Q: Do I need an attorney?
Yes. The more important question is “What is the reason I need an attorney?” Each case and client is different. Some clients have a good understanding of the law and others do not. At a minimum you should do an initial consultation with an attorney. When doing this initial consultation make sure you have formed your questions before the meeting. You should write them down so that you make sure all of your questions have been answered.
Q: What will my attorney do for me?
An attorney can represent you in different ways. The attorney can be a consultant to you, providing information you request as the process goes on. The attorney can be a “scrivener”, that is, the person who drafts the pleadings that need to be filed with the court based on any agreements you bring to the attorney. The attorney can provide full representation. The nature of the representation can be determined following our initial consultation.
Q: Is Collaborative Law only used in divorce cases?
No. Collaborative Law defines a process which can be used to address any conflict that you can imagine. Collaborative practice has proven to be very useful in family law, probate, and civil cases.
Q: What are the stages of a collaborative case?
- First we build a team. Who is part of the collaborative team depends on the issues involved in the case. For example, a couple with no children would not require a Family Specialist, and a couple with no assets would not need a Financial Neutral as part of the Team.
- The team is initially made up of the two parties and their attorneys. In the initial meeting all members of the team sign a Participation Agreement, define high-end goals for how they want the collaborative process to proceed, address issues that need immediate attention, and talk about what other team members need to be added.
- Other possible team members, all collaboratively trained, include a Family Specialist for parenting issues; a Financial Neutral for financial issues, a Coach (perhaps two) to help the couple communicate and understand the collaborative process, a mortgage broker, and anyone else the couple needs to help them make the necessary decisions as they separate.
- Once the Team is built the next step is information gathering. The parties are not able to make decisions unless they have all the information needed for them to make these decisions. Depending on how available the information is, and how responsive the clients are in getting the needed information, this step can require one meeting or several meetings.
- Once all the information is gathered the team will spend part of a meeting defining “interests”. This is an essential step in the collaborative process. We need to know what is most important for each client because we want the final agreement to reflect as much as possible some of what each person wants. The more the final agreement reflects what is most important to each person the more durable it will be.
- We next move into the brainstorming phase. In this step we ask the clients, “given the information you have, and the interests you have expressed, how do we divide assets and liabilities in a way that provides as much as possible what you have said is important to you?”
- After brainstorming the clients will then evaluate what they like and do not like, and then work toward an agreement.
- The agreements from the collaborative process are then put into the forms required by the courts, everybody signs those pleadings, and they are filed with the court.
Q: Can documents used in the collaborative process be used later in court if the collaborative process does not work?
This issue is specifically set out in the Participation Agreement. The general rule is that documents generated in the collaborative process (house appraisal, pension valuation, business valuation) cannot be used outside of the process. There is, however, a provision that says if the parties agree, then these documents and others generated in the collaborative process can be used outside the process. This generally happens simply because
the parties are interested in saving money and do not want to pay for the same work over again. Documents that already existed, such as tax returns, bank statements, and pay stubs, have no restriction on being used outside the collaborative process.
Q: If I want to use the collaborative process how do I get my spouse to do so as well?
Ask. But do so in a safe manner. If you have not yet told your spouse of your decision to end the marriage then talk to a collaborative attorney first. You can then work with that attorney on a plan of action. It may be that the attorney will meet with you and your spouse and talk about the collaborative process (making clear to your spouse that the attorney represents you, and not your spouse), or the attorney will write a letter inviting your spouse to conduct the process in the collaborative model. Another option, when your spouse agrees that a separation is needed, is to provide your spouse with brochures or website information on the collaborative practice. In general, talk to an attorney first and then form a plan of action.
Q: What is the benefit of working with a Family Specialist?
Just like you go to a doctor for medical issues and an attorney for legal issues, collaboratively trained Family Specialists are experts in what they do. The Family Specialist will work with you and your spouse to work out a parenting plan that best serves your child(ren)’s emotional, psychological and emotional well-being. As part of this process the Family Specialist may meet with your child(ren) and bring back objective information that will help the parents develop a parenting plan that best serves their child(ren)’s future well being and happiness.
