DATE POSTED: January 19, 2023 4:50 am

Collaborative Divorce: A Gentler Solution for Separating Couples

Separation and Divorce

Marriage crises can affect any couple. Regardless of how long or fulfilled your marriage is, stop nurturing it – and you will experience stagnation and alienation. Living in marital communion is a two-way street. Good, healthy marriages require continuous and mutual effort, vigilance, and dedication to succeed.

Sometimes our efforts to maintain a happy marriage fail, and we seek a way out. The dissolution of a marital relationship is a challenging time for everyone involved. In Illinois, the dissolution of marriage can take two forms: legal separation and divorce. Many couples choose legal separation for personal, financial, or religious reasons (health insurance, taxes, government benefits, and marital property division).

However, some spouses can decide to separate informally before taking the next step toward divorce or legal separation (as an alternative to divorce). Spending time separately helps spouses recalibrate and consider all options cool-headedly.

In the United States, 87% of couples who separated ended their marriage by divorce. Only 13% of couples reunited after spending time in separation. In 2019, the divorce rate was 2.7 per 1,000 people, which equals 746,971 divorces in America annually.

Whether you are considering divorce or need time alone, collaborative law is a win-win solution for all separating couples.

Why Is Collaborative Divorce a Win-Win Solution for Separating Couples?

Collaborative law is an alternative to traditional divorce litigation. In 2018, Illinois adopted the collaborative divorce method by passing the Collaborative Process Act, which governs the central principles of divorcing out of court. As an alternative dispute resolution method, collaborative divorce offers multiple benefits to separating couples. The main focus is on the collaboration between the parties and their attorneys. That is a stark contrast to adversarial litigation, in which parties take opposite positions and engage in a vindictive all-or-nothing court process. During collaborative divorce, couples cooperate out of court to achieve satisfactory outcomes. Each party retains an attorney, but unlike litigation, collaborative attorneys work shoulder-to-shoulder to bring positive results to their clients.

What Are the Goals of the Collaborative Process?

The main goal of collaborative divorce is resolving family-related matters out of court and far from institutional decision-making centers. Instead of litigation (which aims to explore the past), collaborative divorce is future oriented. Its underlying principles include integrity, transparency, cooperation, honesty, and professionalism. The method seeks to minimize the harmful effects of separation for spouses, children, and everyone else involved. It promotes settlement as a dispute resolution method. One of the principal goals of collaborative divorce is ensuring an effective co-parenting relationship after separation. In addition to preparing spouses to remain devoted parents after the dissolution of marriage, the process restores and strengthens their confidence and self-image, healing them emotionally and preparing them for single life.

Resolving Matters Out-of-Court

The process starts when parties and their collaborative attorneys sign a Collaborative Participation Agreement. The agreement outlines the  roles of the collaborative attorneys,  and the separated couple. The key to understanding collaborative divorce is that the process is voluntary, informal, and free of external compulsion. The parties exchange information in informal meetings and communications. Unlike rigid litigation rules (discovery, depositions), parties in a collaborative divorce cooperate closely to achieve mutually beneficial results.

Good-Faith Efforts

By signing the participation agreement, the parties promise to conduct themselves in good faith and use their best efforts in settling. They agree to disclose all material information (income, debts, assets, accounts) voluntarily. As mentioned, there are no coercive litigation mechanisms (such as discovery) compelling the parties to share relevant information. Collaborative divorce relies on informal communication, counting on integrity and honor. The only formal mechanism is affidavits (statements under oath). The key to collaborative divorce is transparency and creating an atmosphere of trust. The process starts with a four-way conference. The conference enables parties to achieve a free flow of information. During the initial meeting separating spouses sign a participation agreement, committing themselves to invest utmost efforts in reaching satisfactory outcomes.

Children’s Well-Being

Ensuring the children go through separation and divorce without harm is one of the central aspects of collaborative divorce. The process involves mechanisms for preserving children’s psychological and emotional integrity. The separating couples invest efforts to shield their youngest family members from the effects of marriage dissolution. In addition to involving child psychologists the process employs other measures to protect children from unnecessary stress and trauma. To that end, settlement discussions involve children only if parents agree (after getting approval from the child specialists).

Who Is on A Collaborative Divorce Team?

Experienced professionals and consultants play a decisive role in collaborative divorce. Dealing with marital property division, complex assets, child support, child custody, alimony, and other issues requires special knowledge that state-appointed judges often lack. Therefore, the collaborative process includes various experienced professionals, such as child specialists, forensic professionals, financial consultants, and psychologists. Collaboratively trained lawyers have the necessary skills to communicate and cooperate with the professional team. In contrast to litigated approaches (where each party retains its team), participants use the so-called joint professional teams. They provide knowledgeable opinions that serve both parties as a factual basis for negotiations. However, their findings are not admissible in future litigation, nor can the same professionals participate in the potential court process between the parties.

Control Over the Process

In collaborative divorce, parties have control over the process. Unlike the courtroom, where a state-appointed judge decides the destiny of the parties, the out-of-court collaborative law focuses on spouses. They control the outcome by determining the dynamics and direction of negotiations. In addition, they can change collaborative attorneys at any time or abandon negotiation efforts. The sense of control coming from the approach of the collaborative process motivates the parties to invest their best efforts in resolving the dispute.

The Role of Collaborative Attorneys

Collaborative attorneys are different from their litigation counterparts. Instead of representing their clients in a zero-sum court battle, collaborative attorneys work together to achieve mutually agreed-upon solutions for separating couples. That includes sharing information and revealing all material facts that foster negotiations and lead to settlement. If either party fails to disclose relevant information or misrepresents material facts, collaborative attorneys must resign from the case. In that situation, attorneys cannot represent the same clients again, including a new collaborative process or potential litigation. In addition to providing legal assistance, collaborative lawyers ensure integrity and transparency, cooperate with the appointed team members and consultants, and offer emotional support to their clients. However, they can withdraw from the case at any time. The Illinois Collaborative Process Act allows attorneys to leave without providing reasons. Their only obligation is to notify the other party and their attorney in writing. In that case, the party can continue the process alone or hire a new collaborative lawyer.

Confidentiality

In contrast to litigation, in which everything is public information and during the divorce process becomes part of the public record, collaborative divorce is confidential. Everyone involved must keep all information secret, including potential future litigation (if the collaborative process is unsuccessful). The only exception is information about child abuse, irreversible financial damage, or other information violating the rules of professional conduct for collaborative attorneys.

Achieve a Win-Win Solution with the Right Collaborative Attorneys

At Cooper Trachtenberg Law Group, LLC, our lawyers are committed to excellence, integrity, and honesty in representing clients in every divorce case.

Our attorneys have more than three decades of valuable experience providing collaborative law services in the Chicagoland area. Their dedication, commitment, and professionalism are unmatched by the competition. Our attorneys are specially trained by Collaborative Divorce Illinois, the voluntary professional association dedicated to educating the public about collaborative law and to training attorneys and other professionals in collaborative processes.

Call our office today at 847-995-8800 to schedule your appointment. The first 20-minute consultation is complimentary.