In 1990, attorney Stuart Webb inadvertently pioneered a new process for divorce aimed to minimize conflict and to resolve matters collaboratively and expeditously. Webb practiced family law and introduced a novel idea: he agreed to represent clients only if both spouses committed to staying out of court. If either spouse filed a motion or initiated litigation, Webb would withdraw from the case. His goal was clear: to encourage spouses to work collaboratively together to resolve their differences without relying on court intervention.
This approach gave rise to what is now known as Collaborative Law. In Washington State, the legislature has enacted the Uniform Collaborative Law Act, RCW RCW 7.77 et seq. Collaborative Law operates outside the traditional court system (except for agreed-upon mandatory filings such as the petition for divorce and final divorce orders). During the process, no one may threaten litigation or initiate court proceedings. From the outset, both spouses agree to negotiate in good faith, fully disclose all assets and income, and use cooperative problem-solving to reach an amicable and satisfactory resolution.
If you are thinking about Collaborative Divorce, here are some additional considerations to keep in mind:
- Joint Experts Help Facilitate Negotiations. Both spouses in the process are represented by a collaboratively trained attorney who has also completed 40 hours of mediation training. They typically will also work with two neutral experts:
- A Financial Expert: This professional assists both spouses in gathering financial data—budgets, bank accounts, credit card statements—and helps model various settlement scenarios outlining how the spouses may resolve issues as to property division, spousal support, or other financial issues.
- A Divorce Coach. The Divorce Coach is generally a licensed mental health professional. Their role includes not only helping the spouses navigate the emotions that underpin a challenging divorce but also working with the spouses to come up with a custody agreement and providing co-parenting guidance if there are kids involved.
- Combined Meetings with the Collaborative Team. Typically, there are typically people involved in a Collaborative Divorce—the spouses, their attorneys, and the two neutral experts, referred to as the “Collaborative Team.” The Collaborative Team attends joint sessions to discuss the divorce and work through settlement scenarios to resolve the case. These sessions may be weeks or months apart from one another depending upon time needed in between the meetings. During the periods between meetings, the spouses will work with the financial expert and the divorce coach to discuss parenting issues and a residential schedule and develop a financial overview of their assets, liabilities and income. This sets the foundation for addressing financial scenarios for settlement. The spouses are empowered to respectfully speak their minds about their goals and interests as they relate to what they would like to achieve in the way of a financial settlement. in the divorce. Giving each spouse the opportunity to explain their rationale and thought process means that the other spouse and the Collaborative professionals understand their values—this can go a long way in reaching an amicable outcome.
- What Happens if the Spouse’s Cannot Reach an Agreement? The collaborative process can end for various reasons. For example, one or both spouses could simply terminate the process if they become dissatisfied with the process or do not feel as if the other spouse is adhering to the principles of the process in good faith. The process could also terminate if one or both spouses are not being transparent or fail to disclose material information or documentation. If the process terminates, then both spouses will need to retain new litigation counsel to litigate their divorce case using the traditional divorce approach. The lawyers representing each spouse through the collaborative process must withdraw; in other words, the collaborative attorney cannot continue to represent their client in the traditional divorce approach. The reasons for this is to ensure that what occurs during the collaborative process is kept confidential and protected.
- There are Tangible Benefits to a Collaborative Divorce. Although the clients pay for two attorneys and the neutral experts, the collaborative process can be less expensive than a traditional litigation path: no motions are filed with the Court; there is no trial or depositions; and discovery of financial information is streamlined. This process keeps the animosity between spouses at bay because communications are conducted with an entire team of professionals who facilitate discussions in joint sessions. On the whole, clients tend to feel good about the final agreement they reach with their spouse in a collaborative process, having gone through this undertaking such that everyone’s voice is heard and outcomes are reached based on cooperation and taking into consideration each client’s financial interests and needs.
