As attorneys we are bound to act diligently on behalf of our clients. This means educating clients sufficiently to ensure informed decision making about divorce process options. There are several alternative dispute resolution options. One is collaborative divorce, which is authorized by Family Code section 2013. There are circumstances when any form of consensual dispute resolution may be inappropriate, such as a history domestic violence, but most of the time, the best practice for a family law attorney is to explore consensual processes first.
Collaborative divorce is client-centered and non-adversarial. It uses an interdisciplinary team of professionals, and fully supports the couple to resolve the issues. The couple signs a formal pledge not to go to court unless the collaborative process breaks down. Clients have a right to stay out of court and transition through divorce with a focus on their family’s priorities, guided by civility and respect. The collaborative divorce process is comprehensive and provides the tools to resolve parenting, property, and financial matters. And because it is a consensual process, the likelihood of post-dissolution conflicts arising is minimized.
The team consists of a divorce coach and financial professional, perhaps a child
specialist, and any other necessary expert. By hiring the right professional for the job,
the team addresses all three dimensions of divorce: legal, emotional and financial.
The divorce coach is a particularly helpful member of the team.
Each party has a divorce coach who assists to:
The financial specialist can:
It is valuable for the couple to have a realistic view of future cost of living, property values,
and income so that they can leave the marriage and remain financially stable.
The child specialist can:
The team philosophy encourages both parties to approach parenting issues from a positive, loving, and caring position. This is immensely beneficial for the children.
There are numerous advantages to a collaborative divorce. The team approach empowers clients to develop thoughtful solutions to their custody, support, and property matters. The client then has the tools he or she needs to evaluate settlement options and reach agreements that are not only in his or her best interests, but best for the family as a whole.
Because the parties have agreed not to litigate, they both have a vested interested in reaching settlement together.
If the clients decide that the collaborative divorce process is not working for them, they can withdraw and try another process such as mediation or court. If they make this choice, each spouse’s respective collaborative legal professional must withdraw from representation. Further, no members of the team (child specialist, financial professional or coach) may be involved in the litigation. In addition, no file records or documentation drafted during the collaborative divorce meetings can be used in litigation.
Opponents of collaborative divorce criticize the need for the team to be disqualified since such disqualification requires the client to start all over again with a new team. The flip side of this coin is that parties have an incentive to settle to avoid starting over. If enough is at stake it may be necessary for a client to end the collaborative process, but that would occur after consultation with the team.
Given the traditional culture of threats to go to court, collaborative lawyers have to shift their paradigm and be more creative around settlement and surfacing clients’ true needs. Despite some criticism of the collaborative process, cases can be settled with less expense and time than traditional litigation.
This is a win-win for the family as a whole, which is the best outcome we can provide for our clients.
For training opportunities and further resources see www.cpcal.org