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QUESTION:
Why should I consider collaborative family law for my divorce? ANSWER: Not at all. Anger is a natural response to the disruption of our primary relationships in life. Psychologists tell us that we humans “do not detach easily” from a primary relationship such as a marriage. This is true even if we are unhappy in the relationship. In collaborative family law, spouses receive support and guidance to better understand and manage the delicate process of detachment, including the strong feelings—such as grief and anger—that often accompany it. So if emotions are running high, consider collaborative law because it offers effective support for the emotional aspects that often accompany divorce. In conventional litigated “no fault” divorces, there is no “official” place to deal with anger or grief, and unresolved feelings may end up fueling fights over other issues such as child custody, support or property division. In collaborative law, emotions can be dealt with directly and respectfully. QUESTION: Can collaborative law be used for other family disputes besides divorce? ANSWER: The process may also be used for negotiating many family issues such as custody agreements (marital or not), premarital and postnuptial agreements, and agreements terminating gay and lesbian relationships. QUESTION: Do my spouse and I each have our own collaborative attorney? ANSWER:
Yes. Each person retains his or her own trained collaborative attorney
to advise and assist in negotiating an agreement on all issues.
All negotiations take place in four-way settlement meetings that both
clients and both attorneys attend. Your own attorney informs you
of your rights and gives you sound legal advice about your situation.
Collaborative divorce attorneys make every effort not to aggravate the
tensions that already exist between the parties. Their role is to
create a safe environment for your assessment of options and negotiations
for resolution. ANSWER: Collaborative Law is quite a different experience. Most conventional divorces settle “on the courthouse steps.” That means, they settle rather late, and after a great deal of developing of positions for trial. By that time, often considerable expense has been incurred, and serious emotional damage has been caused to spouses and children. Unfortunately, settlements reached by this indirect route usually leave both sides feeling dissatisfied. By contrast, the collaborative law process focuses from the beginning on providing a safe process for finding fair resolutions. This includes exchanging information, assessing options and negotiating a settlement that meets the needs of both parties. QUESTION: Can an attorney represent a client “zealously” if it is agreed in advance not to go to court? ANSWER:
Yes. Clients and collaborative attorneys agree in advance to limit
the lawyer’s role to that of representing the client for settlement
purposes only. The settlement counsel role is clearly authorized
by state and local legal ethics rules so long as the client and attorney
make it clear that this is the arrangement they intend. The collaborative
lawyer keeps the role of advocate for his or her client. ANSWER: Yes. Each client keeps the right to stop the collaborative process if it is not working well for her or him. This is an important safeguard. It ensures that it is in each person’s interest to behave so that the process is as fair and considerate to the other party as it is to him or her. Thus, in collaborative law it is counter-productive to use tactics such as intimidation, withholding information or being uncooperative, because these tactics will simply cause the end of the process. When the process is stopped, either party may initiate court action. The collaborative attorneys will withdraw. There is no benefit to the collaborative attorneys in failing to achieve settlement. QUESTION: Must I settle for less than what I am entitled to, if I choose the collaborative family law process? ANSWER: No. Well-represented parties cannot be expected to throw away their rights or to settle valuable claims cheaply. Neither party can be expected to settle until that party is satisfied with the agreement. This is one of the central benefits of the collaborative process—each party can achieve agreement only if a plan is developed that meets the other party’s needs as well as one’s own. The collaborative process is specifically designed to make this not only possible, but very likely. Settlements reached through this collaborative process are generally much more satisfactory and durable than settlements reached on the courthouse steps. QUESTION: What about the children? How are arrangements for children decided in collaborative divorce? ANSWER: Collaborative law is kind and supportive of both parents and children, and allows them to move through a transition that is already difficult enough, without triggering destructive battling. Mental health experts (called “coaches”) can help in developing a parenting plan. A neutral child specialist can give the children a safe place to talk about the changes that are happening in the family. The child specialist can offer insights to help parents develop the best plan for their children. QUESTION: My spouse has all the information about our income and assets. Do I have the same rights of discovery in the collaborative family law process as if I go to court? ANSWER: Yes. Collaborative law has a basic requirement that each party must disclose all documents and information that relate to the issues. Disclosure must happen fully and voluntarily, and without delay. This requirement is fundamental to the collaborative process. It signals that the parties are willing to be straightforward and avoid game-playing about information. Instead, the parties aim for the considerable benefits that flow when information is shared. Of course, California law requires full disclosure in divorce cases and imposes serious penalties for hiding assets. In collaborative law, information is shared in the most effective way possible. QUESTION: If we don’t settle in the collaborative divorce process, can my spouse use what I said in the meetings against me? ANSWER: No. Before you begin negotiations, you will each sign an agreement of confidentiality so that the communications taking place in the course of the collaborative law process will not be admissible in court. QUESTION: Can I use the collaborative family law process even if my spouse does not want a divorce right now? ANSWER: Yes, if your spouse agrees to use the collaborative family law process also. In California, each spouse is entitled to end their marriage, even if the other spouse does not want a divorce. In other words, the law does not force anyone to remain in an unhappy marriage. Collaborative law can be very helpful in this situation because the collaborative team includes mental health professionals who specialize in helping people better manage the difficult process of “detaching” when that must occur. This is a compassionate approach and it makes sense, because until a party has begun to accept the divorce, he or she may find it difficult to work productively toward resolving issues raised by the separation. QUESTION: What are the fees of the collaborative divorce professionals? ANSWER: Each professional is independent, and this ensures that the client receives independent advice and representation. A professional’s fees will vary depending on experience as well as other factors. Ask the professional you consult about the fee schedule. QUESTION: Is collaborative family law more expensive than litigation? ANSWER: In general, collaborative law representation will cost less than conventional litigation representation, often one-third to one-half as much. This is because the collaborative attorney is serving as settlement counsel, so no court motions must be prepared, no court hearings must be conducted, and because discovery is provided voluntarily and fully instead of being extracted through expensive legal processes. QUESTION: When we reach a settlement through the collaborative process, will it be legally binding? Will we need to go to court to finalize it? ANSWER: Yes. Your collaborative attorneys will prepare an enforceable legal judgment that will set out the terms of your settlement. You will not need to personally appear in court to finalize the divorce. QUESTION: How do I contact a collaborative attorney? ANSWER: LACFLA’s website provides a list of members who have been specially trained in collaborative family law. Otherwise, ask what training the attorney has in collaborative law, alternate dispute resolution, and conflict management. |
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