What is a Collaborative Law Divorce and is it Right for Me?
If you are considering a divorce and perusing your options, you may have seen articles or websites about “Collaborative Law” as an option for a divorce. Collaborative law is an approach that seeks to avoid the traditional adversarial litigation model in favor of a team approach to conflict resolution.
People who come to our office looking to start the divorce process or another family law issue are often surprised to learn that there are alternatives to litigating in court. For clients who can maintain a good working relationship with their spouse and have no history of domestic violence in their current marriage, one of those alternatives could be collaborative law. Traditional divorce and custody litigation can sometimes cause unnecessary conflicts and hostility between parties who would otherwise be able to maintain civility and a good co-parenting relationship. Collaborative law seeks to prevent unnecessary discord by avoiding the uncertainty of the courtroom and giving the parties the power to resolve their divorce together, as part of the same team.
The collaborative approach to family law has grown substantially in popularity over the last decade or so. On April 1, 2019, the Tennessee Supreme Court showed its support for collaborative law by passing Tennessee Supreme Court Rule 53, which standardizes how collaborative family law is practiced in Tennessee.
Section 1 of TN Supreme Court Rule 53 defines collaborative law as a “voluntary, contractually based alternative dispute resolution process for parties who seek to negotiate a resolution of their matter.” It also states that parties must be represented by collaborative lawyers throughout the process and that they must sign a collaborative law participation agreement stating that they will not seek judicial resolution of a dispute during the collaborative law process.
It is important for clients to understand that the collaborative law process is entirely voluntary; no one can be forced to participate in it, whether by the courts or by their spouse. The decision whether to collaborate or litigate is a deeply personal one and much depends upon the specific circumstances of the parties. Attorneys should be able to walk their clients through the pros and cons of collaborative law and help them determine whether this is the right choice for them.
Once a couple does decide to pursue the collaborative route, they will sign a participation agreement. Under Section 6 of TN Supreme Court Rule 53, if a divorce or other proceeding has already been filed with the court, the parties must then give notice to the court that a collaborative law participation agreement has been signed, and that notice will operate as an application for a stay of all courtroom proceedings.
The participation agreement is central to the collaborative law process. In Tennessee, participation agreements are governed by Section 4 of TN Supreme Court Rule 53. Participation agreements lay out the ground rules for the collaborative law process and can ostensibly include anything the parties choose to agree on, so long as it does not conflict with Rule 53. The only true requirement is a “withdrawal provision,” which simply states that, if the parties cannot resolve a dispute themselves and must turn to the courts for a resolution, both parties’ attorneys must withdraw from the case. The purpose of the participation agreement is to remove the possibility of going to court from both attorneys’ minds, so that they can focus entirely on collaborative methods of advocating for their clients’ needs. However, if, during the course of the collaborative process, it becomes necessary for either party to seek or defend an emergency order from the courts to protect the health, safety, welfare, or interest of the party or their family, their collaborative attorney may assist them in seeking or defending that order until successor counsel can be procured.
An open exchange of information is also an important feature to any collaborative law matter. Section 12 of TN Supreme Court Rule 53 states that both parties “shall make timely, full, candid, and informal disclosure of information related to the collaborative family law matter without formal discovery.” The information parties are called on to disclose varies depending on the situation, but may include information about personal and marital assets, debts, and anything having to do with the couple’s children. Any person considering the collaborative family law process must be prepared to disclose all of these types of information, and to sign a sworn statement verifying that they have fully disclosed all property and all liabilities. They also must be willing to be open in their negotiations with the other side, with an eye toward establishing an acceptable compromise rather than “winning” their divorce or other family law matter.
Attorneys that practice collaborative law are specially trained and have made a commitment to the team approach to resolve the divorce. The parties agree, in a written contract, to jointly retain the necessary specialists to assist in reaching an agreement and the attorneys involved agree that neither will represent either party in court if the collaborative effort is unsuccessful. A divorce coach, typically a licensed mental health professional, helps guide the process and works with the parties to move through conflicts and aid in communication. The divorce coach keeps the process going forward and facilitates meetings. A financial specialist is employed to analyze the parties’ financial assets and options and assist with developing a plan. Sometimes, if children are involved, a child specialist may be utilized to help with the parenting plan. The idea is for the parties to gather information from neutral resources and make informed decisions about the future of their family.
