They Sound Similar—But Collaborative and Amicable Divorces Aren’t the Same

Over the years, I have had friends or potential clients tell me they are interested in a collaborative divorce. When I press for more details, I often realize that they are referring to a mediated or negotiated settlement agreement, but not a true Collaborative divorce process. What they are describing is an amicable divorce.
Aren’t Amicable and Collaborative the same thing?
In the dictionary, maybe. In divorce proceedings, no. An amicable divorce is one in which you both want the divorce, are likely agreed on substantial terms, and just need a professional to draft the terms to protect your interests. Where there are disagreements, you will likely utilize position-based negotiating (I want to stay in the marital home, I want to keep my retirement, I don’t want to pay spousal support).
A Collaborative divorce is a specific process. Each party must be represented by an attorney (preferably one that has undergone specific Collaborative divorce training), and you may utilize neutral experts such as coaches, child specialists, and financial professionals. You and your spouse sign a contract not to litigate, to treat one another with respect—even when you disagree—and to participate in good faith to share information and identify your goals for the process. If you and your spouse cannot come to an agreement and choose to pursue litigation, your Collaborative attorneys cannot represent you.
Collaborative divorce utilizes interest-based negotiations. Rather than taking the position “I want to stay in the marital home,” we identify WHY you want to stay in the marital home—to provide consistency for the children, to keep them in their same school district, to be within walking distance of other family. Those interests may be achieved by staying in the marital home, but they also may be achieved with other options you hadn’t considered.
My favorite way to talk about Collaborative is using the orange analogy. You and your spouse have one orange. In litigation or mediation, using position-based negotiating or equitable distribution factors, you are each likely to walk away with some percentage of the orange. One of you may walk away with the entire orange, but more likely you will walk away with only a percentage of the orange or the Court will order that the orange has to be sold and the proceeds shared. In Collaborative, by sharing WHY you want the orange, you may discover that one orange meets both your and your spouse’s needs. You want the peel to make potpourri, and your spouse wants the pulp and flesh to make juice. Turns out you both get exactly what you want by using interest-based negotiation.
Collaborative is not the right process for every divorce, but it may be right for you. We encourage you to contact our firm to discuss your options. Carrie and I are both trained, and actively practicing in Collaborative.
You can use it for pre-nuptial agreements too!