Frequently asked questions

Below are some of the most frequent questions and inquiries we have received. Click on the question to see its answer. At the end of each answer there is a button you may click on to return to the top of the list of questions. If you have a question that is not listed below, or wish to receive more information on the Collaborative Divorce Process, please contact one of our members or email us.

Questions:

Can a party quit during the process?

Answer:

Nothing in the participation agreement precludes a party from terminating the Collaborative Divorce process and pursuing litigation. However, the client will have been advised at the outset that doing so will require them to hire other counsel. Of course, the other side also will be trading their Collaborative Divorce lawyer for a litigator.

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Why must a lawyer resign if the other side decides to go to court?

Answer:

The requirement that all lawyers be disqualified in the event of a breakdown guarantees that all participating counsel will be totally and exclusively motivated to make the process succeed. Thus, all participants are equally and fully invested in finding the solutions to all problems. More subtly, it is believed that the way people participate in negotiation, and especially the way lawyers participate, is affected by the certainty that that lawyer will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to do so, ceases to be a viable tactic.

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What can Collaborative Divorce lawyers do if negotiations reach an impasse?

Answer:

Lawyers participating in the Collaborative Divorce Team of the Hudson Valley have agreed to act as mentors for each other to assist in reviewing problem cases or situations. Additionally, Collaborative Divorce participants can agree to employ experts to advise both sides as to disputed facts or law. Finally, Collaborative Divorce team members and parties can hire a mediator or consultant at any time.

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What is the end result of a Collaborative Divorce case? How are interests, rights, and agreements secured?

Answer:

With the advice and assistance of counsel, coaches, financial planner, parties generally agree upon a full settlement of all issues relating to the children, finances, assets and liabilities and a divorce judgment incorporates that agreement as part of its order. Occasionally parties decide to enter into a partial agreement or a separation agreement and not proceed with a divorce as the time they conclude their agreement; the process responds to the parties’ decisions.

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What if, sometime after entering into a settlement as a result of a Collaborative Divorce process, a Collaborative Divorce lawyer discovers that the other party failed to disclose information that should have been disclosed?

Answer:

In this respect, a settlement agreement reached via a Collaborative Divorce process is no different from any other negotiated settlement agreement, and the former is no more or less susceptible to being annulled for such a reason than the latter. To address this concern, we take every measure we can to be sure we have all the necessary information. But if fraud is later discovered, the agreement may be set aside in a Court action.

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What if the settlement is not achieved collaboratively?

Answer:

In the event the parties are unable to arrive at a settlement through the Collaborative Divorce process, the lawyers will withdraw from the case and the parties are free to retain trial attorneys to pursue their matter in court. The financial information collected during the collaborative process will be turned over to the trial attorneys. The result is that the parties will have had the best representation for each phase of the proceeding, and, therefore, possibly save time in a subsequent costlier trial. The Collaborative Divorce lawyers will assist in an orderly transition to trial counsel to insure the least duplication of effort that is possible.

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What is Collaborative Divorce?

Answer:

Collaborative Divorce, a new approach to divorce, offers couples an opportunity to separate and finalize a divorce with a minimum of bitterness and animosity. Instead of going in front of a judge, the two parties and their attorneys sit down together to work out the details of the dissolution of their marriage, with the help of mental health professionals and financial advisors. Each party has a lawyer and the parties generally have a shared neutral divorce coach to assist them. The team works collaboratively with the couple so that divorcing spouses can reach agreement about the following:

  • Division of property
  • Spousal support
  • Child support
  • Children’s living arrangement
  • Marital status

Both parties are represented by an attorney throughout the process. No court appearances are required, and all necessary paperwork can be completed by the attorneys. The primary objective is to ensure that agreements are enduring and better for the children.

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What is the Collaborative Divorce Team of the Hudson Valley?

