Just because you’re getting divorced doesn’t mean you have to wage a battle against your spouse in court. In California, collaborative divorce – also called collaborative law or collaborative practice – is a cooperative, low-conflict approach to ending your marriage. If you and your spouse commit to working out your issues through the collaborative divorce process, you can avoid making the details of your divorce public in a court of law.
Like other states, California encourages couples to resolve their divorces out of court if possible with a negotiated settlement agreement. You can reach a negotiated settlement agreement with your spouse in a few ways, collaborative divorce being one of them. Although this type of divorce is similar to mediation, these two approaches present several key differences that will determine which is truly the best option for your family.
When considering whether collaborative divorce is right for you, ask yourself:
- Do you want control over your divorce instead of leaving important decisions to a judge?
- Are both you and your spouse ready to cooperate in the process?
- Do you trust your spouse to give full, open, and honest disclosure when it comes to finances and other important issues?
- Are you willing to commit fully to the collaborative law process or risk starting over?
- How much support and structure do you want to have throughout your divorce?
- Do you feel emotionally, mentally, and physically safe in the same room as your spouse?
- Do you have children who would benefit from a less confrontational divorce?
- Are you interested in neutral advice for post-divorce finances and co-parenting?
A divorce of this type can be a great option for busy professional couples with complex assets they’d like to split fairly and children they’ll co-parent together. The collaborative law process can help set a supportive and cooperative tone for your future relationship with your ex-spouse.
What Is Collaborative Divorce?
Collaborative divorce involves negotiating a settlement agreement within a structured framework outside of court, with the help of a trained group of divorce professionals.
When it comes to divorce options, a collaborative law team provides the most support for couples who are dissolving their marriage. Throughout the process, you’ll work closely with professionals like parenting and child custody experts, communication and negotiation specialists, financial and wealth appraisers, divorce coaches, and mental health therapists.
This talented team of divorce professionals sets this type of divorce apart from mediation, which often involves just you, your spouse, and a mediator.
If you want to work out your divorce amicably with your spouse but you’re not sure if the two of you can accomplish this on your own, this process may be right for you.
In so many cases, the divorce process can feel like your marriage distilled into only its most practical parts – property division, custody schedules, support payment calculations. If you go to court, your issues will be decided by a third-party judge who knows little about your family. Except marriage is naturally, deeply personal. The collaborative law process allows you to account for this personal element that can otherwise get overlooked.
How Does Collaborative Divorce Work?
The collaborative law process is private and catered to you. Your collaborative divorce team may look very different compared to someone else’s depending on your family’s needs.
However, collaborative law has some structural and procedural requirements, including:
- You and your spouse must both be represented by lawyers who are specially trained in the collaborative law process.
- You, your spouse, and your attorneys must agree that if the collaborative law process breaks down, your lawyers must withdraw and you must find new representation to continue your divorce. This would mean starting over in a significant way.
- All collaborative law sessions must be conducted as four-way meetings that require you, your spouse, and each of your lawyers to be present.
You and your collaborative law team will conduct as many meetings as necessary to resolve all of your issues. Your lawyers will then draft a negotiated settlement agreement. Once both spouses agree to the terms and sign, the agreement will be filed with the courts and your divorce will become official. The terms of your agreement will become legally binding.
Read more about the pros and cons of the collaborative divorce process here.
Because you and your spouse are so involved with deciding the details of your divorce, you’re much less likely to encounter conflicts even years down the line that might bring other couples back into the courtroom.
Collaborative Divorce vs. Mediation
Collaborative law and mediation are similar in the amicable and cooperative approach they take to divorce. Both are private, low-conflict alternatives to public divorce litigation in the courts. However, in structure and practice, they are quite different.
- Mediation requires only a minimum of three people: you, your spouse, and a neutral mediator. On the other hand, collaborative divorce requires that both parties have their own lawyer to represent their interests at the negotiation table.
- In mediation, your mediator may conduct separate meetings with you or your spouse depending on the needs of your case. In contrast, collaborative divorce requires four-way meetings where both parties and their lawyers are all present.
- Collaborative law tends to involve more specialized divorce professionals who provide support and advice to you and your spouse.
- The collaborative law process has stricter deadlines compared to mediation, where the schedule depends entirely on you and your spouse.
- If the collaborative law process breaks down, you have to essentially start over and find new lawyers to represent you in your divorce. Meanwhile, you and your spouse can choose to use mediation at any time in the divorce process and keep your attorneys, even if mediation breaks down and you end up going to court.
Both collaborative divorce and mediation have nuances that may make one or the other a better fit for your family. It’s important to speak with an experienced Bay Area divorce lawyer about your options, as your best path forward might not be the one you expected.
Disadvantages of Collaborative Law
Although the supportive team approach is an advantage for collaborative divorce, the lack of flexibility in the process can be a significant drawback.
Couples who choose collaborative divorce may go into the process with the best of intentions. While their collaborative law team will do its best to support a resolution, their negotiations may still break down. A major disadvantage of the collaborative divorce process is the participation agreement requiring your collaborative lawyers to withdraw if your case has to go to court. You could lose substantial progress having to start over with new counsel.
If you’re considering an amicable divorce in San Francisco or the Bay Area, talk to a divorce lawyer about whether collaborative divorce is the best option for you.