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COLLABORATIVE DIVORCE:

A POTENTIALLY KINDLER, GENTLER, & CHEAPER PROCESS

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Quotation:

bullet"Divorce is a problem to be solved, not a battle to be won." Karen Fagerstrom 1
bullet"[Collaborative divorce is]...growing by leaps and bounds. It will completely transform the way people will divorce in the future." Janis Prichard, Alberta lawyer. 2

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Overview:

Hollywood movies have taught several generations of married couples that the "standard" way to engineer a marital break up is for one spouse to pack their bags, and announce that they are going to see their lawyer, and storm out the door. This typically results in the other spouse selecting their own lawyer. The two lawyers then battle out a separation agreement/divorce -- either by negotiation or by litigation. This is typically a long, emotionally draining, and economically disastrous procedure for everyone involved. The spouses often end up with an agreement that neither is particularly happy with.

"Lawyers began to notice that the bitterness and acrimony engendered by the litigation process was having long term harmful consequences on those who participated in it. They also began to notice that participating in this process was having a deleterious impact not only on their clients' emotional and psychological lives but also on their own lives as well. As a result lawyers began to explore alternative avenues of resolving disputes. 3

Stu Webb, an American attorney, invented one of these alternative processes in 1990, and called it "collaborative divorce." He and other lawyers in Minneapolis, MN, later formed the Collaborative Law Institute. 4

This process tends to be faster, cheaper, less emotionally taxing for everyone: spouses, children, lawyers, and judges. It usually avoids court litigation. It often results in a more acceptable settlement, because both spouses cooperate in creating the agreement. It is a new technique which is currently being used by a minority of lawyers in North America. 5 They tend to be concentrated in small clusters:

bulletMany American lawyers are working with this process in California, Connecticut, Florida, Minnesota, Ohio, Pennsylvania, Texas and some other states.
bulletIn Canada, it is becoming common in the four Western provinces, the North-west Territories, Ontario and Nova Scotia. In Medicine Hat, Alberta, collaborative divorce has become so popular that, according to local lawyer Janis Pritchard,  "Virtually no family law is done in the courts...any more because clients typically choose the collaborative family law process."

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The collaborative divorce procedure:

Although normally called "collaborative divorce," the same process is equally applicable for marital separations. In fact, it can be used for many disputes outside of family law.

Often, four parties are involved: the two spouses, and each spouse's lawyer. In more complex cases, additional professionals -- are brought into the negotiations. These can include:

bulletFinancial planners and accountants to lend financial expertise. They are often needed where there is a family business and/or pension plans involved in the settlement.
bulletFamily counselors, often called "divorce coaches" to help the spouses handle the emotional strain of the process, and the unavoidable conflict that it includes.
bulletChild specialists, who are often a social worker, child psychologist or similar professional. They suggest alternatives that would be beneficial to the children. They often suggest techniques that the spouses can use to calm their children's fears and feelings as the separation and divorce process unfolds.

Both spouses sign a binding contract agreeing to:

bulletParticipate in good faith in four-way negotiations.
bulletFully disclose their financial and other key information.
bulletRenounce their right to threaten litigation or to engage in litigation.

The four then meet and discuss the various factors that have to be considered:

bulletThe children: Who gets custody of the children; whether there is open custody; who gets what visitation privileges.
bulletThe division of property: the home, if there is one; car(s), appliances, furniture, pet(s) etc.
bulletThe division of financial assets.
bulletThe division of debt obligations.
bulletThe decision on the amount and timing of spousal financial support and child support, if any.

If either spouse is unhappy with the outcome of the collaborative process, they are free to break the contract, and initiate in litigation through the courts. But neither of their lawyers will then be able to represent either spouse.

A single court appearance is typically required. But it will be an uncontested hearing in which the couple's agreement is presented to the judge for approval. The judge may ask questions of both spouses to determine whether the agreement is fair and balanced. 1,2

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Sponsored link:

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Advantages:

In those cases where the collaborative divorce procedure works, a number of advantages often result:

