What is a Collaborative Divorce
A collaborative divorce is a common method of alternative dispute resolution. Along with
mediation and arbitration, it is a process that allows parties to privately resolve contested
marital issues without the presence of a judge.
The Illinois Collaborative Process Act
In Illinois, a collaborative divorce is defined under the Illinois Collaborative Process Act as a
process used to resolve marital matters collaboratively without intervention by a court. Unlike
an uncontested divorce, a collaborative divorce does not mean both parties have already
agreed on marital issues such as property division, parental responsibilities, or financial
support. Instead, a collaborative effort invites spouses to work through their disagreements
to come to a resolution.
Additionally, a key element in a collaborative divorce is that the attorneys involved have a duty
to advocate for what is in both parties’ best interests, and not just advocate for his/her client.
Essentially, everyone works as a team or one unit to accomplish the goal of resolving the
divorce. For this reason, however, if the parties ultimately must move forward with a
contested divorce filing, the attorneys involved with the collaborative divorce cannot continue
forward with them. New attorneys must be hired.
Benefits of a Collaborative Divorce
Because both parties agree to keep their divorce outside of a courtroom, there are advantages
to pursuing a collaborative consensus, beyond coming to a collective agreement. Collaborative
divorces do not have to include discovery, depositions, or a trial, which often invade the privacy
of both parties and add financial and mental stress. Instead, they engage in more private,
informal meetings under the supervision of their attorneys. Additionally, the fact that all
attorneys involved advocate equally for both parties can significantly reduce the “posturing” or
higher levels of conflict that are sometimes present when attorneys are acting in a traditional
litigation situation.
Additional benefits to collaboration:
- Both parties save time and money on divorce proceedings.
- A more informal approach.
- Parties negotiate and compromise on the terms of their divorce agreement.
- All parties work together in a unified way to help accomplish the divorce peacefully
Disadvantages to Collaborative Divorce
As mentioned above, the biggest disadvantage to the collaborative divorce process is the risk
that, should the parties not be able to resolve their divorce, new attorneys would need to come
on board for the actual divorce litigation. This can then lead to some duplicative conversations
with attorneys and having to get the new attorneys up-to-speed on the facts of the case. So,
some parties are discouraged from trying collaborative divorce for fear of having to spend more
attorney’s fees down the road.
Beyond potential extra cost, the other disadvantage to collaborative divorce is that it’s
relatively new for family law litigation. Not all jurisdictions have incorporated this practice into
their local Court rules or common practices. As such, some markets have very few attorneys
who are experienced or certified in collaborative law divorces. This leaves
interested parties without many options on the choice of attorney if they do decide to explore
this route with their spouse.
The Collaborative Divorce Process
While a collaborative divorce doesn’t require spouses to go in front of a judge, the courts do
recommend they each hire an attorney.
Both parties and their respective attorneys will then schedule regular, informal meetings. In
these meetings, other professionals may be invited to provide their expertise on specific issues.
These can include CPAs or vocational experts to discuss financial documents and the division of
property or businesses. In instances where children are involved, psychologists or Guardian ad
Litems may also be present. These meetings will continue until parties agree to key terms of
their divorce agreement. Like mediation, attorneys will facilitate the conversation and help
them to come to a compromise.
Is it Right for Me?
The decision to pursue a collaborative divorce depends on both spouses and their willingness to
work together and negotiate. In instances of domestic violence or abuse, the courts discourage
spouses file for a collaborative or uncontested divorce. However, if both spouses communicate
effectively and wish to save time and money on proceedings, a collaborative divorce
may be a possible option.
If you have questions about your divorce and which option is best for you and your situation,
contact the offices of Strieker Law Firm. With over a decade of experience practicing family law,
Kristen Strieker can help identify your needs and work with you to minimize the stress of the
divorce process. She can discuss options for you on the various ways to proceed with your
divorce filing, so you can make the right choice.
