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 your negotiations with the other disputing party, and tries to help you settle your case. However, the mediator cannot give either of you legal advice, and cannot be an advocate for either side. If you or the other party involved has your own lawyer, they may or may not be present at your mediation sessions. If they are not present, you can consult with your 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 you and the other party along with your attorneys.
Collaborative Law was designed to allow you to have your own lawyer with you during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of your 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 you and the other party along with your lawyers, 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 you and the other party have to be in agreement on the issues, only in agreement on your intention to participate in the process in good faith.
If mediation does not result in a settlement, you and your 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 between toward a successful out of court resolution of all issues. It specifically states your Collaborative attorney and any other professional team members will be disqualified from participating in litigation with you if the Collaborative Process is terminated without an agreement being reached. You and the other party will need to hire new attorneys to proceed with litigation.
It is wise for you to seek professional advice to help you decide whether you should pursue mediation or Collaborative Practice in your individual case.
The chosen professionals who work together on your behalf, your spouses’ 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 you choose to work with to resolve your dispute. It can be just you, your spouse, and your Collaborative lawyers which comprise the Collaborative Law component of Collaborative Practice. It can be you, your spouse, your 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 you and your spouse to become adversaries, with one eventually being the “winner” and the other being the “loser.” The conflict generate as a result can cause tremendous emotional trauma for all the participants and destroy relationships. It is especially difficult on your 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. You, your spouse, and both your lawyers along with any other supportive Collaborative Team professionals pledge in writing not to go to court. You negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. You 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 your family relationships and mental health, prevent anxiety and stress, and protect the well-being of your 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 is 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 you and your divorcing spouse to demonstrate compassion, understanding and cooperation. Collaborative professionals are trained in non-confrontational negotiation techniques to help you and your spouse 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 Practice lawyers. All of the parties agree in writing not to go to court. Then, you and your spouse meet both privately with your 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 you discuss your divorce with, and they bring together the rest of your 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.
Your individual circumstances control the speed of any dispute resolution process as long as you do 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 your issues are discussed in a timely manner. You are also freed from being beholden to the court calendar. Because your final settlement is reached out of court, you are not kept waiting for multiple court appearances or waiting to get on a crowded schedule which happens in conventional divorce litigation. You can work through your divorce at the pace that best suits you and your family’s needs.
Divorce and termination of domestic partnerships are an ending and a beginning all wrapped up into one process. Collaborative Practice helps you anticipate you and your family’s best interests in moving forward, and include your needs in the discussions. When you have children affected, Collaborative Practice makes their future the number one priority. As a more respectful, dignified process, Collaborative Practice helps you and your family make a smoother transition to the next stage of your 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.
You and your spouse choose all your Collaborative Practice team members at the beginning of your case. The team is ideally made up of you, your spouse, and your two Collaborative lawyers, one for each of you; 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, you and your spouse might first contact a licensed family therapist, or seek advice from their licensed financial professional about their circumstances. Once you determine your course of action is a divorce, a Collaborative Practice lawyer or a Collaborative financial specialist can begin the process.
Regardless of which “door” you walk through, you will select the members of your Collaborative Practice team. Many teams share a common participation agreement, which you sign first with your attorney.
You will work with your divorce coach on improving your communication skills as well as learn self-management and negotiation skills to help you during the divorce process. You and your divorce coach will develop the knowledge you need 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 you and meets with your child or children to assess their needs and concerns. The child specialist also assists you as parents to recognize and address your child’s needs, and give your children a way to communicate their concerns and fears, allowing your child 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 your divorce coaches and with you to help you make informed, intelligent, and compassionate decisions in your children’s best interests. The information your child specialist shares with you is essential for your family’s emotional well-being and helps lay the foundation for a healthy future.
