Using Collaborative Law to Resolve Family Legal Issues

Family law issues are deeply personal and private matters. In our legal system, a judge is the chief decision-maker who ultimately determines what is best for a family in terms of a divorce decree, a child custody order, a visitation schedule or spousal support award. There is another option, however, for those who wish to make these legal decisions for themselves: collaborative law.

In Illinois, the use of a collaborative approach for solutions to divorce, property division and support issues is a growing trend. Currently, there are attorneys practicing collaborative law in 16 counties in the state, including Cook, DuPage, Kane, Kendall and Will. For more information on this innovative method to resolving family law disputes, please review the information below.

What is collaborative law?

Collaborative Law recognizes that although a marriage is ending, obligations and relationships continue, especially when children are involved. It is a process for resolving legal disputes outside of the courtroom in a respectful, mutually agreeable manner. The parties generally sign a contract (a "participation agreement") agreeing to make a good faith effort to work together to come to an agreement on their family law issues. The parties agree to be honest and to fully disclose any and all information that may be relevant to the proceeding, including any documents.

Each party will retain his or her own attorney with specific training in collaborative law. The attorneys are still bound by their ethical and professional duties to their own clients — meaning each attorney will only represent one of the parties and will work diligently to protect his or her client's interests. Among the attorneys' roles in the process are to identify the relevant legal issues, create a framework for discussing and resolving these issues and help the parties communicate effectively with one another.

The parties set a schedule of meetings to discuss their particular family law issues and negotiate agreements. The atmosphere during these discussions is meant to be respectful and cooperative. If the parties are unwilling to work with one another or incapable of maintaining a professional attitude toward each other, the meetings can be temporarily or permanently discontinued.

Additional experts and specialists may be used to resolve certain issues. If the parties determine it is best to consult an expert, the expert will be retained jointly by both parties. Some examples of specialists who may be consulted include financial advisors, tax specialists, accountants and child specialists. Unlike the traditional court process, the role of these professionals is not to argue for one side over the other, but to help both parties jointly make the best decisions.
Once the parties have come to an agreement on their family law issues, the attorneys then will draft legal documents reflecting their agreement and submit them to the court for approval.

What happens if the parties cannot come to an agreement?

The goal of the collaborative process is encourage mutually agreeable solutions without the involvement of the court. If the parties cannot come to an agreement during the collaborative process, a mediator may be brought in to facilitate settlement. If this is unsuccessful, the Collaborative Law Attorneys are obligated to withdraw from the process and the parties will hire new counsel and use the traditional court process to resolve their differences.

In some cases, the parties may be able to come to an agreement on one issue — such as property distribution, for example — but not on the other family law issues. If this were to happen, they may submit the issue they were able to agree on to the court for final approval and then request the court settle the remaining issues between them.

The pledge made by the parties and the attorneys in the collaborative process is to avoid the adversarial process of the court and encourage settlement. If the parties resort to the court system, none of the experts, specialists or information shared during their collaborative discussions can be used in court.

Who is best-suited for this approach?

While any couple can use the collaborative approach, those who will reap the most benefits from the process are those willing to work together and able to commit to being respectful, honest partners working towards shared goals.

If there is too much anger, distrust and animosity between the parties — if they cannot speak to one another without yelling or they cannot stand to be in the same room together — collaborative law may not the best approach.

Collaborative Law is also not a suitable approach in divorce or other family law cases that involve allegations of domestic violence, substance abuse or mental illness.

What are the benefits of collaborative law over the traditional court system?

Collaborative law has several advantages over the adversarial court process:

* It gives families the power to make their own decisions about what is best for them instead of the court deciding for them
* It can be much cheaper than litigation
* It can be more efficient than litigation with quicker outcomes
* The process is confidential
* The process can be less emotionally draining than a court process

The collaborative approach will not be right for every family or every situation. Those parties who wish to put aside their differences to find a common ground, however, tend to find the process a satisfying means to resolve family law issues.