What Makes a Divorce a Collaborative Law Case?
There many ways to approach a divorce. The least combative, yet sophisticated, way to settle a dispute is through a collaborative divorce. The couple in the collaborative divorce agrees to a contract, called a Participation Agreement, to negotiate their divorce settlement without a mediator or involving the court system. Instead, the parties hire a team of collaborative attorneys, an independent financial professional, and independent divorce coach. During the collaborative process, the parties may also involve experts like appraisers.
The Benefits of the Collaborative Process
One of the benefits of the collaborative divorce process is the idea that couples have greater control over the divorce process than they would if they involved the courts. The process is also less expensive and involves less stress and acrimony. The process also takes less time. Collaborative divorces also help to preserve the existing family relationship. The collaborative law process is ideal for parents who are trying to shield their kids from the emotionally damaging aspects of a traditional divorce.
The couple may also benefit from receiving advice from an attorney during this process, something that usually doesn’t occur during the mediation. It should be noted that it is often advised that couples use a review attorney while in mediation. However, matters that are not resolved during the collaborative process, the attorney who represents the couple during the collaborative process cannot represent them in any future litigation. This rule is put in place to allow divorcing parties to be direct and honest. It also motivates attorneys to want to make the collaborative process work rather than advocate for litigation.
Both Parties Must Sign a Participation Agreement to Validate the Collaborative Law Process
For the collaborative law process in the state of New York to be valid, the participation agreement must be signed by both parties. In Mandell v. Mandell, the defendant attempted to disqualify the plaintiff’s attorney. The attempt was made on the grounds that the attorney represented the plaintiff during the collaborative law process before the filing of the divorce. The couple got married in 1998 and had three minor children. In 2011, the defendant, the husband, moved out of the home. He was an attorney making around $260,000 a year. His wife was a volunteer social worker.
The wife was interested in the collaborative law process for the divorce. Her attorney contacted the husband to tell him that his wife had retained her firm to represent her and that his wife wanted to pursue the collaborative law process. However, it was not clearly communicated that collaboration was only appropriate if the plaintiff’s interim financial issues were addressed before entering into the process. In the plaintiff’s retainer agreement, the lawyer included stipulations related to representation in negotiations and contested litigation.
The defendant hired an attorney with training in the collaborative law process and signed a collaborative law retainer. The retainer agreement stated that the retainer had a limited scope. The retainer was for the sole purposes of the collaborative law process. The firm would not be obligated to represent the defendant during any litigation or appeal.
The couple did meet to sign a participation agreement to enter into the collaborative law process. At that point, the parties were supposed to resolve any immediate issues and develop a plan. The agreement was not signed during that meeting. The defendant’s other attorney was not present but did state that it was understood that the signing of the agreement would take place during a meeting scheduled for two weeks later. The plaintiff’s attorney stated that the agreement wasn’t signed because the defendant would not enter into a support agreement that the plaintiff would accept.
The second meeting didn’t resolve the temporary support issue. The participation agreement also did not get signed. A third meeting occurred with similar results. At this point, the plaintiff decided to sue for a divorce.
The defendant argued that the plaintiff’s attorney should be disqualified because she was involved in the collaborative law process, despite there not being a formal agreement. The plaintiff’s lawyer argued that the signing of a participation agreement indicates the parties’ intent to enter into the collaborative law process.
The court stated that the collaborative law process is a fairly new area of law and the process is voluntary. There are several New York court decisions interpreting the rules of the collaborative law process. In most situations, the process is entered into when both parties sign an enforceable agreement. Without this written agreement, any settlement offers or evidence of statements made to negotiate are not admissible in New York.
The court went on to say that what distinguishes collaborative law from a traditional divorce process is the fact that the parties’ attorneys do not represent them in any litigation in the future. However, in this case, the collaborative law process was used as a settlement technique. The court decided that in matrimonial cases, agreements made prior to or during a marriage are enforceable without being signed and acknowledged by both parties. Because the participation agreement was not signed, it was unenforceable.
The collaborative law process is ideal because it makes the divorce process non-adversarial. If the process goes smoothly, both parties can save a lot of time, money, and heartache. The process also helps kids to avoid any negative emotional consequences involved with a traditional divorce.
If you want to learn more about the collaborative law divorce process in New York, contact Spodek Law Group. The attorneys at our law firm are trained in collaborative law and can assist you through the process.