Frequently Asked Questions (FAQs)
Family Law FAQs
Collaborative Law, Collaborative Practice, Collaborative Process, and Collaborative Divorce are terms often used interchangeably. “Collaborative Divorce” refers to resolution of specific family law disputes, such as divorce and domestic partnerships. While the other terms can also apply to disputes involving many other areas of the law, by far the most common application of the Collaborative Process is in family law, and specifically to divorce or dissolution of a marriage.
Learn more about Collaborative Divorce in family law matters and how it can help successfully resolve legal conflicts while maintaining family relationships and protecting the things most important to clients in the process.
Family Law FAQs
Collaborative Law, Collaborative Process, and Collaborative Divorce are terms often used interchangeably. However, they are all components of Collaborative Practice, which has key principles in common:
- The voluntary and free exchange of information
- The pledge not to litigate
- The commitment to resolutions that respect your shared goals
Collaborative Law describes the legal component of Collaborative Practice, made up of both parties and their attorneys. Collaborative Process means the key elements of the process itself.
While “Collaborative Divorce” refers to resolution of particular types of disputes (divorce and domestic partnerships), the other terms can also apply to disputes involving employment law, probate law, construction law, real property law, and other civil law areas where the parties are likely to have continuing relationships after the current conflict has been resolved. See our FAQs about Civil Collaborative Practice and Estates and Trusts.
In mediation, an impartial third party (the mediator) facilitates negotiations with the other disputing party, and tries to help settle the case. However, the mediator cannot give either party legal advice and cannot be an advocate for either side. If a party involved has his or her own lawyer, the attorney may or may not be present at mediation sessions. If the attorneys are not present, a party can consult with the attorney between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review, and can be reviewed and edited by the parties along with the attorneys.
Collaborative Law was designed to allow parties to have their own lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by both lawyers, and reviewed and edited by the parties, until everyone is satisfied with the final document.
Both Collaborative Practice and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties’ shared goals. This doesn’t mean the parties have to be in agreement on the issues, only in agreement on their intentions to participate in the process in good faith.
If mediation does not result in a settlement, each party and his/her attorney have the option to move forward together with litigation in court. In Collaborative Practice, the lawyers and parties sign an agreement with the sole focus of negotiations toward a successful out of court resolution of all issues. It specifically states the Collaborative attorney and any other professional team members will be disqualified from participating in litigation if the Collaborative Process is terminated without an agreement being reached. The parties will need to hire new attorneys to proceed with litigation.
The chosen professionals who work together on the parties’ behalf, and on behalf of the family’s best interests as a problem-solving team rather than as adversaries to facilitate an out-of-court divorce. A Collaborative Team can be any combination of professionals chosen to work with to resolve the dispute. It can be just the parties and Collaborative lawyers which comprise the Collaborative Law component of Collaborative Practice. It can be the parties, Collaborative attorneys and a single financial professional often referred to as a “financial neutral.” It can also include divorce coaches, licensed mental health professionals working as a team either before or after the Collaborative attorneys are chosen and the legal process begins. Finally, a mental health professional with special expertise working with children may represent your childrens’ interests as the Child Specialist member of your Collaborative Team. The model is flexible so it can address your specific concerns and provide whatever support and advice is needed.
In a conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. Frequently the process leads to the involvement of the court to achieve a final resolution. The process of a conventional divorce by its nature forces the spouses to become adversaries, with one eventually being the “winner” and the other being the “loser.” The conflict generated as a result can cause tremendous emotional trauma for all the participants and destroy relationships. It is especially difficult on children who can be made to feel they must take sides as well.
By its definition, Collaborative Practice is a non-adversarial approach to divorce. The parties and both lawyers along with any other supportive Collaborative Team professionals pledge in writing not to go to court. Parties negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The parties remain in control of the timing, the discussion, the areas to be addressed, and the solutions. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a marriage, preserve family relationships and mental health, prevent anxiety and stress, and protect the well-being of children.
