FAQ’s

What is collaborative law?

Collaborative law is an alternate approach to the divorce process that protects you, your family and your future by focusing on your long-term, big-picture goals rather than immediate gratification or fear reduction. In the collaborative process your needs and concerns are first fully understood and your collaborative attorney assists in ensuring that they are given full attention and consideration. But rather than present them to a judge, they are put on the table in a collaborative session attended by you and your collaborative attorney, your spouse and his/her collaborative attorney and your coach, a mental health professional. Collectively, these individuals are known as the collaborative team. Likewise, it is important to understand your spouse’s needs and concerns, which will also be given fair and full attention in the process. Often there are creative compromises that you haven’t considered but, because your team has assisted hundreds of couples in divorcing well, they can offer new ideas, which feel satisfactory to both you and your spouse.

Other hallmarks of this process include a full commitment by all to developing an agreement acceptable to both spouses. Thus, we commit to full disclosure of all relevant information. Further, the collaborative lawyers are retained solely to assist in crafting settlement terms, not to represent you in court. That’s experienced by most people as a relief—no need to worry about your spouse’s lawyer ever cross-examining you in court! Rather, we all roll up our sleeves, commit to not going to court, and focus entirely on a settlement that meets your needs and the needs of your family as you construct a positive, peaceful, cooperative post-divorce life.

What is the collaborative team?

The collaborative team is a group of professionals who have completed collaborative divorce training and who are committed to reaching agreement with fairness and dignity. The team includes: attorneys for each of the spouses, a mental health professional who is a neutral and serves as the coach and chairperson of the team meetings, and, if necessary, a child specialist, who is also a neutral and a mental health professional, and a financial specialist, both of whom are trained in the collaborative process.

Every team is comprised of two attorneys and at least one coach, who are supporting you in every team meeting. The attorneys are there to advise and guide you and your spouse through the legal divorce and to assist in crafting an agreement that is enforceable under the law. The coach is always a member of the team and assists you and your spouse in processing the emotional divorce, which—in our experience—always accompanies the legal divorce. The coach is skilled at effective recognition and processing of the strong emotions present for most people in the middle of the breakup of their marriage. Use of a coach helps prevent emotions from hijacking the team meetings and allows for a more efficient, less stressful process.

If you have young children, you may also want to consider adding a child specialist, who is a neutral and a mental health professional. The child specialist meets first with the parents and then meets with the children to gain insight into their needs as they adjust to their parents’ divorce. The child specialist then meets again with the parents and the team to talk about options for addressing the children’s needs through the parenting time schedule and communication protocols. The child specialist can help craft an arrangement that will fit each spouse’s schedule as well as the children’s based on a more complete understanding of the children’s needs.

Can my therapist act as my coach? Or, can my child’s therapist act as the child specialist?

No. Because the coach and child therapist must remain neutral in the process, neither you nor your spouse may use your individual therapists as the coach in your collaborative divorce. Even if the therapist ensures that s/he will remain neutral, the preexisting relationship between spouse and therapist may taint the entire process if the other spouse suspects the coach of “favoring” the other person either as product of that prior relationship or not. Additionally, some clients at the conclusion of their collaborative process have inquired about continuing on with their coach as their individual therapist. This is also not permitted for the same reasons. Any agreement reached and acted upon in the future may be forever polluted by the suspicion that your neutral coach was not so “neutral” during the process. Such a relationship would also prohibit the two of you from using the same coach again for collaborative sessions if a future need arises.

The same goes, to a lesser degree perhaps, for the child therapist who, based upon a prior relationship with one or both spouses, may be seen as favoring one spouse over the other—whether true or not—to such an extent that the legitimacy of the process might be impacted. This is regardless of whether s/he has completed the collaborative divorce training, which all team members must do. A child specialist, however, if given permission by you and your spouse, may speak with your child’s therapist if everyone agrees such input would be beneficial to a resolution.

Will my children be involved in the process, and if so, to what extent?

In most situations, children are not directly involved in the collaborative process. They do not attend the team meetings with the spouses, attorneys, and the coach. In some collaborative cases, however, if you and your spouse elect to engage a child specialist, s/he will typically meet with the parents and, thereafter, with the children. For more information about this aspect, please read the FAQ about child specialist.

How do I choose a collaborative professional?

