the topic of collaborative law. Among other programs, she has presented the two-day Introduction to Interdisciplinary Family Collaborative Practice, a national teleseminar on collaborative law for the National Business Institute, “Collaborative Law in Family Law Disputes,” and a seminar on the collaborative family law process at the 2012 ICLEF Masters Series program.

Ms. Wanzer is a founding attorney of Wanzer Edwards, PC.  She assists individuals with a variety of family law cases including legal separation, dissolution of marriage, post-dissolution modifications (including child support, custody, education expenses, emancipation), paternity, guardianship and grandparents’ rights.

To learn more about Ms. Wanzer’s new book, Introduction to Collaborative Divorce, click here..

Introduction to Collaborative Divorce - BUY NOW