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Collaborative Divorce: What and Why?

Thumbnail image for 4323365_1.jpgCollaborative divorce is trending nationwide and is gaining momentum in Michigan. It is an alternative to the traditional divorce process, where the parties commit to the common goal of being able to craft a personalized settlement of all issues without judicial involvement. While not appropriate in all cases, collaborative divorce recognizes that, whether at mediation or through direct negotiations, an overwhelming majority of divorce cases settle outside of court. With that recognition, comes a desire to streamline the divorce process so that those who intend to resolve their divorce amicably can do so with a reduced amount of acrimony, and at a reduced cost.

The cost of a traditional divorce varies according to the parties' ability to handle the emotional side of their split. People cope with divorce much like how they cope with the death of a loved one, with many experiencing denial, anger, a desire to bargain with their spouse to save the marriage, and depression over the inability to fix the tears in the relationship. Before being able to accept the divorce and develop a new sense of their future self, many spouses also experience levels of distrust, an inability to formulate future goals, an inability to separate financial matters from romantic matters, and an inability to communicate with their spouse during the divorce process. Sometimes spouses believe that they are handling the divorce well, only to find themselves in the thick of a dispute that stemmed from an unanticipated emotional flare up.

To address these issues, a key feature to a collaborative divorce is the involvement of a neutral mental health professional, who acts as a 'divorce coach.' The divorce coach has two primary functions, (1) to help the parties cope with the divorce and avoid the creation of emotional hurdles to the completion of the process, and (2) to maintain a birds' eye view of the process just in case the attorneys need assistance keeping perspective. The divorce coach, who is sometimes also a mediator, meets with both spouses initially, is present at every meeting, and is available for additional support throughout if necessary. If children are involved, the divorce coach can provide an immeasurable benefit to parties who have difficulty communicating but have a shared commitment to minimizing the effect of the divorce on the children.

In addition to the involvement of a mental health professional, and each spouse's attorney, neutral financial planners, appraisers, child specialists, and other collaboratively trained professionals may be brought into the case. With an emphasis on neutrality, the involvement of other professionals (such as a financial specialist) permits the attorneys to focus on the legal aspects of the divorce while delegating other aspects (such as the analysis of the tax consequences of a proposed distribution schedule) to those who have been specifically trained to handle those issues.

Minimizing the effect of the divorce on the family's total family wealth is also a goal of a collaborative divorce, which is accomplished by a shared commitment to complete transparency on financial matters. As the rules of discovery in Michigan, and many other states, are quite broad, any information that is relevant to the determination of the issues in the divorce is discoverable - i.e. it will all have to be disclosed eventually. A large portion of the costs of traditional divorce litigation arise due to the issuance of interrogatories, requests for documents, subpoenas, depositions, etc. While this is necessary in many cases, where the spouse who has information is under the misimpression that he/she can keep the information to themselves, many spouses wish to avoid the additional costs of discovery. So, to avoid what can become a veritable money-pit in traditional divorce litigation, at the outset of a collaborative divorce both spouses must sign a contract where they agree to a full financial disclosure, and full disclosure of any other information that the other spouse may deem relevant. The consequence for violating the commitment to full disclosure is the termination of the collaborative divorce process.

The collaborative process can be terminated by a number of things, which are outlined in detail in a participation agreement signed by the parties in the beginning of the case. Generally, the process will be terminated if either party files a complaint for divorce or otherwise involves the courts prior to a full resolution, or if either party fails to uphold the promise for a mutual and open exchange of information. To keep parties honest and on track, and to keep them committed to the overall process, consequences for terminating the process are built in. The primary consequence is the instant disqualification of both spouses' current attorneys from future proceedings. Another consequence is that any information exchanged prior to the termination is not allowed to be used in the court action.

If you are considering alternative methods of dissolving your marriage, we encourage you to contact a certified collaborative divorce attorney. To locate a collaborative attorney in your area, or to find out more, visit the International Academy of Collaborative Professionals website, www.collaborativepractice.com, and the Collaborative Practice Institute of Michigan at www.collaborativepracticemi.org.

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