COLLABORATIVE DIVORCE

The Collaborative Divorce process refers to a very specific technical process. It is not merely an amicable, settlement-oriented, uncontested divorce.

Many cases are settlement focused. You have attorneys on both sides trying to balance strong representation for the client while simultaneously containing friction and not escalating the case to a point the parties can’t retreat from.

The collaborative process is this and then some. It is the promise and assurance of no litigation during the process.

The parties engage attorneys who have training and/or experience in the process. At the outset, they enter into a retainer agreement that states that no litigation will transpire during the process, and the parties will not file a Summons for Divorce until they have a written agreement in place. After the written agreement between the parties is executed, only then may the Summons for Divorce be filed as an uncontested divorce action. Both parties enter into this type of retainer agreement with their respective attorneys thereby alleviating the threat of a Summons filing and possible litigation. It is meant to put both parties at ease. If the process breaks down and the parties cannot come to a mutual agreement on terms, then they have to hire new attorneys for any litigation and cannot use the attorneys they were using for the collaborative process.

The parties typically sign a “Stop-the-Clock Agreement” at the outset to ensure they have enshrined a cut-off date for the marriage, since they are foregoing filing the Summons for Divorce at that time which is the vehicle that would typically effectuate the cut-off date. In this way, the parties are afforded some protection as they delay filing the Summons, even if the process does not work.

Notably, the collaborative divorce process has a high success rate, even higher than mediation. This is largely due to the attitudes, self-perception, and commitment the parties who choose it bring to the process.

Many mediation clients want to start mediation as a non-binding first resort to test how much progress they can make but are willing to bow out if they face resistance from their spouse. Conversely, the collaborative divorce clients are very committed to resolving all their issues through the process, and their self-perception is so misaligned with litigation, that they often feel they need to avoid it as part of their identity.

It also helps that the collaborative attorney pond is quite small. The attorneys know each other and tend to have good working relationships and a history of successfully getting clients past the finish line.