Why Collaborative Divorce?

Riverside County | Coachella Valley Trained Collaborative Attorneys!

A contested divorce in family court is certain to be detrimental to you and to the children of divorce for many, many reasons and for many years. Even for couples who don't have children, whether as spouses or domestic partners, battling over property division and spousal or partner support is sure to generate strong negative emotions.

This fact was recognized in California with the enactment of Family Code section 2013 in 2007. Section 2013 describes the "collaborative law process" as one in which "the parties ... agree in writing to use their best efforts and to make a good faith attempt to resolve disputes ... without resorting to adversary judicial intervention." This statute recognizes that judicial intervention is inherently adversarial.

Merriam-Websters Collegiate Dictionary (11th Ed.) defines 'adversary' as "one that contends with, opposes, or resists: Enemy." Judges in divorce proceedings view litigants as engaged in a war between themselves, and their task is not to support parties in transitioning through this process, but instead to declare winners and losers.

Many People Move Directly into Adversarial Litigation

Because They Aren't Aware of Their Options

Adversary judicial intervention should be a choice of last resort because it is unsatisfactory in every way. In litigation you have no control over the process, whether in or out of court. Judges are too busy to understand your needs, and often they come to the bench with no prior experience with family law or dispute resolution. Parties in litigation often feel compelled to say vicious things about each other that become a part of the public record forever, accessible to employers and potential employers, co-workers, and even your children. Not only does the experience feel miserable for often two years or more, vast sums of money can be eaten up by the discord. The perpetuation of bitterness is well served and self-inflicted.

The collaborative process offers a thoroughly creative alternative. It allows you to manage your own affairs under the guidance of highly experienced collaborative professionals, whose common goal is to facilitate compromise and agreement. It is natural for people in relationship transition to be suspicious of the other. People at the outset often find it hard to imagine where the common ground lies. But most assuredly common ground always exists, because that is how a couple was formed and couples often share interconnections into the future. Teasing out these joint interests is a central characteristic of the collaborative process.

Might it work for you? Here are sample Collaborative Principles and Guidelines that set forth the attitude and commitment that collaborative law fosters.

How Does the Collaborative Process Work?

Because resolving cases collaboratively depends upon using trained non-lawyer experts who are often more important to the process than attorneys are, a characteristic of Collaborative Law is the creation of a Collaborative Team. Collaborative Teams are comprised of the parties, a lawyer for each spouse/partner, a divorce "coach" for each party (a licensed therapist or psychologist), and a neutral financial professional. Sometimes one lawyer acts for both parties as a collaborative mediator, together with the coaches and a neutral financial.

Divorce coaches interact with the clients directly to support healthy communication and dialogue, redirect emotional reactions, work through impasses that occur and help clients to achieve their highest values and hopes for a successful divorce or domestic partnership dissolution. Coaches are the same gender as their client.

The financial expert is a licensed CPA, CFP or CDFA with training in forensics, whose job includes cash flow analysis, financial needs of the family going forward, helping to determine child and spousal support, and establishing budgets as one household transitions into two. If needed, attention is given to training a spouse or partner to handle finances where they might not have understood or controlled them during the marriage. This supports skills in managing one's separate finances into the future. Experts in vocational rehabilitation may be utilized to assist party's in identifying reeducation needs, or acquiring new skills, that will assist that person in becoming independent.

In cases involving kids, the parties may select a joint therapist with experience in developmental issues to be the voice of the children and to help with parenting plans that take into the best mental health science experience about what is age appropriate. Many warring parents proclaim their only interest is the minor children, when the minors' needs and feelings are never assessed. Collaborative Process integrates children into the dissolution experience, and radically changes their experience of your break up. It facilitates cooperation between parents, fosters healthier children of divorce, and improved relationships between the parents and the children for years to come. It models appropriate behavior for children in their future adults in relationship.

Who Participates in the Collaborative Process?

The team meets to identify the goals and desired outcomes for each couple, and sets the agenda and time-line for issue resolution. These outcomes are not based upon a "legal rights" analysis (as in "what would a court do"): The parties are encouraged to decide for themselves what is best without letting a stranger decide their fate, which is truly what happens in courtroom dissolutions.

The parties meet separately and together with their coaches to work on communication and co-parenting issues/and custody sharing, and emotional issues which left unaddressed might cause disputes to erupt. Meetings occur with the financial professional to help unravel the couple's finances, consider how to divide assets and debts, determine expenses and budgets, and negotiate support. Lawyers answer the legal questions and act as scriveners to memorialize agreements as they occur.

The Team provides an orderly and respectful framework for dispute resolution on an item by item basis. Everything that happens in the Collaborative Process is privileged from disclosure. Nothing said and no information gained can be used if either party opts out of the process. This creates a container of confidentiality that helps maintain the integrity of the collaborative process. It also establishes a disincentive to the parties to "blow up" the process because neither party can gain an advantage outside of collaborative process by what was learned or occurred within it. A collaborative lawyer cannot be used in litigation if the process is terminated.

Deadlines are set so that the case stays on its track to resolution, unlike court supervised divorce where cases are not managed. In Family Court often one party perceives stalling and road-blocking to be in their self interest. The Collaborative approach does not permit this attitude to develop, and issues are addressed in real time as they arise.

All information that is needed is exchanged without formal "discovery," which in court cases invariably becomes an expensive battleground. The financial team member ensures that all relevant historical data is located, exchanged, and evaluated. There are no ambushes and if surprises develop they are worked through at once. If a party obstructs disclosure and cannot be convinced by their coach or their attorney to modify that behavior, the process ends and the parties proceed to litigation. Usually, the difficult party can be guided back to the ethical path because their self-interest also lies within it.

Collaborative Process Leads to Binding, Acceptable Settlements!

Property division scenarios are considered, along with tax consequences. Using the money that once supported one household and stretching it to support two is challenging, but in collaborative divorce income and expenses and support can be structured in a way that is sustainable. The number of years remaining to retirement, and wealth management, can be planned for and both parties can obtain invaluable tools to budget their affairs and for considering the evolving needs of children.

Binding agreements are vetted and finalized and once signed these are submitted to the Family Court for approval and filed as Judgments. The Final Judgment is the only public record of the divorce. This document includes a method of dealing with future issues as they arise, and if a Court is later asked to enforce the agreement (if the parties do not return to the collaborative process) the Court has an explanation of the parties' expectations. This permits family courts to protect the spirit of the collaborative agreement. Flexibility is written into the parties' agreement so that it can be utilized as a road map into the future.

In the end, the parties know they have treated each other fairly and respectfully, without further wounding and emotional bloodshed, which is a healthy prescription for all affected!

Consider a Collaborative Outcome!

Contact Arnold & Peterson, LLP Today for Further Information

We serve divorce and family law clients particularly within the desert cities of Palm Springs, Indian Wells, La Quinta, Rancho Mirage, Joshua Tree, Blythe, Hemet, Twenty-Nine Palms, Cathedral City, Indio, Desert Hot Springs, Yucca Valley, and Riverside!