Collaborative Divorce Blog

What is a Collaborative Divorce Participation Agreement?

7/24/2018

Collaborative divorce provides an alternative process for parties seeking an out-of-court agreement. Collaborative divorce promotes agreement and free exchange of information through private negotiations. Each party hires an attorney and all four work together in a cooperative, non-adversarial process. Divorcing couples with a mutual goal of reaching a fair settlement are appropriate for the collaborative process. You may have recently decided this is the route for you — and your spouse agrees; but what exactly does it mean to sign a Collaborative Divorce Participation Agreement?

The Commitment: Signing a Collaborative Divorce Agreement

A Collaborative Divorce Participation Agreement (“PA”) is a written agreement by which both parties commit to work together towards a mutually beneficial outcome. The key element of a Collaborative Divorce Participation Agreement is that both parties agree that they will not ask a court to decide a disputed issue. If anyone does so, both attorneys must withdraw.

In this type of agreement, the parties and attorneys communicate and negotiate directly with one another in structured four-way settlement meetings. The Participation Agreement is a contract made by both parties to voluntarily disclose all financial and other relevant information, and to proceed respectfully and in good faith in settlement negotiations. In order to succeed in Collaborative divorce, both clients must be willing to hear the interests and concerns of the other spouse and be able to keep discussions respectful.

For Collaborative Divorce to work, each party must agree to:

Full and voluntary disclosure of financial information
Negotiate in good faith
Honestly share interests, goals and values

Typical Code of Conduct in the Collaborative Divorce Process

In a Participation Agreement the parties agree to negotiate in good faith. What does it mean to negotiate in “good faith?”

Section 3.3 B. of that Code of Ethics states that good faith negotiation requires that:

Subsection 1: “Each client and professional takes a thoughtful and constructive approach on all unresolved questions in the interest of reaching agreements.” This means that the parties need to address all issues in a reasonable way. In Wisconsin, the Participation Agreement specifically requires that the clients work to create a range of resolution options and strive to meet the interests of both parties. A “take it or leave it” approach is not a component of good faith negotiation.

Subsection 2: “Each client and professional complies with the Participation Agreement and any other formal and informal agreements made in the Collaborative Process.” The Participation Agreement will contain enforceable promises to make full and voluntary disclosure of all information having a material bearing on the case. That means that concealing information which affects the outcome of the case must be disclosed, whether the other client or lawyer asks for that information or not. Additionally, when an interim agreement is made, good faith requires that that agreement be kept.

Subsection 3: “No client or professional takes advantage of inconsistencies, misunderstandings, miscalculations, omissions, or inaccurate assertions of fact, law or expert opinion.” This is about “fair play.” Oddly, there is no requirement in legal codes of ethics requiring a lawyer to correct such mistakes. However, settlements that are based on these types of mistakes or miscalculations are simply not effective settlements. When a settlement is based on an error, one person has been taken advantage of and denied the opportunity to reach an accurately informed agreement. In these situations there may be post agreement motions to a court to set aside the mistaken settlement. Instead of a positive outcome, bitterness and distrust prevail.

Subsection 4: “No client or professional threatens to undertake a Proceeding (court process) to coerce a particular outcome on an issue to be resolved by the Collaborative Process.” This component of good faith negotiation is intended to keep the process on an even playing field. Early in a process, a threat to end a process can unbalance the negotiations and make a thoughtful and constructive approach to problem solving the issues of the case all but impossible.

When a client signs a Participation Agreement, the client is agreeing to be held to a high standard of conduct. The Collaborative client commits to respect the dignity of all and maintain integrity in negotiations. This client is asking their lawyer to help them stay the course to find a settlement that works for all.

Confidentiality Protections

Is it safe to honestly share your interests and goals in the Collaborative process? The process is designed to create a safe place to disclose ideas and goals without the fear of those disclosures being used against the client in a subsequent proceeding. The Participation Agreement protects the documents and statements made by a client during a Collaborative meeting from being used in any later court proceedings. The negotiations in a Collaborative Process are confidential and protected as if they occured in mediation. In some states, the legislature has adopted the Uniform Collaborative Law Act which creates protection from the collaborative negotiations being used in Court, in Wisconsin, which does not yet have the Uniform Collaborative Law, the protection is conveyed by the Participation Agreement, as a form of mediation.

In Collaborative Divorce, a client promises to provide all information and to be totally transparent. As such, being secure in the confidentiality of the process is imperative. While the conversation inside the process is open and transparent, the confidentiality of the conversations inside the process is imperative. Everyone involved in this process is required to maintain confidentiality of all oral and written communication related to the divorce. The Collaborative team can work to draft and finalize the divorce in a way that shares the very minimum of financial and personal family information with the public.

Termination of the Collaborative Divorce Process

The Participation Agreement sets out a common understanding of how to terminate the Collaborative Divorce Process. At all times during the process, either client has the right to leave the process and seek court intervention. The Participation Agreement prescribes the notice requirements for taking this step.

