Collaborative Law is the process where a divorcing couple reaches solutions to the myriad of issues pertaining to their separation and divorce (such as, child custody, child support, financial support and property division) without going to court. It is a commitment on the part of the divorcing couple to engage in open and frank discussions with their attorneys and any other necessary professionals (such as, financial advisors, psychologists, appraisers, etc.) in order to arrive at a non-adversarial resolution of their case. If either party does decide to go to court, the attorneys and the professionals who are involved in the Collaborative Law process must withdraw.
2. What about the cost?
The cost of a collaborative process is much more manageable and is usually less expensive than litigation due to the unpredictable nature of court proceedings, delays and post-judgment litigation. In the court system, the parties are held hostage to the court docket, which always involves a number of other cases that may be given a higher priority and which oftentimes “bump” a party’s case from a scheduled hearing date. Preparing for a hearing and not really knowing for sure whether your case is going to be heard can be very expensive, time consuming and frustrating.
3. What about my privacy?
Court litigation is a matter of public record. The courtrooms in North Carolina, and the proceedings that take place in them, are open to the general public. Oftentimes, family members, friends, neighbors, teachers, coworkers, etc. are called to testify in open court concerning the parties’ private family matters. In the collaborative process, the discussions and the negotiation details are kept private.
4. Why have I not heard of the Collaborative Law process before?
Although Collaborative Law has been recognized by the North Carolina General Statutes since 2003, and has been used in many other jurisdictions for many years, it has not been accepted by most practitioners in the Guilford County area, probably for a number of reasons, including: (A) A lack of knowledge and familiarity with the process; (B) The belief that it is not necessary because any case can be settled if the parties want settlement and if the attorneys are adept at constructively leading their clients in the direction toward settlement; and (C) Many family law attorneys do not want to give up their client’s right to file suit and go to court as a part of their “arsenal” in reaching a settlement. The attorneys who practice Collaborative Law need to do a better job of publicizing its advantages.
5. What are the differences between Collaborative Law solutions and litigation solutions?
6. Is Collaborative Law officially recognized by the law?
Yes. In 2003, the North Carolina Legislature enacted General Statute, Article IV, Collaborative Law Proceedings, codified at N.C.G.S. Section 50-70 through 50-79. These laws officially recognize Collaborative Law as an alternative to the judicial disposition of issues arising out of a civil divorce action (G.S. Section 50-71) and require that both the agreement to proceed in a collaborative fashion (Collaborative Law Agreement) and any settlement arising out of the collaborative process must be in writing and that the Collaborative Law Agreement must include provisions that require the withdrawal of the attorneys and the other professionals involved if the collaborative process does not result in a settlement of the dispute (G.S. Section 50-72). When a Collaborative Law Agreement is being implemented by the parties, any statute of limitations, filing deadlines or other limitations that may be imposed by law (including discovery deadlines, scheduling orders, hearing dates and trial dates) are tolled, which means that they are held in abeyance and do not apply to a Collaborative Law work-out.
7. Isn’t the Collaborative Law process a very “Pollyanna” view of the ability of a divorcing couple to work together and to reach rational conclusions, when the very heart of their separation is the result of poor communications, irrational actions or responses and dysfunctional interpersonal dealings in their married lives?
There are some divorcing couples who are not going to be able to resolve their differences no matter how many experts, psychologists, CPAs, evaluators and attorneys attempt to point them in the right direction. Some divorcing couples have structural issues (mental illness, drug or alcohol addiction, domestic violence issues or severe anger management issues) that cannot be sufficiently controlled in order to allow the couple to engage in rational problem-solving. However, for most divorcing couples, the traumatic events surrounding a separation and divorce involve relatively short-lived, situational responses to a difficult process. These divorcing couples are open to the collaborative process as a way to move past the discord and trauma of their separation and focus on their future goals.
8. How does Collaborative Law affect the process of becoming divorced?
Divorce is the termination of the marital relationship, which is generally referred to as an “absolute divorce.” In North Carolina, an absolute divorce is based on the “no fault” grounds of being separated for more than one year. All of the ancillary issues involved in getting divorced, such as, child custody, child support, financial support and property division, are resolved by the parties on an informal basis through the collaborative process with the assistance of attorneys and other professionals.
9. What is the degree of adversity involved in the collaborative process?
The degree of adversity can vary, but it can be lessened if the parties are willing to work together, move forward and not get sucked into the vortex of negative win/lose court battles.
10. Is the time commitment less than litigation?
Typically, yes. The timetable in the collaborative setting is controlled by the parties and their commitment to work through the issues effectively and efficiently. In litigation, the judge sets the timetable and there are often numerous delays because of the overloaded court dockets.
11. What about the use of outside professionals?
In the collaborative process, where needed, the parties jointly retain specialists to provide them with information and guidance in order to help them make an informed, mutually beneficial settlement. These professionals can include accountants, financial advisors, business appraisers, real estate appraisers, personal property appraisers, psychologists, therapists and other professionals who represent and assist both parties. In litigation, the parties are generally encouraged to retain their own experts to support their individual positions, often at a great expense to each party.
12. How do the lawyers interact with each other when they represent opposing parties?
The collaborative process is initiated by the agreement of the parties and of the attorneys who represent them. The lawyers in this setting work toward a mutually created settlement that is in the best interest of the parties. Perhaps, the major difference between the collaborative process and the litigation process is the atmosphere of openness and disclosure. The agreement to not go to court eliminates the posturing and threats that are often implicit in communications between the parties’ attorneys. In addition, there is the mutual recognition that the open and full- sharing of information is the most productive way to reach a positive result.
13. How do I have open communications with my spouse if we are in the process of separating?
Communications between the parties in any divorce are difficult due to the nature of the event itself. While there is no guarantee that all communications between the parties will be happy and stress-free, in the collaborative process, there is the recognition that the temporary angst and emotional upset of a divorce can best be handled without adversarial court battles. The collaborative process incorporates specialists who will educate and assist the parties on how to effectively communicate with each other in order to resolve their differences and focus on the long-term benefits of moving forward. This communication process is further facilitated by attorneys who are committed to not engage in court litigation and constructively work toward a mutually beneficial solution.
14. What about issues that cannot be resolved collaboratively?
While the collaborative process is designed to facilitate and encourage open-table discussions of all issues in order to reach a mutually agreeable resolution, there will sometimes be one or more issues that cannot be agreed on. However, the Collaborative Law Agreement that the parties enter into can recognize this fact and provide for expedited forms of binding arbitration to deal with any difficult issues.