With the information received from the child specialist, you and your divorce coaches will create a parenting plan, which is then incorporated into your final divorce document. It can be as flexible and creative as you wish 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 you and your spouse, and helps you begin discussing your financial issues and concerns post-divorce. He or she will assist you 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 your current financial standing and to help determine the potential financial consequences of various possible divorce settlement options. This information and your various options may be discussed in a meeting involving the financial specialist, both Collaborative lawyers, and you and your spouse. You and your spouse will control the outcome and work with your attorneys to create a financial settlement that meets your specific needs and circumstances.
Sometimes a case manager coordinates this process. This role is often assigned to one of the divorce coaches, 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, including you and your spouse.
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 You and Your Relationships: The Collaborative approach reduces stress, anxiety and fears about the process and the outcome of your estate planning, especially if you are concerned about the possibility of litigation over your estate. You 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 you and other participants to work as problem-solving partners in a climate that facilitates “win-win” decisions.
Flexibility to Create a Solution That Fits You: 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 you along with the support of your Collaborative Practice team, instead of putting decisions in the hands of strangers bound by the rules of a courtroom, often without your involvement or input after your death.
Lower Cost: Collaborative Practice is generally less costly and time-consuming than litigation.
Client Involvement: As a Collaborative client, you play a vital part of the team (consisting of both parties and both attorneys). You have greater involvement in the decision-making and greater control over the outcome affecting your life.
Support From Your Professional Team: You are supported in a manner that allows the attorneys and any other professional members of the team to work cooperatively together with you and your family to resolve issues that might otherwise negatively affect aspects of your life and your relationships, both personal and professional.
Your Collaborative lawyer mediator, financial specialist, and communication specialist help you 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 your 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 your 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. Your 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.
If you do find yourself in litigation over estate planning, 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 your estate planning ahead of time. This gives you and your family the opportunity to resolve any differences or hurt feelings while you are living, instead of creating dissention and resentments after your death. This improves the quality of your relationships and your quality of life while you are living. 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 your estate plan is discussed in an open, respectful forum where you can directly express your intent, it will be difficult for any family members to claim you intended something else.
There should be no unfortunate surprises using the Collaborative process for estate planning, as your heirs will participate in a discussion about the details of your will or trust. With the traditional estate planning model, your will and trust are private documents and nobody may know about them. After your death, they are lodged with the court and become public documents. Anyone has access to them, including your beneficiaries and heirs.
Your Collaborative team led by your Communication Specialist can bring all extended family members together to discuss your estate plan in advance, and allow them to express their expectations. By addressing these issues in advance, hard feelings will be avoided after your death.
All family members or unrelated heirs you invite into the estate planning process will participate in a discussion about your intentions and your decisions, guided by your Collaborative team as neutral facilitators. All conversations are kept confidential without your family and the involved professionals.
Your Collaborative lawyer mediator, financial specialist, and communication specialist can assist you as a parent to discuss these concerns with your children. Your team can create a protective estate distribution arrangement that does not put your assets at risk when your children do not have adequate money management skills, sometimes by assigning a professional to help your children manage their inheritance.
Led by your Communication specialist or coach, your Collaborative team can facilitate these difficult conversations. Through open and respectful discussion, you can make your wishes known and understood to lessen hurt feelings due to surprises after your death. Under the traditional model, you make decisions about your trustee, executor or agent. If you pass over a child who expect 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.
Your Collaborative lawyer mediator, financial specialist, and communication specialist can create a Special Needs trust for your children in these circumstances. You can discuss this to the extent you are able with your children and find out who they believe should be in charge of their money and other aspects of decision-making in their lives when you aren’t able to be there, to the extent of your child’s abilities to understand and communicate their desires to you.
Your Collaborative lawyer mediator, financial specialist, and communication specialist will help you work through the ramifications and potential response to your decisions. They can work with you to find creative solutions to provide your 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. Your team can also help you explain your decisions to your family, whether prior to your death or after.
Your Collaborative team can help you set up financial arrangements which directly reimburse or reward one of your heirs for providing caregiving help or for helping you manage your legal or financial affairs as a separate provision of your estate plan. The traditional approach is to let the chips fall where they may and hope everyone understands your intentions.