The Role of a Divorce Coach
A divorce coach is a therapist that can help you work through whether to get divorced, and how to talk to your spouse. A divorce coach may also give you tips about how to talk about your divorce with your children. Divorce coaches can be more objective and neutral in their advice, and help you make good, rational decisions while you work through the emotions of a divorce. The role of the neutral coach is to help the parties cope with the emotional and psychological challenges of a divorce but it is not to become a therapist for either of the parties.
The coach may facilitate meetings and helps manage the emotions that sometime run very high during a divorce. The coach may be able to help both parties see the other side’s viewpoint and call out behavior that may trigger a reaction in the other party. The coach maintains neutrality throughout the process and can refer the parties to individual therapists if needed.
A divorce coach has often had collaborative law and mediation training and experience with family therapy. Ideally the coach helps both of you stay focused on goals for how to live after divorce. In addition, the coach works with other collaborative members of the team such as a financial neutral or custody specialist to address issues that could inhibit your ability to work with your spouse on post-divorce issues like co-parenting and transferring retirement assets.
Because collaborative family law focuses so much on openness and collaboration, it is not useful to every couple. For couples that have a history of domestic violence, have an unequal power dynamic, or just struggle to work together, even in a professional sense, another form of alternative dispute resolution or even traditional litigation may be the better option. However, for those couples who are able to cooperate meaningfully, collaborative family law can eliminate a good deal of unnecessary tension and uncertainty.
TN Supreme Court Rule 53 is an excellent resource for both attorneys and the public to have a uniform understanding of how the collaborative family law process should be approached in this state. It will become increasingly vital as more divorcing couples in Tennessee continue to choose collaborative family law over litigation.
The Role of the Financial Neutral in Collaborative Law
An important member of the team is the financial neutral. In a collaborative divorce, the parties agree to a financial neutral, typically a financial analyst or accountant who has been certified as a Divorce Financial Analyst. Unlike adversarial divorces where each party may have a financial advisor, the parties agree to use one financial expert.
The financial neutral has had collaborative law and mediation training and ideally experience with advising couples going through a divorce. The financial neutral is responsible for working with the parties and attorneys in gathering the documentation and information necessary to make an evaluation of the marital estate.
Typically, a financial neutral meets with both parties and discusses each party’s financial concerns and priorities. Based on these discussions, the financial neutral analyzes the financial resources and tries to address those concerns and priorities.
After the financial neutral has gathered the information, a report is made to the team and each side is allowed to question and request clarification or additional information. Once each side is comfortable with the financial report, then settlement conferences may be scheduled.
The financial neutral is available to meet with each party and his or her attorney prior to team meetings. During the team meetings, the financial neutral can advise on financial issues and ramifications of certain decisions. The financial neutral can also seek out other financial experts if needed for tax issues or business evaluations.
The Role of the Child Specialist in Collaborative Law
In a collaborative divorce, the parties may agree to a child specialist, typically a mental health professional with a focus on children’s developmental needs who has been trained in collaborative law. Unfortunately, children often are the most damaged by a divorce and are the least able to express their concerns or feelings during the divorce process. The child specialist provides a resource for the children to discuss their feelings and ask questions about the process in a neutral setting. It should be noted that the child specialist is not aligned with either side and can also meet with each party to discus the impact of the divorce on the children and how they are reacting. The child specialist’s goal is to help the parents realize what is in the best interest of the children throughout the entire divorce process.
The child specialist may meet with the children separately and convey their concerns about the future and feelings about the process to the collaborative team.
They also meet with the parents separately to discuss their concerns and hopes for the resolution of issues pertaining to the children. The child specialist remains available to the children to discuss their feelings throughout the collaborative process.
In adversarial cases, a judge may order a custodial evaluation at the request of one or both parties. A custody evaluator, also a mental health professional, meets with both parties, the children and any other persons deemed relevant and ultimately makes a recommendation to the court. The focus is on assisting the judge in determining the custody arrangement for the parties. Either party may dispute the evaluation with another expert.
In collaborative law, the child specialist works with the parties to develop a parenting plan that incorporates the concerns of the children and also serves the best interest of the children. The child specialist can make recommendations to the team if requested. It should be noted that all not all collaborative cases with children need a child specialist. If the parents have been separated and already arrived at an arrangement that works well, then the collaborative process can work that plan into the ultimate resolution of the case.
If you are considering your options for divorce or another family law matter and think that collaborative law might be right for you, call Held Law firm at (865) 637-6550 and ask for Melanie Hogg—our resident collaborative law attorney. She has training and experience with collaborative law and can help walk you through the process and decide if it is the right choice for you. Melanie is a member of Divorce Well Knoxville, the East Tennessee Collaborative Law group.
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