No one enters marriage wanting a divorce. If divorce does happen, however, both spouses often hope to achieve a mutually acceptable resolution that allows them to make their lives work despite the unexpected change in plans. A collaborative divorce can help them do just that. Collaborative attorneys help divorcing couples resolve property issues using a unique four-step process that helps both parties reduce their anxiety and make optimal decisions for themselves and their families.
Step 1 – The attorneys create a setting that allows everyone to take a deep breath and step back from the strong emotions that often accompany divorce. We accomplish this right at the start by making a number of agreements that are fair to both spouses. This also could be referred to as, “mutual voluntary disarmament.” If the couple can accomplish this, it is likely that they will be able to come to a mutually acceptable divorce agreement.
For example, we could agree that each spouse will make a list of concerns and each concern will be addressed. We also could agree that all financial information will be exchanged and any questions about finances will be answered promptly. In addition, we could agree that each spouse will share their hopes, goals and concerns, as well as their vision of what a good outcome would look like.
Most importantly, we would agree that both spouses will refrain from filing court applications (i.e., “no shooting”) while we are in this settlement process. As a safety valve, either spouse will be able to end the process at any time – simply by giving written notice. We also agree that all professionals who participate in the collaborative process are “off limits” if the couple stops collaborating and switches to an adversarial process.
Step 2 – We gather all relevant information from the parties and their advisors. If we need appraisals of assets, such as businesses or houses, we arrange for a single neutral appraiser in order to avoid a polarizing, “battle of the experts.” A neutral financial expert often is used to help the spouses develop a spending plan (budget) that takes into account various settlement options. This helps them get a real world idea of what the financial impact of various scenarios would be. The neutral financial expert also can help a spouse who is less familiar with the family finances get up to speed before negotiations begin so that realistic financial goals can be set. In addition, the neutral financial expert can inquire about any inconsistencies or gaps in the financial information provided. This provides additional assurance and ensures a more solid agreement.
Step 3 – After the goals are identified and shared, and financial and other information is gathered, we begin developing options. Collaborative attorneys help generate the widest possible range of options. We call this, “expanding the pie.” Often we can help generate many more options than the couple originally considered. This brainstorming process often yields additional creativity. In addition, we can discuss the relevant law and how it applies to the couple’s situation. If we see things differently, we will discuss our views respectfully in the presence of both spouses so that everyone understands any grey areas and how they may impact the situation. The couple also witnesses the attorneys respectfully discussing topics on which they do not agree.
Step 4 – With many options developed and potential consequences explored, the couple works out a plan that best meets their individual goals. Often spouses are surprised that the law is quite general and may not provide a specific answer to every question that comes up in a divorce. Even when the law is relatively clear, the couple may figure out a better, more customized solution for their situation. The law can provide guidance, but creativity in divorce settlements is encouraged. As long as everyone is fully informed and the overall agreement is mutually acceptable, the judges who must sign off on divorce agreements generally will approve any arrangement that provides for the children and is otherwise agreed to by the spouses.
Using the collaborative process to end their marriage gives the couple something they can feel good about: despite their difficulties, they treated each other as they would like to be treated, and ended their marriage respectfully and considerately – as befits a couple who once said, “I do.”
Donna Beck Weaver is a Certified Specialist in Family Law, State Bar of California Board of Legal Specialization with 30 years of experience. Ms. Weaver is the co-founder of the Los Angeles Collaborative Family Law Association (LACFLA), a Board member of the International Academy of Collaborative Practitioners (IACP) and a fellow of the American Academy of Matrimonial Lawyers (AAML). Ms. Weaver was named a Super-Lawyer of Southern California for the past two years and her practice is located in Santa Monica, California.