Using collaborative law as a way of ending a marriage is becoming increasingly popular. This process is part of the Alternative Dispute Resolution (ADR) concept of resolving issues—using compromise, not war. But sometimes, even though you may have entered into this process with the best intentions, collaborative law efforts fail. When that occurs, going to court may be the only option left.
What Is Collaborative Law?
Collaborative law is similar to mediation, in that the goal is to amicably resolve your divorce-related issues through negotiation, rather than court hearings or a divorce trial. But unlike mediation, there is no impartial third party (the mediator) guiding the process. Instead, each spouse is represented by a collaborative divorce attorney—one who's been trained in collaborative law. The spouses and their respective lawyers attend 4-way meetings, as often as necessary, to discuss and resolve their disputes.
The goal of collaborative divorce is to resolve your marital issues without court intervention and then incorporate the terms of your agreements into a divorce settlement agreement (sometimes called a property or marital settlement agreement). Once completed, either spouse can file a divorce petition (complaint) with the court, so as to actually obtain a final divorce judgment.
Filing a divorce petition may seem contradictory to the whole purpose of going the collaborative law route, but under these circumstances it isn't, because only a judge can actually grant you a divorce.
With a final divorce agreement in place, your divorce case will be considered "uncontested," since it's settled before the divorce petition is even filed. Your agreement becomes part of your divorce judgment, and you'll be able to get your divorce quickly, bypassing the usual steps in a contested action. Sometimes, under these conditions, it's possible to be divorced within a few weeks of filing the petition.
How Does the Collaborative Process Fail?
Couples who embark on the collaborative law process begin by signing a Collaborative Law Participation Agreement, in which they state their intention to peaceably resolve the disputed issues in their marriage. This is a serious commitment to the success of the undertaking. It's important to consider in advance whether the collaborative process is the right choice for your divorce.
Unfortunately, some spouses don't take this pledge to heart. They may agree to the process just so their spouse will stop pestering them about it. Or they may have the attitude that if it works, great, but if it doesn't I can always go to court. That kind of half-hearted effort may reduce the chances of a positive outcome.
Likewise, certain personality types are usually a bad match for this process. Abusers, narcissists, and high-conflict individuals—those people who always seem to be itching for a fight—are, by their very nature, poor candidates for alternative dispute programs. These types are often unwilling to compromise, thus undermining the essence of what collaborative law is all about. And abused spouses are often fearful and unlikely to speak their mind during the sessions, negating the "level playing field" that a productive and fair negotiation requires.
Finally, it's essential to find a divorce lawyer that's trained in collaborative law and experienced in resolving collaborative cases. If your attorney is inexperienced or contentious, your collaborative law process may break down.
What Happens When the Collaborative Process Fails?
Either or both spouses can terminate a collaborative divorce at any time. Of course, this should occur only after every effort has been made to salvage the undertaking, including possibly bringing in a mediator to try to guide it home if the couple is very close on a sticking point.
If the collaborative law process fails, it's up to the spouses to determine how to proceed. Realistically, the only logical next step is to file a divorce petition. For the vast majority of divorcing spouses, watching a divorce case fall out of the collaborative process and into litigation can be an incredibly harsh blow, both emotionally and financially. Consider that you've been paying your attorney for the entire time the collaborative law proceeding has been in progress. Now, however, you're back to square one.
Collaborative law rules and participation agreements prohibit the collaborative attorney from continuing to represent a client if the case ends up in litigation. The collaborative attorney will have to resign, and the spouse will have to find a new lawyer, and pay the new attorney to learn everything from scratch.
The moral here is that if you choose collaborative law as the method for ending your marriage, go into it with an unbridled commitment to succeed. If you don't have that mindset, or you believe your spouse doesn't, save yourself precious time and money, and find a different route.