Yes! A same sex couple getting divorced no matter where or when their marriage or domestic partnership originally took place can equally benefit from Collaborative Practice. Even unmarried parents whose relationships are breaking up and who need to make decisions about their children such as custody agreements can take advantage of the Collaborative Process. All information about Collaborative Practice applies equally in all relationships. It can be especially advantageous in avoiding “cookie-cutter” solutions applied by the court system originally intended only for traditional forms of marriage.
Collaborative Practice is guided by a critically important principle: respect. By setting a respectful tone, Collaborative Practice encourages divorcing spouses to demonstrate compassion, understanding and cooperation. Collaborative professionals are trained in non-confrontational negotiation techniques to help parties keep discussions productive and avoid personal attacks. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
When a couple decides to pursue a Collaborative Practice divorce, they each hire Collaborative lawyers. All of the parties agree in writing not to go to court. Then, each spouse meets privately with individual lawyers and in face-to-face discussions. Additional experts such as divorce coaches and child and financial specialists may join the process. Sometimes these professionals are the first person a party discusses divorce with, and they bring together the rest of the Collaborative Divorce team. These sessions with both spouses and all Collaborative Team members involved work toward an honest exchange of information and expression of needs and expectations. The well-being of any children receive priority attention. Children may be represented by the “child specialist,” a trained mental health professional who discusses the children’s interests. Mutual problem-solving by all the parties leads to the final divorce agreement. A similar process can get excellent results in other types of civil disputes beyond family law matters.
Individual circumstances control the speed of any dispute resolution process as long as a party does not engage in litigation controlled by the courts. Collaborative Practice can be one way of achieving a more direct and efficient resolution. From the start, it focuses on problem solving, not blaming or endlessly airing grievances. Full disclosure and open communications help to assure all issues are discussed in a timely manner. Parties are also freed from being beholden to the court calendar. Because a final settlement is reached out of court, parties are not kept waiting for multiple court appearances or waiting to get on a crowded schedule which happens in conventional divorce litigation. Parties can work through your divorce at the pace that best suits the parties’ and family’s needs.
Divorce and termination of domestic partnerships are an ending and a beginning all wrapped up into one process. Collaborative Practice helps parties anticipate their family’s best interests in moving forward, and include their needs in the discussions. When children affected, Collaborative Practice makes their future the number one priority. As a more respectful, dignified process, Collaborative Practice helps the family make a smoother transition to the next stage of their lives, maintaining relationships and lessening trauma and stress. Individuals and their children often find they heal more quickly and with fewer lasting effects. The same benefits can also be achieved in employment, real estate, business, probate and other civil law disputes.
The Interdisciplinary Collaborative Team Model is a multi-disciplinary team approach to dispute resolution, which includes attorneys, mental health professionals, a financial specialist (financial neutral), and when there are minor children, a child specialist working interactively as equals. Team members share the same core values and philosophy, consistent with the International Association of Collaborative Professionals ethical guidelines. Team members pledge they will not be involved in any court litigation concerning an assigned Collaborative Practice case. All members agree they will withdraw from the case if the parties drop out and decide to pursue litigation.
Parties choose all Collaborative Practice team members at the beginning of your case. The team is ideally made up of each spouse, and two Collaborative lawyers, one for each party; two divorce coaches, one for each individual; a child specialist who represents the voice of the child(ren); and one neutral financial specialist.
A divorcing couple can enter into the Collaborative Process through first contacting any member of the team. It is most common to first contact an attorney, but not required. For example, a spouse might first contact a licensed family therapist, or seek advice from their licensed financial professional about their circumstances.
Parties will work with a divorce coach on improving your communication skills as well as learn self-management and negotiation skills to help you during the divorce process. A party’s divorce coach will develop the knowledge needed to participate in successful meetings, including:
- How to communicate your concerns effectively
- How to maintain respect and dignity for all parties in the process
- How to discuss parenting and custody options
- How to develop a parenting plant and navigate your co-parenting partnership
The Child Specialist
During this process, the child specialist talks with the parties and meets with their child or children to assess their needs and concerns. The child specialist also assists the parents to recognize and address their child’s needs, and give the children a way to communicate their concerns and fears, allowing children to have a voice in the divorce process. The child specialist is not a custody evaluator and makes no specific recommendations. Instead, he or she will work with the divorce coaches and with the parties to help you make informed, intelligent, and compassionate decisions in the children’s best interests. The information the child specialist shares is essential for the family’s emotional well-being and helps lay the foundation for a healthy future.
