What is Collaborative Law?
Collaborative law is a new kind of dispute resolution with a structured, cooperative out-of-court approach. It is geared toward cooperatively and amicably settling divorces among parties who agree not to go to court. It takes away the desire to fight and win in a courtroom setting. Instead, the objective is to reach a settlement that both parties find satisfactory.
Why Consider Collaborative Divorce?
Couples may wish to consider collaborative divorce for the following reasons:
- They want to avoid litigation costs
- They want a speedy divorce
- They want to spare themselves and their children the emotional trauma associated with protracted litigation
- They want to have more control over their settlement as opposed to leaving it up to the courts
It’s important to note that if a collaborative divorce settlement is not reached, the parties may pay more than they would have if they had litigated the case from beginning to end. This is because they took the additional effort to resolve the case through a collaborative effort. They also may find that they spent more time reaching a settlement if their collaborative efforts fail initially for the same reason.
What is a Collaborative Divorce Process?
The main principle of the collaborative divorce process is to amicably resolve the parties’ differences regarding the property, support (child and alimony), and custody in a safe atmosphere outside of court. The basic process is as follows:
- Each party hires their own attorney. An attorney who has experience with meditation is best to help advocate for your interests.
- Discuss the case with your attorney. It’s important that the attorney know what you hope to achieve through a collaborative divorce proceeding, what you’re willing to compromise on, and what you must have.
- Sign an Amicability Agreement. This shows that the parties are willing to use good faith and fairness in negotiating a resolution regarding their divorce in a collaborative law setting.
- Neutral Setting. It is important that neither side feels that they are favored (or disfavored) during the proceeding. For this reason, all meetings must take place in a neutral location.
- Free Discussion. Parties can bring up any matters which may ultimately lead to a positive resolution.
- “No Court” Agreement. The parties and their attorneys sign a “no court” agreement that requires the attorneys to withdraw from the case in the event it does not get resolved and goes to litigation.
What Is Resolved Through the Collaborative Process?
Both parties along with their attorneys are present at collaborative divorce meetings. The role of the attorney is different than in courtroom settings. The purpose of your attorney is to provide support and to aim to come to an agreeable settlement as opposed to going toe-to-toe against the other party’s counsel. In rare cases, a mediator may also be present at the collaborative meeting.
During the collaborative session, major issues are hashed out, such as:
- Real and personal property division
- Spousal support, if any
- Child support, if any
- Other issues involving children (custody, visitation)
- Damages or restitution that the other party may owe
In a collaborative meeting, the parties are encouraged to discuss things freely and openly in order to come to a mutually agreeable settlement on their own terms.
What If the Parties Do Not Agree?
If the parties cannot reach an agreement after a good faith effort to do so, they are free to continue litigation in court. The participation agreement does not prevent the parties from terminating the process in order to litigate the matter, but they must not make threats of litigation during collaboration efforts.
If either party terminates collaborative meetings, he or she must provide written notice to the other party and to all attorneys stating an intent to withdraw. The collaboration agreement usually contains termination provisions that dictate how this should be done.
The clients are advised from the beginning that will have to obtain new lawyers if they cannot reach an agreement and choose file for divorce hearings in court.
Should I Hire an Attorney?
If you are filing for divorce and believe collaborative law may lead to the best settlement agreement, you should contact a North Carolina divorce lawyer with collaborative family law experience to discuss the process and your legal options.