What is Collaborative Law in Divorce?

 

  • A  middle road between  mediation and  litigation.

For those Long Island couples who want to avoid a costly, contentious and lengthy divorce battle, and yet do not want to negotiate on their own through divorce mediation, the collaborative law approach may be the answer.  In the collaborative law model each spouse is represented by an attorney who will negotiate the terms of the divorce on their behalf.   The couple and their attorneys agree to work together to resolve financial and parenting issues using problem solving strategies rather than the adversarial tactics used in litigation.  It is a way to resolve differences with minimal conflict and without going to court.

  • Why choose Collaborative Law over Mediation?

In mediation, the participants negotiate for themselves with a neutral mediator helping to guide the discussions.  Some people, for various reasons, are not comfortable negotiating on their own behalf.  For example, there may be a pronounced imbalance of power between the spouses.  Moreover, there are those who do not trust themselves during such an emotional and vulnerable time to speak up adequately for themselves.  In Collaborative Law, the lawyers take the lead in the negotiations.

  • How does Collaborative law work?

• Unlike the traditional litigation model, the couple and their respective attorneys sign an agreement up front that the lawyers are hired to negotiate a settlement and will not represent their client in the event the settlement negotiations are unsuccessful and one or both spouses want to proceed through the courts.
• The parties and their attorneys will meet together  to work on a settlement.  Each party will also meet separately with their own attorney as well. When we are retained as collaborative attorneys, we do not act as neutral mediators. Rather, we represent one spouse in this process.
• The attorney’s role is to advise his or her client of the strengths and merits of various claims and to assess the likely outcome if the case were to  be litigated.
• The couple and their attorneys will resolve all issues regarding child support, custody and parenting plans, spousal support (maintenance), and the equitable distribution of the couples’ assets and debts without court intervention.
• If appropriate, the parties agree to retain a neutral financial professional  and/or a neutral  mental health professional  to value assets and/ or address parenting concerns.
• Each party’s collaborative attorney provides legal advice and helps advocate for the most workable solution on each issue.
• If the parties cannot reach a settlement, the collaborative attorneys must withdraw from representation and the parties must hire new lawyers if they need to go to court.
• This withdrawal pledge is the key element that provides the incentive to settle and differentiates collaborative divorce from traditional pre-court negotiation.
• The process requires full disclosure of documents and information so that each party can make an  informed decision.  If an attorney learns that his/her client has withheld or misrepresented information that should have been disclosed, the participation agreement requires the collaborative lawyer to withdraw.

  • What happens when the couple has successfully worked out their agreements?

• The collaborative process concludes with a written Settlement Agreement or Separation Agreement, which is prepared by the attorneys, who will also prepare and file uncontested divorce papers.

  • Is Collaborative law the best choice for me?

• This process offers a civilized rational resolution to completing your separation or divorce.
• It is a good choice if you have children together and want the best working relationship possible in the future.
• You and your spouse want to actively participate in the terms of the agreement and have control over the final outcome without leaving it in the hands of the court.

  • What are the other benefits of Collaborative law?

• The parties and their attorneys are free from adversarial posturing and threats of litigation.
• Attorneys  concentrate on using their analytical and creative problem solving skills to construct sensible and fair alternatives that each party can live under.
• It takes away any possible imbalance of power by having two experienced attorneys representing each spouse throughout the negotiations.
• Lawyers work respectfully, honestly and in good faith to find solutions that meet the legitimate needs of both spouses.
• The couple controls the  timing of the process by deciding when and how often to meet.   You are not beholden to the court’s calendar.

  • Saves time and money

• Litigation-oriented documents such as motions, affidavits and briefs are not required.
• Taking depositions and preparing for trial is spared.
• Time and energy is spent on resolution, not wasting  time and money on threats, counter-threats and procedural and psychological strategies.
• Approximately 97% of all divorce cases are settled before trial.  Cases settle on the “court house steps” a year or two years after the commencement of divorce proceedings and only after going through the costly and time consuming procedures set forth above.  Collaborative law is the short cut to settlement, avoiding all the procedural precursors to a final settlement.

  • What are the fees for Collaborative Law?

There is a sliding scale fee that each attorney charges their client based upon the complexity of each case.  Couples fall into one of three categories:

•  A couple with few assets and no children.
•  A couple with some assets and children.
•  A couple with many assets.

The attorneys agree not to charge over this set fee unless substantive changes are made, requiring substantial additional time,  in which case, the attorneys will charge their hourly rate.

  • What happens if a settlement cannot be reached?

Materials gathered during the collaborative process will be transmitted to the trial lawyer so that there is minimal loss of continuity.For more information about the Collaborative law option, please go to www.collaborativelawny.com.

For a free  and confidential consultation to discuss your marital situation and the options available to you, please call 516-749-5017 to speak with a divorce mediation attorney. Or if you prefer  e-mail us at:info@nydivorcemediate.com.