Collaborative Divorce: Frequently Asked Questions
What is collaborative family law?
Is the collaborative process right for me?
Consider the collaborative process if some or all of these statements are true for you:
- You want a civilized, respectful resolution of the issues.
- You want education, guidance, and legal advice without the risk of escalated court battles.
- You recognize the importance of working through emotions in order to make comprehensive legal, financial, and child-related agreements.
- You and your partner have children together and you want the best family relationship possible now and in the future, and want to avoid the harm associated with court battles.
- You and your partner have a circle of friends and extended family in common. You place a high value on taking personal responsibility for handling conflicts with integrity.
- You value privacy and do not want your personal or financial information available in the public court record.
- You recognize that you and your partner can make better decisions about your family and finances than anyone else.
- You understand that collaborative resolution involves achieving your reasonable goals and achieving the reasonable goals of your partner, rather than achieving a financial or child placement victory no matter the human or financial cost.
- You value final resolution that avoids the pain and expense of having to return to court multiple times.
- Your goals include a vision for your family that extends long beyond the immediate matter at hand, into retirement for you and your partner and adulthood for the children.
What is a collaborative divorce team?
Depending on the needs of the family, the collaborative team generally consists of professionals from three separate disciplines: legal, mental health and financial. The professionals work together by providing their respective expertise to help families through their family law matter.
Professionals on the team all subscribe to the three core principles and are formally trained in the collaborative process. None of the team members can be involved in any contested court hearing, and all hired professionals will withdraw from the case if it does result in a contested court hearing.
The collaborative team includes the partner and their attorneys, and generally includes collaborative coaches, child specialists, and financial specialists.
Can my therapist act as my coach, or my child’s therapist act as the child specialist?
Although your therapist will certainly be helpful to you as you go sort through your legal case, your collaborative coach plays a different role in the process. In addition to being able to communicate directly with other team members about critical issues, your coach’s goals differ from those of your therapist.
Your coach is there to assist you throughout your legal matter, not to treat mental health issues. The same may be said for your child’s therapist, who assists in treating your child’s emotional issues. The child specialist educates parties on the needs and desires of the child so that those needs and desires are taken into consideration when creating your long-term parenting plan.
Will my children be involved in the process, and if so, to what extent?
If a child specialist is needed, the specialist will interview the child individually or as a sibling group at least once, and in some cases more often. The children’s involvement in your legal matter is limited to those contacts.
How do I know that my partner won’t hide money?
No process can guarantee absolute honesty or prevent a person from hiding assets or lying under oath. In the collaborative process, each party commits in writing to a full and voluntary disclosure of all assets and income. Entering in to voluntary disclosure avoids expensive formal processes such as subpoenas and depositions. Ultimately, each party is required to sign a financial disclosure statement under penalty of perjury, stating that each has made full disclosure. If you believe your partner will tell the truth under oath, the collaborative process may be a good choice for you.
Will my collaborative lawyer "fight" for me?
Your lawyer is your advocate in the collaborative process. However, that advocacy is different from the lawyer’s role in a litigated case. In a collaborative situation, your lawyer strives to negotiate and achieve your goals in a respectful and cooperative manner.
In both private and four-way meetings (meetings among you, the other party and both of your attorneys), your lawyer focuses on educating, advising and assisting you to understand the legal issues and options for settlement. Your lawyer is committed to protecting your reasonable settlement goals while preserving your interest in reaching an outcome that is best for you and your family.
Most cases settle anyways, so is the collaborative process necessary?
It’s true that about 98% of all family law cases settle (reach agreement without the court’s intervention) before a trial. However, if you choose the most traditional way to handle a family law matter, which is litigation, you are entering into an adversarial process. That means your lawyer and your partner’s lawyer advocate your positions based on your and your partner’s personal wants, needs and viewpoints.
Rather than communicating directly with one another, you and your partner communicate primarily through your lawyers through proposals, counterproposals, and ultimatums. Even though your lawyers may be civil and cooperative, the ability to reach a resolution for your family is often limited by formulas, statutes, rules of thumb, war stories, and the threat of litigation. Too often such settlements are reached at the last minute, literally or figuratively on the courthouse steps. It’s stressful and usually expensive.
