COLLABORATIVE DIVORCE: A Child Friendly Alternative

by Barney Connaughton, Esq

            Collaborative divorce is a non-litigation alternative to settlement of divorce issues.  The process begins with the parties signing a Collaborative agreement wherein they commit to forego presenting the issues of the divorce to the courts for resolution.  Instead, the issues are resolved by a team hand-picked by the parties which includes an attorney for each, a therapist as coach for each party, a financial planner, and a child therapist in appropriate cases.  All the professionals on the team are trained in collaborative divorce and commit to working together to aid the parties in resolving the issues of the case.  As part of the Collaborative contract, the parties agree to full voluntary disclosure regarding the financial issues.  The parties further agree that if the collaborative process fails the professionals on the case will not be allowed to stay on the case as it proceeds by litigation or otherwise. 

            The Collaborative approach provides some very definite benefits which help to minimize the affect of the divorce on children.  Parents concerned about how divorce will impact their children should consider Collaborative divorce as a child friendly alternative to litigation.

            One benefit is that the Collaborative team can begin immediately addressing the issues related to the sharing of the children as well as interim support issues.  The entire team will usually meet at the beginning of the case to start identifying issues in the case and to begin discussion and resolution of the support and child sharing issues which are usually present at the commencement of a case involving children.  In litigated cases the child sharing issues can be in limbo for six to eight weeks and even longer due to the need of the court to have the parties participate in mediation, allow the mediator time to put together a recommendation, and to find time on the court’s calender to have a hearing.  Delay in establishing a child sharing schedule can result in further conflict between the parties, power struggles, and standoffs between the parties witnessed by the children.

            The agreement of the parties not to litigate is another benefit to the children.  No matter how hard the parents work to shield their children from what is going on in the litigated divorce case, children can sense the stress and emotions felt by the parents concerning pending hearings or trial, and they cannot help but be affected by it.  Court filings in preparation for litigation can often escalate the rift between the parties which again gets absorbed by the children.  With the Collaborative process there is no looming court date, no posturing for the court and instead the parties and the Collaborative team are working together to appropriately resolve the issues of the case.

            Another benefit is the focus in a Collaborative case on resolving communication issues between the parties.  The coaches are trained to identify and help their clients through communication issues associated with divorce.  As communication issues play a large role in the breakdown of marriages it is not surprising to see parties struggle with communication after separation regarding the needs and sharing of the children.  Unless the parties voluntarily seek counseling in a litigated case, or are ordered to attend programs or counseling regarding communication issues, the children in these case are disadvantaged by having parents who cannot effectively communicate.  In the Collaborative setting, the parents have a coach who works with them to communicate more effectively and a team who will seek the input from the coaches when communication issues begin creating problems or impasses in the case.  Whatever communication skills the parents take from the process will only help to minimize future problems regarding the sharing of their children.

            The Collaborative process leaves the parties themselves in control of the outcome of their case.  When issues are resolved by agreement instead of court order the terms are more likely to be acceptable to the parties, which in turn will minimize the need for the parties to keep returning to the court to modify the orders.  A longstanding resolution is certainly more favorable to the children involved.  The Collaborative team also seeks to obtain a resolution to the case which looks to the future needs of the parties.  The financial planner gives input so the parties understand how they will be able to meet their own needs and the needs of the children in the future.  It is often difficult in a litigated case to reach a resolution that provides for and prepares the parties for their well being beyond the divorce.

            Collaborative Divorce is certainly not for everyone as before it can begin there must be a sincere commitment from both parties to make it work.   In smaller asset cases the parties may not have the funds to retain the professionals required in a Collaborative case.  If the parties are financially able and are committed to working with each other to resolve their divorce, Collaborative Divorce provides a child friendly forum to resolution of a divorce case.