One of the newest trends in divorce litigation is the actual avoidance of litigation. This is accomplished through a wide variety of methods, including mediation with a trained mediator or the parties just simply sitting down to work out their own divorce.
One issue with either of these methods is the couple may lack sufficient legal guidance to determine if their resolution is truly fair to them.
Another trend that is gaining favor in divorce and family law matters is collaborative law. Collaborative law attempts to combine the best aspects of both court litigation and other alternative dispute resolution methods, such as mediation. For this reason, collaborative divorce should be one of the options to consider for a couple contemplating or going through a divorce.
Three requirements must be met for a divorce to be considered collaborative. The first is that both sides are represented by attorneys. Unlike mediation and other non-litigation methods, where the parties are not required to have attorneys, this aspect of collaborative divorce ensures both sides receive proper legal guidance in the process.
One critical feature of collaborative divorce is an agreement by the parties to discharge their attorneys if the collaborative divorce effort fails. That way, the attorneys are focused on resolving the issues collaboratively. If the parties need to resort to traditional litigation through the court system, they will need new attorneys.
Another requirement is that the parties enter into a participation agreement. The participation agreement needs to be in writing and must contain some specific terms. These terms include the intention to resolve the case through the collaborative process, a description of the scope and nature of the matter, identify of the attorneys and the attorneys’ agreement to participate in the collaborative process.
This last part provides an interesting spin as it binds the attorneys to the same process as the parties. In short, the attorneys become vested participants in the matter, just as the parties, themselves, do.
The requirement of the collaborative process that makes it truly unique from other methods of resolving a divorce is the disqualification of the attorneys if the collaborative effort fails. This discharge requirement is part of the participation agreement as well as the other terms listed above. Discharge of the attorneys is important because it keeps both the parties and attorneys dedicated to the process.
If the parties know they have to obtain new attorneys if the collaborative effort fails, the financial costs may drastically increase as the new attorneys will need to gain familiarity with the case and start over, basically, to gear the matter up for trial. The duty of the attorneys not to litigate the divorce after failed collaboration effectively takes the litigation card away from the negotiations and keeps the focus on collaboration.
Not only is the attorney discharged when collaboration fails, the attorneys law firm is prohibited from representing a party to a failed collaborative effort in the subsequent litigation.
In a collaborative divorce, the parties will normally hire a “team” to assist. While not a requirement for a collaborative divorce, the team can provide valuable assistance.
In addition to the attorneys, clients can look to bring on a neutral facilitator and a neutral financial advisor. The facilitator’s role is to act as the overall manager and lead the meetings and negotiations. Often, a facilitator is a trained mental health professional.
A financial neutral has the role of assembling the financial aspect of the parties, such as account statements, income documentation, and helping determine the value of property such as homes and businesses. The financial neutral can also help discuss with the parties matters such as support obligations, budgets, property division and retirement.
Collaborative divorce is becoming a desired method of resolving a divorce and other family law matters. It provides a means for a couple looking at a divorce to resolve everything outside of the adversarial environment of the courthouse. Collaborative divorce is more personal and grants a couple more control over the process and more control over the results.
If you are seeking assistance or want more information about collaborative divorce, please reach out Drendel & Jansons.
Roman J. Seckel
Drendel & Jansons Law Group
111 Flinn Street
Batavia, IL 60510
(630) 406-6179 fax
Roman focuses his practice on Family Law and complementary areas.
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