A Collaborative Divorce Proceeding is an alternative to a judicial disposition of a case. It may be used to settle every aspect of a divorce when the parties involved submit a written agreement except for the actual divorce of absolute divorce.
Collaborative Divorce Law may be used:
When a couple is:
- Seeking a divorce, or
- Contemplating separation and divorce
If their attorneys agree to use their best efforts and make a good faith attempt to resolve disputes arising from the marital relationship through agreement.
The procedure includes:
- An agreement by the parties to attempt to resolve their disputes without judicial intervention other than approval by the court of the settlement agreement
- The attorneys agree not to serve as litigation counsel, except to ask the court to approve the agreement
Collaborative Divorce Law Definitions:
Collaborative Law Agreement
The agreement signed by the couple and their attorneys acknowledging that they will attempt to resolve the disputes in accordance with collaborative divorce law procedures. A collaborative divorce law agreement must be:
- In writing
- Signed by all the parties to the agreement and their attorneys
- Must include provisions for the withdrawal of all attorneys involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute
Collaborative Law Procedures
A collaborative process used to attempt to resolve disputes arising from marriage. Collaborative Law Procedures may also be used to draft prenuptial agreements.
Collaborative Law Settlement Agreement
An agreement a couple agrees to as the result of using Collaborative Law Procedures to resolve disputes.
Third-party expert
A person hired to assist the parties in resolving their disputes who is not a party to the Collaborative Divorce Law Procedure.
Tolling of Time Periods
A Collaborative Divorce Law Agreement tolls the legal time periods involving rights and issues between the parties for the duration of the agreement. If the Collaborative Law Agreement fails to achieve agreement, the legal time periods will be extended by the period the agreement was in effect.
Notice to the Court of an active Collaborative Law Agreement
When a civil action is pending, a notice of Collaborative Law Agreement shall be filed with the court. Once filed, the court shall not take any action in the case, including dismissal, unless the court is notified in writing that the parties have done one of the following:
- Failed to reach a Collaborative Law Settlement Agreement
- Voluntarily agreed to dismiss the Collaborative Law Agreement
- Asked the court to make the Collaborative Law Settlement Agreement an order or judgment of the court
No evidence, testimony, communications of any kind, or work products from a Collaborative Law Procedure may be used in any court proceeding.
An exception is made, if agreed to by the parties involved, relating to:
- Communications and/or work product of an attorney
- Third-party expert testimony
Alternate Dispute Resolution: Rights Reserved
The parties to a Collaborative Law Agreement may use, by mutual agreement, other forms of alternative dispute resolution to resolve some or all of the issues they are unable to resolve using Collaborative Law Procedures.
They may use:
- Binding arbitration, or
- Mediation
Attorney’s that work on the Collaborative Law Proceeding may serve as counsel during alternate dispute resolutions pursued as part of the Collaborative Law Agreement.
Death of a Spouse while a Collaborative Law Procedure is ongoing
A personal representative of a deceased spouse may continue a Collaborative Law Procedure relating to the equitable distribution of marital assets if the Collaborative Law Agreement was entered into prior to death.
Benefits of Collaborative Divorce Law Procedure
Collaborative Law Procedures can reduce the cost and stress of a court divorce procedure. In court cases, each side presents information regarding:
- The financial situation
- The financial ramifications of the situation
- The tax consequences of the proposed arrangements
- The best interests of the child
- Parenting plans
This leads to duplicative efforts which increase costs. Court cases tend to increase acrimony and prolong the emotional turmoil of divorce. This also adds to the cost.
In a Collaborative Law Procedure, experts can be shared. Experts present information so each person understands it. One expert can be asked to present multiple perspectives with the pros and cons of each perspective. This is a very different process than when information is presented in court to support the conclusion being fought for by the side that brings in the expert.
Collaborative Law Procedures can result in a more informed outcome that is better for both spouses and their children. Spouses who have children should recognize that they will have ongoing relationships, to some extent or other, for the rest of their lives.
Divorce does not sever the relationship of parents with their children. Throughout the child’s minority, exchanges of the children as the result of visitation schedules will occur. Parents may need to have constructive conversations regarding the child’s health, education, and activities that will benefit from the ability to communicate without conflict. Even after the children are adults, there will be graduations, weddings, family funerals, shared grandchildren, and other events that bring the divorced couple into the same room. The less acrimonious and more harmonious those encounters are, the better the quality of life the parents and children will be able to enjoy.
Collaborative Law Settlements are structured to facilitate better relationships during the divorce as well as better settlement outcomes for both parties without the uncertainty that is often associated with court hearings relating to issues divorcing couples experience.
At McIlveen Family Law Firm, we realize the uniqueness of everyone’s circumstances. For specific questions about your situation, you may schedule a consultation with us so we can help you understand your options. You can then make an informed decision on whether annulment or divorce is the right course of action for you to take.
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