If you’re curious about the collaborative divorce process here are three facts to know.
1. A collaborative divorce isn’t just old fashioned collaborating in divorce. Men and women have been collaborating in divorce for hundreds of years. In fact, California’s family laws require attorneys and spouses to make their best efforts to settle issues before resorting to litigation. But unlike attorneys who make cursory attempts to settle a case, true collaborative divorce attorneys follow a collaborative law model and put skin in the game.
The collaborative divorce practice model evolved out of attorney Stuart Webb’s decision in 1990 to fire his clients when they couldn’t settle their cases without going to court. Fellow lawyers followed suit and ignited the movement.
Collaborative law pioneers Pauline Tesler and Peggy Thompson, who practice in the San Francisco bay area, coauthored Collaborative Divorce: The Revolutionary New Way to Restructure your Family, Resolve Legal Issues and Move on with Your Life, which explains the process step by step.
In short, Pauline Tesler describes a collaborative divorce as a “self determined decision making process” where couples reach their own agreements with help from an interdisciplinary team that makes good faith efforts to find long term satisfactory solutions.
2. The “No-Litigation” pact or skin in the game. Couples and professionals who participate in a true collaborative divorce sign a participation agreement. The agreement states the couple will not file motions (now Requests for Orders in California), threaten litigation, request hearings or trials during the collaborative divorce process. It further provides the entire collaborative divorce team including attorneys, financial experts, coaches, child specialists, etc. will terminate their services and the couple must hire a new divorce litigation or trial team.
Practically speaking, if the collaborative process fails and litigation ensues, the cost of a divorce can skyrocket. This is the most cited reason men and women give for not using the collaborative process. I understand but still believe with the right collaborative team and commitment by the couple, the benefits outweigh the financial risks. If you need structure and guidance, if you want to stay in control and work with your spouse to get through your divorce, it is a good option if everyone puts skin in the game.
3. All in or it’s a no-go. The collaborative process is 100% optional and voluntary. This means your spouse must agree to participate in a collaborative divorce process. California judges don’t have the explicit authority to order a couple to submit. Arguably the court’s broad discretion to ensure a fair and equitable process gives California judges power, but I’ve never heard this argument. So if your spouse doesn’t buy in, using the collaborative divorce process isn’t an option.
If you’re considering the collaborative divorce and would like my help deciding, please schedule a consulting session below.
