What is the Collaborative Divorce Process?

The Collaborative process is a method of resolving disputes where participants work with a team of professionals to co-create their own agreements. Couples work together in a respectful way, keeping in mind the importance of protecting their children and other connected relatives and friends from conflict. Decisions are made by the participants without the involvement of a judge or other decision authority.

Emotion and Communication Management | Diana L. Martinez, Esq. Law & Mediation Offices | Center for Advanced Family Solutions

Why collaborative?
Effective and efficient

Emotion and Communication Management

Divorce and separation is 98% emotions and 2% legal. Okay, maybe those aren’t provable or exact numbers, but I can say with certainty, the most challenging cases I’ve ever had were not so because of some legal obscurity; it was because of the pain the spouses were experiencing; it was because they couldn’t or wouldn’t communicate; it was because the law does not acknowledge their grief, their non-financial contributions to the relationship, the difficulties they experienced during the marriage. My practice changed when I started incorporating therapists as divorce coaches. When I used to litigate, it could take three hours to answer basic income and expense questions. Why? Here’s how it would often look:

Q: So, when did you last hold a full-time job?
A: Wow, it’s been so long. When we got married, I was on track to making partner at my firm. Then my spouse got this great job offer across country and we moved here. I had a hard time passing the licensing exam here, and my spouse just wasn’t available any more, working such long hours, so I had to take a lesser job… (lip starts shaking) and then I got pregnant and my spouse wanted me to stay home, and I devoted all of my time to the children so that my spouse could develop their career, and now someone else is getting the benefit of that work that I put into our family…
Q: What is your parenting schedule right now, since you both separated homes?
A: Well, I’m supposed to see the kids on weekends, but sometimes I can’t make it. Of course, the kids are now calling my spouse’s new relationship “Dad”. I don’t know how my spouse is even allowing that. I try to be available, but now this other person is with them more than I am…

Being able to focus on legal and financial matters when you are consumed with pain, anger, a sense of betrayal is impossible. And it can cost you a bundle in legal fees. Working with a divorce coach allows you to be at your best when it comes time to talk with your lawyer and/or make important decisions.

Why collaborative?
Children are at the center, not in the middle

Your children are your greatest legacy

They are also the biggest stake-holders in the outcome of your divorce/separation. The neutral child specialist (NCS) on your team gives your children a voice and helps you identify and manage divorce stress during your transition. Whether your children are 4 or 40, they will experience your transition and the trauma in ways that you may not expect. Having the tools to work through this in a healthier way is one way to prevent your family from becoming another divorce tragedy.

Your children are your greatest legacy | Diana L. Martinez, Esq. Law & Mediation Offices | Center for Advanced Family Solutions
What will I have and how will that impact my future? | Diana L. Martinez, Esq. Law & Mediation Offices | Center for Advanced Family Solutions

Why collaborative?
Financial awareness and planning

What will I have and how will that impact my future?

Your understanding of your financial picture today, is a key component to being able to make decisions and plan for your future… after your divorce or separation transition. Sadly, this never fully happens in a contested (litigated) divorce – the family code doesn’t allow it. Sure, you have to do financial disclosures, and you have the ability to subpoena documents. But when do you consider different scenarios (if support is set at $X, paid for Y years, and you divide assets and debts in a specific way, what will that look like for you and your spouse/partner in years 2, 3, 4, and 5?), look at tax implications, and what about Propositions 60 and 90? When do you get to work with a financial professional who can help your lawyers craft the best way to hold a business together, or file taxes, or set support? When you resolve your divorce or separation through a Collaborative Process, that’s when. Family law judges and litigators do not look at the financial impact because it’s not legally relevant. In a Collaborative Process, it is a requirement so that you can make informed decisions.

Why collaborative?
Because I want my own lawyer

Legal counsel guiding and advising you on more than the law

Your family transition through divorce is about more than just the law; it’s about your family, your financial present and future, your place in society, your friendships, your culture, and so much more. A divorce or separation is a real-life event, not a code section. Trained collaborative divorce and mediation lawyers understand this. Yes, you will get legal information and advice in a collaborative process; you will also get a focus on the impact on your real-life. The Collaborative Process is a good option for you if either you or your spouse/partner would feel more confident making legal and financial decisions with the help of your own lawyer, working with your partner/spouse’s lawyer to help you create solutions that make sense… without having to go to court.

Legal counsel guiding and advising you on more than the law | Diana L. Martinez, Esq. Law & Mediation Offices | Center for Advanced Family Solutions

When is Collaborative Appropriate?

The collaborative process most often begins before the filing of the petition. In some instances, a petition has already been filed by one person, or the couple may have already been in litigation for some time. Beginning a divorce, separation, or parentage case in a collaborative process often sets a more positive tone at the outset and puts both parties on the same page in terms of direction and goals. This process is most useful for couples who have complex legal issues, financial holdings, and/or parenting circumstances.

