The Collaborative Process For Divorce
The collaborative process for divorce is a relatively new option for couples that have made the painful decision to divorce. It builds on mediation as an alternative to traditional adversarial divorce, but has significant advantages over mediation. It is gaining in popularity in North Carolina and around the country. In very simple terms, the collaborative process means that divorcing spouses and their attorneys all agree that the attorneys are disqualified from going to court. As described more fully below, this disqualification removes the process from the adversarial court system, while at the same time allowing couples to have legal help. It opens the door to a healthier, more transformative way to get through divorce.
The 3 Conversations - Co-parenting, Dividing Property, Cash Flow
It’s helpful to think in terms of the three, sometimes difficult, conversations you must have. First, if you are a parent, you must have a conversation to decide how to co-parent the children and provide two homes for them. Second, if you have accumulated property (and debts) during the marriage, you must have a conversation about how the property will be divided as you go separate ways. Third, if you are not both financially self-sufficient, you must have a conversation about cash flow; how the income streams that have been supporting one household will be divided to now support two households. (These three conversations include all of the issues that divorce lawyers typically put in legal pleadings, such as child custody, equitable distribution, child support, and alimony.)
Options for Having the Three Conversations
How you go about having the three conversations is vitally important. For some couples, it works to sit down “over a cup of coffee,” or in some cases with a mediator, and have these conversations—that is they are able to effectively talk about these matters without significant help. For many others, the hurt, the interpersonal dynamics, the disagreements, or the complexity of the issues to be decided, makes it too difficult or not a good idea to have these conversations without help.
Until fairly recently, couples who needed help to effectively negotiate the issues around separation and divorce had only one option. They had to hire divorce lawyers to handle the negotiations for them. Divorce lawyers, operating within the adversarial system of the courts, typically negotiate competitively. They become the communication channel between the couple and tend to restrict communication between the spouses directly. Divorce lawyers routinely use the threat of litigation to try to coerce settlements. Often a court action is filed before there is a settlement. All of this makes worse the already unraveling relationship of the parties, even as a negotiated agreement is reached.
The collaborative process provides a healthier option. Unlike traditional divorce lawyers, good collaborative attorneys are trained and experienced in non-adversarial conflict resolution, interest-based negotiation, and in facilitating difficult conversations. In addition, collaborative attorneys and their clients agree to fully and voluntarily disclose information, they agree that parenting decisions will be based on the best interests of the children, and they meet to negotiate the issues surrounding the divorce in “four-way conferences” -- conferences that include the two spouses and their attorneys. The collaborative attorneys are there not to negotiate for their respective clients, but to help the couple have the three conversations and to help them negotiate effectively in a noncompetitive, interest-based framework.
The collaborative process allows the parties to reach agreements and avoid contentious litigation. It also promotes a healthy transition from the negative intimacy that has caused the deterioration of the marriage to a positive working relationship.
