Your marriage has ended and you and your spouse will be filing for divorce. Divorce is a major event in one’s lifetime and is a stressful and emotional experience in the best of circumstances. Each of you will have concerns about the impact of the divorce outcome on the personal and financial future of yourselves and your children.
Divorce legal proceedings can be lengthy and expensive, taking years to finalize in court. The uncertainty of the outcome, court delays, and differing opinions of the parties are among the many events causing stress during a divorce case. If the case ends in trial, a judge will make decisions for your family without full knowledge of the family’s history and needs.
What is Collaborative Divorce?
One option to minimize the negative process of divorce is Collaborative Divorce. Collaborative divorce is a legally authorized procedure practiced nationwide for over 30 years, including in Colorado. The collaborative divorce process minimizes the negative impacts of ending a marriage. It lessens the worry, uncertainty and divisiveness that can occur in a divorce case by the parties controlling the outcome, rather than a judge.
A collaborative divorce is a voluntary procedure, chosen by both parties with a commitment to working together to find a mutually beneficial solution to the divorce issues through skilled negotiation. The parties commit to forego taking legal action while working out a collaborative divorce resolution.
1. A Collaborative Divorce Case Proceeds and Settles Outside of Court
Generally, a collaborative divorce case starts and resolves before a divorce case is filed with the court.
The collaborative process starts with creating a case plan. The case plan includes determining an agenda for the immediate needs and long term solutions for the divorce, as well as a participation agreement setting out how decisions will be made. The parties decide whether to utilize other trained professionals such as financial experts, child development experts and sometimes a facilitator who moves the proceedings along. Any outside persons retained to assist in the divorce are selected by a joint decision of the parties.
Team meetings are scheduled with the parties and their collaborative lawyers, and any other persons who have been retained to provide information or direction on the issues. The issues that are discussed and negotiated are:
- Division of assets and debts,
- Maintenance (spousal support),
- Parenting plans for decision making and the children’s living arrangements,
- Child support and
- Other topics raised by the parties.
During the process, collaborative divorce lawyers assist the parties in meeting the legal requirements for a divorce. Such requirements include each party providing full financial disclosure to the other party and obtaining valuations of assets where required.
Once a complete agreement is reached on all issues, the documents required to obtain a divorce are prepared and filed with the court. The final agreement is legally binding.
The court is involved only to legally dissolve the marriage and to approve the settlement agreement reached in the collaborative divorce process, and as authorized under Colorado divorce law.
2. Collaborative Divorce Is Creative and Customized to Your Family
Colorado divorce law governs the divorce agreement, whether the divorce is obtained through traditional court or collaborative proceedings. Colorado law allows for wide discretion in making divorce decisions, giving room for the parties to fashion agreements tailored to their family’s unique needs and circumstances.
In a collaborative divorce, the final divorce agreement can contain provisions important to the parties that a court might not normally address.
3. The Collaborative Divorce Process Allows You to Control the Results of the Divorce, Rather Than a Judge
The terms of a final agreement are negotiated between the parties, without interference or oversight from the court.
Because the final settlement addresses all the matters to be considered in a divorce, the court almost always approves the settlement without any changes. The collaborative lawyers appear in court for the sole purpose of filing the settlement and other required documents.
The time allotted for a court trial on divorce issues is limited, meaning the parties rarely have enough time to present all the evidence they want a judge to evaluate. In a collaborative divorce, the parties can take as much time as they deem necessary to discuss and resolve all issues important to them.
By negotiating an agreement, the parties can develop a resolution that works best for their family based on their unique history and their future.
4. Achieving A Resolution of All Divorce Issues by the Parties Erases Uncertainty About the Outcome
In a trial, a judge will determine the facts and apply the law to reach a decision. It is not possible to know how a judge will rule in advance of a trial.
Uncertainty can be erased by the parties achieving a mutually agreeable resolution of their matters. Agreements can be achieved even if underlying facts are not fully determined.
5. Collaborative Divorce Allows the Parties to Control the Timing of the Divorce
The timing to complete a collaborative divorce settlement varies based on numerous factors. The most significant factors are the parties’ cooperation and honesty in negotiating the issues. In complex cases with numerous assets or multiple sources of income, the resolution may take more time as parties wait for weeks or months to obtain documents, information or expert valuations required in the process. Future planning for both parties and the children are considered in a divorce, which make take time to investigate.
The parties can determine the pace at which the work proceeds rather than a judge. The parties can take as much or as little time as they feel they need to complete the divorce process.
No matter the factors involved, a collaborative divorce settlement will almost always be completed earlier than having to wait for a judge to resolve differences in a trial.
6. Collaborative Divorce Is Private and Confidential
The collaborative divorce case stays out of a public courtroom. No testimony is given in court. The personal and financial circumstances of the parties are not subject to viewing by the public.
Both by agreement of the parties at the outset, and by law, the communications between the parties and any person involved in the collaborative divorce process will be kept confidential. Doing so allows the parties to speak freely and to negotiate without fear of reprisal.
The information obtained in the divorce process is not contained in the court record, other than the final agreement and required financial information. Under Colorado law, the final agreement and financial information filed with the court are not open to public viewing.
7. Collaborative Divorce Is Non Adversarial
The negotiations are focused on the main goals of the parties. The goals are needs based rather than positions based. The goal is to seek the best outcome for the family rather than the best outcome in court.
In a traditional divorce, the lawyers express the positions of each party to each other and the positions are transmitted to the parties. In a collaborative divorce, both parties are directly involved in the discussions and negotiations of the divorce issues.
Emotions can run high in a divorce. The collaborative team recognizes this but keeps the parties directed towards a resolution of the issues without the influence of emotions. Taking the high road leads to better long term solutions.
8. Collaborative Divorce Proceedings May Be Less Costly and Less Time Consuming That the Traditional Divorce Process
Avoiding court hearings reduces attorneys’ fees as less attorney time is required to prepare for hearings. Resolving matters in less time than is needed to go to trial reduces attorney time and fees.
By retaining joint experts, fees are reduced by paying the fee of one expert instead of paying fees for two separate experts.
9. The Emphasis of Collaborative Divorce is on the Long Term Emotional and Financial Health of the Parties and Children
A family is forever, even if the family structure changes over time.
When a couple has children, they will share parenting for years to come. When the parties parent the children together, stability is maintained for the children. Doing so allows the children to see that their needs come first, giving them a sense of security. When the children are grown, having a civil relationship allows the parties to share in the children’s major life events in a positive way.
A divorce obtained with dignity and respect maximizes the ability of the parties to continue to enjoy lifelong family events without discord and drama.
10. Collaborative Divorce Proceedings Are Civil and Respectful
While divorce is not a joyful event, the proceedings to divorce can be civil and reasonable.
Spouses and their lawyers agree at the outset they will behave respectfully to everyone involved. Abusive behavior and personal attacks are not tolerated. A respectful tone sets a positive atmosphere for parties to negotiate and reach settlement.
Will The Collaborative Divorce Process Work for You?
While a collaborative divorce has many benefits, it may not be the best model for all divorcing parties. To learn more about this process and whether it will work in your case, you will need to consult with a collaborative lawyer. The lawyer will learn your history and issues and help you to determine the best way to proceed for your particular circumstances.
Diane Carlton is Special Counsel at Griffiths Law. She has over 40 years of experience dedicated to helping clients and their families move through the difficult process of divorce. Diane is compassionate and works closely with clients to reach a constructive and productive resolution of their case.