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 alternate 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

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