As many of these postings have suggested, the Collaborative Law approach is not for everyone. Where there has been domestic violence and/or child or elder abuse, the traditional court system is the best route. Further, where one or both spouse’s do not intend to participate in good faith or to make full disclosures, the Collaborative approach will become quickly stymied.
Fortunately, experience indicates that these exceptions are rare and that the majority of separations and divorces could be achieved through collaboration.
As you contemplate whether Collaborative Law is right for you, here are some factors that should be weighed:
- Do you AND your spouse desire to protect your kids and family from the indignities and costs that can be a by-product of the traditional, adversarial courtroom focused approach?
- Do you AND your spouse place importance on the civility of your relationship after the change in marital status?
- Do you AND your spouse desire to be personally engaged in and responsible for the final agreement?
- Are you AND your spouse willing to accept responsibility for how the marriage failed without becoming defensive or using this candor as a weapon against the other?
- Do you AND your spouse trust that each will fully cooperate and provide complete and accurate information to the other?
- Are you AND your spouse prepared to move away from positions and focus, instead, on interests?
If you answered “yes” to all or most of these questions then you may be a candidate for Collaborative Law. But how, you might ask, does Collaborative Law work?
Every couple represents a unique approach under the collaborative framework. As a result, there really is no one experience that you can expect. That’s one of the benefits of this approach; there are no cookie-cutters. That said, there is a consistent general framework that starts with the orientation.
The orientation is, as its name implies, the first meeting between the couple and at least one collaborative attorney. The purpose of this discussion is to explain the process, set expectations, answer questions and make a determination of whether Collaborative is right for you.
Assuming that it is, the next step is for each spouse to hire an attorney who is willing and able to handle the case in a collaborative approach.
Once each party has a collaborative attorney, there is generally a meeting between spouse and attorney to talk about specific needs, interests and concerns.
Thereafter, the spouses and their respective attorneys meet in four-way conferences in an effort to a) identify independent and mutually shared interests and concerns, b) problem-solve and ideate and c) achieve a just and mutually acceptable resolution. These four-way meetings are just as the name suggests; all four parties are in the same room, at the same time, openly discussing and working through each issue. Recall that a tenet of the collaborative approach is that the best way for me, as attorney to a spouse, to get what they need is for me to understand what it is that the other spouse needs. Thus, there is a great deal of dialogue between all four parties such that, at some times, an outside observer might not be able to tell who is representing whom.
In the Collaborative approach, all relevant and timely topics must be discussed. While the traditional matters of parenting, custody, support and property division are preeminent, there can be a wide range of other topics that are explored. For example, the custody and care of a family pet or the plan for how wedding costs will be shared in the event there are children.
In addition to the assistance of legal counsel, the collaborative approach also allows for the participation of other professionals who may play an instrumental role in achieving resolution. These additional professionals can include CPA’s, Psychiatrists, Therapists and/or Financial Planners.
In North Carolina, no divorce is final unless or until a judge has issued a divorce decree. Thus, once an agreement is reached and the one-year living separate and apart requirement is met, one of the spouses will need to file a court action for nothing more than to order the divorce. Either spouse can generally file.
The attorneys will make sure that the proper documents are timely filed and that each party has sufficient notice. Once the divorce decree is signed by a judge, the agreement stands either as an independent contract as between the spouses or, in the alternative, as a component of the actual divorce order.
When a settlement is reached, attorneys file the appropriate paperwork required by the court.