In Arizona, many spouses view collaborative divorce as a very desirable alternative dispute resolution (ADR) option. These are couples who want to dissolve their marriages as quickly and reasonably as possible, but without ever going to court.
When asked to describe their experiences with collaborative divorce, our clients often use words like “dignified,” “amicable,” and “respectful.” If that sounds good to you, then keep reading!
As with divorce mediation, collaborative divorce is an established ADR method of resolving disputes. Spouses must agree to commit themselves to complete divorce settlement – to follow the collaborative law process from start to finish. Their settlement agreement is followed by the court’s consent decree.
Although possible in mediation or litigation (although not necessarily recommended), that is not how collaborative law works. We must follow Arizona Family Law Procedure Rule 67.1 in all collaborative law proceedings. Under Rule 67.1, spouses participating in the collaborative divorce process each have a collaborative lawyer experienced in family law. Remember, these are still parties in a divorce. So each spouse has a lawyer for confidential legal advice, guidance, and strategy throughout negotiations and in drafting the final settlement agreement to be filed with the court.
Spouses cannot be ordered into collaborative law proceedings over their objections. For true collaboration, participation has to be voluntary. The spouses must be unified in their willingness to collaborate in resolving all legal issues in the divorce.
If spouses choose this process, then both must sign a collaborative divorce participation agreement. This is an important decision and should not be done on a whim. They are expected to adhere to this agreement at every stage of the process. In signing, they promise to commit themselves to resolving every issue in their divorce with finality by negotiation, compromise, and agreement. A key principle of the participation agreement is to not litigate any aspect of their divorce. Staying out of court is essential!
Despite their best efforts at negotiating solutions, it is possible a full agreement is just not going to happen. Spouses could get hung-up on payment of spousal maintenance, for example, or issues surrounding parenting. The contested issue will be litigated in court. And that changes everything.
If either collaborative divorce lawyer moves the case toward litigation, then both lawyers are disqualified. The lawyers and their respective law firms must withdraw from representation. Obviously, this means the parties must obtain new counsel. Divorce litigation proceeds to the courtroom with the new attorneys.
Yes. Although the goal of collaborative divorce is full settlement without court intervention, partial settlement is possible.
In the event some agreements are made but not all, what was resolved and agreed to is finalized and signed as a partial settlement agreement. As with any divorce, if spouses do not arrive at a parenting plan agreement in their collaborative divorce, then a family law judge must determine child custody and parenting time for them. The parties understand and agree that they will have to litigate outstanding issues at trial.
Alongside each spouse is an attorney equally committed to the collaborative divorce process. To maintain the spirit of cooperative negotiation, no one goes into this with a plan to litigate if they don’t get their way. That includes the attorneys!
To answer this question, let’s consider a few pros and cons.
Instead of battling to win, spouses work together with their attorneys beside a team of trained professionals.
A benefit of collaborative divorce is the team approach. The spouses are supported by a professional team of nonparty participants who remain neutral. In the event the collaborative law process breaks down, these nonparty professionals cannot be engaged by either party in any subsequent litigation.
Any collaborative divorce might involve one or more qualified experts who advise both spouses on specific matters, such as pension valuation or income potential. Depending on the matters to be settled, the roster of impartial professionals may include a child custody evaluator, mental health professional, and a financial neutral or accountant who educates the participants on the financial implications of their divorce. This team offers up professional opinions, explanations, reports and data relevant to each issue in the divorce. They help spouses make important decisions together.
These are the basic steps to collaborative divorce for you and your spouse:
The collaborative divorce participation agreement must comply with the requirements of Rule 67.1(d):
By signing the participation agreement, you and your spouse (and both attorneys) commit to certain core principles and promise not to violate these commitments.
The keystone pledge is to negotiate a mutually acceptable settlement without using litigation. Additionally, the spouses agree to:
This spirit of cooperation is essential!
There will be many issues over asset and debt division, spousal maintenance, child support, and a parenting plan. (Who has legal decision-making? How will parenting time and vacations be scheduled? What about grandparent visitation?).
As a resource, our Arizona Divorce Handbook will help you understand every aspect of divorce.
Your collaborative support team might include a business valuation expert, vocational expert, child therapist, and others.
Each spouse engages in private consultations with his or her collaborative divorce lawyer.
The spouses with their attorneys negotiate in collaborative joint sessions – as many as it takes. This process continues until all issues are resolved through compromise and agreement. You or your spouse may break-out from any joint session, as needed, to speak privately with counsel, divorce coach, or therapist.
The attorneys draft the settlement agreement and both parties sign it.
The signed settlement agreement along with a joint petition for uncontested divorce is filed with the Clerk of the Court along with any related documents. Absent any objection, the judge will sign a consent decree incorporating the parties’ agreement.
There is one more thing we need to talk about.
Yes. There are several ways the collaborative divorce process can terminate prematurely:
Before considering collaborative divorce, do some research on your own. When you’re ready to talk, call us at 602-548-3400. Collaborative divorce is not for everyone. But it might be the perfect solution for you and your spouse. The team here at Stewart Law Group has years of experience helping Arizona residents go through the divorce process helping them come to the best possible resolution for themselves and their families. Contact our office today to set up a free initial consultation and see how we can help you. 602-548-3400
“Certainly no one wants to go through a divorce, but I am so grateful to my attorney, Robert Howard and the rest of the team at Stewart Law Group for their care, support, and professional legal work in resolving my case. From the very beginning, I was provided with resources that educated me about the process, protecting my interests, and relieving a great deal of fear and anxiety. I received sound advice at every step, and communication was great! I would recommend Robert Howard and the Stewart Law Group to anyone who finds themselves faced with the end of their marriage.”
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