WHAT IS COLLABORATIVE DIVORCE?

Issue 420, August 2016

Relationship breakdown is typically adversarial, even antagonistic, and can carry a substantial emotional and financial cost. Agnes Leung CPA CA CBV RCP, a Registered Collaborative Professional, has provided this summary of “Collaborative Divorce”, an innovative approach designed to reduce, or at least manage, the conflict, which has seen a growing interest in recent years.

In today’s day and age, it is not uncommon to see marriage breakdown. Financial pressures, parenting challenges, and addictions are just some of the causes that can deteriorate a strong family. In fact, when a couple breaks up, it is likened to a breakup earthquake, sending shockwaves through their family.

What if there is a less damaging way to deal with the breakup than the traditional divorce and separation methods? What if hearing your child’s voice in the separation is built into the settlement process right from the start? What if a network of specially trained lawyers, mental health professionals, and financial professionals are prepared to support you as you make so many important decisions?

a reduced-conflict collaborative divorce

Collaborative Divorce and mediation are alternatives to the traditional divorce and separation methods to help families control the process to reach a private settlement.

As a Registered Collaborative Professional serving as a neutral financial advisor, I assist families with privately held shares, or those with self-employment income, to help them determine the value of their business, the guideline income of the payer spouse according to the Federal Child Support Guidelines, and other financial and valuation matters. This is conducted in a collaborative framework, rather than the traditional adversarial approach.

When families choose to use the Collaborative Divorce process, each of them will retain their own collaborative family lawyer to help them understand their legal rights and help them work through the process of separation and divorce. The process begins with the review and signing of the Participation Agreement which lays down the terms of the process. While in each region of Canada Collaborative Professionals design their own Participation Agreement, the essence of the Agreement is similar in tone – to agree to work together as a team with mutual respect and most importantly if a contested Court proceeding is started by either party, the Collaborative Process ends.

Settlement Agreements are conducted in 4-way meetings with each party and their respective collaborative lawyers negotiating what is important to each party. Each party will get a chance to speak and to listen. Upon hearing what is important to each party, creative solutions are developed to ensure that they are acceptable to each party and are best for everyone affected.

In between meetings, there is minimal communication between the parties other than setting up the next meeting. However, each party is expected to use the time in between meetings to work with their divorce coach or child specialist, work on fact finding, and/or address needs and concerns raised at the meeting.

each party still has independent legal advice

The lawyer for each party is not neutral even though committed to the collaborative process; they have a duty to represent their respective clients. The divorce coach can be a neutral participant or work for one party only. As far as the financial professionals, such as a financial planner, tax advisor, or Chartered Business Valuator, they are retained as neutral advisors to assist both parties.

The advantages of using the Collaborative Divorce Process include privacy, open communication, control over the process to make final decisions, control over the timetable, and better buy-in when implementing the settlement plan. Through the process, each party is less stressed as they are not preparing for war – it shifts their perspective to working together to achieve mutually acceptable solutions. Each party becomes more aware of the needs and concerns of the other, and of their children, as well as gaining knowledge of the family’s financial situation such as income and expenses and the assets and liabilities of the family. Each party is more prepared to move forward.

For more information on collaborative divorce, see Appendix C for links to the various provincial Collaborative Practice groups.

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