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COLLABORATIVE DIVORCE:
A POTENTIALLY KINDLER, GENTLER, & CHEAPER PROCESS
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Quotation:
 | "Divorce is a problem to be solved, not a battle to be won."
Karen Fagerstrom 1 |
| "[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 |
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:
| Many American lawyers are working with this process in California,
Connecticut, Florida, Minnesota, Ohio, Pennsylvania, Texas and some
other states. |
| In 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." |
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:
| Financial 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. |
| Family counselors, often called "divorce coaches" to help the
spouses handle the emotional strain of the process, and the unavoidable
conflict that it includes. |
| Child 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:
| Participate in good faith in four-way negotiations. |
| Fully disclose their financial and other key information. |
| Renounce their right to threaten litigation or to engage in
litigation. |
The four then meet and discuss the various factors that have to be
considered:
| The children: Who gets custody of the children; whether there is
open custody; who gets what visitation privileges. |
| The division of property: the home, if there is one; car(s),
appliances, furniture, pet(s) etc. |
| The division of financial assets. |
| The division of debt obligations. |
| The 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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Advantages:
In those cases where the collaborative divorce procedure works, a
number of advantages often result:
| The 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. |
| The 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. |
| The process can be less expensive because of its efficiency, and
because litigation is normally avoided. |
| Governments and courts love the process, because it lightens the
load on the court system. |
| There 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. |
| Even 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. |
| The collaborative divorce process ensures the couple's privacy, when
compared to a fight in open court. |
| In 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. |
| Unlike 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. |
| We 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. |
Disadvantages:
| "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. |
| Collaborative 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. |
| Sometimes, 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. |
| In 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. |
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.
References used in this essay:
- "The Collaborative divorce Lawyers Association," at:
http://www.collaborative-divorce.com/
- Cristin Schmitz, "New style of divorce wins fans," Southam
Newspapers. Published in the Kingston Whig Standard, Kingston ON,
2002-MAR-4, Page 9.
- Morrie Sacks, "Collaborative divorce and separation:
Introduction: Who can benefit from this process," at:
http://www.collaborativedivorce.ca/who.html
- Ibid, "Collaborative divorce and separation: Introduction: An
overview," at:
http://www.collaborativedivorce.ca/intro.html
- Collaborative Divorce sm maintain a listing of
professionals in various states and provinces. See:
http://www.collaborativedivorce.com/
More information on collaborative separation and divorce:
| Books:
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| Internet resources:
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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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