In the last 15 years, a new method for getting a divorce has been developed, to avoid the bitter and often unnecessary conflict many couples experience. Mary F. Kelly has been at the forefront of this effort in Westchester, as an early member of the New York Association of Collaborative Professionals. We find this new method, called collaborative divorce, exciting and believe it is reshaping many divorces for the better.
Traditional divorce is an adversarial process–one party against another–which is how most of our legal system works. One party sues, the other responds in opposition, and the court decides the outcome. Collaborative divorce takes the process out of the courts. You and your spouse, with your attorneys and other collaborative professionals, work together to settle the issues of your divorce and the Court just signs the judgment after the settlement is reached.
Better for Families with Children
Collaborative divorce can be successful for people who can maintain a tone of respect even when disagreeing with a spouse, who want to prioritize the needs of their children, and who believe that each spouse’s needs require equal consideration. The core elements
of collaborative law are:
- Maintaining open communication and voluntary mutual sharing of information
- Acknowledging each person’s highest priorities and coming up with shared solutions
- Negotiating a mutually acceptable settlement
In a collaborative divorce, the divorcing couple must pledge to work together toward a settlement agreement that is fair and acceptable to both. For example, a team of attorneys and one or more financial professionals and coaches works with the couple to come up with a parenting plan. Instead of settling for a traditional custody and visitation plan (Mom is primary custodial parent and Dad sees the children every other weekend), a parenting plan is based on the needs of the children. Instead of fighting over who spends how much, a couple in a collaborative divorce seeks financial advice to address their needs going forward, sharing information openly to achieve a fair solution. Instead of one spouse seeking a divorce from the other as an adversary, collaborative law encourages the couple to acknowledge the pain of their ending relationship and to try to move on, using “no fault” as grounds for divorce. (In New York State, the no fault ground is “irretrievable breakdown” for six prior months, with no proof needed and no contest permitted.)
Different from Mediation
Mediation is another avenue couples choose to avoid excessive conflict and court battle. A mediator meets with the parties together to work out a settlement. The mediator represents neither party, but helps the couple balance the needs of each spouse to come to an agreement on custody and visitation, support, division of assets, and other issues. The mediator will draft a written agreement, but often, each spouse hires an outside attorney to review the agreement and modify terms, if necessary.
While mediators and collaborative professionals are both trained in conflict resolution and mediative techniques, mediation is most beneficial to couples who feel they are on equal footing. Couples in which one spouse has always been in control of the finances, or one feels intimidated or too hurt or angry for intimate mediation sessions, may be better helped by a collaborative team, where each party has her/his advocate and neutral financial and mental health professionals guide the parties to a solution.