Collaborative law is a unique legal process involving family law in which parties agree not to litigate, or go to a trial/hearing on, their specific legal issues. In this regard, in order to utilize collaborative law, both parties sign a contract, or what is sometimes called a “participation agreement,” binding each other to the collaborative process.
The goal of the collaborative process is to resolve the parties’ differences, outside of a courtroom, using honesty, cooperation, integrity, professionalism, dignity, and respect.
While engaging in the process, the parties are expected to negotiate in good faith. This means that, in light of the goal stated above, the parties give full and accurate disclosures of the assets, debts, and income without the necessity for formal discovery issued under that particular State’s rules of civil procedure. This also means that the parties use an “interest” based ideology to reach their goals instead of a “legal” based ideology. In other words, the parties are expected to try to reach an agreement that best fits their respective lives, rather than using the law to pigeonhole participants into what a court would or could do. While the parties can use the law to point out how a Court would likely rule, those laws do not necessarily drive the negotiations. Some of you may be asking: “Are you saying that the law does not always fit everyone’s particular situation?” The answer is yes, and the collaborative process allows those people to obtain a judgment that fits their unique situation.
During the course of the collaborative process other “professionals” can be, and often times are, used. The professionals engaged in this process typically include financial professionals, “coaches,” child specialists, and mediators.
Financial professionals are oftentimes hired in cases in which there are substantial assets and/or spousal support is an issue, although that doesn’t necessarily have to be the case. I have witnessed the utility of having such a professional included within a collaborative divorce matter. In my particular case, the professional provided monthly budgets to the parties for both during the divorce and for what they could expect them to be after the divorce was finalized. The professional also provided charts illustrating property and debt divisions, so the parties could see how the breakdown of assets and debts looked in different possible scenarios. Finally, this particular professional was able to illustrate what certain spousal support payments would look like now and in the future using the time value of money and the respective parties’ changing budgets as they moved forward throughout their lives.
As far as the coaches are concerned, they can be utilized to help manage emotions and improve communication during the meetings that take place between the parties, their counsel, and any other professionals that may be necessary. Coaches are most helpful in cases in which there is one dominant party or there has been a history of domestic violence.
The child specialists are, you guessed it, involved when the parties have children and the custody or “residential responsibility” of those children is at issue. The child specialists are, like the “coaches,” typically psychologists or counselors. And, while the collaborative practice prohibits the involvement of the children by the parties, the child specialist is responsible for helping the parties understand the wants and needs of their children by talking to them about the same. The child specialists are also helpful in creating schedules that are developmentally appropriate for the particular ages and maturity levels of the children –something most people, and their attorneys, don’t know.
As for the mediators, just like “normal” cases, these people try to help the parties reach a resolution when they find themselves at an impasse on a particular issue or issues.
You may now be asking yourself: “How in the heck is all of this going to be paid for?” That is a very good question. One potential downside to collaborative law is that it can get very expensive. The counterpoint to this argument is that if you are going to engage in a long, drawn-out, contentious divorce/custody action, it can be cheaper to simply use this process. This being said, the parties typically split any costs of the professionals involved and those costs can obviously be lowered if a person uses less of them. In fact, I have done some collaborative divorces in which we did not use one single professional.
Eventually, the parties either reach an agreement or not. If an agreement is reached, the parties sign a “stipulation,” which gets filed with the Court at the same time as the documents typically used to commence an action (i.e., the Summons and Complaint). In addition to these documents the Court will also receive one document called the “Findings of Fact, Conclusions of Law and Order for Judgment” and another document called the “Judgment.” Once these documents are filed with the Court a Judge will eventually review the Order for Judgment and sign (there is the possibility they don’t sign if something is legally incorrect or insufficient, but I have not seen this happen yet). There is no need to ever appear in front of a Court under this option if your divorce proceeding is set within North Dakota.
If you do not settle, you would need to go to Court. So now you may be asking: “Wait, I thought you said we agreed to never go to Court? How does that work?” Well, because you agreed to not go to Court within the “participation agreement” you basically need to formally terminate the collaborative process and start over. And when I say start over, I mean it. You are required to hire a new attorney. You also are not allowed to use any of the documentation prepared during the collaborative process. As such, it can be quite an expensive decision to opt out of the collaborative process to pursue what you believe to be “just” through the Court system.
All in all, collaborative practice is great for some people and not so much for others. My name is Greg Liebl and I am an attorney currently trained in Collaborative Divorce in North Dakota. If you would like to discuss this matter further please give our Family Law Team a call at 701-297-2890.