By consulting our website, you’ve already taken an important first step! As collaborative law has grown in popularity and preference, professional associations have sprung up to help those like you who are interested in learning more about collaborative law find the professionals best suited to their liking. Our local association is Sunset Coast Collaborative Divorce (SCCD). SCCD is a great resource for attorneys, mental health professionals, and financial advisors in your local area who have been specially trained in the collaborative process. Our best advice is to review our bios and contact those individuals who sound like a good fit for you to schedule a meeting.

Will my collaborative professional fight for me?

Although this might seem to be a good idea, it doesn’t work well. When a mental health professional establishes a relationship with a client, this relationship becomes aligned with the patient-as it ought to be. That relationship may have begun before or during the marriage that is now dissolving and may continue far beyond the date of divorce. And that’s good, that’s how therapy works.

However, during the divorce process, the collaboratively-trained divorce coach or child specialist fulfills a more neutral/non-aligned role: resolving conflict in a way that is least damaging to the participants. If a therapist tries to juggle multiple roles effectiveness is impaired-both for the therapist and for the collaborative team.

Will my children be involved in the process, and if so, to what extent?

Yes, but not in the way you might think. “Fighting” in litigation often inspires visions of attorneys brutally cross-examining witnesses, or pulling out surprise evidence at the last minute, or, worse, skirting the rules of ethics all in the name of benefiting their clients. It is these kinds of tactics that, unfortunately, have given lawyers a bad name. And, thankfully, it’s the opposite of what the collaborative process represents. The “fight” in collaborative law is ensuring our clients’ voices and needs are heard. The “fight” is informing our clients of every available alternative s/he may have to resolve a particular issue. And, the “fight” is in crafting an agreement that will fit the unique needs of the family as sufficiently as possible. We use our best efforts to create options that meet each person’s fundamental needs. While some compromise may be necessary, the final agreement is designed to work for each parent and for each child.

How long does a collaborative divorce take from beginning to end?

The length of the collaborative process varies from cases to case, depending upon the needs and complexities of each individual case. In litigated divorces, the court dictates your schedule and deadlines according to its needs. In collaborative divorce, however, the collaborative team determines how frequently the meetings are held based on the participants’ needs and the team’s professional experience. Typically, collaborative meetings take place every 2-3 weeks so that important activities—such as collecting documents or meeting with financial and/or child experts—can occur in between. Moreover, there is no set limit on collaborative meetings; instead, the team meets regularly for as long as it takes to reach agreement on all the issues in your case. Once an agreement is reached, one of the collaborative attorneys will file papers to start the divorce in court, at which point the statutory waiting period will begin. There is a waiting period of either 60 days (if there are no minor children) or six months (if there are minor children). The court, however, can waive some of that time if presented with a full agreement and proof of the collaborative process.

What happens if a settlement cannot be reached?

It is rare that a settlement can’t be reached. Because conflicts are addressed openly and each collaborative professional is committed to working for the benefit of the entire family and the process, because clients and team members are encouraged to work together in the spirit of cooperation rather than battling to “win,” it is not often that a couple can’t resolve even the most difficult issues.

If, however, you and your spouse are unable to reach an agreement, then either of you (or both) can choose to leave the collaborative process and proceed with litigation. In fact, this option is available at any time during the collaborative process. However, as part of the collaborative agreement you and your team signs, all of the professionals utilized during collaborative—the lawyers, coaches, and others—are prohibited from further representing or advising you or your spouse during an adversarial litigation process. This agreement is done in every collaborative divorce case to preserve the integrity of the process from the outset. It is the power behind the collaborative process. We’ve learned that if people simply continue talking, rather than marching off to court, agreements are reached.

Is a collaborative divorce less expensive than a litigated divorce?

It depends. Because several factors may impact the cost of divorce—expert fees, attorney fees, court costs, child-related issues, (dis)agreements about property distribution, addictions and/or mental health issues, not to mention the emotional tolls—it is difficult to compare one divorce to another. The collaborative process, unlike traditional litigation, always involves the services of a collaborative divorce coach and two collaboratively-trained attorneys, and may include other professionals as well. The participation of so many experts on the front end of divorce cases may appear daunting to those going through a divorce the first time.

Nonetheless, a collaborative divorce is generally less expensive than a litigated divorce that goes to trial. In litigation, retaining experts is often a necessary expense, but one tacked on at the end after the parties have already spent thousands of dollars in fees and expenses and are emotionally drained after months of arguing. Even compared to a litigated divorce that settles before trial, the collaborative divorce in which spouses are cooperating—openly exchanging financial information, voluntarily sharing legal documents with the team, and honestly discussing their needs and interests in meetings—is usually still more efficient and less expensive than traditional litigation. However, this is not a certainty.