Answer:

We are a team of Attorneys, Mental Health Professionals, and Financial Specialists with extensive experience in our respective fields. As a result of years of work with divorcing couples and families where we have seen the tragedy of the adversarial process, we have come together sharing a powerful commitment to create an alternative possibility for families. We are part of a growing national movement of professionals who are dedicated to, and trained in, a collaborative model of divorce. To improve our own ability to work collaboratively, we engage in ongoing training experiences designed to promote this.

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Is Collaborative Divorce Right For You?

Answer:

It may be if:

  • You want emotional, financial and legal help to guide you through your divorce.
  • You have children and want to make sure their needs are addressed.
  • You are concerned about containing the costs of divorce.
  • You want to contain the conflict that often accompanies divorce.
  • You wish a confidential process without adversarial attorneys and without going to trial.

The Collaborative Divorce team typically consists of:

  • A Collaborative Law attorney for each individual
  • A divorce coach, who is a mental health professional, generally a neutral, but occasionally individual
  • A child specialist (if there are children)
  • A financial planner specially trained in pre-divorce financial planning

 

Collaborative Divorce attorneys: Each spouse has his or her own attorney. These attorneys are pledged to help you throughout your divorce by working cooperatively with you and your Collaborative Divorce “team”. They are committed to protecting your rights, but serve as true “legal counselors” – educating, mediating, and facilitating your legal process. Your Collaborative Divorce attorney will meet with you individually as well as in four-way meetings with you and your partner and your partner’s Collaborative Divorce attorney.

Collaborative Divorce Coaches: A divorce coach will support you through the process and work with you to help reduce the stress and strain of divorce. They will meet with you individually and together to develop communication skills that will help you during and after your divorce.

Child Specialist: Because children are affected in different ways by a divorce, the child specialist meets with each of your children to see the divorce through their eyes, and assesses for you how your child is doing. The specialist then meets with both of you to give you feedback, answer any questions you may have, and give you input to help you design a parenting plan that fits your unique needs. If necessary, the specialist can continue to provide support and advice to you and your spouse, and can meet with your children or provide appropriate referrals throughout the divorce process.

Financial Planners: These Financial Specialists help you gather and organize all your financial information needed for the divorce process. They also help you determine your immediate and long-term cash flow needs. As a neutral facilitator and educator, the planner will help you fully understand your financial resources, and help determine what your financial future will hold, depending on the settlement options possible. Depending on your preferences, the planner will meet with you jointly or separately.

Your attorneys will assist in the selection and retention of neutral specialists who are best suited to your individual needs.

The Team typically consist of:

All team members work together to make the divorce process as easy as possible. Each brings their own skills and experience to the table, and  thus can maximize your resources and minimize the time and money spent. Each hour is spent working directly on your case. There are no “billable hours” wasted on extraneous paperwork or sitting in court.

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What Are the Benefits of Collaborative Divorce?

Answer:

Collaborative Divorce focuses on all involved parties reaching a mutually agreed upon settlement of their disputes. The process results in valuable benefits. It creates a cooperative environment where communication remains open, and provides a setting where you can work with your spouse to meet your children’s needs—regardless of their ages. That helps set a tone for open communication and reduced conflict in the future.

It establishes a team, instead of starting a fight. Your lawyer advises and supports you; your spouse’s lawyer advises and supports your spouse. Your divorce coach, financial specialist, and child specialist work with you and your lawyers. By all working together you retain control of the process.

In matters requiring expert opinions, both parties can jointly hire one independent consultant. That helps shorten the duration of the case and reduce the overall expense.

You and your spouse shape the agreements together, which means you both are more likely to stick to the agreement. That diminishes the parental conflict the adversarial system generates and helps protect children from facing the anguish and divided loyalties that result, both during and after the divorce.

You can schedule meetings without waiting for court dates. That means you generally spend less time and, as a result, less money to reach closure. It also means you reduce the fear and anxiety associated with court proceedings.

