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John S. Weaver, Esquire
Law Office of John S. Weaver
Rockville, Maryland Collaborative Divorce Attorney
Serving Montgomery County and Frederick County
John Weaver is trained in Collaborative Divorce.
Collaborative Divorce
Collaborative Divorce is a means of resolving divorce, custody, and financial issues as an out-of-court alternative to litigation and traditional mediation. There are three basic principles underlying the Collaborative Divorce practice model of dispute resolution:
(1) A pledge by the spouses that they will not go to court to resolve their dispute - if contested litigation is pursued, both collaborative lawyers must withdraw from representating a spouse;
(2) Open communication and an honest exchange of information and expression of needs and expectation by both spouses which facilitates problem solving directed toward solutions;
(3) A resolution that considers the significant priorities of both spouses and their children.
The Collaborative law alternative method of resolving divorce-related issues was founded by a divorce attorney, Stuart G. Webb, in 1990 in Minneapolis. Collaborative divorce process has expanded to other areas of the United States, North America, and beyond.[1] Collaborative divorce is a process in which a divorcing couple, along with trained professionals, work together to resolve divorce-related issues in a non-adversarial problem solving process. Each divorcing spouse hires her or his separate attorney who is trained in the Collaborative resolution strategies. There are various models or approaches in Collaborative law. The most basic form of Collaborative Law is the "lawyer-only" approach where each spouse has an attorney and the four of them attempt to resolve the issues through various four-way conferences. In this model any other professionals, such as accountants and mental health providers, are involved in the limited role as an expert or consultant. In the "lawyer-only" approach there may also be a "referral" aspect where an attorney will refer her client to additional professionals such as a financial consultant or accountant or mental health professionals to assist that client as necessary at any stage of the process. In both the basic Collaborative Law and the Collaborative Law Referral model, the team is the two lawyers and two clients.
However, an approach which has gained increased use is the Collaborative Divorce "Team"[2] approach. The Team includes an interdisciplinary team selected by the spouses at the outset of the process which consists of two Collaborative attorneys, a neutral financial specialist, two mental health coaches - each spouse selects her or his own coach, and a child specialist (advocates for the child) who address the legal, emotional and financial aspects of divorce. In the interdisciplinary Collaborative team approach each party has an attorney who provides legal guidance and interest-based focus in the settlement negotiations. A neutral financial specialist, preferably trained as a Certified Financial Planner (CFP), Certified Public Accountant (CPA), trained as a Certified Divorce Financial Analyst (CDFA), assists in understanding and assessing the family's financial circumstances and provides guidance and education in budgeting, tax issues, implications of proposed settlements, using financial data to promote discussion and settlement. A child specialist, who is a licensed mental health professional with specific training in child development and experienced in dealing with families in transition, is neutral as to the parents but advocates for the child, keeps the child's needs in the forefront, assesses the child's functioning, and helps the child to express the child's feelings, thoughts and concerns and communicates these to the parents, thereby providing a "voice for the child" in the process, and may provide child-development education to the parents and assist them in formulating their parenting plan. A Collaborative or divorce "coach," who is a licensed mental health professional, for each spouse (but does not act as the spouse's therapist), who assists with more effective management of emotional issues and communication patterns that may be inhibiting constructive settlement, and works with the co-coach to create an effective process. Additional neutral experts may be engaged as necessary, such as real estate appraisers, jewelry/personal property appraisers, vocational evaluators, or business valuation experts. One of the team members, typically one of the coaches, would act as a "case manager" to coordinate scheduling meetings and follow-up on task completion. The team members are co-equal and interdependent, and are directed toward the same goal of resolving the divorce-couple's related issues. The process will involve team members working individually with the spouses, with communication between team members as necessary, and inclusion of some or all of the team members, as appropriate, in the four-way meetings. The four-way meetings generally center on identifying issues, gathering information, developing settlement options, and negotiating solutions.[3] In accordance with the Participation Agreement, when the Collaboration terminates, the Collaborating Professionals are prohibited from participating in any aspect of the contested court proceedings between the spouses.
The spouses and their attorneys sign a written agreement, usually called a "Participation Agreement," that specifies the Collaborative ground rules. Some aspects of the Collaborative process that ordinarily will be covered in a Participation Agreement include agreements: to commit to participate in good faith toward settlement without resorting to litigation while pursuing a Collaborative resolution; to make full, complete, and accurate voluntary disclosure of all pertinent personal and financial information necessary to reach a fair settlement; to avoid inappropriate communications with the children concerning the divorce; identifying the legal issues to be resolved (e.g., parenting time with the children, child support, alimony/spousal support, property division, allocation of debts, etc.); recognition that some "temporary issues" such as financial support, parenting time and other matters may require more immediate attention and have to be resolved prior to permanent resolution of the issues; procedure for obtaining any necessary neutral experts such as an accountant or child psychologist; circumstances that may require both attorneys to withdraw from the process; confidentiality of the Collaborative settlement proposals; and obligates the attorneys to withdraw from representing their respective clients if the Collaborative process does not result in settlement.[4] If the Collaborative process terminates without full resolution, then each spouse would have to retain new counsel for representation in any contested litigation. In mediation, there is a neutral third-party who attempts to facilitate the couple's settlement; in Collaborative practice the "four-way" meetings between the husband, wife, their respective attorneys, and other involved professionals take place without a moderating mediator.
Ideally, Collaborative divorce is pursued from the outset prior to either spouse initiating divorce proceedings in court. However, sometimes a divorce action has already been commenced before the parties are even aware of the Collaborative option or before they have jointly agreed to pursue a Collaborative resolution. As Collaborative divorce becomes more prevalent courts will become more supportive of the process and will adapt and adjust court dockets accordingly. For example, upon written request of divorcing parties the Circuit Court for Montgomery County, Maryland, will usually "stay" (i.e., put on hold or suspend) pending divorce proceedings for a reasonable period of time to allow the parties to try to resolve the disputed issues through the Collaborative process.
[1] See Stuart G. Webb and Ronald D. Ousky, The Collaborative Way To Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids - Without Going To Court (New York: Hudson Street Press, 2006). The Collaborative Way To Divorce was written for divorcing couples to explain to them the "Collaborative" method of divorce in a step-by-step manner, and to be a reference resource to couples who are pursuing a Collaborative divorce. The book describes how the Collaborative divorce differs from other more traditional divorce resolution methods, how to select attorneys trained in Collaborative law and to enlist other professionals as consultants or as part of the collaborative team, the joint commitment and goals of participants in the Collaborative process, and the process that is followed including four-way settlement meetings involving the couple, their respective attorneys, and sometimes other professionals. See also Pauline H. Tesler and Peggy Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life (New York: HarperCollins, 2006); and Collaborative Divorce Team Trainings LLC, Introductory Three Day Interdisciplinary Team Training, 2007, which describes the "Collaborative Team" approach. More information is available at www.collaborativedivorce.com and www.collaborativepractice.com (International Academy of Collaborative Professionals); and www.collablawmaryland.org (Collaborative Dipute Resolution Professionals).
[2] See Webb and Ousky, The Collaborative Way to Divorce, 87-96, and Tesler and Thompson, Collaborative Divorce, 41-50, for a more detailed description of the particular roles of the Collaborative "team" members.
[3] Webb and Ousky, The Collaborative Way to Divorce, 102-104.
[4] See sample "Participation Agreement" in Appendix A in Webb and Ousky, The Collaborative Way to Divorce, 191-200.
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