The gentler, more transparent, collaborative approach is an investment in the family that can pay high dividends in the long run, even in those cases where the short term cost appears to be greater than the cost of some litigated divorces. The emotional toll of divorce cannot be overstated, and oftentimes the failure to address the emotional aspects of a divorce can “hijack” what might otherwise appear at the beginning of a divorce to be a fairly simple process. This is why the neutral coach is so valuable to the collaborative process. The collaborative model also preserves the integrity of the family as it enters its new phase after the divorce. Collaborative leaves you and your spouse more empowered to overcome future challenges and disagreements on your own rather than having to revert back to messy, costly post-divorce litigation. So long as you and your spouse remain joined—most often as co-parents, but occasionally through shared property settlements—there always exists the possibility of future arguments and, therefore, future litigation. This is often where the investment in collaborative pays off.

How does collaborative divorce differ from mediation?

While collaborative divorce shares many of the same “themes” as mediation—an agreement reached by the parties with the assistance of a neutral professional—there are several key differences. In mediation, a neutral mediator will sit down with you and your spouse to help you reach solutions, however, in many cases there are only three participants (the parties and the mediator) and the mediator can’t give legal advice. Also, most mediators are not trained in legal, financial, and psychological matters.

In the collaborative process, while each professional is committed to resolution, you have your own lawyer beside you who is dedicated to giving you sound legal advice while simultaneously seeking agreement. In addition, the team meetings will be facilitated by mental health professionals who can coach you and your spouse in communication skills and anger management; the child therapist can assist you in relating to your children during the crisis of divorce and in developing emotionally healthy parenting plans; and a financial advisor can help you craft agreements that can maximize wealth while preserving the parties’ interests. The combination of all these experts working together is a power punch of knowledge that exceeds what mediation can offer.

Finally, the goal of collaborative law is not merely to dissolve your marriage in a legal way, which is essentially what mediation can provide. That certainly is a benefit. However, the collaborative model has the potential of providing you, your spouse, and your children with a better future, based on the development of conflict resolution skills, the delivery of applied knowledge for the formation of comprehensive agreements, and the support of trained professionals, as you strive to incorporate those skills and that knowledge in one of the most difficult transitions in your life. While many experience divorce as loss, the collaborative approach offers the possibility for growth, which is a feat rarely achieved by mediation, let alone litigation.

Is the collaborative process right for me?

A better question might be “Is collaboration right for my family?” Even if your family is comprised of only you and your spouse, the collaborative process provides a more peaceful alternative to litigation. If your family includes children, choosing collaborative law is also the better option because it helps preserve the relationship between you and your spouse that will remain with your children after your divorce is concluded. Finally, adversarial litigation is frequently a drawn-out process that keeps wounds open for long periods of time. The collaborative process, on the other hand, moves along steadily with regular meetings agreed upon by the collaborative team rather than according to an arbitrary schedule set by the court.

If you would prefer to divorce with dignity, avoid a contentious courtroom battle and honor the love you once held for your each other, collaborative divorce offers a much better possibility of obtaining that result than does traditional divorce litigation. If you want to have a family that still feels like a family, with children knowing that both parents cared enough about them to engage in a divorce process that maintained civility and respect for all of the members, then again, collaborative divorce is probably right for you.

Can we collaborate if we aren't getting along?

Yes. If you were getting along you might not be divorcing! One of the benefits of the collaborative approach is the opportunity to develop new ways to deal with one another. Every member of the collaborative team shares the goals of this process and has been specially trained to assist the couple in reaching truly satisfying solutions for all members of the family rather than each attorney fighting for only one member. Old communication patterns are hard to break but there are some helpful ground rules that recalibrate those patterns and form the foundation for more respectful and effective communication both during the process and in the future. Collaborative process is not “therapy” yet it can be very therapeutic as it provides a safe, calm environment in which to deal with difficult issues

If you are the only one committed to improving your ability to get along and the other isn’t there yet, you can gain tools and skills for dealing more effectively with your spouse. The end result is often that s/he joins you in wanting less stressful interactions. One thing is for sure: the litigation process never improves these relationships.

If my spouse has already filed papers with the court, can we still choose collaborative law?

