Ending the Marriage
The end of the marriage can be a difficult, often traumatic experience. You will find new paths and new horizons. However, ending your marriage does not always end the relationship with your former spouse. Especially if you have children together. You need to forge a new path forward. Often you can even enjoy a respectful and open communication. How is that possible?
For many couples, one of the main reasons for divorce is lack of communication, or lack of good communication. Ironically, for many couples the key to a better divorce and successful post-divorce relationship is better communication and cooperation. The answer is collaborative divorce.
But first, let us take a look at what does not work.
Divorce Litigation
Traditional litigation involves an open confrontation between the disputing parties. Opposing attorneys engage in an open court fight, trying to outsmart each other. The divorcing spouses become part of a heated legal battle, where there is often little or no regard for the children’s well-being and post-divorce relationship. Since the court process is public, litigants often reveal sensitive personal information about their spouses. Airing dirty laundry in front of the public eye contributes little to improving a co-parenting relationship in the future. When children are involved, the harmful effects of litigation amplify. Watching their parents fight over alimony or custody, using dirty tricks against each other, leaves deep emotional scars and trauma. State-appointed judges typically have little time, resources, or knowledge to deal with the psychological aspects of divorce. Judges are supposed to focus on the best interest of the children in deciding custody, but that also means promoting involvement of both parents in the kids’ lives whenever possible. On the financial side the battles often revolve around what is or isn’t marital property or debt, valuation of assets, how to divide those assets, and whether to order alimony or another type of financial compensation, like child support, and how much of it. Litigating divorce means spouses undergo an exhausting discovery process involving gathering of financial documents and depositions or questioning under oath about their case, opening statements, witness and expert testimonies, and closing arguments. Each phase carries additional costs, pushing overall expenses to astronomical figures. Besides, undergoing the court process is time-consuming because even getting an initial court hearing date can take months. Consequently, waiting for a final divorce judgment often lasts several years.
Once again, the answer is collaborative divorce.
Insiders Guide to Collaborative Divorce
To help you understand the specifics of the collaborative divorce process below is a guide based on an extensive experience of a distinguished Illinois collaborative attorney, Anna P. Krolikowska.
- What is Collaborative Divorce?
Collaborative divorce is an out-of-court method for resolving divorce-related disputes. In collaborative law, each spouse hires an attorney, like in litigation. But, unlike litigated divorce, there is no confrontation between the parties. Collaborative attorneys work together to support the couple in resolving their dispute privately, without court intervention. They provide their respective clients with information regarding their legal options on issues related to the marriage and divorce and help the spouses find common ground and resolve contentious issues through negotiation, open communication, and collaboration. Collaborative divorce involves not only attorneys but also experts and consultants from various branches, who might be helpful to the couple in making their decisions. For example a financial neutral can assist the couple in identifying potential financial settlement options, while a coach can assist with processing the emotions related to tte death of their marriage, remain on track during the collaborative divorce process and transition to a new future. The Illinois Collaborative Process Act (2018) governs the process of divorcing out of court and its central principles. Anna was one of a handful of attorneys involved in writing the Illinois Collaborative Process Act (2018) and lobbying on behalf of the Illinois State Bar Association for its passage in Springfield, IL.
- The Goals of Collaborative Divorce
The principal goal of collaborative family law is creating a settlement agreement tailored to a particular family in a respectful and supportive environment while avoiding adversarial court proceedings. Collaborative divorce is an attempt to resolve a family dispute voluntarily and privately, without government involvement. The underlying principles of the collaborative approach are honesty, integrity, transparency, cooperation, and professionalism. Spouses promise to invest their best efforts in creating an agreement for their family and resolving contentious matters in a constructive and respectful manner. In contrast to litigation, the collaborative divorce process is future-oriented. Instead of dissecting the past and finding culprits, collaborative divorce deals with post-divorce relationships. Attorneys in collaborative divorce work shoulder-to-shoulder with child psychologists and other experts to ensure children go through the process without harm. The collaborative approach minimizes negative social, financial, and psychological consequences for everyone involved, especially children. This out-of-court method focuses on promoting settlement and maximizing the chances for positive outcomes. Ensuring successful (or at least workable) co-parenting relations between former spouses is one of the main goals of collaborative divorce. Collaborative attorneys work toward restoring an emotional and psychological balance between the spouses and strengthening their self-determination and integrity. Using their psychological and communication skills, collaborative lawyers set the atmosphere in which spouses can freely and openly communicate, overcoming differences and reaching a settlement. Finally, the process as a whole is carefully tuned to resonate with both the children’s and the parents’ best interests.
- No Court Intervention
Spouses participating in a collaborative divorce agree to exchange all material information and disclose facts relevant to their divorce freely and voluntarily, without external compulsion. The essence of collaborative law is engaging in informal meetings and discussions and communicating productively using all means available. That is a stark contrast to litigation, where parties disclose and exchange information in a rigid discovery process, while communication is possible only through subpoenas and formal court hearings. Next, divorcing couple encourages their attorneys and other experts involved in the process to cooperate closely. The key to understanding collaborative divorce is the role of attorneys and consultants. They all work toward one goal – helping the couple settle their divorce out of court in a manner determined to be fair and equitable by the couple and not by an external decision maker, like a Judge.
