When is Collaborative Law the Best Option for a Couple Contemplating Divorce?

When a couple is contemplating divorce, the parties are not always on the same page-one party wants a divorce more than the other, one wants to reconcile, one wants to weigh the options, etc.  For such a couple, collaborative law provides an opportunity to discuss reconciliation as well as divorce.  The collaborative law process provides a unique alternative to the traditional adversarial approach for resolving family law matters like divorce, but yet is widely unknown or misunderstood by the majority of couples that could benefit most from it.

So, what is Collaborative Law? Collaborative law is a process in which the parties and their counsel agree in writing to make a good faith attempt to reach a mutually-agreeable settlement without court intervention. Both parties work together to craft a way to restore their relationship, dissolve their marriage or resolve any family law matter in a way that considers everyone's needs and minimizes conflict.

There are two predominate reasons that couples contemplating divorce generally decide against going the collaborative law route. First, if collaborative law methods fail, the parties will have to go get another attorney.  True.  Second, there is no “hammer” in collaborative law; in other words, there is no threat of being called into court to keep the parties in line and/or the process on track.  Also true. 

However, even in recognition of these two limitations, collaborative law is still the best solution for many divorcing couples who would be able to amicably discuss the critical issues surrounding their divorce and negotiate a reasonable resolution.  Such an agreement will result in mutual benefit for both parties, as well as establish the groundwork for a peaceable, civil relationship between the parties moving ahead. The conventional process of divorce or other family law matters can drive parties -already separated from each other – even farther apart. It takes a toll on individual dignity, and often children suffer the most. In reality, if you go to court you will likely lose almost all chance of keeping your marriage together. Most judges know nothing about reconciliation and once the cycle of poor communication and conflict management is made worse by litigation, there will likely be no way back. Ultimately, in the right situations, collaborative law presents a more humane, respectful way to end a marriage, or reconcile in the alternative.

Furthermore, with just a few general guidelines, you may be able to determine whether collaborative law could be your golden ticket towards resolving your divorce or family legal issues, or will be a total failure.  Most importantly, both parties must be committed to working together to reconcile or have an amicable divorce.  The couple needs to be able to be open and honest and cooperative even in difficult cases that involve issues such as custody, extra-marital relationships, unique possession schedules and substantial and complex property issues.  The couple must be able to look towards the future and focus on what good can come out of a difficult situation, rather than dwelling on past conflicts and dredging up dirt on the other party.  The collaborative process will most likely be unsuccessful for couples that cannot do this and instead refuse to negotiate or compromise at any cost.

However, collaborative law will not be successful in every case. The main reason that a collaborative law case fails is because it should not have been a collaborative law case in the first place. Whether the lawyer’s attitude/knowledge was lacking, or the parties were incapable of using the necessary discipline to participate in these kinds of negotiations, collaborative law is not always going to be the best solution.  Therefore, you and your spouse must weigh all the options and evaluate the situation to determine whether or not collaborative law is right for you and your particular situation.