When considering a divorce, there are many ways to go about the process. The separating parties may choose to go to court and let the judge decide their fate; they may choose mediation; or they may choose a collaborative approach. During the process of a collaborative divorce, both parties are represented by their attorney. Keep in mind that for a collaborative divorce approach to be successful,nit is essential that each party and his/her lawyer understand and commit to the principles of collaboration.
In a collaborative law approach to divorce, each party agrees to disclose all information to the other party and refrain from holding anything in confidence. Ideally, the attorneys work with their clients, as well as with one another, to ensure a process that is both positive and productive. As an agreement in the divorce is reached, the attorneys will memorialize the terms and conditions of the agreement in a document called a marital settlement agreement which is reviewed by both parties, and reflects the progress made. Only after all issues, such as custody, property division and debt allocation, are agreed upon will the case be filed in a court of law. Then, the judge will enter a Judgment for Dissolution of Marriage incorporating the Marital Settlement Agreement.
Collaborative divorce differs from other forms of alternative dispute resolution, such as mediation, in many ways. When acting as a mediator, an attorney is prohibited from giving either party legal advice and from acting as an advocate for either side. However, in a collaborative divorce, each side will receive valuable legal counsel and advice from their respective attorneys.
There are special skills collaborative lawyers must possess, such as those regarding negotiation and conflict management. By settling manners in four-way meetings between clients and their lawyers, frequent court appearances may be eliminated, as well as some of the more stressful events that are often part of a traditional approach to divorce. Additionally, this process may eliminate the need for expert witnesses, the preparation of documents and exhibits for courtroom use, and the need to conduct depositions or use other costly discovery tools such as the issuance of subpoenas.
What Happens if an Agreement is Not Reached?
Generally, if an agreement cannot be reached, the collaborative attorneys will discontinue representation of the client. This is because the collaborative process lends itself to an open exchange of information, which gives the attorneys privileged information that otherwise wouldn’t be available to them. It would be unfair for either party to have to worry about whether or not the attorney could use openly shared information against them in litigation.
Fear of such actions would undermine the whole process, and would discourage the full disclosure of information that is highly important to the success of the collaborative process. Unfortunately, however, the attorneys who represent the parties in the litigation phase may not be the same attorneys who represented the parties in the collaborative process, thereby necessitating another set of lawyers and resulting in the increased expense associated with having four lawyers involved rather than just two.
Collaborative divorce is not for everyone. It may not be appropriate in cases involving domestic violence or mental illness. For more information and to explore whether a collaborative divorce approach is right for you, consult an experienced Illinois family law attorney. An attorney may assist you in understanding the collaborative divorce process and answer your questions. Contact Kathryn L. Harry & Associates, P.C. today, or call us at (877) 889-4515 for a consultation. We assist residents in Oak Brook and Naperville, as well as other communities nearby.