By Tracy B. Stewart, CPA, CFP, CDFA
Reprint from Today's CPA, May/June 2005
While she was traveling, Marilyn's husband, Jeff, canceled her credit cards. He also filed child endangerment charges against her. When she returned, authorities put her in a mental health care facility to protect her child. Marilyn was not insane, nor was she a danger to her child. Jeff was filing for divorce, and was legally positioning himself for control of their finances and custody of their young child.
How Does the Collaborative Process Work?
Collaborative law is a unique process used to resolve disputes in a private setting and without court intervention. Initially, it was developed for divorce and custody cases. Texas became the first state to pass laws allowing divorces and suits affecting the parent-child relationship to be conducted under collaborative law procedures. The process is now evolving into areas of the law including probate and guardianship matters and other civil and commercial disputes (such as business disputes and commercial litigation).
The collaborative model is premised on a written agreement signed by the parties and their attorneys. The parties agree to voluntarily exchange all relevant information and abide by a stated code of conduct. When experts are needed to evaluate certain issues, they are jointly retained and act as neutral consultants. Court proceedings are suspended until a settlement is reached and final documents are prepared.
Since the focus of collaborative law is on the resolution of issues, blaming parties for past conduct is not emphasized in the process. Professionals participating in collaborative cases are specially trained in utilizing problem-solving techniques which address both parties' goals, interests, and concerns. In a divorce case, statutory guidelines for the division of property, child support, and visitation do not have to be strictly adhered to. As a result, the parties are free to craft agreements which fit the unique dynamics and resources of the restructured family.
Final agreements reached through the collaborative process are drafted into a court order which, when signed by the judge, becomes an enforceable decree.
The incentive for all parties to resolve the case amicably is achieved by the legal requirement that both attorneys must withdraw from the case if it cannot be settled and has to be litigated. This insures that from day one, all parties, attorneys, and consultants are spending 100% of their time on efforts to resolve the dispute. (Read more about what happens in the rare event that the collaborative process does not work.)