- Limitations of the Process
The collaborative law process has its limits. Despite the undisputed benefits, divorcing spouses must be aware that even collaborative law cannot resolve all the issues that led to the dispute. Even though there is no better method for addressing underlying problems that cause divorce, no one can guarantee collaborative divorce process will result in a divorce agreement, or ultimately resolve distrust, tensions, and other irreconcilable differences between the spouses. Spouses should understand that improving their communication and strengthening their co-parenting skills depends primarily on themselves. Collaborative attorneys and external consultants, like coaches, or financial neutrals, are here to help, but they cannot support the couple every minute of every day. Divorcing spouses should also be aware that participating in the collaborative divorce process does not mean you must renounce your interests, or surrender them to the other party’s interests. The collaborative divorce process is built around the divorcing couples goals, concerns and fears, and ultimately the divorcing couple decides what that means and what an equitable agreement looks like. Also, engaging in collaborative efforts does not imply that attorneys represent both spouses. On the contrary, collaborative attorneys have fiduciary duties only to the party that hired them. Their job involves close cooperation with the other party’s attorney, but ultimately they own loyalty only to their clients, representing their best interests.
- Preserving Integrity
Preserving the integrity of the collaborative divorce process is essential. Participating in collaborative efforts is a sign you and your spouse want to take your dispute resolution to a higher, more respectful and considerate level. You reject the alternative – engaging in an all-or-nothing court battle that means one of you goes down no matter the cost and the damage caused to the family. Instead of fighting against each other, you choose to work together toward the same goals. By starting the collaborative process, you have already won the first victory over your inherent combative instincts. Even if you do not resolve all of your issues through the collaborative process hopefully you will be able to salvage some of the work done. Of course, ideally you want to resolve all of your divorce issues and finalize your divorce process. Statistics maintained by the International Academy of Collaborative Practitioner indicate that roughly 90% of couples who begin collaborative divorce process finalize their divorce through the collaborative process. But even those couples who are unable to finalize their divorce through the collaborative process might be able to salvage some of the work done, for example by asking a judge in their divorce case to enter a parenting judgment which they created through the collaborative process. Something is better than nothing. As the couple undertakes a collaborative process,, the parties and the attorneys work to protect the privacy and dignity of the spouses, their children, and everyone involved.
- Conducting in Good Faith
The parties to the collaborative process commit to acting in good faith and investing their best efforts to settle. By signing the participation agreement, both spouses agree (and oblige themselves) to reveal and share all material information related to the case (income, assets, debts, accounts, etc.). The key to a successful collaborative process is free and open communication. Collaborative lawyers encourage parties to express their emotions, desires, needs, and fears. Parties use their best efforts to understand and sympathize with the other side’s position. The collaborative process differs from litigation in one respect – no formal discovery in collaborative law, meaning no coercive legal mechanisms are available to ensure parties reveal financial and other relevant information. Instead of official discovery, parties use informal discussions and meetings to exchange materials and disclose facts. Because there are no state-regulated mechanisms for compelling the party to provide crucial information, collaborative law relies on each party’s integrity and sense of honor. The divorcing couple can also hire a financial neutral, who as a member of the collaborative team, reviews all the financial documents and raises questions, brings up discrepancies, and helps to brainstorm and analyze possible divorce settlement scenarios. Collaborative divorce achieves transparency through frequent communications, free disclosure of financial documents, assistance of collaborative professionals and the so-called team meetings that occur throughout the collaborative divorce process. The goal of the team meetings is to discuss the matters openly with the support and assistance of the professionals.
- The Role of Collaborative Attorneys
Collaborative attorneys have a different role than their litigation colleagues. Rather than representing disputed parties in an adversarial process, collaborative attorneys work to find common ground between their clients. Similar to trial lawyers, collaborative attorneys have a client-attorney relationship with fiduciary duties and must represent his or her client’s best interests. What differentiates collaborative attorneys is their additional training as mediators and collaborative professionals and their commitment to assisting the divorcing couples through the collaborative process rather than litigating all issues with a win at all cost mindset. While zealously representing their individual client’s interests, collaborative attorneys work side-by-side with their counterparts to help their clients arrive at an agreement that works for the divorcing couple. Collaborative divorce attorneys are peacemakers and problem solvers. Their primary responsibilities are to ensure that their clients have all the information necessary to make informed choices, are able to advocate for themselves, and craft a divorce agreement specifically tailor to their and their family’s needs. One of their key aspects of collaborative divorce process is transparency. Under Illinois law, collaborative attorneys will encourage their clients to disclose information, and ultimately must resign if their clients intentionally misrepresent material facts or fail to disclose relevant information. The collaborative participation agreement spouses, attorneys, and all collaborative professionals sign at the start of the process provides that they cannot provide additional services if the collaborative process fail. In case of the attorney’s that means that they cannot represent the same client both in collaborative process and any future litigation.
