Before a collaborative divorce can proceed, the parties, their attorneys and the other neutral professionals must enter into a Collaborative Participation Agreement, which sets forth the parties’ rights and obligations to each other and to the collaborative process. The agreement ensures that the parties understand the process and affirmatively agree to work together to resolve their divorce disputes.

While collaborative agreements may vary, typically they include the following provisions:

  • Full disclosure. The parties make a written commitment to be honest and to provide complete financial disclosure promptly without the need for formal discovery requests.
  • Termination. The agreement gives either party the unilateral right to terminate the process, with or without cause, at any time.
  • Confidentiality. The parties, their lawyers, and any nonparty participants are prohibited from disclosing or testifying as a witness regarding a communication made during the collaborative process, unless all participants expressly waive such confidentiality.
  • Attorney disqualification. Both collaborative attorneys are disqualified from representing either party in a court or other proceeding if the collaborative divorce process terminates.
  • Good faith. The parties agree to work in good faith to achieve a final agreement. In addition, the parties’ lawyers are required to withdraw or terminate the process if he/she discovers his/her client is not acting in good faith.
  • Rights and obligations pending settlement. The parties agree not to dispose of or encumber property without the other’s consent. In addition, they may not incur unreasonable debts or change beneficiaries on policies or accounts and must maintain all existing insurance coverage.
  • Waiver of rights. The agreement provides that the parties waive certain rights, including the right to formal discovery, formal court hearings, and other procedures provided by the adversarial legal system, unless the parties choose to withdraw from the process.

The rationale of these provisions is to require the parties and their attorneys to cooperate and maintain the integrity of the process. There is no incentive for anyone to encourage disputes because if the matter escalates to litigation, the divorce must start all over again with new attorneys and other professionals as well as discovery.

If you are considering divorce, contact me for a consultation to discuss whether collaborative divorce is right for you.