People in a collaborative process are most likely to reach a complete resolution when they:

  • Want to resolve (even if they have different ideas on the outcome);
  • Are able and willing to commit the time and funds to work with the necessary professionals, gather the necessary information, and have the necessary (and often, difficult) discussions;
  • Are able and willing to share even sensitive information and documents;
  • Would feel more confident having their own legal advisor;
  • Would feel more confident having a more complete understanding of the financial picture, both today and in considering options for the future;
  • Are open to considering options for resolution beyond their own;
  • Value future relationships, with their children, each other, and those affected by the dispute, above “legal entitlements”; and
  • Are open to exploring shared goals such as privacy, the well-being of their children, and having a voice in their outcome. A collaborative process may not be appropriate when:
  • There is continued physical and/or emotional abuse by one person against the other, or threats of physical harm;
  • There are insufficient funds (assets/income) to finance the process;
  • One person is not willing to share information or have necessary discussions;
  • There is continued drug or alcohol abuse;
  • One person is hiding or liquidating assets.

What Does the Collaborative Process Look Like?

Typically, the parties and professionals meet together to plan for information gathering, make interim arrangements, and discuss items in need of resolution. A team will be assembled based on the participants’ needs and can include attorneys, communications coaches and child specialists (mental health specialists), financial specialists, and other professionals as needed.

Information gathered will be shared with all team members (including both parties) in order to clarify each person’s interests and stimulate ideas for possible solutions. Communications made during the collaborative process will remain confidential and will not be used as evidence if the case later goes to court (limited exceptions apply – consult your legal professional for more information).

There are four basic phases to a collaborative divorce:

Four basic phases to a collaborative divorce | Diana L. Martinez
The last phase is a follow up after your process is completed. You can continue or re-engage any member of your collaborative team, but only on issues related to your legal process (divorce, separation, parentage). Your professional team is not allowed to continue working with you in any other capacity (as your financial advisor or as your therapist, for example).

You will begin your collaborative process by preparing with your coach and your collaborative lawyer (“LP” for legal professional) for the first full team meeting. At this meeting you will sign a legal document called a Stipulation and Order to Proceed by Collaborative Process. There will also be introductions (you will get to meet and speak to the other collaborative lawyer and coach) and a discussion on any urgent concerns. You will also discuss opening the case by filing the petition and response documents, if this was not previously completed. Target dates will be scheduled for gathering information and meeting with your child specialist, coaches, and financial specialist. Your professional team will have a pre-brief meeting before this first full team meeting, and they will de-brief the meeting afterwards. Depending on what happens during this first meeting, either your coach, your collaborative lawyer, or both will debrief the meeting with you as well.

The next phase, Information Gathering, involves meeting with your financial neutral, the child specialist, and your coaches. Your collaborative lawyers will receive information as necessary and may also be completing your petition/response documents and preliminary financial disclosures as required by law. Should any immediate or urgent concerns arise, the collaborative lawyers can step in to assist.

You will receive an agenda before each meeting and often a summary after. When agreements are reached, your collaborative lawyers will prepare all necessary documents for filing. Once the judge signs your agreements, they become binding and enforceable orders.

Mediation Confidentiality

All participants agree to mediation confidentiality in the collaborative process. Discussions and written communications in preparation of, during, and/or in relation to the collaborative process cannot be used in court or any other administrative hearing. This means that if someone apologizes, or proposes a resolution that they later change, these statement (written or verbal) cannot be presented to the judge if the case is later litigated. Your individual communications with your collaborative lawyer remain protected under the attorney-client privilege. This means that if you instruct your collaborative lawyer to not share information with the other members of team, s/he cannot share that information. If the information is critical to the case, your lawyer must then decide if s/he can remain in the collaborative process as your lawyer.

Collaborative Divorce Benefits

In a collaborative process, as in mediation, the emphasis is on each person’s interests more than their positions. The added benefit here is that each person has his/her own collaborative lawyer guiding them and providing needed legal information, with the shared goal of finding solutions that bring value to all involved, rather than arguing for one position. There is also the focus on real-life impacts of your legal, parenting, and financial decisions. Similar to a mediation, the outcome in a collaborative divorce often reflects other interests that a court would not consider, such as certain tax implications, cash flow concerns, and family relationship. The parties control the outcome and work to create value for all involved, including children and grandchildren. In collaborative cases that resulted in full agreements, studies from 2009 have shown similar results to mediated cases, with the ability to avoid court when future disagreements arise, faster recovery from the trauma of the divorce, and better co-parenting relationships when compared with similar cases that resolved through more adversarial processes.

Collaborative Divorce Risks

There is no guarantee of resolution in a collaborative divorce process. There is also no guarantee that you will reach agreements that are better than what you would have received in a litigated (contested in court) process. Discovery tools used in litigation (subpoenas, interrogatories, depositions) are not used in a collaborative process. If you are concerned that the other person may attempt to hide important information, or has already started liquidating assets, a collaborative divorce may not be safe for you. Your professional team will not solve your disagreements for you (act as a judge). Final decisions are your responsibility, with the guidance and input of your professional team – you are the final decision-maker. If you are unable to reach agreements and move forward with litigation, you will have to retain all new professionals. Your professional team, including the collaborative lawyers, are, by law, disqualified from litigating the case. You will have to hire new lawyers. The non-confidential portions of your file can be transferred to your new lawyers, including all signed and filed court forms. Unsigned options for resolution and financial drafts, financial projections, and professional team member notes are specifically excluded.

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