- The Use of Experts and Consultants
Experts and consultants play a significant role in the collaborative law process. Dealing with demise of a marriage, custody, co-parenting, division of marital property and debts, alimony, and other complex issues bring with them emotional, financial and legal considerations. As opposed to litigation, where each side hires its experts to confront the other party’s expert before the court, collaborative law offers a different approach. Namely, as needed in a particular case, the divorcing spouses retain joint neutral experts (child specialists, financial advisers, therapists/coaches, appraisers, actuaries, etc.) to provide expert opinions on a specific complex or contentious matters. Parties then use the information they receive as data points for further negotiations. One of the specifics of collaborative law is that expert parties hired during collaborative divorce cannot participate in future litigation between the same parties.
- Confidentiality
Confidentiality is one of the cornerstones of collaborative divorce. By signing the participation agreement, spouses, their attorneys and all other professionals agree to maintain the parties’ privacy and confidentiality and minimize which information revealed during the collaborative divorce process will become part of the public record. The same rule applies to experts and consultants involved in the process. However, the secrecy does not extend to information related to actions that constitute child abuse, aim at causing irreparable financial damage, or violate the rules of an attorney’s professional conduct.
- Dealing With Children’s Issues
Children’s well-being is one of the central concerns of collaborative law. The divorcing spouses who choose collaborative divorce process recognize that the distrust, disharmony, and marital crisis that led to the divorce is unrelated to their children. Hence, resolving the dispute should not negatively affect children’s peace of mind or contradict their best interests. The collaborative law process comprises mechanisms protecting the emotional and psychological integrity of the youngest family members. It assists parents in shielding the children from the challenges their parents experience during the divorce. To that end, participants of the collaborative process invest efforts in promoting caring and loving relationships between parents and children and respectful communication between parents. Any details related to the divorce are intentionally not disclosed to, or discussed with the children.
- What Are Temporary Agreements?
Temporary agreements refer to the arrangements parties make during the process regarding their rights and obligations. To promote certainty and avoid arbitrariness, collaborative attorneys encourage divorcing spouses to agree on how to treat assets and liabilities, child issues, and their conduct during the collaborative process. The arrangement is temporary until the parties finally settle, resolving their divorce-related dispute. However, the collaborative team frequently check-in with the spouses to see if they would like to modify the temporary agreements in any way as they progress through the case. For example, this gives the parents an opportunity to try out multiple parenting schedules to find the best schedule for their family. Once the couple arrives at their best parenting schedule, that particular schedule is incorporated into the parenting judgment, which will be submitted to the court for entry.
- Withdrawal of Collaborative Attorneys
The Illinois Collaborative Process Act provides that collaborative attorneys can withdraw from the case at any time, regardless of the reason. That is separate, and apart from an attorney resigning the case because the client refuses to disclose material information. In fact, an attorney can withdraw from a case regardless of the process, whether it is collaborative process, mediation or litigation for a number of reasons. A client also has the right to ask an attorney to withdraw from the case, or to hire a new attorney. In case of withdrawal, the collaborative attorney can leave at their sole discretion without providing reasons. However, they must send notice in writing to the other party and their attorney. Withdrawing from the representation does not terminate the collaborative law case. The party whose attorney has withdrawn can hire a new collaborative attorney and continue the collaborative process.
Final Settlement Enforcement
The process ends by settling the dispute and signing a a parenting judgment and a marital settlement agreemeent. Until the agreement is signed, the parties can change collaborative attorneys or leave the process altogether, turning to the court. That reflects one of the principal aspects of collaborative law that litigation lacks – control over the process. The parties present the final signed agreements to the court for entry. Following review of the settlement documents, and in some court systems either an in-person or a virtual court appearance, the judge enters the settlement agreements and finalized the divorce case .
- Terminating the Collaborative Law Process
As mentioned above, either party can unilaterally terminate the collaborative law process. They must give notice (in writing) to the other party and their attorney. Once the collaborative process has been terminated, either party may file a petition for divorce with the court. The person filing for divorce is called the Petitioner. The other spouse is then called the Respondent. The Respondent will need to be served with a summons and the divorce petition. Once served with the divorce petition and summons the Respondent has 30 days to file his or her written response with the court. As a reminder, the collaborative attorneys cannot represent clients in subsequent litigation, and each party will need to hire a new attorney.
The Attorney That Can Make a Difference
The principles laid out in this guide provide a framework for a successful collaborative law process. Reading carefully, you will notice that one principle prevails over others. Namely, the entire effort depends on the choice regarding the collaborative attorney. The right collaborative attorney can make a difference between an effortless resolution of your case and a complete waste of your time.
Anna P. Krolikowska is an Illinois collaborative attorney and family law professional with years of experience dealing with most contentious family matters. As a former litigator, Ms. Krolikowska understands the difficulties and struggles of those who undergo family crises, and how to help them navigate the often challenging and nuanced divorce process.
She is committed to providing a customized approach that fits their individual needs while upholding the highest collaborative law ethical standards. With Ms. Krolikowska on your side, you can rest assured your collaborative law efforts will yield the best possible outcomes.
Please reach out today to schedule your consultation.
