Many people who are thinking about collaborative divorce wonder how the process works. “If a lawyer isn’t going to fight in court for me,” some might even think, “will that lawyer really be able to stick up for me?” You can rest assured that even though the collaborative process takes going to court off the table, your lawyer will be as invested in what you want to get from your divorce decree.
When you’re getting a collaborative divorce, you’ll work with a specially trained lawyer to settle your divorce. The relationship between you and your lawyer will be fundamentally the same as it is in any other divorce. Once you’ve done the initial consultation to help determine that collaborative divorce is right for you, and once you’ve made clear what’s important to you in the divorce, you’ll be responsible for getting your paperwork together for the paralegal. Your lawyer will begin advocating for you based on what we hope is your full, honest disclosure about your situation.
The main difference in a collaborative divorce is how your lawyer and your spouse’s lawyer work together in what is known as “interest-based negotiation”. In a litigated divorce, the relationship is adversarial. Though a litigated divorce might be negotiated before it goes to court, the lawyers involved are aware they could end up in a courtroom facing each other, trying to win the case. And, therefore, they can only negotiate so much – they’re reined in somewhat by their need to prepare for a court battle.
In a collaborative divorce which is private and confidential, the lawyers pledge to work together at the outset to help the couple arrive at a settlement. In fact, if the couple decides they can’t negotiate any further and want to go to court, the collaborative lawyers must step down from the case, and the couple has to pick new lawyers to handle litigation. This commitment to the collaborative process keeps everyone invested – and it allows the lawyers to be more creative and (obviously) collaborative in getting to a settlement. This is a settlement process that creates an emotionally safe environment for the parties to express their interests and goals and come to a respectful resolution.
There’s a common analogy used in describing collaborative divorce, involving an orange. If you’re dividing the orange, you’d assume that the fairest way to do so would be to cut it in half. But let’s say one person wants the orange to make juice, and the other person wants the peel to make orange zest. That’s not the most obvious way to divide the orange, but if it satisfies both people the most, then it’s the best solution for them.
Often times, in litigation, a judge will divide assets and allot parenting time through the legal equivalent of cutting the orange in half. One side could perceive itself to win at the end of a court case, but it’s likely that neither side could be satisfied with the final outcome.
In collaborative divorce, by contrast, the settlement is negotiated in meetings between the parties and their lawyers. The lawyers will advocate for their clients in the negotiations, cognizant of what each party really wants from the divorce. If it’s possible for you to give up Y to get X, and X is really important to you, collaborative divorce allows you to negotiate that, and lawyers trained in collaborative divorce will know how to look for and seize upon those opportunities. (Whereas, in a litigated divorce, you might try to get both X and Y and end up getting Z instead, just because a judge thinks that’s the best solution, regardless of how compelling a case your lawyer makes on your behalf.)
If you’re interested in collaborative divorce, and think your situation is right for it, you’ll be able to confirm that in your initial consultation. Even high-conflict couples – with the right mindset and the right people helping the lawyers with the process – can successfully negotiate a collaborative divorce.