Divorce does not have to be an epic battle: collaborative divorce

Collaboration is based on respectful negotiation and creativity.

Divorce historically has been an adversarial court proceeding in which the parties battled for turf in a trial that was probably a bit too public, considering the marital matters under consideration. Ending a marriage is intrinsically personal on many levels and fighting about the issues involved determines the future of the most private and important things in life: children, home, assets and money.

While in California the reasons for divorce are not as relevant legally because the state recognizes no-fault divorce, in most cases dissolving a marriage still brings emotional pain and anxiety.

Collaborative negotiation

In response to all of these factors, a relatively recent and profoundly different way to divorce is available in California: collaborative divorce. In collaboration, the parties agree to resolve all issues through respectful negotiation outside of the courtroom.

(Collaboration is also available when ending a California domestic partnership.)

Some of the basic tenets of collaborative divorce:

  • Four-way meetings: Negotiation toward a settlement agreement takes place during meetings attended by each spouse and their respective lawyers. In other divorce processes, an attorney cannot ethically communicate directly with the other party.
  • Participation agreement: The parties sign a participation agreement containing the terms of the process, including a pledge to stay out of court. Should the collaborative process fail, they must get new lawyers to continue in a different process.
  • Neutral professionals: The parties may hire neutral professionals to help them understand certain issues better and make a more informed agreement. The kinds of experts sometimes retained include mental health specialists like parenting coaches and child psychologists, and financial experts like accountants, financial planners, real estate brokers and appraisers.
  • Divorce coaches: A professional called a divorce coach or communications coach may also participate by helping the parties get past logjams in communication and handle emotions that come up in the process.
  • Positive interaction: A basic principle of collaborative law is that the parties agree to act with respect and dignity. Two other key provisions are that the negotiations are confidential and that each party must act with complete honesty and openness, including providing all financial and other information relevant to a fair settlement.

Why collaboration?

Often, the collaborative process is faster and less expensive than a traditional divorce, especially retracted trial. However, this may not be true if the parties cannot make progress in collaborative negotiation because legal and other professional fees can mount if many four-way meetings are required to get to settlement.

In addition, the collaborative process can create the basis for a more positive future relationship, a plus when the parties have minor children whom they still must co-parent. Collaboration may also be less stressful and traumatic than litigation.

However, some marriages may not be appropriate for collaborative divorce especially when domestic abuse, mental illness or substance abuse have been involved.

When it works as intended, collaboration can result in a solid and fair settlement agreement with creative approaches to problems.

Consider all options

Any Californian facing divorce should ask an attorney to discuss the pros and cons of collaboration, mediation and traditional divorce in light of the unique family situation involved. With this analysis, the person can choose the process likely to be most positive for him or her.

The family lawyers at Gavin & Dersch with offices in Del Mar and Vista, California, represent divorce clients throughout San Diego County using collaboration, mediation and traditional divorce processes.