A Roadmap to Collaborative Divorce

Divorce is often scary and intimidating. You do not need to look far to find horror stories of contentious divorces taking years of fighting in court before it was eventually finalized. However, it does not always need to be this way.

A collaborative divorce is a voluntary out-of-court dispute resolution process that allows divorcing couples to resolve their legal disputes through cooperative negotiation rather than traditional courtroom litigation. The goal to a collaborative divorce is for the parties to resolve issues openly and respectfully while maintaining control over the decisions that will shape their future.

Committing to the Collaborative Process

The collaborative process is not the easiest. It requires divorcing couples to work together and show respect to one another while navigating the end of their marriage. Many find that it is far easier to have a non-biased judge be the decision maker to resolve areas where the parties themselves cannot agree. However, those that commit to the process often find it to be far less contentious, and far more rewarding.

Assembling a Team

Once the decision has been made, the next step in a collaborative divorce is putting together a team. In Utah, the divorcing spouses must each be represented by a collaborative attorney. Then, depending on the needs of the parties, additional ‘team members’ may be added to help navigate difficult decisions or provide expert opinions to improve the process. The most common additional team members include a therapist or mental health facilitator, and a CPA or another financial expert. Unlike the party’s attorneys, the optional team members are neutral, meaning that they do not represent one party over another.

Signing the Collaborative Participation Agreement

Once the parties have assembled their collaborative team, the parties, their attorneys, and additional team members then sign a Collaborative Participation Agreement. This agreement describes the matter or case the parties intend to resolve and establishes the divorcing parties’ commitment to participate voluntarily in the collaborative process. Collaborative Participation Agreements includes provisions setting expectations that the parties agree to work together respectfully, share information openly, and for the lawyers and participating neutral professionals to maintain confidentiality throughout the process.

The First Team Meeting

Now that the team has been chosen and the agreement signed, the parties and their professional team come together for the initial team meeting to build a framework for the divorce, identify anticipated areas of concern, and establish guidelines for how to the parties will navigate the various issues in the case. Some teams will also use this meeting to go over the participation agreement and have the parties and professional sign the document at the start of the meeting.

Information Gathering

A significant part of any divorce is understanding the parties' financial, social, and parental circumstances. After the initial team meeting, the divorcing parties will meet with their attorneys and any additional team members to go over their financial information, personal and marital assets, and in cases where children are involved, the children’s needs, parenting arrangements, schedules, decision-making authority, transportation, etc. Under Utah’s collaborative law framework, couples are encouraged to timely, fully, and candidly disclose relevant information related to the collaborative matter.

Exploring Options and Reaching Agreements

This step comprises of the majority of the collaborative process. Once the parties have all the relevant information, they schedule a series of smaller team meetings to discuss and resolve important and disputed issues. Each team meeting will have an agenda and will only discuss those issues identified thereon. Common agenda items include: division of real estate and other property; retirement accounts; debts and financial obligations; spousal support; child custody and parenting schedules; child support, a child’s unique educational, recreational, and medical needs; business interests; tax considerations; and insurance.

During these team meetings, collaborative attorneys provide legal advice, while neutral professionals contribute financial, parenting, or other specialized expertise. If an issue arises requiring specialized expertise beyond the capacity of current team members, additional neutral professionals may be brought onto the team as needed.

The ultimate number of team meetings and their frequency are largely dependent on the parties and the issues to be resolved. However, it is important to note that no matter the size of the collaborative team, or the complexity of the issue, the divorcing spouses are the ultimate decision makers throughout the process.

Preparing Final Agreement

Once the parties have resolved the issues in their divorce, the collaborative lawyers prepare the appropriate legal documents to finalize the parties’ agreement. Depending on the complexity of the divorce, the written divorce agreement may include a written settlement agreement, provisions addressing the division of property and financial obligations, parenting provisions, child-support provisions, and all other documents required for a legal divorce. Once drafted, each party reviews the proposed agreements with their own attorney. Then, once the parties are content that the final document accurately embodies their decisions related to their divorce, the parties sign the divorce agreement.

Submitting the Divorce for Court Approval

Although collaborative divorce is designed to resolve disputes outside of litigation, Utah law requires that the courts review and approve the parties’ final agreement before the marriage is legally terminated. A court hearing is not necessarily required, and the parties may apply for entry of a divorce decree without a hearing when the parties stipulate to entry of the decree or when other applicable requirements are satisfied.

Once the proper documentation is filed and approved by the courts, the court will enter the divorce decree, and the marriage is legally dissolved.

What Happens If Collaborative Divorce Doesn’t Work

Under the Utah Uniform Collaborative Act, either party may unilaterally terminate the collaborative process with or without cause. Generally, when this happens, the spouses need to retain a new litigation lawyer if they proceed with a contested divorce case. Additionally, many collaborative professionals include provisions in their participation agreements limiting their involvement to the collaborative case, and if the collaborative process ends prematurely the other team members will be unable to further assist in the proceeding litigation.

Is A Collaborative Divorce Right For You?

Some may see the risk of having to find a new attorney if things do not work out to outweigh any benefit of the collaborative divorce process. However, for those that are willing to fully engage in the process, collaborative divorce can reduce conflict and provide an opportunity to create a healthier transition to life after divorce.

If you have any questions about this article or any other related family law issue, please contact the Law Office of J. Peter Jones and schedule a free consultation.