Your issues stay within the Collaborative Divorce setting. That gives you more privacy and greater confidentiality—and less stress during an already stressful time.

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How does Collaborative Divorce compare to Litigation?

Answer:

  1. Open Exchange of Information
    In a Collaborative Divorce, all participants agree to an open, honest exchange of accurate information and necessary documents. Neither spouse takes advantage of the miscalculations or inadvertent mistakes of others, and works to ensure that the Agreement covers all necessary issues.
  2. Custody
    In a Collaborative Divorce, both parties agree not to involve their children in disputes. They agree to speak respectfully to, and of, each other in the presence of the children. The spouses negotiate and agree upon parenting decisions, rather than delegate that authority to others.
  3. Experts
    In a Collaborative Divorce, if additional experts are needed, in addition to the neutral financial planner and the divorce coach, any accountant, appraiser, mental health professional or other consultants whose services may be required are jointly selected and hired as a neutral, instead of each hiring his or her own adversarial experts.
  4. Negotiations
    In a Collaborative Divorce, the spouses acknowledge each other’s legitimate needs and work together creatively for their mutual good, and the good of the whole family, instead of striving for individual advantages.
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How is Collaborative Divorce different from Mediation?

Answer:

Mediation involves the use of a third party neutral in facilitating the negotiation and settlement of a dispute between the parties. Neither party has a lawyer present in the process, so each must negotiate on their own behalf and obtain whatever professional assistance they feel they need, outside of the mediation. In Collaborative Divorce cases, lawyers and their clients, with the help of the coaches, financial planner, and the child expert, will talk and negotiate with the assistance of all the professionals actually present in the room. They are committed to continuing the dialogue until a satisfactory solution is reached since litigation is not an option. Further, because each party has separate legal representation, agreements can be finalized throughout the collaborative process itself. Finally, while mediation may bring in people to consider the children, it does not integrate the children into the process.

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Isn’t Mediation cheaper because only one, neutral, instead of a whole team, has to be paid?

Answer:

Mediation may be cheaper, because you are only hiring one professional to assist you. Because there is nobody in a mediation process with the job of helping the client stay focused on the goal and participate with maximum effectiveness, mediation can become stalled when it runs into obstacles, more easily than Collaborative Divorce does, and, therefore, take longer. Also, since the mediator must remain neutral, he/she cannot work privately with clients to get past impasses, and there is no coach to help clients keep enlightened self- interest perspective. As a result, a mediation process may be at greater risk for falling apart entirely. Finally, most mediators strongly urge the parties to consult independent lawyers to review and approve the agreement. If the lawyers have not been part of the process, they may be unhappy with the results, and a new phase of mediation or even litigation may result.

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How expensive is Collaborative Divorce?

Answer:

Because there are no court appearances and little paperwork, the total cost of hiring the Collaborative Divorce Team is usually less than the cost of hiring two lawyers to litigate a divorce. The actual cost depends on how long it takes to reach an agreement that is acceptable to both parties.

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How do I get started?

Answer:

Share this information with your spouse. If both of you want to try Collaborative Divorce, here are the steps to follow as you begin the process:

  1. Each of you selects an attorney from the list of Collaborative Divorce lawyers or the two of you can jointly select a Divorce Coach from the list of mental health professionals. Call and schedule an informational meeting to help you decide whether the Collaborative Divorce Process is for you.
  2. Both spouses and your attorneys along with the divorce coach attend the first collaborative meeting to sign the Participation Agreement that governs the process. If temporary measures are required to maintain stability during the negotiation process, these will be included in the participation agreement.
  3. At the first collaborative meeting you will review the Roadmap, which outlines in detail the steps that will be followed to assist you and your spouse to reach an agreement in a thoughtful manner..
  4. Both spouses and your attorneys attend subsequent collaborative negotiations until you reach agreement. The Divorce Coach helps each spouse prepare for effective participation in the negotiations, assists with communication issues and parenting issues, and attends all meetings to keep everyone on track. The financial neutral organizes all the financial information and is available to assist in understanding alternative financial proposals and their implications.
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I’m so angry right now, I don’t think I can talk with my spouse?

