FREQUENTLY ASKED QUESTIONS
Divorce can cause significant financial, emotional, and relational distress for divorcing partners and their families. Collaborative Divorce is an approach that seeks to support divorcing couples and their families, educate them about options, equip them with the knowledge and skills to make sound decisions, and assist them in successfully navigating through all of the facets of their divorce transition.
In contrast to litigation, Collaborative Divorce focuses from the start on settling the issues involved in divorce without resort to litigation. The divorcing spouses commit at the outset not to litigate, but rather to engage in good faith negotiations aimed at resolving all of their issues. Collaborative Divorce seeks to provide a healthy, safe, respectful, and transparent environment in which divorcing spouses can make decisions that fit their particular circumstances and are in their mutual best interest and that of their children. This includes the resolution of issues involving the divorce itself, child custody and support, co-parenting, spousal support, the division of marital property, transition planning and budgeting, and other matters.
The Collaborative Divorce process provides a team, consisting of collaboratively trained lawyers, coaches, a child specialist, and a financial specialist, who assist the divorcing couple in reaching mutually acceptable outcomes for themselves and their families.
Collaborative Divorce is relatively new to Lousiana. However, Collaborative Divorce was conceived in Minnesota almost 25 years ago by attorneys who were frustrated with the process of divorce litigation – frustrated for themselves, for their clients, and for their clients’ children. Since then, Collaborative Divorce has spread throughout the United States, Canada, Great Britain, Australia, and a number of other countries. It continues to grow rapidly. The concept of collaboration is suited not only to divorce and family law, but also to the resolution of other kinds of civil disputes and conflicts.
Inter-disciplinary Collaborative Divorce, seeks to integrate all the professional resources that divorcing spouses typically need to address all of the dimensions of divorce. Each divorcing spouse has a mental health professional who acts as a Collaborative Coach and helps deal with emotions (such as anxiety, fear, and anger), improve communication skills (including listening skills), develop parenting and transition plans, and address other needs and concerns. Where children are involved, a neutral Collaborative Child Specialist assesses their needs and concerns, communicates observations to the divorcing parents, and helps the parents develop skills and strategies to address the effects of the divorce transition on their children. A neutral Collaborative Financial Specialist helps with the assembly and analysis of financial data, budgeting, property division, and planning for the divorce transition and beyond. The Collaborative Attorney for each spouse helps each understand the legal requirements affecting their divorce, helps them develop options for negotiation of issues and assess the ramifications of each option, and participates with the spouses in settlement discussions aimed at achieving mutually acceptable outcomes. The Collaborative Attorneys then draft the pleadings and other documents to be filed with court to implement the agreements reached by the spouses.
The extent to which particular divorcing spouses will utilize each of the professionals will be adapted to their particular circumstances.
All members of the Collaborative Divorce Alliance of Greater New Orleans have had collaborative training and are members of the International Academy of Collaborative Professionals (“IACP”). The IACP website, which provides a wealth of helpful information, can be found at http://www.collaborativepractice.com.
First, both divorcing spouses must voluntarily agree to engage in a Collaborative Divorce. Next, they select the professionals who will comprise the inter-disciplinary Collaborative professional team in their case. The divorcing parties and the collaborative team then meet to set an initial schedule for the case and sign a collaborative agreement setting forth the terms and conditions for the collaborative process including the commitment of the divorcing parties and their Collaborative Attorneys to negotiate transparently and in good faith, to resolve all issues in the case, and not to litigate the divorce in court.
In most instances, the parties then begin working with their Collaborative Coaches, the Collaborative Child Specialist (if children are involved), and the Collaborative Financial Specialist. The Collaborative Attorneys typically are not heavily involved in this phase of the process, unless called upon to help address specific issues. The divorcing parties, with the support and guidance of their Collaborative Coaches, begin to work through emotional issues, deal with communication barriers, develop a parenting plan, and assess and articulate needs and concerns. With the help of the Collaborative Child Specialist, the parties explore their children’s issues with respect to the divorce, and begin to develop strategies to address them. Working with the Collaborative Financial Specialist, the parties gather and analyze information concerning their assets, liabilities, and other marital property, and develop budgets, financial transition plans, and longer term financial plans. As issues are framed, they are addressed in negotiations involving the parties and their Collaborative Attorneys, with support from the other collaborative professionals. As issues are resolved, the Collaborative Attorneys document the agreements of the parties in pleadings that are filed in court and enacted in the form of decrees and orders entered by a judge. Normally, the parties in a Collaborative Divorce case will never appear in court, because all matters are resolved by mutual consent.
A very important condition of Collaborative Divorce is that, if one or both of the divorcing spouses chooses to withdraw from collaboration, the case is terminated and the divorcing spouses can no longer be represented by their collaborative attorneys, have the benefit of their collaborative coaches, or make use of the work product or command the testimony of any of the collaborative professionals in later litigation. The reason for this condition, which is part of the collaborative agreement signed by the divorcing spouses at the beginning of the case, is that it serves as an incentive to the parties to resolve their issues collaboratively, because the breach or termination of that agreement will have undesirable consequences for the spouses.
