What is a Collaborative Divorce?

G. Wiesen

A collaborative divorce is a procedure entered into by two parties that wish to dissolve their marriage, but is an alternative to a traditional, adversarial divorce proceeding. In a collaborative divorce, both parties agree to maintain civility and come to an amicable resolution of their differences to end the marriage in a way that is, hopefully, less combative and destructive than traditional divorces can be. The process still involves lawyers, but in a more advisory function, and begins with the signing of a participation agreement by both parties and the lawyers.

During a collaborative divorce, both parties agree to amicably dissolve their marriage.
During a collaborative divorce, both parties agree to amicably dissolve their marriage.

Similar to resolving conflicts through mediation, the process of a collaborative divorce attempts to end a marriage through constructive negotiation and with minimal distress. Both parties retain lawyers to work with them, but the process is aimed at avoiding the typical adversarial approach of legal divorce proceedings in which the parties may seek to harm each other’s reputations for greater personal gain. This approach can be especially helpful in situations where one or more young children are involved in the divorce, as efforts are made to keep the children out of any conflict and find a mutually beneficial result that ensures the well-being of the children.

At the start of a collaborative divorce, both parties and their lawyers create and sign a participation agreement that establishes the parameters of the meetings that will follow. This agreement includes provisions such as establishing the role of the lawyers as advisers, both parties agreeing to remain civil and constructive during the proceedings, focusing on children’s well-being, and each party agreeing to not take advantage of mistakes or errors made by the other party. The primary goal of this agreement is to establish rules of conduct for the meetings that will follow, to create an atmosphere in which both parties can end the marriage amicably and with minimal strife and personal interference. Lawyers involved will also typically agree that if the collaborative divorce does not work out, and further legal measures are required, that both lawyers will recuse themselves and both parties will have to find new representation.

Proponents of collaborative divorces insist that the process is less destructive for all involved than a traditional divorce. While this may be true at times, people in the midst of a divorce can often be under severe stress dealing with a spouse with whom they have extreme feelings toward. In such a heightened state of emotional duress, many people might not be able to properly conduct such informal proceedings and proper litigation may be required.

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