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The Collaborative Process Is Private!

March 8, 2022

Unlike traditional litigation, the Collaborative Process is private. Traditional divorce is started by an attorney or party filing a petition in court that contains many allegations, which could be very private. It is not unusual for a petition to allege that a spouse committed an act of infidelity, stole money from the other spouse, committed an act of domestic violence or was an alcoholic or substance abuser. One of the main benefits of the Collaborative Process is that such allegations are not filed with the court. Typically, in the Collaborative Process, a very vanilla petition is filed without allegations that attack the integrity or worthiness of either spouse.

In the Collaborative Process, all meetings and communications are private. Most couples choose to use the Collaborative Process before they file anything in court. Even if very difficult issues need to be addressed, that is not done in the public record, as in traditional litigation. The team of Collaborative professionals, an attorney for each spouse, typically a mental health professional to act as a facilitator and to help the parents resolve any issues involving their children, and when appropriate, a neutral financial professional, work together to help the spouses to privately resolve the issues that are in dispute.

The spouses and professionals participate in a number of meetings that usually are two hours long. If everyone cooperates, a Collaborative divorce should take four meetings over four months. Each meeting has an agenda. As the couple resolves an issue, they sign a partial agreement and move on to the next issue to be resolved. When all the issues are resolved, the couple signs a Collaborative Marital Settlement Agreement. A simple petition is then filed in court containing just the minimal statements needed for a judge to have the power to dissolve the couple’s marriage.

Once a paper is filed in court, it becomes part of the public record forever. Most people do not realize that when something is filed in court, anyone can read it. That includes your neighbors, your relatives, your competitors and even your children! My experience has been that many, if not most, traditional litigators do not think about the effect of what is filed in court before they file it. Everyone has heard the horror stories of the aggressive attorney who went after the other spouse, to bring them to their knees and force them to give his or her client what the attorney feels the client should get. In that process, the targeted spouse can be bankrupted by the cost of the litigation, thereby adversely affecting the client and children, possibly forever. I once represented a man who committed suicide because he could no longer take his wife’s attorney attacking him. I do not think the attorney ever comprehended what she did to my client and the effect his death will have on the couple’s child for the rest of his life.

If someone is wealthy or is a public figure, it is self-destructive to litigate a divorce publicly. The Collaborative Process is perfect for such a person, because it enables the entire process to be kept confidential. It is not possible for TMZ or other media outlets to learn what is happening during Collaborative negotiations. On the other hand, all they have to do is go online and look at the public record for the details of a litigated divorce.

If what I have written is not enough to convince you to use the Collaborative Process for a divorce, think of the children. No child should have to face schoolmates who tease her or him about their parent’s divorce. That can easily happen when a divorce is handled publicly, as opposed to Collaboratively.

I welcome your responses to this post.