With the information received from the child specialist, the parties and the divorce coaches will create a parenting plan, which is then incorporated into the final divorce document. It can be as flexible and creative as needed as long as everyone agrees to all provisions, unlike the type of parenting plans sometimes imposed by the courts.
The neutral financial specialist is a credentialed professional (Certified Public Accountant, Certified Divorce Financial Analyst. Certified Financial Planner), who meets with both the parties, and helps begin discussing financial issues and concerns post-divorce. He or she will assist in gathering all the necessary financial information including all important financial records. The financial specialist works closely with both spouses and their respective lawyers to understand their current financial standing and to help determine the potential financial consequences of various possible divorce settlement options. This information and the various options may be discussed in a meeting involving the financial specialist, both Collaborative lawyers, and the parties. The parties control the outcome and work with the attorneys to create a financial settlement that meets the specific needs and circumstances.
Sometimes a case manager coordinates this process. This role is often assigned to the financial professional, who keeps all Collaborative team members informed and the process on track.
This integrated model provides you with the specific services and advice you need from the trained professional most qualified to address your specific divorce issues, with attention on those issues of greatest concern and priority to you. Working together, Collaborative professionals help divorcing couples achieve an outcome that would not be possible without everyone working together.
Best of all, this Collaborative team approach can work when negotiating civil disputes other than divorces and termination of domestic partnerships
With thanks to Pauline Tesler and the International Academy of Collaborative Professionals for excerpts from her FAQs
Trusts & Estates FAQs
Trusts and Estates Practice applies the same strategies used in Collaborative Practice family law matters (such as divorce) as an alternative to the traditional adversarial techniques to resolve legal disputes.
Up to now, the use of the Collaborative Process has been more common in family law matters, but use of the Collaborative Process for estate planning matters is gaining momentum due to its many advantages.
Trusts & Estates FAQs
There are several advantages to estate planning using the Collaborative Practice approach, including:
Less Stress on Parties and their Relationships: The Collaborative approach reduces stress, anxiety and fears about the process and the outcome of your estate planning, especially if parties are concerned about the possibility of litigation over their estate. Parties can work these issues out in advance, and everyone can focus on settlement feeling fully informed and involved, with more control over the outcome.
Win-Win Approach: Collaborative Practice takes a positive approach and creates a congenial working environment. The opportunity exists for participants to work as problem-solving partners in a climate that facilitates “win-win” decisions.
Flexibility to Create a Unique Solution: Collaborative Practice encourages creative solutions in resolving issues, including remedies that may not be available in litigation.
Collaborative Practice Puts You In Charge: The non-adversarial nature of Collaborative Practice shifts decision-making to parties along with the support of the Collaborative Practice team, instead of putting decisions in the hands of strangers bound by the rules of a courtroom, often without a party’s involvement or input after death.
Lower Cost: Collaborative Practice is generally less costly and time-consuming than litigation.
Client Involvement: Collaborative clients play a vital part of the team (consisting of both parties and both attorneys). Parties have greater involvement in the decision-making and greater control over the outcome affecting their life.
Support From Your Professional Team: A party is supported in a manner that allows the attorneys and any other professional members of the team to work cooperatively together with a party and the family to resolve issues that might otherwise negatively affect aspects of their life and their relationships, both personal and professional.
The Collaborative lawyer mediator, financial specialist, and communication specialist help parties come to a mutually satisfactory plan, allowing all issues and concerns to be addressed in a respectful way.
In the litigation model, relationships are often ruined over harsh words and treatment that can never be taken back. Parties communicate only through their attorneys and through legal documents filed with the court. In the Collaborative approach, family members talk with each other, assisted by professionals who can facilitate discussion even over the most difficult issues. After issues are resolved, most family relationships are actually improved, moving from indifference or outright hostility to ones of respect and mutual affection.