Answer:

The Collaborative Divorce process takes this into consideration and uses the attorneys’ roles, the Divorce Coach, and structured agendas to make talking to your spouse easier. If you or your spouse’s anger is so strong that you cannot think straight or act rationally, you may not be a good candidate for Collaborative Divorce. However, communication problems are expected in troubled marriages. Collaborative Divorce is designed to improve communication.

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How is a lawyer’s relationship with a client different in the Collaborative Divorce process, and how do lawyers prepare clients for it?

Answer:

First, the lawyer never ceases to be an advocate for their client. By entering into the participation agreement, the client has already decided and declared the intent to neither threaten nor pursue litigation (an entitlement, however, which the client never waives). The client is directing the attorney to assist them in coming up with a settlement that will best meet the needs of their entire family. Not to “take no prisoners.” To that end, all parties and counsel must cooperate. Counsel will encourage their clients to speak candidly about their own needs and desires, and to listen carefully to those expressed by others. Collaborative Divorce lawyers remind and reassure their clients that by treating the other side and their expressed interests with respect, they are serving their client’s goals and interests. Collaborative Divorce lawyers are trained in collaborative communication skills and will assist the parties in this endeavor. Divorce Coaches provide training in communication skills for each client.

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How does a lawyer’s assessment of the likely outcome of the client’s case were it to be litigated affect the way the lawyer approaches a Collaborative Divorce case?

Answer:

While the participation agreement prohibits threatening litigation, the lawyer’s advice to his or her client as to the strengths and merits of his or her claim will always include an assessment of the likely outcome if the case had to be litigated. Consideration of the law and one’s legal rights is always appropriate in analyzing what a fair and appropriate outcome in a collaborative process might be Along with this assessment, of course, will be consideration of all of the costs and risks of litigation.

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Can one lawyer practice Collaborative Divorce if the other side has not signed a participation agreement?

Answer:

No. It is assumed that the parties will proceed on a Collaborative Divorce basis only when all lawyers and clients have signed the participation agreement. While it may be a useful strategy for one party to approach another through their Collaborative Divorce lawyer with a participation agreement already signed, demonstrating a clear intent to seek resolution through non-adversarial means, the Collaborative Divorce Team of the Hudson Valley will not proceed with the collaborative divorce process unless the second spouse agrees to come on board fully.

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Can a lawyer represent a client zealously if it is agreed in advance not to go to court?

Answer:

By entering into a Collaborative Divorce participation agreement, lawyers and their clients have thoughtfully agreed to limit the lawyer’s role within the contractual relationship to that of providing representation for settlement purposes only. Nothing in the Canons of Ethics precludes such a limitation. In stepping out of the adversarial process, the Collaborative Divorce lawyer does not give up the role of advocate for his or her client. None of a lawyer’s duties or obligations to a client are affected by this limitation.

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I feel I am clearly in the right and that in trial the judge will take my side. Why then should I opt for Collaborative Divorce?

Answer:

For the most part, divorce judges believe it takes two to destroy a marriage. You may be disappointed if you assume you are “right” and your spouse is “wrong.” By trying your case before a judge, you risk the Court’s not seeing all the problems the same way you do, and you may lose control over decisions affecting the rest of your life. Judges do not have the time most people would like for them to devote to their case.

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What if there is already a divorce action pending?

Answer:

It is anticipated that most Collaborative Divorce cases will be resolved prior to, and without, any court filings. However, for cases that have already been filed at the time the participating agreement is signed, the need to obtain an extension of time in the litigation to allow the Collaborative Divorce process to be utilized or the withdrawal of the action will have to be discussed between the lawyers and the clients and decisions made as to how to handle the existing action.