Possibly. However, the collaborative process is affected if your divorce is pending. The main reason it is preferable to do collaborative law before filing for divorce is that soon after a divorce is started, the court will issue a schedule with deadlines for submitting exhibits, naming witnesses, and preparing for trial, which can actually prevent the kind of dialogue and transparency that makes the collaborative process work so well. While attempting to collaborate while your legal case is pending isn’t ideal, there may be some limited circumstances in which it is possible. Though the court may delay the proceedings for as long as six months, judges are not currently required to do so. Therefore, the best-case scenario would be for your spouse to dismiss the divorce and start the collaborative process with a clean slate.

Is it okay for me to file for divorce in order to get things in motion before we begin the collaborative process?

No. Filing your divorce would impede the collaborative process in several ways. First, the court is required to schedule certain deadlines, including trial, within a set period of time, which add stress and additional demands to the collaborative process. Also, once the divorce is filed you and your spouse (and your attorneys) will know which judge is assigned to your case, which often creates the tendency to focus on how that particular judge might rule on certain issues rather than on what might be the best answer for the family. Finally, once your divorce has been filed with the court, the clock is running to reach a settlement or else prepare for trial. This may prevent you and your spouse from taking the time you might really need to reach the best agreement on all of the issues. Divorce is stressful enough already. Don’t make it worse by jumping the gun. Trust the process!

I want to use the collaborative process. How do I get my partner to agree?

If you are interested in the collaborative process, there are several ways to encourage your spouse to consider participating as well. One option is to schedule a consultation for both of you with a collaborative lawyer to explain the collaborative process and answer questions without delving into the specifics of your situation. Then, if both of you agree to move forward with the process, you can each decide individually which collaborative lawyer you will each use. Another option is to provide your spouse with education materials you might receive from a collaborative attorney you consult with or refer your spouse to websites (like this one) so that s/he can do his/her own research. Finally, if your spouse is open to it, you might consider sharing some of the reasons why you feel the collaborative process would be more beneficial for your family than traditional litigation.

Any of the members listed on this website are happy to give you a complimentary copy of the book, Collaborative Divorce, by Pauline Tesler and Peggy Thompson, which you can read and share with your partner. In addition, there is a wonderful video of an actual couple who allowed cameras into their collaborative sessions which can be found at www.collaborativepractice.com.

My spouse and I are planning to get a divorce without lawyers because we believe lawyers will turn it into a battle. Why would we want collaborative divorce?

Seeking to avoid costly court battles makes a lot of sense. In fact, that is one of the principal foundations of collaborative law: avoiding lengthy, expensive, and emotionally draining court fights. Hardly anyone chooses to throw thousands of dollars at a process they know is going to be very stressful and extremely taxing. What most people don’t realize is how complex marriages (even short-term ones) have become in modern times. A marriage is comprised of several different components—social, emotional, spiritual, contractual, financial, material, and (often) parental. Because most of these factors have legal ramifications, it is critical to have attorneys involved who can provide legal knowledge and counseling on the more complicated aspects of property division, child support, spousal support, and the separation of jointly-held assets that arise in the divorce process. You don’t want to create problems 2 or 5 or 10 years down the road if you make an error now.

“But attorneys always seem to make it worse,” you say. We know how you feel. That is why many of us have chosen to leave behind litigation, or at least strongly encourage alternative methods of dispute resolution, and practice collaborative law, because the process is driven by the interests of the parties in a healthy and transparent environment that openly discourages the kinds of bad behaviors for which some attorneys are known. Collaborative professionals are trained to help you resolve the thorniest of divorce issues and reach agreements that are emotionally satisfying and legally sound, which reduces the likelihood that you will need to engage the court in the future, because your DIY (“do-it-yourself”) divorce failed to consider every nuance facing you and your spouse in the present moment. Plus, in collaborative law, the goal is not to turn the divorce into a battle; rather, all professionals participating in the process share the common goal of assisting the divorcing couple in crafting an agreement that takes into account the needs of each of the spouses and the children while assisting the newly-configured family in finding (or maintaining) a spirit of cooperation and civility that can overcome future obstacles and changes in the family.

Divorces are difficult and multilayered. Collaboratively-trained professionals working together as a team can help you and your spouse isolate the legal from the emotional, the financial from the spiritual, the parental from the material, and avoid the kinds of problems that DIY divorces—like failure to consider specific assets and/or debts—or litigated divorces—like elevated emotions hijacking the process or arbitrary court schedules—often produce. Unlike the litigated divorce where there is often a “winner” and a “loser” at the conclusion of proceedings, the collaborative process seeks to reach agreements where everyone involved can feel like a winner.