Collaborative law/divorce is a specialized process that focuses on non-adversarial, but lawyer supported and guided negotiation and resolution.
The goal is to reach a respectful, mutually beneficial, and comprehensive agreement. You and your former spouse, and each lawyer, sign a Collaborative Law Agreement that includes an obligation to be upfront on financial information, put the needs of children first, and a commitment not to go to Court. There is a mutual focus on civility, dignity, respect, preserving parenting relationships, recognizing the needs of the children, and recognizing that both parties have financial interests in the resolution. You (with your lawyer, your former spouse, and his/her lawyer) work together on problem-solving, to reach a settlement. The goal is to have a win/win result.
Collaborative family law is private, confidential, you have your own lawyer, and you make the decisions. Collaborative Law also can use a team approach: jointly involving financial experts, parenting experts, and mental health professionals, as needed, to reach the resolution.
The parameters of the process are agreed to at the beginning and both spouses must get new lawyers if one of them later leaves the process or wants to take the matter to court.
Our lawyers are certified in collaborative law and can explain this alternative to help you decide if this is right for you.
There are many benefits to collaborative law.
Collaborative law can settle the majority of disputes between separated spouses, with significant benefit to the parties. Some benefits include:
You and our spouse have control over your agreement.
In collaborative law, you and your spouse decide your settlement, instead of a third-party deciding it for you. Many people prefer the certainty of deciding their own agreement over the uncertainty of someone else deciding it. Also, you and your spouse can be creative and design a settlement that is a little different than what the Court might do but works for your situation. If there are important but not “family law” issues to address, we can talk about them or bring in the right expert. While in the process, you don’t have to worry about being taken to Court.
Collaborative law is often faster.
Reaching an agreement through the collaborative law process often takes less time than having to go to Court. Disputes settled by the Court depend on its availability and can often take many months or even years and require a formal process of evidence and legal argument. Since both you and your spouse have agreed to collaborative law, usually you are both motivated to move forward, and in a streamlined, respectful way. The pace is based on the needs of the parties, not a Court process.
Collaborative law uses experts.
What do you need to make a decision or get this done? The appropriate experts are mutually brought in as needed: financial planning, business valuation, accounting, tax issues, estate planning, mental health, parenting. Also, each collaborative lawyer will be experienced in both family law and collaborative law.
You have your own lawyer.
While collaborative law is based on a theory of co-operative and respectful problem solving, you still have your own lawyer. Your lawyer will help throughout, and is your advocate, although not in the same way as if you were in Court. Your lawyer will help to educate about the law and options, to identify your underlying interests, or where an expert may be needed, look at opportunities to resolve, be creative and find the “win/win”. Your lawyer will help you express your concerns and goals and advocate for you. You have control over the resolution, but you are not alone.
Collaborative law is private and confidential.
Courts are public forums. The information about your personal life, including children and finances, becomes public knowledge in Court. Collaborative law is conducted in private and parties are required to keep the proceedings confidential. Anything said, done, or disclosed by either party in the meetings remains confidential. The initial collaborative agreements explain the parameters.
Collaborative law can cost less.
Collaborative law can be significantly less costly than going through the Court system. This can make a difference of many thousands of dollars to the parties in dispute. Often “positioning”, lengthy financial information exchanges, and repeated Court appearances can increase legal fees in the default adversarial system. In collaborative law, where both you and your former spouse have committed to open financial information, and a specified process, the resolution can be more cost-efficient.
Avoid the paperwork, time and stress of Court
Collaborative law can maintain goodwill.
Being able to disagree respectfully is one of the key goals of collaborative law. Learning to express and discuss disagreement and manage conflict in a productive way can be a bonus result of collaborative law. This can be especially important where there are children and co-parenting.
You and your spouse each retain individual lawyers who are trained and registered in collaborative family law. The first step is the collaborative agreement. Most discussions take place in meetings or forums where everyone (both parties and each lawyer) is present. However, you and your lawyer also prepare in advance, to help the meetings move effectively.
Here are the answers to some other common questions we receive about collaborative law:
Q: How long is the collaborative law process?
Every family and case is different. The length and the number of sessions will depend on many things – the issues, how much you and your spouse agree or disagree, the personalities involved, level of conflict, available resources. The pace is driven by the parties’ needs, not an external Court process.
Q: Where does the collaborative law process happen?
It usually happens in meetings (in-person, video, or teleconference) but the process is designed at the start.
Q: What happens in the collaborative law process?
The first step is committing and signing the Collaborative Agreement: to make sure this is the right process and everyone understands the purpose and obligations. There should be no surprises! The next steps and process depends on your situation and issues. Issues are identified, perhaps dealing with financial information, urgent issues or to consider whether experts are needed. What will be beneficial to move the issues to a resolution? You will work with your lawyer to prepare for meetings: how to identify your key underlying interests, fears, goals, communication, and legal issues. Most settlement discussions take place in meetings, and legal education can take place with both parties present.
Q: Who pays for the lawyers or the experts?
Usually, each party pays for his or her own lawyer. Often the expert fees are divided equally. However, how legal fees are paid is often one of the first issues addressed in collaborative family law: what makes sense for your situation.
Q: Do I need to get legal advice?
Yes, your lawyer provides you with your own independent legal advice.
Q: Will collaborative family law be successful?
You cannot know with certainty ahead of time what process will resolve your legal matter – other than submitting the matter to Court or a third party decision-maker. Collaborative family law is one option, but it is an option that has a strong commitment by both parties to negotiate in good faith and focus on civility and problem-solving. Other factors that may affect the outcome include:
- availability of information the parties need to make decisions;
- availability of the parties and lawyers to meet;
- the complexity of the issues;
- when and how experts can be of assistance.
Q: What do you do when you’ve reached an agreement in collaborative family law?
Usually the agreement is properly and legally documented, for example:
- A formal written Separation Agreement; and/or
- Court Orders reflecting the understanding reached.
- The divorce itself can also be filed “jointly”.
Q: Can you leave collaborative family law?
You, your spouse, or the lawyers could terminate the process. The Collaborative Law Agreement sets out when it must be terminated (a breach of the agreement) and what happens next. Both parties will need to retain new lawyers.
Q: How is a collaborative lawyer different?
Collaborative family lawyers are experienced in family law, but also specifically trained in collaborative law. This includes training on identifying underlying interests and goals, conflict management and resolution opportunities.
Q: How is collaborative family law different from mediation or arbitration?
Mediation can also be an effective resolution process. The mediator is neutral, to help the parties (with or without lawyers) reach the resolution. Mediation is a voluntary process and either party can leave any time. In arbitration, you are committed to the process, but the arbitrator will be a decision-maker. In collaborative law, both lawyers are specifically trained in collaborative law. The parties and lawyers sign the Collaborative Law Agreement, committing to the process.
Q: How do I get my questions answered?
If you have questions, talk to your lawyer, both to find out if this process is right for you and during the process as well.