In addition to a client terminating the process, either lawyer can terminate the process or withdraw representation. Reasons that might trigger a lawyer “withdrawing” might be when a party refuses to disclose financial and other related information to the other party. Reasons that might trigger a lawyer “terminating” a process would be drastic, for example, learning that a client is concealing material information and forbidding the lawyer from disclosing that information. When a lawyer withdraws, the process could continue with another Collaborative Divorce lawyer.

Collaborative Divorce Benefits Both Parties

The benefits of Collaborative Divorce are many, but the main one is its non-adversarial approach. Both parties are able to retain more control over divorce outcomes and can tailor solutions to best meet family needs and dynamics. The potential to maximize each party's best interests is much more attainable than in a traditional divorce.

If you chose the Collaborative Divorce Process, you will discuss the terms of the Collaborative Divorce Participation Agreement in your first team meeting with your spouse and the other lawyer. You may sign or defer signing the Participation Agreement to ensure that you wish to make this serious commitment. The Participation Agreement is the charter for your Collaborative Divorce, and is not to be signed lightly. When it is signed, it is the map for dissolving your marriage respectfully, swiftly and out-of-court. Learn more about the Collaborative Divorce Process in Milwaukee here.

For questions or to schedule a consultation with Attorney Diane S. Diel, please contact us.

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5 Tips for Preparing for Divorce

6/12/2018

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So you’ve made the tough decision to file for divorce, or just learned that your spouse is filing for divorce. You probably have hundreds of questions and what-ifs swirling and it feels like nothing about your life as you know it is safe or secure any longer. Divorce proceedings can be difficult, but one of the best things you can do to start feeling comfortable again is equip yourself with knowledge. Here are a few things to keep in mind and plan for to help ease the transition to singledom.

How to Prepare for Divorce

1. Choose a divorce option. Most people don’t realize there are a number of divorce process options. Not all involve litigation. After reviewing the options, evaluate the state of your relationship. Are you on amicable terms? Do you want to avoid going to court? Will you both voluntarily attend meetings to discuss the dissolution of your marriage? Can you both agree on basic principles about how your marriage will end? If so, alternatives to litigation may be for you.

Divorce Options:

Pro se divorce - The “do it yourself” approach. In a pro se divorce, the parties do not hire attorneys, they do it themselves. This is best suited for couples who agree on most aspects of their divorce, who were married a short time, who have few or easy-to-value assets or where income and child support or spousal support is not an issue. In a pro se divorce, the couple will proceed on their own to draft and file the necessary court documents including the summons and petition, financial disclosure statements, and the marital settlement agreement, if any, and the final judgment of divorce. In some areas, pro se form kits are available at the courthouse. For example, in Milwaukee County, pro se packets are available for a small fee in Room 307A of the court house.

Ultimately, the husband and wife must either work out an agreement together or present their legal issues to the court. If an issue is not agreed upon, the parties have to be prepared to act as their own lawyers, which means they must call witnesses, ask questions of the opposing party and tell the court why their request for specific orders should be granted.
Traditional divorce - This is probably the most commonly thought of option. You or your spouse, or your lawyers file a divorce petition. Hearings are scheduled before Judges or Court Commissioners.There may be negotiations, but the expectation is that if an agreement is not readily reached, the Judge or Commissioner will make the decisions about all disputed issues. This can include division of assets, debts, placement of children, child support or spousal support. In the traditional divorce, both parties hire attorneys. The attorneys provide legal advice and represent the positions of their client in negotiations and court hearings.

This model is an adversarial process in which each attorney advocates positions based on the personal needs and viewpoints of their client. The parties communicate through their attorneys, rather than directly with one another, regarding their positions, proposals and counter proposals on the issues in their divorce. The process may involve the use of formal legal procedures, known as “discovery” to secure financial and other relevant information. This may include the use of depositions, (a formal taking of testimony before a court reporter) the subpoenaing of documents or other material believed to be relevant to the issues, or sworn interrogatories (formal written questions which must be answered in writing under oath.)

Each party may hire experts to support their positions. Experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants, and other investigators. If the parties dispute the legal custody or physical placement schedule for their children, the Court will appoint a third attorney, called a guardian ad litem, to participate in the case as an advocate for the “best interests” of the children.

Ultimately, if agreements are not reached, parties and other witnesses testify before a judge who makes decisions on each disputed issue. Most litigation divorces are eventually settled after substantial time, money and emotion has been spent in conflict.
Collaborative divorce - Collaborative divorce is a process in which the divorcing parties work with their lawyers as a team to resolve issues and develop a solution for the future. In collaborative divorce, each party hires an attorney and all four work together in a cooperative, non-adversarial process with a mutual goal of reaching a fair settlement of all issues. The parties and attorneys communicate and negotiate directly with one another in structured four way settlement meetings.

