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Collaborative divorce: An Alternative To Litigation

Collaborative divorce (colloquially referred to as collaborative law) has steadily increased in popularity across North America since its inception in the early 1990s by Minnesota family lawyer Stuart Webb. In Ontario alone, there are now over 20 practice groups with 620 professionals who practice collaborative divorce and separation.

What is collaborative divorce?

Collaborative divorce is an alternative option for couples seeking to separate. Instead of going through the often unknown and costly court process, collaborative divorce enables couples to come together and work with trained lawyers and professionals who assist with the intricacies of the separation.

Collaborative divorce aims to achieve a settlement that best meets the specific needs of both parties and the children involved. The goal is to negotiate and come to an amicable separation and avoid litigation of any sort. The premise of collaborative divorce is based on honesty, respect and co-operation between all parties involved, including the parties’ lawyers and third-party professionals. Without these integral aspects, collaborative divorce cannot work.

Collaborative divorce process

The process of collaborative divorce is a simplistic, straightforward approach that aims to make the separation more meaningful and less contentious and hostile. The process can be broken into five stages, as follows.

Stage one: Collaborative divorce team

This stage is all about finding a collaborative lawyer who will assist with assembling a team that fits the couple’s specified needs. This includes a lawyer for each party, as well as a family professional, a financial professional and a child specialist if needed.

Financial specialists are particularly helpful because they can help the parties understand the specific financial implications of their separation. They are also able to assist with matters including the division of pensions, investments and other assets.

Child specialists are also particularly helpful when there are younger children involved in the matter. They can help the parties ascertain what the best interests of the children are both present and future and devise a parenting plan accordingly.

Stage two: Information gathering

This stage is all about information gathering. With the assistance of the professional team assembled, the parties exchange all necessary information to make well-informed decisions about settlement options.

Stage three: Working towards mutual goals

Once all information has been gathered, organized and shared, this next stage focuses on identifying the parties’ interests and exploring options. The teams will discuss each spouse’s goals, concerns, values and priorities in order to maximize the likelihood of identifying a mutually agreed upon outcome. This stage is where the collaboration really begins to take effect. In place of a more traditional litigious divorce proceeding, the parties and their teams work towards mutual goals.

Stage four: Reaching an agreement

This is where decisions begin to form and take shape. Once the parties and their teams have identified their goals and concerns, the various options are discussed during settlement meetings. The culmination of these meetings will result in an agreement reached between the parties and their teams.

Stage five: Legally binding contract

This is the final stage where the agreement reached is turned into a legally binding contract signed by both parties. The lawyers from each team work together and collaboratively draft the agreement. Once both parties’ lawyers have approved, the agreement can be signed. Some parties will even have a “closing moment” of some kind, in order to signify the completion of the process.

Not for everyone

Understandably, collaborative divorce is not for every couple. Sometimes the nature of the situation or the behaviour of one or both parties deem it impossible to work in a collaborative manner. For example, the breakdown of the marriage may have occurred as a result of adultery or abuse, or the couple are extremely bitter and hostile towards each other, whereby collaborative divorce may not be an option.

If that’s the case, the parties will most often have to proceed with the traditional court process in order to deal with their disputes and separation. Even if a couple is seeking to separate on amicable grounds and therefore do not believe there is a need for collaborative divorce, collaborative divorce is essential in that it removes the unknown from the process.

Taking the traditional court-bound route leaves the possibility and option open for litigation, which is often lengthy, messy and expensive. Collaborative divorce removes all those concerns and ensures an outcome without any surprises or unexpected expenses. This can often be the difference in thousands of dollars spent on separation.

Different from mediation 

While collaborative divorce sounds very similar to mediation, there’s a key difference between the two. In mediation, couples receive guidance and have their issues dealt with by one person — the mediator. In collaborative divorce, each party has a team of professionals working with the client and the other team in order to come to a mutually beneficial agreement for both parties.

While mediation remains a viable alternative option for separation, collaborative divorce provides somewhat of an elevated sense of mediation. In place of one mind at work during mediation, collaborative divorce allows for the flow of information between the team of professionals negotiating and working together to come to an agreement that best suits the needs and interests of the parties.

Ultimately, spouses looking to separate need to assess themselves and one another in order to determine if collaborative divorce is right for them.