If you’re curious about the collaborative divorce process here are three facts to know.
1. A collaborative divorce isn’t just 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, or face the risk of sanctions under California Family Code section 271.
Unlike attorneys who make cursory attempts to settle a case, true collaborative divorce attorneys follow a collaborative law model, and have skin in the game.
The collaborative divorce process evolved out of attorney Stuart Webb’s 1990 decision to fire his clients when they wouldn’t negotiate divorce settlement agreements 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 the book, Collaborative Divorce: The Revolutionary New Way to Restructure your Family, Resolve Legal Issues and Move on with Your Life. This educational nonfiction explains the process step by step, and is a great place to learn more about the collaborative divorce process.
In short, Pauline Tesler describes a collaborative divorce as a “self determined decision making process” where couples negotiate agreements with the help of an interdisciplinary team of collaborative professionals. The team may include collaborative attorneys, a financial advisor, child custody specialist, and collaborative divorce coaches. Collectively, the team works in tandem and good faith to find long term, realistic solutions that may or may not rely on family law.
2. The “No-Litigation” pact or skin in the game. Couples and professionals who participate in a true collaborative divorce process sign a participation agreement. The agreement states, the couple will not file motions (Requests for Orders in California), threaten litigation, or schedule trial dates during the collaborative divorce process. The collaborative agreement further provides, the entire collaborative divorce team including attorneys, financial experts, coaches, child specialists, etc. will terminate their services if the couple does not reach a marital settlement agreement, 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 commonly cited disadvantage of the collaborative divorce process. I understand the risk can be off putting, but I still believe the benefits outweigh the financial risks if the couple and collaborative team are committed and competent. If you need structure and guidance, and you want to stay in control as you work with your spouse and experts to negotiate divorce agreements, the collaborative divorce process is a good option.
3. All in or it’s a no-go. The collaborative divorce process is 100% optional and voluntary. This means your spouse must agree to participate. California judges don’t have explicit authority to order a couple to use the collaborative divorce model. So if your spouse doesn’t buy in, the collaborative divorce process isn’t an option available to you.
If you’re considering the collaborative divorce process, and would like my help weighing your option, please schedule a consulting session.