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How does the practice of Collaborative Divorce affect attorney fees?

Answer:

Representation and fee agreements between attorney and client are not directly affected by the Collaborative Divorce process. The parties are required to retain their attorneys on the terms the attorney and client agree upon. The other professionals are separately retained. The parties will discuss how the collaborative divorce fees will be paid at the first meeting when the Participation Agreement is signed.

 

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How do you deal with case management deadlines?

Answer:

It is anticipated that most Collaborative Divorce cases will be resolved prior to, and without, any court filings. However, for cases that have already been filed at the time the participation agreement is signed, it is possible to obtain an extension of time in the litigation to allow the Collaborative Divorce process to be utilized.

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Is the Collaborative Divorce lawyer required to divulge even non-discoverable information during the Collaborative Divorce process?

Answer:

Unless otherwise agreed, by signing the participation agreement, the Collaborative Divorce lawyer and his/her client agree to provide good faith responses to any good faith questions or requests for information by the other party. In this context, a good faith question or request for information is one that is reasonably calculated to assist in assessing the merits and/or value of a party’s claim or to otherwise further the process of reaching a settlement of all issues. Since this approach uses a standard for disclosure that is different from that used in traditional discovery, a Collaborative Divorce lawyer could potentially be obligated to divulge some information that he/she might have avoided disclosing in a traditional discovery context.

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If information is requested in good faith but is otherwise protected from disclosure by a privilege, must a Collaborative Divorce lawyer disclose it?

Answer:

The informal good faith question/good faith response approach is not intended to require any party to disclose privileged information. Certainly a party is free to do so. However, if information that is relevant to the process is not revealed, it may make it impossible for the process to continue. If you have concerns about this kind of issue, you should discuss it very frankly with your attorney before deciding how to proceed.

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Is a Collaborative lawyer required to disclose information that the other side has not requested, but which may be important to the case?

Answer:

Yes. The informal good faith question / good faith response approach is intended to require any party to disclose information that may be relevant to the settlement of the case. However, if the client has not and refuses to authorize their attorney to reveal anything, the lawyer may not reveal it to the other side. If the lawyer believes that such refusal to disclose violates the good faith requirements of the participation agreement, then the lawyer will be required to withdraw from the case. In the Collaborative Divorce process, the goal is to provide the parties with the information needed to resolve their dispute.

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What happens if a party doesn’t fulfill its disclosure obligation under the participation agreement?

Answer:

Participation in the Collaborative Divorce process is based on the requirement that the parties to the participation agreement (both attorneys and clients) have acted in good faith and have provided accurate information as required under the good faith question/good faith response approach. Thus, a party’s refusal to fulfill its disclosure obligation under the participation agreement will make it impossible for the parties to reach a fair resolution. When an attorney learns that his/her client has withheld or misrepresented information that should have been disclosed, the participation agreement requires the Collaborative Divorce lawyer to withdraw.

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How do you deal with Statutes of Limitation?

Answer:

There are very few divorce cases in which a statute of limitations is an issue. However, in Collaborative Divorce cases counsel and parties will cooperate with each other fully to prevent the necessity of any court filings while the collaborative case proceeds. If there is a Statute of Limitations issue, it will have to be addressed in the process.The participation agreement provides for some limited court filings, as agreed upon and necessary to protect the parties interests, while the Collaborative Divorce case is in progress.

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Will my lawyer tell me to give up on the Collaborative Divorce process, if appropriate?

Answer:

Yes. A lawyer, in zealously representing a client in the Collaborative Divorce process, is obligated to tell their client if they believe a fair and satisfactory agreement cannot be achieved through the process, or if they believe that the information, which is being provided, is an insufficient and unreliable basis upon which to make an agreement. Before terminating the process, these problems will ordinarily be discussed by each attorney with their own client, and by both parties and their attorneys, in an effort to obtain full cooperation from both parties in the process.

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