When most people think of divorce, they imagine drawn-out court battles between bitterly fighting spouses. But once you and your spouse have made the decision to end your marriage, you don’t want a difficult divorce holding you back from moving forward with your life.
While some disagreements truly cannot be resolved without the intervention of a judge, you and your spouse may be on good enough terms to work through the terms of your divorce together. You can avoid the ordeal of going to court by opting for a collaborative divorce – otherwise known in California as collaborative law or collaborative practice.
A California collaborative divorce is similar to divorce mediation in a number of ways:
Spouses work together with their legal teams to resolve their outstanding issues in a low-conflict, non-adversarial manner.
Instead of a judge, you and your spouse decide the terms of your divorce.
Both processes allow you to avoid going to court.
Both are lower conflict options as compared to litigation.
However, collaborative divorce has several key differences compared to mediation:
When starting the collaborative divorce process, you and your spouse must sign a contract agreeing to resolve your divorce out of court.
Your lawyers must agree to withdraw from representation if the collaborative process fails and you have to go to court.
You and your attorneys negotiate altogether in “four-way” meetings, whereas mediation may involve meetings between the mediator and individual spouses (and often the lawyers).
In mediation, you can settle some of your issues and leave the rest to be resolved through divorce litigation. You can also engage in mediation at any point in the divorce process. In contrast, collaborative divorce requires that you commit to the process from the start and resolve all of your issues. Otherwise, you must start over completely and you may not use the documents you obtained in the collaborative process when you start over, which can be frustrating.
Similar to mediation, collaborative divorce focuses on troubleshooting and problem-solving, as opposed to the “fight and win” nature of litigation. Still, collaborative divorce isn’t for everyone. Collaborative law procedures are much more rigid and structured. Meanwhile, your situation may benefit from a more flexible approach. In that case, mediation could be a better option.
Call the Moradi Saslaw collaborative law attorneys today at (415) 625-4587 to discuss whether collaborative divorce is the best option for your family’s future.
Pros and Cons of Collaborative Divorce
Pros of Collaborative Divorce
You can resolve your divorce without going to court.
Allows for civil and ideally honest information exchange between spouses.
The process is more efficient than litigation and usually takes less time.
You and your spouse drive the negotiations and make the final decisions, instead of a judge who doesn’t know your family nearly as well as you do.
Your legal team is incentivized by the “no court” agreement to come up with creative solutions to the issues in your divorce.
Your Final Judgment is the only public record of your divorce.
Cons of Collaborative Divorce
The negotiation process requires both sides to compromise to come to an agreement.
If you and your spouse try a collaborative divorce but the negotiations break down, you’ll have to start your divorce from scratch with new attorneys. This could result in a major loss of time, effort, and expense.
How Does Collaborative Divorce Work in California?
Step 1: Hiring a Collaborative Law Attorney
When starting the collaborative divorce process, both parties hire their own attorneys. For the best approach, it’s important to hire an attorney who is specifically trained in collaborative law. You’ll meet privately with your attorney first to discuss:
The issues that are most important to you in your divorce
What you’re willing to negotiate and compromise on
The limits of what you’ll accept and what you’re unwilling to concede
Establishing your goals and boundaries beforehand allows for a much smoother negotiation.
Step 2: Signing “No Court” and Withdrawal Agreements
Before the collaborative law process begins, you, your spouse, and both of your attorneys must sign a Collaborative Divorce Participation Agreement (PA). Under this agreement:
You and your spouse agree to decide all of your disputed issues out of court, and
If the collaborative divorce process breaks down and you decide to go to court, your lawyers agree that they will withdraw from representing you.
The Participation Agreement is a contract between you and your spouse to:
Willingly disclose all financial information and any other relevant facts,
Carry out settlement negotiations respectfully and in good faith, and
Share your interests and goals openly and honestly.
If you and your spouse are unable to come to a settlement agreement through collaboration, you will both have to find new attorneys to move forward with your divorce in court.
Step 3: Negotiating in “Four-Way” Meetings
In a collaborative divorce, all negotiations happen over multiple “four-way” meetings between you, your attorney, your spouse, and your spouse’s collaborative divorce attorney. These meetings often include neutral third-party professionals who apply their expertise to find solutions to your issues. For high-net-worth couples, your collaborative divorce may involve:
Mental health coaches who facilitate communication
For more difficult negotiations, your attorneys may also bring in a licensed mediator.
Step 4: Filing Your Settlement Papers
When you and your spouse come to an agreement on your issues, your lawyers will draft a written settlement agreement. Once both parties sign, your attorney will file your divorce papers and settlement agreement with your local family court.
Because you’ve already resolved all of your issues through the collaborative law process, this stage is usually simple and uncontested. As soon as the court processes your paperwork, your divorce will become official along with the terms of your settlement.
Collaborative Divorce Example
Below is a generalized example of the collaborative divorce process:
Jane Doe is a real estate developer with properties managed under multiple corporate entities. Jill Doe is a startup entrepreneur with stock options that have yet to vest. Jane and Jill have been married for 5 years and have no children. As a result of the travel required of both their jobs, they’ve grown apart.
Although Jane and Jill are ending their marriage, they remain on good terms and associate with some of the same professional circles. Jill also leases office space in one of Jane’s commercial properties. Jane approaches our firm for divorce representation.
Because of their amicable separation and the added professional dynamic of their relationship, Jane and Jill opt for a collaborative divorce. The structured process and support team allow them to even the playing field, regulate emotional conflict, and negotiate comfortably. The strict deadlines also appeal to their fast-paced schedules.
To divide their assets, Jane and Jill’s lawyers hire a local property assessor, a startup valuation expert, and a wealth management specialist. Working together in multiple “four-way” meetings, the team creates settlement terms that equally divide the couple’s communal property to their satisfaction.
Once Jane and Jill sign the written divorce settlement agreement, they file their paperwork with their local court to make their divorce official.
Frequently Asked Questions About Collaborative Divorce
What Is the Difference Between Collaborative Divorce vs. Mediation?
Collaborative divorce offers structure and support. Mediation gives you flexibility and control. The best choice for you depends on your unique issues and needs.
Collaborative law has set procedural rules and protocols to follow with specially trained lawyers. You must choose and commit to the collaborative law process from the beginning. Many collaborative divorces involve input from other neutral professionals. Negotiations are conducted only through “four-way” meetings where both parties and their lawyers are present.
Mediation, on the other hand, can be completed with just three people: you, your spouse, and the mediator. You can use mediation at any point in your divorce. You work directly with your mediator to decide how your divorce moves forward. You set the procedure and your schedule.
Most importantly, if negotiations break down, collaborative law requires that you start the divorce process over with new attorneys. Mediation allows you to keep your legal team and move forward with litigation if necessary.
How Long Does a Collaborative Divorce Take In California?
In California, your divorce cannot be finalized until six months after your initial divorce papers are served. Depending on your schedule, a collaborative divorce settlement can often be ready for filing by that time. The collaborative divorce process rarely takes more than one year.
Is Collaborative Divorce Right for You?
Collaborative divorce is a unique solution for couples who want a cooperative and structured end to their marriage. In addition to the support of a team of professionals throughout the divorce process, collaborative settlements usually include terms for dealing with issues that arise after your divorce is finalized.
The Moradi Saslaw team is specially trained in collaborative law practices. Our law firm maintains relationships with leading collaborative law professionals in the Bay Area. Your divorce is in good hands with our network of esteemed accountants, appraisers, asset evaluators, and wealth management experts.
Call our San Francisco offices now at (415) 625-4587 or contact us online to speak with a local experienced collaborative divorce attorney about the best way forward for your family.
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