Divorce is the worst. Even in the most amicable scenario, it can be a stressful, emotional, costly and time-consuming affair. This is especially true for couples who own businesses.
“Couples go through a decision-making process that is structured by the court’s requirements, and the adversarial nature of the court process pushes people into a more adversarial way of making decisions,” said Elizabeth Bransdorfer, family law attorney at Mika Meyers.
More than 20 years ago, Stu Webb, an attorney from Minneapolis, Minn., became frustrated with the divorce process and decided to focus on mediation, envisioning “a model where lawyers could not, under any circumstances, go to court over any issue.”
According to the International Academy of Collaborative Professionals, “In 1990, Stu announced to his clients and colleagues that he would no longer go to court; he would only represent clients in a participatory negotiation process aimed solely at creative settlements. If the process could not result in settlement, Stu would refer his clients to litigation counsel and withdraw from the matter.”
Collaborative divorce was born.
Rather than a lot of back and forth between attorneys and the looming possibility of facing a judge if agreements can’t be worked out, collaborative divorce encourages couples to work together to craft the best arrangement for their family, with attorneys and other trained professionals serving as a support system.
Each member of the couple hires his or her own attorney, but the attorneys do not serve as the go-between in the same way they would for a typical divorce. The attorneys, who have been certified in the collaborative divorce process, also commit to working together and sharing information.
Attorneys representing clients in collaborative divorce are obligated to terminate the process if their client becomes deceptive or if any motion is filed in court, dissolving the collaborative team. Both parties are then required to seek out new representation.
The process also includes psychologists, child psychologists, divorce coaches, financial professionals and others who participate as little or as much as needed throughout the divorce.
“Collaborative divorce is a multidisciplinary process that helps people who recognize they can make a better decision on the disputed parts of a divorce for their family than the lawyers, judge or someone else,” Bransdorfer said.
Bransdorfer is a certified collaborative divorce attorney, which means she has completed specialized training in collaborative divorce.
The collaborative divorce process involves a high level of communication and is based on trust. It also focuses on the emotional health of everyone involved.
The process acknowledges “the people involved are human, they have emotions, and they have children who have needs separate from their parents,” Bransdorfer said.
“People can make better decisions by recognizing their own emotions and how they are affecting them, recognizing the other party’s emotions and how they are affecting them, and by learning how to deal with those emotions.”
That’s why a divorce coach and psychologist are important to the process, especially when kids are involved.
The wellbeing of the couple’s children is considered the focus of collaborative divorce, with a hope that a healthy relationship can exist between the parents in the future.
The couple also meets with neutral financial professionals.
Bransdorfer said having financial professionals who remain neutral in the process is a big benefit, particularly for couples with a closely held business.
“The non-business owner’s spouse frequently has to hire a relatively adversarial business valuation expert to help figure out what the value of the business is so they get their fair share of that value as part of the divorce,” she explained.
“In litigation, both spouses have their business valuation expert. They do separate business valuations, and then they fight about it. In collaborative, because everyone is committed to exchanging information and we hire a neutral business valuation expert, there is just one business valuation.”
Confidentiality is also a benefit collaborative divorce provides.
“You don’t end up with a trial where the two business valuation experts are testifying in open court so the judge can decide how much the business is worth, and business books and records for the last five years are all of a sudden part of the public record,” Bransdorfer said.
Overall, collaborative divorce is often less costly than traditional divorce proceedings.
Though it has many upsides, Bransdorfer said collaborative divorce is not right for every couple. She noted couples in which domestic abuse has occurred or where mental illness exists are not good candidates, for example. Also, couples who have lost trust in one another won’t do well in collaborative divorce.
Collaborative divorce is still a little-known option, but several organizations have been founded to help grow the practice. In addition to the International Academy of Collaborative Professionals, there is also the Collaborative Practice Institute of Michigan and the Collaborative Divorce Professionals of West Michigan.