Collaborative divorce is all about trying to reach comprehensive out-of-court agreement on all the issues incident to a divorce. But before soon-to-be former spouses can collaborate, they have to agree to try to agree in the first place.
Entering into a collaborative divorce participation agreement is a key foundational element in the collaborative divorce process. The agreement will reflect the parties’ sincere desire to reach consensus, identify the issues and subjects to be addressed, and set parameters on how the process is to proceed. The agreement should bring clarity to what all hope will be a positive and cathartic effort.
While every participation agreement can be tailored to the needs and goals of the couple involved, all such agreements should address these seven key issues:
- Commitment to the process. The agreement should reflect that the parties are committed to settling, in a non-adversarial, respectful, and private manner, the issues arising from the dissolution of their marriage and the restructuring of their family. They agree to conduct themselves with honesty, cooperation, integrity, and civility, with a focus on the future well-being of the whole family.
- No litigation. The whole point of the collaborative process is to avoid the expense and acrimony involved in litigation. The parties agree that while negotiations are ongoing they will not file for divorce or otherwise seek any relief from the court. Additionally, it may be agreed that the attorneys participating in the collaborative process will not represent either party in the event that the process terminates and the matter proceeds to litigation.
- Full disclosure. The collaborative process is dependent on the honesty and openness of the parties. Full and complete disclosure of the parties’ financial and other circumstances is absolutely essential. All assets, income, debts and other information necessary for an informed settlement need to be shared, and the failure to do so can be the basis for terminating the process.
- Use of experts and third-party consultants. The issues involved in divorce, in particular the valuation and division of assets or the calculation of any spousal support, can be complex. The insight and opinions of subject matter experts may be required to help the parties understand and reach agreement on such issues. Additionally, mental health professionals may participate on the process to support the parties and facilitate communication or provide a voice for any children involved. The parties should outline the scope and extent to which such professionals can be involved in the process and how they will be compensated.
- Confidentiality. The openness and full disclosure required for a successful process can only be facilitated with a corresponding commitment to keep all discussions and information confidential.
- Maintaining the status quo. It’s hard to hit a moving target and it’s impossible to have an effective negotiation if the circumstances are changing as you go through the process. The parties should agree to make no major changes to their finances, including selling or purchasing significant assets, incurring debt, modifying or terminating insurance coverage, or changing residences of minor children.
- Termination. While the rate of successful resolutions for those who participate in collaborative divorce is high, not every couple is able to reach an agreement. Whether because of an inability to agree, a failure of one party to adhere to the terms of the agreement, or other conduct that shows bad faith or a lack of commitment to the process, the agreement should set forth clear terms as to how and why the agreement may be terminated.
At Clement Law, our New Jersey and New York collaborative law practice helps you and your spouse find common ground as you face the challenges involved in ending your marriage. To get started on the collaborative process, or if you have any questions, please contact us at (212) 683-9551 or fill out our online form to arrange for a consultation.