Litigation can be expensive. It can easily cost $60,000 per side. The usual cost is well over $100,000 per side. Most costs stem from disagreements over sharing or hiding information including documents, preparing for and attending a trial. Everyone’s energy and resources are focused on proving the “other side” is wrong. If expert witnesses are involved, such as a forensic accountant, they can add a significant expense to the cost. There is also the emotional cost and stress over ruining family relationships.
The Collaborative Practice approach is far less costly than a court trial. Information and documents are voluntarily shared with all participants and professionals as a part of the process. No one must be proven “wrong” to “win.” All resources and effort is focused on finding solutions everyone can benefit from and live with. Experts provide neutral information, education, and help create options leading to solutions, instead of gearing up for battle against the expert hired by the “other” side.
If there is litigation over an estate, it can take a year or more from the first filing of a document until there is a trial. Some cases take several years to resolve pending appeals. A family is at the mercy of the court’s crowded schedule, the availability of the attorneys, and any other involved parties. Much of the delay involves waiting for responses, a judge’s decisions on small issues, or coordinating everyone’s schedules to find a time for the case to move forward. In adversarial litigation, neither side has control over the other, and one side may be dragging their feet with no way to force them to respond.
The Collaborative Process can save time. Being solution focused produces a more efficient process where meetings focus on gaining understanding and reaching agreements. Progress is not dependent on a court schedule or a formal legal process. Meeting schedules can be flexible and accommodate work and personal obligations.
With the Collaborative Practice model, all affected family members are informed about estate planning ahead of time. This gives the family the opportunity to resolve any differences or hurt feelings while a party is living, instead of creating dissention and resentments after death. This improves the quality of relationships and quality of life. It reduces the likelihood of litigation to resolve unexpected conflicts. Frequently, probate and trust battles are fought in court over what mom or dad “really” intended to do with their estate. When an estate plan is discussed in an open, respectful forum where one can directly express intent, it will be difficult for any family members to claim a different intention.
There should be no unfortunate surprises using the Collaborative process for estate planning, as heirs will participate in a discussion about the details of the will or trust. With the traditional estate planning model, the will and trust are private documents and nobody may know about them. After death, they are lodged with the court and become public documents. Anyone has access to them, including beneficiaries and heirs.
The Collaborative team led by the Communication Specialist can bring all extended family members together to discuss the estate plan in advance, and allow them to express their expectations. By addressing these issues in advance, hard feelings will be avoided after death.
All family members or unrelated heirs invited into the estate planning process will participate in a discussion about a party’s intentions and decisions, guided by the Collaborative team as neutral facilitators. All conversations are kept confidential with the family and the involved professionals.
The Collaborative lawyer mediator, financial specialist, and communication specialist can assist a party as a parent to discuss these concerns with their children. The team can create a protective estate distribution arrangement that does not put the assets at risk when the children do not have adequate money management skills, sometimes by assigning a professional to help the children manage their inheritance.
Led by the Communication specialist or coach, the Collaborative team can facilitate these difficult conversations. Through open and respectful discussion, parties can make their wishes known and understood to lessen hurt feelings due to surprises after death. Under the traditional model, a party makes decisions about the trustee, executor or agent. If a party passes over a child who expects to play this role, he or she is likely to resent the person appointed to act in this capacity, whether a sibling or a stranger. He or she may express resentment by pushing back or even resorting to litigation.
The Collaborative lawyer mediator, financial specialist, and communication specialist can create a Special Needs trust for children in these circumstances. A party can discuss this to the extent able with the children and find out who they believe should be in charge of their money and other aspects of decision-making in their lives when a party isn’t able to be there, to the extent of the child’s abilities to understand and communicate their desires.
The Collaborative lawyer mediator, financial specialist, and communication specialist will help work through the ramifications and potential response to decisions. They can work to find creative solutions to provide heirs individualized bequests which best suit their needs. It is not always “fair” to simply divide up assets evenly. One heir may need monetary help; one may prize heirlooms or property; another may have an emotional attachment to cherished photos or jewelry. The team can also help explain decisions to the family.
The Collaborative team can help set up financial arrangements which directly reimburse or reward one of the heirs for providing caregiving help or for helping manage legal or financial affairs as a separate provision of the estate plan. The traditional approach is to let the chips fall where they may and hope everyone understands a party’s intentions.