It probably sounds to many people like divorce is far from collaborative. After all, a couple who once promised to be together forever are calling it quits. How can that be collaborative?
Collaborative Divorce or Collaborative Family Law is not so much about the divorce itself being collaborative, but rather how the couple goes about separating and divorcing that can either make it collaborative or adversarial. Most of us understand what an adversarial divorce looks like. An adversarial divorce involves the filing of a lawsuit, disagreements over what should happen, arguments by lawyers, taking and defending positions. This process can be expensive, time-consuming and heart-breakingly toxic. Children are often collateral damage.
The question is: Does it have to be this way? The answer is: No. Collaborative Divorce is a different approach. It does not mean everyone is happy. Nor does it mean that the spouses agree on everything. It does mean that the spouses agree to work together to resolve their dispute privately, respectfully and collaboratively.
North Carolina law defines Collaborative Law as a “procedure in which [spouses] who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties as the court deems appropriate. The procedure shall also include an agreement where the parties’ attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.” N.C.G.S. 50-71(1).
The hallmarks of Collaborative Divorce:
- Control remains with the parties and their attorneys;
- The attorneys agree to not serve as litigation counsel if settlement is unsuccessful;
- The parties are not subject to strict rules of evidence and procedure;
- There is a free and voluntary exchange of information and documentation;
- Interest-based negotiation vs. position-based litigation;
- Private sessions vs. public court hearings; and
- The ultimate goal is resolution as opposed to “winning.”
Unlike a personal injury lawsuit where the parties will have no involvement after the case is over, a separating and divorcing couple may be linked together for the rest of their lives through their children. There may be graduations, weddings and grandchildren in the future. If the divorcing couple can maintain some degree of civility and respect for each other after the divorce, their children and grandchildren are the beneficiaries of that good will.
Collaborative Divorce is a new way of looking at an old problem. If you and your spouse are separating and/or divorcing, the collaborative approach may be right for you if you want to spend less money, keep your personal business private and avoid the scorched earth approach that often accompanies litigation. If you have questions about Collaborative Divorce, please visit the website for the WNC Collaborative Law Group or contact any of the Collaborative Law attorneys associated with the Group.