Celebrities Gwyneth Paltrow and Chris Martin have introduced a new phrase for the Hollywood Divorce called “conscious uncoupling,” but they are actually talking about using Collaborative Law to co-parent their minor children after separating. This new catch phrase might start a trend across the country. Husbands and wives who have decided to end their marriage by working together, like Gwyneth and Chris, may wish to cooperate and manage their separate households by communicating in a respectful manner throughout divorce lawyers and agreements. Spouses may successfully resolve divorce issues, including custody, spousal support, division of martial estate-assets and debts, and payment of child support by using Collaborative law.
Collaborative Law in North Carolina
Collaborative Law is a recent trend in North Carolina, but it is not a new method for citizens to use in the areas of Domestic or Family Law. North Carolina enacted statutes in 2003 (NCGS §§ 50-70 through 50-79) which established collaborative law as an alternative to the judicial system making decisions in marital issues. Collaborative Law provides the framework for a husband and wife to discuss their wishes through interest-based negotiation using their own voices. Attorneys help guide the husband and wife and present their needs to one another. The husband may have his own attorney and the wife may have her own attorney. The end result is the parties take control over the outcome of the separation and dissolution of their marriage, not a Court and/or a Judge.
A collaborative outcome leaves individuals feeling more empowered about the conclusion of the marriage since the husband and wife reach decisions by agreement rather than a Court ordered decision made by a Judge. Each party may also be more likely to follow through on the terms of the agreement since the husband and wife made the decisions regarding separation of assets, payment of debts, and custody and support of the children.
Collaborative law may also reduce legal fees since time and effort will be spent reaching agreement, rather than staking out positions and arguing in Court.
Collaborative law is defined in the North Carolina General Statutes §50-71(1) as:
A procedure in which a husband and wife who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties as the court deems appropriate. The procedure shall also include an agreement where the parties’ attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.
Should parties voluntarily and willingly use collaborative law to create a binding legal contract with terms for separation that they agree upon, the only reason they need the Court (barring the later enforcement or contempt of the legal agreement) is to enter a Judgment for Divorce at the appropriate time.
Collaborative Law Uses in Family Law and Domestic Matters
Sometimes solution-based sessions result in uncommon scenarios (e.g. agreeing to tell your children together you are getting divorced and agreeing on how and when to do so). Agreements may be reached that work for each spouse’s lifestyle, culture, morals, ethics, and/or values.
To successfully implement collaborative law in domestic matters you need each party to choose an attorney trained in collaborative law. The husband and wife and their attorneys meet and decide how to build their “team” based on the need, if any, of other professionals to assist the parties in informed decision-making.
Other professionals might be a financial analyst, child specialist, divorce coach, or mental health professional. The parties choose the legal issues that shall be addressed, assign homework such as document gathering, deadlines for collecting and sharing necessary information between each other, and determine a timeline for structured conference sessions in which to start reaching agreement. The parties determine the need for content of the sessions with the attorneys acting as a guide for each party to share their needs and interests; not just discuss goals and wants. Parties will make informed choices on how to end their marriage, split finances and the marital estate, pay spousal support, pay child support, custody, and any other outstanding or unusual issues.
Mediation vs. Collaborative Law
Collaborative law is sometimes confused with mediation. In mediation, the parties work with a neutral third party who shares the voice of each party and shuttles back and forth between the parties who are usually kept in different rooms with their respective attorneys. The mediator attempts to help the parties reach any common ground within legal topics already pled in a lawsuit pending with a Court. While the mediator is sharing information between each party and attempting a resolution some information may be lost or misconstrued and in turn cause the parties to back away from resolution.
Collaborative law differs from mediation in that the parties speak directly to each other rather than through a mediator. This type of negotiation fosters each parties own goals and positions instead of arguing about interests and needs.
Mediation is also a court-ordered process which adds to the cost of litigation. Should the parties not agree in mediation how to resolve their legal claims then the case is calendared for Court with a judge.
Mediation and collaborative law are alike in that both are confidential, both offer a safe space to explore ideas between the parties on how to settle their domestic disputes, and both offer the ability to control the outcome of your legal issues.
Additional benefits of collaborative law instead of traditional Divorce litigation or mediation include less emotional strife between the parties and a faster resolution of conflict. Studies show that children of parents who are exposed to the court process, whether by participating in court ordered evaluations or by testifying, by exposure to the parents legal stressors, have difficulty later in sustaining a positive relationship with their parents and others. In collaborative law the husband and wife build their team to include a child specialist and the child will have a voice during the resolution of the divorce.
Collaborative law is not for everyone and parties must commit to communication, be responsive, be open and honest, abide by timelines, collect and share information, and be willing to do all of this in mostly face-to-face sessions. It can be a difficult process to voice disappointment, anger, sadness, happiness, and many other emotions to your spouse. It takes active listening in order to attempt to collaborate on an agreement that meets the needs of husband, wife, and children.
The Only Collaborative Law Professionals in the Wilmington, NC Area
The only practice group of trained collaborative law professionals in the Cape Fear area is Coastal Collaborative Colleagues. Ashley Michael is a member of Coastal Collaborative Colleagues and also acts on the Board of Directors. Coastal Collaborative Colleagues is a nonprofit, interdisciplinary group of professionals committed to “doing divorce differently.” Check out the members of the group, their mission statement and more about Collaborative Law at www.coastalcollab.com and contact Ashley Michael at AMichael@craigeandfox.com for assistance