The term “collaborative” has a special meaning in divorce law. It is not the everyday meaning of “trying to work together.” Instead it refers to a divorce process in which attorneys sign a binding agreement that they will not use court actions (litigation) in a given divorce case. In a collaborative law divorce, both family law attorneys working with a couple are obligated to withdraw from any involvement in the case if out-of-court negotiations should fail.
This signed agreement—called a “disqualification agreement” or “recusal pact”–does not place any restrictions on the spouses. Either spouse can pursue a contested divorce through court actions if the collaborative law negotiation process fails or if they otherwise want to abandon it. The spouses will simply have to find new attorneys, as the contract prevents the collaborative law lawyers from taking any part in any future litigation related to the case.
This disqualification agreement between the lawyers is the essential foundation of a collaborative law process. It is so powerful because it changes the financial incentive structure of a case. Without a signed disqualification agreement, attorneys have a strong financial incentive to use court actions and processes such as discovery, motions, hearings, affidavits, and depositions, because this earns them so much money. These court actions and documents are a very poor way to reach a separation agreement—in fact, they actually get in the way of a couple coming to an agreement—but they allow family lawyers to earn large sums of money.
In a collaborative law divorce, neither side can go to court or threaten to go to court. This allows both sides to focus all attention and energies on negotiating a fair separation agreement that is acceptable to both parties. This also creates trust so that spouses can speak more openly, directly, and practically about the terms of the divorce. Spouses can meet and consult individually with their respective collaborative law divorce attorneys, but much of the progress on the specific terms of the separation agreement is made in “4-way meetings” with both spouses and both attorneys present. These 4-way meetings encourage open, efficient communication and creative problem solving, and they keep all parties on the same page in terms of on-going negotiations and progress.
As is the case with divorce mediation, all decisions about the terms of the divorce are ultimately the clients’ decisions. One or both of the collaborative law attorneys write these decisions and terms into the legal papers required by family court and gives you instructions on how and where to file the divorce papers. The family court then mails you an appointment date on which you appear before a probate court judge for a 15-minute hearing in which the judge approves the agreement and issues the divorce decree.
For some couples, a collaborative law divorce is preferable to divorce mediation because it allows each spouse to have an attorney “on their side,” listening to them individually at times and helping them to advocate for themselves. While a divorce mediator must remain neutral, favoring neither one spouse nor the other, a collaborative law family attorney can advocate for you in the negotiation process.
Collaborative law divorce tends to be much more expensive than divorce mediation: two attorneys must be paid for each hour; negotiations tend to be less direct; and couples opting for collaborative law rather than mediation may have less trust or more conflict than those choosing mediation. Collaborative law divorce is, however, faster, less expensive, and less conflictual than any contested divorce process executed through court motions and actions.
Be aware that some family law attorneys may refuse to sign a “disqualification agreement” but will use the term “collaborative” in the everyday sense of the word and say that they will work “collaboratively” or cooperatively on a divorce case. Without a binding disqualification agreement, however, there cannot be a collaborative divorce process. Negotiations in this situation cannot be as open and direct, because there is less trust. In the worst-case scenario, a divorce lawyer may claim to work “collaboratively” and then use out-of-court negotiations to gain information and a tactical advantage for surprise court actions.
Collaborative family law attorney Julia Rueschemeyer is always happy to use a collaborative divorce process (sign the “disqualification agreement”) because it is the best way, along with mediation, for couples and their families to work out the terms of their separation agreement. She can also recommend other divorce attorneys in Massachusetts who understand and practice collaborative law divorce. Feel free to call Julia with any questions about collaborative law divorce and divorce mediation, non-adversarial ways of reaching a separation agreement.