bulletThe process is faster, because there is direct dialog among the spouses and their lawyers. An idea can circulate around the table in a matter of minutes, and be accepted, rejected or modified. In traditional inter-lawyer negotiations, this process can take weeks.
bulletThe spouses have an excellent chance to agree upon a settlement that is beneficial to both of them. Such a settlement may be easier to implement because both spouses have been involved in its creation.
bulletThe process can be less expensive because of its efficiency, and because litigation is normally avoided.
bulletGovernments and courts love the process, because it lightens the load on the court system.
bulletThere is normally less emotional damage to the parties. Lawyer Janis Prichard has said: "Any judge, any experienced family law lawyer will tell you that the collateral damage to families in the traditional positional bargaining and in the court system is huge, and none of us likes that. It exhausts families psychologically, emotionally and financially." Many lawyers find that this process takes less of an emotional and physical toll on themselves.
bulletEven in those cases where the process fails, and one spouse decides to try litigation, little is really lost. The spouses can disengage from the collaborative divorce process, hire new lawyers and proceed with the traditional "take no prisoners" contested divorce. Whatever progress was made during the collaborative process can be preserved and documents can be transferred to the new lawyers.
bulletThe collaborative divorce process ensures the couple's privacy, when compared to a fight in open court.
bulletIn traditional contested divorces, lawyers can be caught in a conflict of interest situation. They make more money through lengthy litigation than through achieving quick agreements. In a process of "zealous advocacy," their main goal is typically to gain the best settlement for their client, often to the detriment of the other spouse and of the children. Debate often degenerates to a discussion of each spouses rights, rather than a discussion of what is best for each spouse and the children.
bulletUnlike mediation and arbitration methods of resolving separation and divorce conflicts, in collaborative divorce negotiations, the spouses have their lawyers (and perhaps counselors) present. This can be a major advantage in cases where a major power imbalance exists between the spouses.
bulletWe have no data to support this, but we have a hunch that spouses who have gone through a collaborative divorce process will act more responsibly towards their former spouse and non-custodial children in the future. There will be less of a tendency for the non-custodial ex-spouse to abandon their relationship with their children.

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Disadvantages:

bullet"To act collaboratively requires a paradigm shift or a change in attitude for everyone involved..." 4 Some spouses and lawyers may not be able to adapt to this process.
bulletCollaborative divorce is relatively new. In some areas of North America, there are no available local lawyers who have been trained in the process and who practice it.
bulletSometimes, collaborative divorce process is unacceptable to one or both spouses. By the time that a couple has separated, there is often great mistrust between them. If one spouse suggests collaborative divorce, the other spouse may well reject it out of hand, fearing that it is a trick.
bulletIn marriages where physical or emotional violence has been a major issue, the abused spouse may find it difficult to engage in dialog with their abusive spouse present.

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Religious implications:

St. Paul wrote about the importance of Christians settling disputes among themselves, rather than "going to law" i.e. initiating litigation in the courts.

In 1 Corinthians 6:1-7 he wrote:

"Dare any of you, having a matter against his neighbor, go to law before the unrighteous, and not before the saints? *...If then ye have to judge things pertaining to this life, do ye set them to judge who are of no account in the church? I say (this) to move you to shame. What, cannot there be (found) among you one wise man who shall be able to decide between his brethren, but brother goeth to law with brother, and that before unbelievers? Nay, already it is altogether a defect in you, that ye have lawsuits one with another...." American Standard Version.

* "The saints" refer to fellow Christians.

Although collaborative divorce did not exist in Palestine during the 1st century CE, we might infer from Paul's writings that he would have approved of negotiated settlements among fellow Christians which would avoid the necessity of litigation.

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References used in this essay:

  1. "The Collaborative divorce Lawyers Association," at: http://www.collaborative-divorce.com/
  2. Cristin Schmitz, "New style of divorce wins fans," Southam Newspapers. Published in the Kingston Whig Standard, Kingston ON, 2002-MAR-4, Page 9.
  3. Morrie Sacks, "Collaborative divorce and separation: Introduction: Who can benefit from this process," at: http://www.collaborativedivorce.ca/who.html
  4. Ibid, "Collaborative divorce and separation: Introduction: An overview," at: http://www.collaborativedivorce.ca/intro.html
  5. Collaborative Divorce sm maintain a listing of professionals in various states and provinces. See: http://www.collaborativedivorce.com/

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More information on collaborative separation and divorce:

bulletBooks:
bulletDebbie Ford & Neale Walsh, "Spiritual Divorce: Divorce as a catalyst for an extraordinary life," Harper San Francisco, (2001). Read reviews or order this book safely from Amazon.com online book store. This book received a rare five-star rating from Amazon.com readers.
bulletKaren Fagerstron, et al., "Divorce: A problem to be solved, not a battle to be fought," Brookwood Pub., (1997). Read reviews or order this book
bulletInternet resources:
bulletMorrie Sacks maintains a list both American and Canadian web sites, books, and  articles which deal with collaborative divorce.
bulletThe Coalition for Collaborative Divorce sm at: http://www.nocourtdivorce.com/
bulletCollaborative Divorce at: http://www.collaborativedivorce.com/

Copyright © 2001 by Ontario Consultants on Religious Tolerance
Originally written: 2002-MAR-6
Latest update: 2002-MAR-6
Author: B.A. Robinson

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