What is a Collaborative Divorce Participation Agreement?

A relatively new, and often unrecognized method for resolving divorce known as collaborative divorce is an alternative dispute resolution. Simply put, collaborative divorce does not involve the court system but, rather, is an alternative option to litigating a divorce. Collaborative divorce can resolve all issues that would normally be addressed in a court assisted divorce including child support, child custody, alimony/spousal support, and distribution of marital property. In collaborative divorce, the couple selects two attorneys - one to separately represent each spouse - who handle the matter without pursuing litigation.

No matter the reason behind a couple’s separation, divorce can be a difficult process both financially and emotionally. Beyond this, the process of divorce can be even more difficult when there is costly litigation that seems to never end. This adversarial process further adds to deeply rooted animosity between the previously married couple. Oftentimes by the end of a divorce, the pair resents each other, or their feelings toward one another are pretty close to that. In short, divorce litigation is expensive and time consuming. Additionally there is also an ancillary effect to divorce that should it apply must be considered - the emotional impact on the children.

This is where the collaborative law process can be particularly beneficial. Through collaborative divorce, the parties have the opportunity to resolve their issues in the most amicable and civilized way to keep each partner’s dignity and cause minimum negative impact on the children. Instead of having winners and losers - like in litigation or arbitration - collaborative divorce seeks a win-win resolution to the matter.

Before engaging in collaborative divorce in Davidson, the parties - including the attorneys involved - must enter into a participation agreement. Some examples of the terms found within a collaborative divorce participation agreement include:

• Non-adversarial process: The focus of collaborative process is on the future well-being of the parties and their families. Accordingly, the process will be non-adversarial and instead maintain an atmosphere of cooperation, integrity, honesty, and professionalism;

• No court intervention: Both parties must agree that they will not seek court intervention during the collaborative divorce process. Likewise, in order to fully negotiate each party promises to provide full and honest disclosure of all information irrespective of whether it was requested.

• Third-party involvement: The parties must acknowledge that if issues arise that require assistance from third-party neutrals such as accountants, appraisers, therapists, or other professionals, they are jointly retained and directed to work to resolve the issues for the parties;

• Insulating the children: The parents jointly agree to insulate any and all children from involvement in the dispute. At the same time, the parents also agree not to seek a child custody evaluation unless agreed upon jointly. The goal of the process is to resolve any parenting issues as amicably as possible and in the best interest of the child as required by North Carolina law.

• Limitations of Collaboration: Collaborative divorce is a voluntary process and there is no guarantee the divorce will be successfully resolved. The parties acknowledge that not all concerns or feelings may be put to rest through collaborative divorce;

• Good faith and integrity: The parties must take heed not to take advantage of one another’s mistakes or miscalculation but, rather, enter into the collaborative divorce process with integrity and good faith to resolve the matter;

• Misrepresentation or withholding information: Should either attorney believe his or her client intentionally misrepresented or withheld information that goes against the purpose of the collaborative process - whether rightly or not - he or she may withdraw from the case. Both client and attorney must agree to the withdrawal;

• No representation in court: This clause reiterates that neither attorney can ever represent his or her client in court for this matter and if a resolution is not reached, new counsel must be hired;

• Cancellation of the collaboration: Should either party determine that the collaborative process is no longer appropriate for the matter, the process may be terminated by providing notice, in writing, to the attorneys. The collaborative process may also be cancelled if either party files an action in court;

• Agreeing to the process: The parties pledge to comply with the collaborative process and engage in the spirit of its purpose - to focus on an amicable resolution with honesty, integrity, cooperation, and professionalism.

The North Carolina family law attorneys at Arnold & Smith, PLLC have specially trained family law attorneys who can help you through the collaborative divorce process in Davidson and throughout the greater Charlotte region. Contact us today for a consultation to learn more about how collaborative divorce may be right for you and your partner.