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The Collaborative Divorce Process, Pros and Cons


Published on October 28th, 2020

Knowing your marriage may be headed for divorce can be one of the most stressful times in your life. Divorce can very often be draining, both emotionally and financially – so if possible you may want to try and collaborate with your spouse when going through and executing the specifics of your divorce. In order to avoid in-court litigation and make all efforts to limit the emotional trauma that can accompany the court process, you and your spouse should discuss attempting to resolve your issues through the process of a collaborative divorce.

A collaborative divorce is a method of alternative dispute resolution in Illinois family law. Both parties, along with their individual lawyers, will attend a series of meetings with the intent to resolve conflicts and achieve a divorce settlement. While the goal is for the spouses to work together to negotiate a settlement and agreement on all child-related and/or financial matters, you and your spouse must retain separate attorneys to represent your individual interests.

Process of Collaborative Divorce

  1. Each Party Hires Their Own Attorney

When hiring an attorney, it is important to find one who is committed to furthering your case collaboratively with the other counsel. While it is not required that your counsel be certified as a “collaborative attorney” in order to engage in a collaborative divorce, you want to make sure that your counsel is skilled in guiding negotiations and managing conflict. Your attorney will meet with you to discuss what outcomes you would like to achieve from the divorce, and which issues are more or less important to you in the overall scheme of the settlement. This helps your attorney negotiate a settlement with you, and if applicable, your children’s best interests in mind.

  1. Sign a “Participation Agreement”

Before beginning the process, you and your spouse will sign a “Participation Agreement” – an agreement outlining that you and your spouse agree to work together in good faith to resolve all issues, and neither of you intends to file any paperwork in court with the exception of finalizing your divorce.

  1. All Parties Meet Together

A series of meetings will take place between both parties and their attorneys. During these meetings, other professionals (i.e. accountant, mental health professional, real estate broker) may also attend meetings as a non-biased third party to provide advice on issues that often arise during divorces. The parties will continue to meet until all issues of the divorce are resolved and fully agreed upon in principle.

  1. Sign Agreement and File with the Court

Once the parties have resolved all issues, the attorneys will draft legal documents for the parties to sign and file with the court to finalize the divorce.

  1. Final Hearing

During the final hearing, called a “prove-up”, the judge will review the written agreement(s) reached between the parties and all supporting documentation. The judge will grant the judgment that finalizes the divorce so long as the terms of the agreement are not unconscionable – then he or she will sign the judgment and your divorce will be final.

Pros of Collaborative Divorce

All negotiations during a collaborative divorce are to remain confidential between you and your spouse and the respective attorneys. This allows you and your spouse to speak freely, which can help each of you have your voice heard and cooperate with each other on a variety of issues.

In addition, by reaching a settlement through collaborative divorce, you can skip the potentially expensive, lengthy and draining litigation process.

Also, the process of collaborative divorce promotes a healthy relationship between you and your spouse. When couples fight over details in the litigation process, issues, statements or allegations from the past may be submitted to the court and made part of the file. This often creates animosity between the parties because it focuses on the mistakes of the past rather than the possibilities for the future.

Cons of Collaborative Divorce

While there are many benefits to proceeding with a collaborative divorce, there is one significant con:  If you and your spouse are unable to reach a settlement in the collaborative process and are forced to proceed to the “standard approach” of filing a petition to initiate the matter in court, each party will need to hire new attorneys to represent them in the divorce matter.

This is because the respective attorneys who represented you and your spouse during the collaborative divorce were openly involved in the confidential and privileged negotiations – meaning they cannot then continue to represent you.  As mentioned earlier, the purpose of keeping the negotiations confidential during the collaborative process is to promote open communication, so that the information cannot later be used against you should the litigation process become necessary.

In addition, since you would need to hire new counsel for the litigation process, the cost of your divorce could actually end up being substantially higher – essentially having to go through the negotiation process twice.

Contact Davis Friedman, LLP – Top-Rated Collaborative Divorce Attorneys

If you are considering a collaborative divorce, please contact our law firm online or call us at or call us at 312-782-2220. When you choose to work with one of the knowledgeable family law attorneys at Davis Friedman, LLP, you are receiving a skilled, strong and passionate advocate for your case.

Have questions? Contact us about working together.

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