I like my accountant, who has my financial information. I do all the financial things for the family and my spouse has not expressed interest in taking part in our finances. Can I use this person as a team member in the collaborative process?
Probably not. Each team member added to the team must be collaboratively trained. In this training emphasis is placed on neutrality and even- handedness. Given that it appears that you and the accountant have a strong working relationship but your spouse does not take part in the finances, there is a risk of the accountant not being even-handed. I suggest you raise the issue during a team meeting and make a team decision on the issue.
Q: How fast does the collaborative case go?
One of the first things we will do as a Team is determine at what pace you want to proceed. Then we will work to make sure you and your spouse have the information you need to make decisions on parenting issues and a division of assets and liabilities. How fast things move depend not so much on the schedules of the professional team but on how quickly you and your spouse get the information together for everyone to consider. In a collaborative case also important that both of you are emotionally ready to make decisions. If you are not, or your spouse is not, I might suggest we not be in a hurry just for the sake of making a decision or getting the case done.
Q: What is your usual or preferred strategy for handling a divorce case?
- My job, whether it is a collaborative case or litigation, is getting my client the information he or she needs to decide how to get the case resolved. 98% of cases do not go to trial. They settle either by force (the court requires mediation before trial) or when one of the parties gives up. That is NOT my style as I think it is not a humane way to treat my client or the other party.
- Another factor to consider is whether there are children involved. If there are, I would much rather that their parents get through this family transition in a way that makes it probable that the parties as parents are communicating better with each other for the benefit of the children than they had for the last few years of their marriage. I refer to this as building a “legacy” for the children.
- I want my client to be as content as possible with the resolution of the case, even if my client was not the one choosing to end the marriage. If I can make sure that the resolution of the case reflects what my client holds most important then my client will be content with the result, my client will comply with the agreements that have been made, and I will know that I have done my job in making the very difficult transition from being married to being single as manageable as possible.
- The alternative to having a client-driven process is to go to court and delegate the decision-making authority to a third party. In Washington State that would be a Commissioner or a Judge. My experience is that if it gets to the point that the parties take this step then it is more likely than not that both parties will be unhappy with the result, the result is not likely to last, and both of you will be spending more attorneys fees in the future trying to “fix” what they think was a wrong decision.
Q: What additional expertise do you utilize inside/outside your firm?
As an attorney with collaborative training my “tool box” is large. While my firm has technology and support, most of what I would use in a dissolution case lies outside my office. When I talk about gathering information above, in the collaborative process we will bring on board a CDFA (certified financial divorce analyst) to work with you to gather financial records. I like this because this person acts as a “clearing house”. You should like it because you only have to pay for the work once. In a litigation model you would pay me to gather the info, your spouse would pay his or her attorney to gather the info, and then we would charge you both to exchange the info, and then charge you again (once each) by sending the information to our individual financial experts. That is only one example of the tools available to us in the collaborative process. While each is different, they have in common that they will be used to save you money and to get you information that you need to move forward in the process.
Q: Who will we most often meet and talk with, you, paralegal or assistant?
Me, almost exclusively, unless you need to set appointments or ask administrative questions. I will delegate preparation of pleadings and other documents to my assistant to save you money but it is important that I am available to my clients.
Q: In what increment to you charge your time?
I charge in six minute increments. In total, how much can we expect our divorce to cost? (best case scenario, minimum cost or likely range)
This is impossible to answer because this depends on who you are, who your spouse is, how fast you do your assigned tasks, and what we need to do in terms of getting you the information you need to make decisions. Do we need to value the properties? Do we need to value the retirement accountss? Do you need to do vocational rehab work to see what you want to do with your life / career? Does your spouse? Given the variables, an estimate is not possible. What I CAN tell you is that if you and your spouse, from the outset, say that cost is a concern, then we will commit as a Team to revisit the cost issue on a regular basis to make sure that the two of you feel you are getting value for your investment in the collaborative process.
Q: Are there other resources where I can go to learn more about the collaborative process?