Settlement negotiations in collaborative divorce seek to identify and find outcomes that meet the needs and objectives of both parents and their children. You and your lawyer, and your partner and his or her lawyer, commit to actively listening to each other and understanding each party’s interests, needs and goals. The process itself supports the parties in working together and communicating directly to find common ground and solutions. You and your partner retain control in a process focused on education, creative problem solving and long-term solutions.
Both these models – traditionally litigated cases and the collaborative process – generally lead to a settlement. It is up to you to choose the path to that settlement.
What happens if a settlement cannot be reached?
Then you and your partner can explore other options for settlement such as mediation, which may allow you to stay within the collaborative process. If either of you decide to “fight it out in court,” the collaborative lawyers, and any other team members involved, must withdraw and each party retains a new lawyer for the court hearings. The collaborative lawyer transfers the information gathered and assists the trial lawyer in the transition.
Why should I lose my lawyer if the other side decides to go to court?
Each lawyer in the collaborative situation has signed a written agreement, as you and your partner have, to avoid participation in litigation. Because of this agreement and their commitment to the collaborative process, the lawyers have incentive to stay focused on assisting their clients to reach a fully informed and mutually acceptable settlement. This way, all participants are equally invested in finding the solutions to the issues at hand. Lawyers advise, advocate and assist in negotiations differently when the threat of litigation no longer exists; openness, trust and cooperation replace secrecy, manipulation and threats of litigation.
I want to use the collaborative process, but how do I get my partner to do it?
Discuss what you have learned about the collaborative process with your spouse or partner. Encourage him or her to review this website and learn about the collaborative professionals in your area. In addition, you could meet with a collaborative professional who may be willing to provide additional information for you to share.
What if my spouse chooses a lawyer who is’t a member of the Collaborative Family Law Council?
For the collaborative process to work, it’s essential that each party’s lawyer understands and is committed to the principles of collaboration and has signed a collaborative agreement.
The collaborative approach demands special skills from the lawyers – skills in guiding negotiations and in managing conflict. Members of the Collaborative Family Law Council, Inc. of Wisconsin have formal training in collaborative law and support public education, improved standards of practice, and training for professionals through their membership. A lawyer who doesn’t practice collaborative law often can work cooperatively with a lawyer who does, but then your case is not considered collaborative and the threat of litigation remains.
Is collaborative divorce less expensive than a traditionally litigated one?
It can be. The collaborative process is designed to be more efficient with four-way meetings among the parties and their lawyers, focused on facilitating a settlement. Collaborative divorce eliminates the multiple court appearances and conflicts that are often part of a traditional divorce, thereby reducing the emotional and financial costs. Collaborative divorce eliminates the need for multiple experts to prepare documents and exhibits for use in court, or to conduct depositions and issue subpoenas. The cost of a collaborative family law case is directly related to the pace at which you and your spouse are able to reach an agreement on all issues. Your collaborative family law professional is the best source of information about fees.
How long does a collaborative divorce take?
Wisconsin law requires a 120-day waiting period before a divorce can be finalized. Beyond that, the amount of time to let the process work – to gather and understand information and brainstorm options that will meet the needs of the family – varies from case to case.
We are planning to get a divorce without lawyers. Why would we want a collaborative divorce?
It’s commendable you to reach a resolution without a court battle. Collaborative attorneys can help you by educating and advising you in reaching fully informed agreements; they avoid creating disagreements where there are none.
Even couples who want a peaceful divorce often find themselves struggling – not necessarily fighting – about issues like the long-term effects of decisions about children, allocation of income, and division of assets. Collaborative professionals can guide you through those discussions and help you more efficiently reach resolution. Using the services of a collaborative lawyer also may reduce the likelihood of returning to court because your initial do-it-yourself agreement was incomplete, or created unintended consequences.
My spouse has already filed. Can we still choose collaborative divorce?
Yes. Even though an action already may have been filed, you and your spouse may begin the collaborative process by signing the Stipulation and Order for Collaborative Family Law. Contact a collaborative professional in order to fully discuss your options.