The increasingly antagonistic atmosphere of divorce has long been cited as a reason many lawyers don’t want to enter the field of family law. And if a lawyer isn’t up for the fight, who is? In a country where divorce occurs to a healthy percent of the population (some say nearly 50%), a movement is afoot to actively minimize the antagonistic and litigious aspects of the dissolution of marriages via collaborative divorce.
But this movement does not just consider the legal aspects of divorce but also the financial and mental health of the parties involved, along with their children.
In the early 1990’s, a discouraged Minnesota family law practitioner and a California organization interested in a better way to divorce paired together to create a family-focused form of alternative dispute resolution that pools resources to work towards a settlement without going to court. Essentially, a lawyer, a mental health specialist and a financial planner work with the divorcing parties to effect an agreement that is molded by the parties representing their interests.
With all of these experts involved, the parties’ can be heard, the children’s needs are protected and communication skills are learned all in an effort to ease relations. Instead of running to court, parties and experts meet for brainstorming sessions. Instead of adhering to a court-ordered parenting plan, parties can modify plans based upon their children’s schedules and priorities. Instead of leading the spouses into fiscal ruins, experts help to manage the family finances in lieu of hiring accountants and additional experts to divide assets.
The goal is to ensure that parties negotiate their own settlements and leave the table with a good working relationship in light of the fact that if children are involved they will need to have future discussions and interactions.
What You Need to Know About The Collaborative Divorce Team:
The Collaborative Lawyer:
In traditional divorce cases, both spouses most often are represented by counsel who engage in positioning and strategy for their individuals clients. Not so with the collaborative divorce. While each spouse is still represented by their own counsel who advocates on their behalf, the goal is to consider the well-being of the entire family. Therefore, the lawyers do not draw a line in the sand for their client but instead help their clients articulate their positions and the reason why it is important to them.
For example, instead of a court hearing which is managed by a judge, the parties in collaborative divorce and their lawyers meet to discuss options. In effect, the meetings can be used as brainstorming opportunities to determine if there is a way to keep mom in the house with the kids instead of selling the family home. Or if there is a way to give dad more than just weekends as part of the custody agreement. Of course, there are parameters that must be in effect to assume that all parties are open, honest and ready to participate in an amicable way. Most often a “Participation Agreement” is drawn up by the attorneys to keep all parties in check.
The Financial Planner:
At the heart of many divorces are the fears of the financial burdens associated with maintaining two separate homes. A financial planner has the ability to objectively view the family finances and determine the needs of the family after divorce. To get to the heart of the monetary issues, the financial planner may have to work through the raw emotions simmering just below the surface in any divorce.
It should be noted that there is only one financial planner necessary in the collaborative divorce scenario as opposed to dueling accountants, forensic accountants, budgeting experts, certified financial planners, etc. in traditional divorce cases. By agreeing upon a neutral planner, the parties are saved the monetary value of an additional expert which can be a significant savings for families.
The Mental Health Specialist:
A mental health expert primarily is tasked with looking after the emotional health and well-being of the children. In cases where there are special needs children, whether it be a physical or mental manifestation, an additional specialist may be suggested to cope with the ongoing stressors in the divorce process. Secondarily, the mental health expert may suggest counseling or a divorce coach if he/she anticipates that a party does not have the mindset for problem-solving.
Throughout the collaborative process, this expert will challenge the parties to prioritize their interests, teach them to co-parent and communicate and learn how to talk to the kids about divorce. In addition, a parenting plan may be visited to develop a meeting of the minds before making a recommendation to the lawyers.
While there is no way to alleviate all of the emotional pressures and financial burdens associated with divorce, the concept behind the collaborative divorce is to nullify at least some of the emotional pressures and financial burdens. However, this process is for those divorcing couples who are eager to reach optimal agreement in post-divorce life.
For more information on collaborative divorce and those attorneys who are practicing in this field, contact your state’s bar association.