Collaborative divorce: When it works, when it won’t, and why it might be right for you.

Dana McKeeThe typical vision of a divorce that we see in the media is a high-stakes, dramatic courtroom setting where spouses passionately plead their case before a judge. While most divorces do not reflect the dramatic fare, they are still typically an exhausting, emotional, and a potentially expensive and long legal process. The length and duress of the divorce process depends on the couples, professionals, and issues involved. However, if a couple is willing to take a collaborative approach to their divorce, it can go much more smoothly.

What is a collaborative divorce?

A collaborative divorce is a divorce method where the couple mutually agree to negotiate the terms of a marital settlement agreement with the assistance of collaboratively trained attorneys and other collaboratively trained professionals, if needed. This divorce model is typically better for many couples because the divorce terms are settled out-of-court and usually in a streamlined process.

When will the collaborative divorce process work?

Collaborative divorce requires several commitments from the couple involved. The couple needs to agree that they wish to handle their divorce with civility, transparency, and a collaborative attitude. One of the benefits of a collaborative divorce is that it can avoid much of the mudslinging and contentiousness commonly found in litigation.

A collaborative divorce requires a “win-win” mindset rather than a “win-lose” one. The “win-win” mindset can help minimize fights over assets and custody as well as the emotional contentions often made for the sake of harming the other spouse. With the help of neutral experts, the couple can more easily agree on a fair division of assets and a custody arrangement that is in the best interests of their children. When a divorce is not handled as an adversarial process, the focus of the divorce shifts to providing the couple with the best possible settlement for their lives moving forward.

When will the collaborative divorce process not work?

Collaborative divorce will not work for every couple. A high-conflict divorce is a prime example of the type of divorce where a collaborative approach may not be appropriate. A high-conflict divorce is characterized by a preoccupation with blaming others, a lack of accountability, a proneness to emotional outbursts, a desire to hide assets, the willingness to use the parties’ children to obtain leverage in negotiations, and an adversarial “win-lose” mindset. Relationships with a history of domestic violence or unreasonably vicious disputes over assets and custody are not likely to fit the collaborative divorce method.

Before deciding on a collaborative divorce, the attorneys for the divorcing couple need to access how well the process will work for each spouse and whether both individuals have a strong desire to resolve their issues.  If it is clear that a party is unwilling to work in a collaborative manner towards a resolution, the collaborative divorce process will most likely not be successful.

Properly assessing whether the collaborative process is suitable for a divorcing couple is of great importance.  Once the couple chose the collaborative divorce path, they sign a written contract that if the parties are unable to resolve their issues through the collaborative process and one of the parties later decides to pursue litigation instead, the lawyers representing them in the collaborative divorce are prohibited from representing them in a contested court case.  The parties will need to hire a new legal team, which will add to the costs and will further delay the divorce.

Why might a collaborative divorce be right for you?

Once you and your partner have agreed to have a collaborative divorce, you can enjoy several of the benefits that negotiation comes with. You will save time and money through collaboration by avoiding the long and arduous process of courtroom litigation and legal fees. Negotiating outside of a courtroom setting can be beneficial by providing an informal setting for the couple to communicate more freely about how they should move forward.

With a collaborative divorce, the parties decide how quickly or how slowly they want their case to move rather than the judicial system setting the schedule.  A collaborative divorce has the potential of taking far less time than your standard litigation process.  Similarly, a divorce that proceeds to litigation can cost significantly more than a collaborative divorce. Additionally, the shorter timeframe and lower overall cost of a collaborative divorce can reduce a lot of the emotional turmoil that characterizes the adversarial court divorce process. This collaborative divorce process can also reduce emotional battles over child support and custody. Rather than a preoccupation on “winning” as much time with the child as possible at the detriment of the other parent, the best interests of the child and overall fairness come first.

How does collaborative divorce work?

Once you have decided that a collaborative divorce is right for you, here are some things you can expect from the process. The collaborative divorce process starts with an informal agreement between the couple involved that they are willing to collaborate with one another.

Each partner will then need to hire a divorce attorney who has been trained in the collaborative process. An attorney with a collaborative divorce background will have experience working with alternatives to litigation. You  also will meet with this attorney privately to discuss what you desire out of the divorce – alimony, division of assets, custody, child support, and more. Even though this divorce method involves negotiating with your ex-spouse, your attorney is there to advocate for your needs and interests first.

Depending on the facts and circumstances of your matter, other collaboratively trained professionals may be added to the team to assist you and your spouse through the process. In addition to your attorney, this team can include experts such as financial advisors, child specialists, and/or a divorce coach. The parties and the professionals involved must sign a contract that sets forth the terms of their participation in the collaborative law process.  At the conclusion of the collaborative law process with the negotiations having resolved all of the divorce issues, you and your spouse will sign a legally binding settlement agreement drafted by both attorneys, which will later be filed in your uncontested divorce proceeding.

Divorce can be highly overwhelming and complex. A phone call to an experienced family law attorney is critical to making sure your voice is heard and your needs are prioritized throughout the divorce process. Dana McKee, chair of BGL’s family law practice, is formally trained in Collaborative Law and regularly attends continuing legal education courses on financial and mental health issues that pertain to divorce, custody, and litigation strategies.  Her broad experience allows her to be sensitive to the family dynamics without compromising her abilities to obtain results for her clients. Dana is dedicated to providing the highest-caliber legal services that bring each of her client’s voice centerstage.

If you have a divorce case that needs a family law attorney well-versed in Collaborative Law and with proven experience dealing with difficult and complex cases, call Dana McKee at (410) 962-1030 for a consultation.


Authored by

Dana McKee Partner