Often known as “the respectful divorce”, collaborative divorce provides a forum for separating couples to work together and reach a mutually acceptable agreement, which benefits both of them and disadvantages neither of them. Most importantly – the couple agree from the outset that there will be no Court intervention.
Although each party has their own collaboratively-trained lawyer, it is the separating couple who jointly:
- set the agenda
- set the pace
- determine the parameters
- drive the process
- make the decisions
The Collaborative Contract
At the start of the process, the separating couple sign a contract which includes (but is not limited to) provisions that they will both:
- be open, honest and respectful throughout the process
- be forthcoming and comprehensive with their financial disclosure
- focus on the wellbeing and best interests of their children
- promote a positive relationship between the children and both parents
- focus on the future wellbeing of the family
- work to reduce the negative consequences of the divorce/separation on the both of them (particularly financial and emotional)
- be considerate of each other’s concerns and goals (immediate and long-term)
- · work together to reach an agreement that works for the family
Most significantly, the contract contains a provision that the parties will not to threaten to or actually institute Court proceedings. This is arguably the most powerful aspect of the collaborative contract, as it affords the separating couple with great comfort in knowing that the collaborative process is not merely a pit-stop or “last-ditch effort” before the final destination: Court. It also serves as a declaration of goodwill, respect, and dedication to resolution between the parties and their lawyers.
Face to Face Meetings
Discussions and negotiations are conducted via a series of face-to-face meetings, with the separating couple and their lawyers present, as well as any relevant neutral advisor/s.
The lawyers do not exchange long letters, and any written communication is respectful and constructive.
The number of meetings will vary from case-to-case, but again, the separating couple are in control.
If there are valuation issues, accounting issues, businesses, complex structures, or budgeting issues, a third party neutral expert (e.g. a collaboratively trained accountant or a valuer) can be appointed. This “financial neutral” works mutually and for the benefit of both parties, attending meetings if/when necessary.
A collaboratively trained financial advisor can also be jointly appointed to assist in:
- gathering information about the family’s finances
- addressing immediate financial concerns of the family
- preparing household budgets
- working with the parties to identify their financial goals/interests
- ensuring the parties’ financial concerns are heard, understood and considered
- modelling/mapping the immediate and long-term outcome/effect of various settlement pathways
- making recommendations as to the allocation of financial resources
- long-term financial planning
If there are co-parenting issues or complex children’s issues, a child expert (e.g. psychologist, social worker) may be jointly appointed to assist the family to:
- understand how the parents/children are feeling
- understand the children’s developmental and emotional needs
- help identify and discuss the parents’ hopes, goals and concerns for the children
- work through communication issues and devise strategies to assist them
- work through day-to-day parenting issues as well as long-term parenting decisions/issues
- agree upon a parenting arrangement that will work for the family
Giving control back to separating couples
A collaborative divorce is more than dividing assets and drawing up a calendar for the children’s arrangements. It provides a family with the opportunity to mindfully and constructively examine where the family is now, where they are going, and how they might get there, in a way that benefits them all.
The emotional and financial cost of Court proceedings need no reiteration. Similarly, the abysmal state of our uncertain Court system and our over-worked Judges.
In an age where we value a mindful, holistic approach to our health care, our working life and general existence, it makes sense that we approach divorce in a holistic, mindful and constructive way.