Collaborative Divorce: Alternative Dispute Resolution in the Family Arena
Divorcing spouses need to decide whether they want to proceed through the help of attorneys, mediators or other divorce professionals. The truth is there is more than one way to get divorced nowadays. A collaborative divorce offers an alternative to the traditional, adversarial courtroom divorce proceeding. Collaborative divorce in Massachusetts is a process where the two divorcing spouses negotiate an acceptable agreement with some professional help. In the past, some individuals were scared of a long, drawn-out courtroom battle divorce. For one, divorce litigation is public, and can be emotionally taxing. Certain individuals are uncomfortable with the judge having the ultimate decision, feeling the whole divorce process is out of their control. Collaborative Divorce may save a divorcing couple’s time, money, and the frustration of a nasty courtroom divorce.
The major difference between a collaborative divorce and mediation is that the parties are represented by an attorney in the collaborative effort. A mediator is a neutral, and cannot provide advice on which a party can rely. A collaborative divorce lawyer is a problem solver. A collaborative divorce lawyer represents his client through the negotiation process providing insight and legal advice from their experience. For example, the collaborative divorce lawyers at Fields and Dennis LLP in Wellesley Massachusetts don’t argue or advocate in this kind of environment, instead they offer suggestions and ideas to clients.
The Participation Agreement
Collaborative divorce is similar to mediation in that the two spouses work together to reach their own agreement about what will be best for their particular family’s circumstances. However, the ground rules and the collaborative divorce process is governed by a Participation Agreement.
One key feature to a Massachusetts collaborative divorce participation agreement is a non-litigation clause. Essentially, both parties agree that if a settlement is not reached through cooperation and negotiation, the lawyers will withdraw from the process and not participate in litigation. This provides an incentive for the lawyers involved to cooperate, be candid with each other, and peaceably work toward to fair result for both parties involved. This also means the lawyers have no stake in any ensuing litigation, since they cannot, under the participation agreement, participate in court disputes. Other important clauses include agreements that both parties agree to act in the best interest of any children involved.
The Collaborative Divorce Agreement
The goal is the collaborative divorce agreement. Through cooperation and negotiation, this agreement will allocate the assets, set forth child custody arrangements, and explain the future relationship and liabilities of each party. It is formed from the negotiations of both spouses. This assures that both spouses are honest, aware of the outcome and no surprises will arise later on. Once completed and agreed to, the collaborative divorce agreement is submitted to a judge, and when signed, becomes a court order. This way, both spouses know exactly what they are agreeing to, have sorted out any issues through negotiations, had their rights protected by advice from counsel, and know exactly what the judge is ordering.