Both Collaborative Divorce and mediation rely on the voluntary exchange of information between the divorcing spouses. However, the mediation process involves only the spouses and a neutral mediator, who facilitates the resolution of issues between the parties. The mediator must be unbiased, and does not give legal advice to or advocate for either party. A mediator typically cannot address an imbalance of power or negotiation skills between the parties; a lack of information or knowledge on the part of a party; or the unreasonableness, stubbornness, of emotionalism of a party. If an impasse is reached, the mediator cannot favor one party or the other in an effort to get the mediation “unstuck”. If the impasse cannot be resolved, the mediator will terminate the mediation.
If the parties reach agreement, the mediator reduces the agreements to writing in a non-binding memorandum of understanding that each party then takes to his/her attorney for review and advice. Once the legal review and advice is obtained, each party must decide whether to engage in further mediation of issues that are not acceptably resolved, or to accept the mediated terms of the memorandum of understanding and have them implemented by their attorneys in court.
Unlike Collaborative Divorce, mediation usually does not make use of an inter-disciplinary professional team, or seek to address or provide help to the parties with respect to the multiple facets of the divorce process. Also unlike Collaborative Divorce, if the mediation fails to resolve all of the issues, the parties can retain their respective attorneys in subsequent litigation of those issues, although they typically cannot use the mediator’s work product or call the mediator as a deponent or witness.
For a simple comparison of collaboration and litigation, go to the http://www.collaborativepractice.com/kit/CP-KnowledgeKit.pdf. The IACP Knowledge Kit can be downloaded and provides extensive information about the collaborative process.
The benefits that divorcing spouses can anticipate by availing themselves of the Collaborative Divorce process are the following:
By statute in Louisiana, there is a waiting period of six months’ separation for a divorce not based on fault, except that the separation period is one year if the spouses have any children under the age of 18. The collaborative work on the various aspects of a divorce sometimes can be completed within the required separation period, so long as the spouses are prepared to devote themselves diligently to the resolution of the issues in the case during that period. If they are not so inclined, or if the case is a complex one, more time may be needed. A goal of Collaborative Divorce is to allow the divorcing spouses, with the guidance of the collaborative team, to exercise control over the pace and schedule in the case.
One way that Collaborative Divorce differs from other approaches is that the collaborative professional team remains available indefinitely on an as-needed basis to assist divorced spouses in the event that new issues arise or circumstances previously addressed call for changes in the agreements previously reached. In that respect, the collaboration can continue for as long as the divorced spouses have need of assistance from the collaborative professional team
It is not possible to give a precise answer to this question, because every case is different, just as every family is different. However, there are a number of factors that can materially affect the cost of a collaborative case. Three major factors affecting cost are the following:
As a result of the intended benefits of collaboration, including reduced hostility, transparency, the avoidance of formal discovery, the avoidance of repeated court appearances, and the resources provided by the collaborative professional team, it is possible to manage the divorce process more cost effectively through collaboration than through adversarial litigation.
During the course of adversarial litigation, each divorcing spouse will likely end up employing multiple professional experts and advisors, in addition to their attorneys, to help them prosecute their case; and the legal procedures and discovery processes followed in high-conflict litigated cases typically consume considerable time and financial resources. The truth about adversarial litigation is that conflict can be very costly – financially, emotionally, and relationally. Collaborative Divorce seeks to make efficient use of the collaborative team from the outset, as needed, and in a cost-effective manner.
We sincerely hope so, but the answer depends on several factors. Do you value the benefits that the Collaborative Divorce Process has to offer? Are you able to work toward consensus and compromise on disputed issues? Would you prefer to shield your children, to the extent possible, from the adverse and negative effects of your divorce? Do you value the preservation of a relationship with your children and a co-parenting relationship with your spouse after the divorce? Would you like to avoid, as much as possible, the prospect of a high-conflict litigated divorce with attendant anxiety, hostility, cost, loss of control, and unpredictability? Would you prefer to reach mutually acceptable resolutions to the issues in your divorce so that you and your family can move on with life? If your answer and your spouse’s answer to some or all of these questions is “Yes”, then we encourage you to explore the option of Collaborative Divorce because it may be well-suited to you and your circumstances. Find out more about Collaborative Divorce on this website, at the IACP website at http://www.collaborativepractice.com,and by contacting a member of the Collaborative Divorce Alliance of Greater New Orleans.
If so, you may want to find out whether that attorney has had Collaborative Divorce training or experience. If not, you can find contact information on collaboratively trained attorneys, coaches, child specialists, and financial specialists on this website.
In many instances, the reluctance of a spouse to consider Collaborative Divorce is based on his/her unfamiliarity with the process and its potential benefits. Encourage your spouse to learn as much as possible about all available options for divorce.
The Collaborative Divorce process requires the voluntary commitment of both spouses. Talk with your spouse about the benefits of Collaborative Divorce listed above and the nature of the process, as distinguished from litigation and mediation. Ask whether he/she values those benefits and finds Collaborative Divorce to be the best option. If you have children, ask your spouse whether he/she has concerns about the effect of a divorce on them? Ask your spouse to consider the financial, emotional, and relational cost of an adversarial divorce. Suggest that your spouse visit this website, investigate the resources listed here, and contact one of the professionals listed in our directory. Ask your spouse to view the International Academy of Collaborative Professionals’ (IACP) website at www.collaborativepractice.org. In particular, check out the Collaborative Information Kit at http://www.collaborativepractice.com/kit/CP-KnowledgeKit.pdf. Divorce is one of those difficult but important life passages that is best approached with as much knowledge as possible.