What is Collaborative Divorce
Collaborative law, also known as collaborative practice, collaborative divorce or collaborative family law, is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, other family professionals such as accountants, custody evaluators, and financial planners, in order to hopefully avoid the uncertain outcome of court and avoid the underlying threat of litigation. The voluntary process is initiated when the couple signs a contract (a "participation agreement") binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family-related litigation. (See more on that below).
Collaborative law processes also have the alleged benefit of saving money for the parties. Some of the tasks in the collaborative model, are assigned to specialist professionals without duplication of effort, (hiring competing professionals) and cost savings are supposedly realized.
New Jersey divorce lawyer, Curtis J. Romanowski first introduced the concept in 1988 as "Collaborative Dispute Resolution (CDR). Collaborative Law in 1990 was based upon the use of a "disqualification agreement," where, in the event the collaborative process failed, both attorneys would have to recuse themselves from further case involvement.
In the United States, the Uniform Collaborative Law Act was adopted in 2009 by the Uniform Law Commission, and thereby became available to States to enact as law. In 2010, the Uniform Collaborative Law Act was amended to add several options and renamed the Uniform Collaborative Law Rules and Act. As of June 2013, the Uniform Collaborative Law Act was enacted into law in the states of Utah, Nevada, Texas, Hawaii, Ohio, the District of Columbia, and Washington State, and passed by the Alabama Legislature but awaiting the Governor's signature. Some states, like Florida, have yet to pass the Uniform Collaborative Law Act
Pitfalls of Collaborative Divorce
In a collaborative divorce, the contract for representation signed by the parties and their respective lawyers, normally includes a clause that in the event of no agreement or settlement, the lawyers will withdraw and will not represent the parties in litigation (going to court). This means that absent settlement, the parties must now both hire new lawyers, possibly doubling their legal fees already paid.
In addition, during a collaborative divorce, the lawyers frequently will retain experts in the area of child custody, home study evaluators, and forensic accountants up front, thereby passing off some of the decision making to these experts. These costs can add up to tens of thousands of dollars in added costs to the parties, and may not have been needed. A traditional divorce lawyer will not usually bring in experts unless it is very likely that the matter will end up in a court battle.
Benefits of a Traditional Divorce Lawyer
When parties hire a traditional divorce lawyer, often that lawyer has negotiation skills, or may have even worked as a family law mediator in the past and should be able to assist the parties with settlement negotiations. In Florida all divorcing couples are required to attend a mediation prior to going to court, where most cases do reach agreement. At mediation, both parties and their lawyers appear at a mediators office, where the mediator, a neutral third party will attempt to help the parties reach an amicable resolution. The mediator cannot force a settlement and does not decide the case. If the parties are at odds and unable to reach an agreement at mediation, they probably would not have reached an agreement with their collaborative lawyers either.
Aggressive lawyers may not be interested in settling your case, and may prefer to incite conflict in order to drive up their fees. However an experienced lawyer that has your best interests in mind will work toward an amicable resolution of your case, but will be prepared to take your case to trial in the event that settlement cannot be reached. The collaborative lawyer, due to the nature of the representation agreement, may withdraw and leave you hanging with no lawyer if no settlement is reached.