Collaborative Divorce — Providing Superior Confidentiality, and Reducing Costs and Conflict
By Megan Stanley and Susan Shulenberger
Not enough couples choose to divorce through the Collaborative Divorce process under Ch. 7.77 RCW. A Collaborative Divorce is not for every divorcing couple, but when two people can both commit to the unique process, there are many benefits. The Collaborative Divorce process preserves the couple’s confidentiality, is more cost effective than traditional divorce and reduces conflict between spouses and within the family.
Collaborative Divorce involves spouses de-coupling and moving through the divorce process through a team approach. The team includes the parties, their collaboratively trained counsel, a divorce coach, and a financial neutral. The divorce coach works with both spouses to address the emotional process of decoupling and helps support other professionals in their work with the parties. The financial neutral works with the parties to obtain all statements, create a single asset/liability spreadsheet, and helps create financial scenarios to be considered by the parties. In cases with parenting disputes, a child specialist may also be part of the team.
The team approach necessarily involves spouses in the collaborative process relinquishing some confidentiality. The collaborative process is akin to mediation. Unless a client tells his/her lawyer to not share information, the lawyer can disclose relevant information to the other team members. Moreover, lawyers can talk to/email with the other spouse.
The Collaborative process involves parties signing a Collaborative Participation Agreement providing that all disputes will be handled within the collaborative team. Neither party may file motions or seek court involvement in disputed issues regarding temporary or final issues except for the presentation of agreed final divorce orders once the collaborative process has concluded. No one can hire shadow advisors or other experts without the agreement of the team. If there is unresolved conflict where one party seeks to involve the court, the collaborative process is terminated and both parties must retain new counsel to ensure that there are no disclosures of confidential matters. Like mediation, nothing discussed in the Collaborative sessions can be introduced into subsequent litigation.
In a traditional, litigated divorce, parties may submit declarations that involve personal or financial matters — details most people would prefer is not available to the public in a court file. Full disclosure is required in the Collaborative Divorce process but the disclosure is only amongst the team members. An umbrella of confidentiality covers the entire team and process. It’s beneficial for spouses and their children to keep their private lives and disputes out of the court and public realm. High net worth individuals as well as people in the public eye such as sports celebrities, government officials, etc. may choose Collaborative Divorce for the confidential setting it provides.
Legal fees and costs can be substantially lower in a Collaborative Divorce. The attorneys work as a team often dividing up work to reduce overall costs. For instance, there is only one asset/debt spreadsheet prepared with the assistance and expertise of the joint financial expert. One team member keeps track of the notes from meetings and prepares other necessary documents and shares them with the team. There is no need for discovery and the related costs. There is no advantage to engage in delay tactics that often happens in traditional litigated divorce. There is less attorney communication when team members are working together and meeting regularly. Parties can typically resolve all issues and finalize a divorce in 6 months or less whereas typically litigated divorces are subject to strict case schedules, required processes and court procedures and can take 9–12 months or longer to complete.
Conflict between parties and counsel are handled differently in the collaborative process. The team approach fosters the handling of conflict within the team meetings where skilled professionals can manage the conflict and help the parties feel heard and move towards solutions rather than drawn out acrimony due to miscommunication or unexpressed resentments related to the reasons underlying the parties’ decision to divorce.
Divorce attorneys should consider at the point of their initial consultations with potential clients if their divorce matter is a good fit for Collaborative Divorce. Cases that are not a good fit are typically couples with a history of domestic violence, patterns of emotional, verbal abuse, dishonesty or coercive control. Can the parties sit in the same room together, air their differences and rely upon a team of experts to help them resolve their conflicts? There have been cases with spouses with a history of mental illness or substance abuse successfully finalizing their divorce through the Collaborative Divorce process, so not all matters with specific issues or risk factors should be necessarily excluded from the Collaborative process.
Megan Stanley and Susan Shulenberger are family law attorneys with Meridian Family Law, PLLC. Megan & Susan can be reached at mstanley@meridianfamilylaw.com and sshulenberger@meridianfamilylaw.com.