Binding commitments in writing are made by both parties and their respective attorneys to voluntarily disclose all financial and other relevant information, to proceed respectfully and in good faith in settlement negotiations and to refrain from the threat or use of litigation. The parties agree that they will not go to court and if anyone wants to do so, both lawyers withdraw.

As required, experts are brought into the process as neutrals who are jointly retained by the parties. In addition, Collaborative divorce may involve a team approach; possible team members include financial advisors and mental health professionals. The parties hire attorneys as settlement specialists.

This process encourages creative problem solving, win-win negotiations, and resolutions that meet the needs of all members of the family. Collaborative divorce produces better results for children, greater satisfaction of the parties, and parties who are less likely to return to litigate future issues in court. More importantly, the parties are directly involved in the process and retain control over the outcome.

If you and your spouse are committed to solving problems together and working in the best interests of your children and other important family relationships, this is a process you should strongly consider.

Mediation - In mediation, the parties hire a neutral third party to assist them in reaching agreements. The mediator can provide information about the legal process and guide a discussion to help resolve issues. The mediator does not represent either party and cannot provide legal advice. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle. The mediator can write up your agreement. You may hire your own lawyer for advice during the process and should hire your own lawyer to review the agreement prepared by the mediator.

2. Seek support. As you are preparing for divorce, identify your support system and reach out to them. Whether your support team is small or consists of many individuals, it’s important to your mental health and well-being. Consider meeting with a divorce coach who can be there to help you manage emotionally as the confusion and anxiety of divorce is often overwhelming. It’s perfectly normal to grieve over a divorce. Give yourself some time and equip yourself with the right resources to grieve in a healthy way.

3. Identify your assets and track expenses. Learn as much as you can as soon as you can about your family’s income and expenses, assets and obligations. This information will help you determine how to divide assets and debts, to help you build a post-divorce budget as you prepare for divorce. A financial advisor can take a look at your finances and help you formulate a budget and organize your financial information. It is often helpful to pull your own credit report.

4. Agree to keep it civil. If you and your spouse can keep it civil, your divorce will be less costly, both emotionally and financially. Conflict hurts children, so keeping the peace for the children is especially important. If children are involved, and no matter how much one or both of you are hurting, both parties should establish some basic ground rules. For example, the two of you should agree not to discuss divorce issues in front of the children. Issues should be discussed with your attorney or mediator, not in your home. Save the negativity and blame to private meetings where your children cannot over hear.

5. Be prepared to make some changes. If you took your spouse’s last name, at some point you may feel compelled to change your name back. Although this affects mostly women, this particular process is often overlooked and can be cumbersome if you are not aware of the steps involved. Do you know what documents you need in order to do so? Now is the time to plan, so you aren’t rushed and can easily schedule these tasks into your calendar.

How to Change Your Name After Divorce In Wisconsin

Changing your last name back to your maiden name (although some men change theirs too) post divorce doesn’t have to be a daunting process. Know what you’re in for and what documents are needed before-hand as you’re preparing for divorce.

First complete an application for a social security card.

Next, visit the Social Security Administration to have your name changed on your social security card. You must show a recently issued divorce decree as proof of your legal name change. In addition to showing the divorce decree, you must provide an identity document. That document must show your old name, as well as other identifying information or a recent photograph. (They do accept an expired document as evidence of your old name.) All documents must be either originals or copies certified by the issuing agency. They do not accept photocopies or notarized copies of documents. View a full list of Social Security Administration locations here.

After receiving your new social security card, go to your local DMV. You can view a list of Milwaukee DMV Service Centers here. When you come to the DMV to change your name on your driver license or identification card, you will be required to show proof of your name change. Your divorce decree will suffice as proof of a name change, but you will also be required to show proof of identity, which can be proved by:

A valid WI or out-of-state driver’s license
A valid WI or out-of-state ID card with photograph
U.S. government and military dependent ID card
Military discharge papers, including Federal DD-214
Social security card issued by the Social Security Administration

No matter how you found yourself here, being involved in a divorce is not what you wanted when you married. You can survive your divorce by learning all you can about divorce, the divorce process and how to understand your financial future after divorce. When do you get started? This would be a good time!

Diane S. Diel practices family law including collaborative divorce and mediation. She brings practical problem-solving skills to your family matter and seeks creative and respectful solutions. Contact our office today to consult with Diane on your family law matter.

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5 Reasons Why You Should Consider Collaborative Divorce

5/7/2018

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Have you heard about it, collaborative divorce? While couples have been divorcing for ages, this process is relatively new by comparison. Collaborative Divorce officially began in the late 90’s in Minnesota and California. Almost 20 years later and collaborative divorce is now an option available to most across the U.S.

What Is Collaborative Divorce?

Collaborative divorce differs from traditional divorce and provides an alternative process for parties seeking an out-of-court agreement. The idea of collaborative divorce is to promote agreement and free exchange of information through private negotiations. In collaborative divorce, each party hires an attorney and all four work together in a cooperative, non-adversarial process with a mutual goal of reaching a fair settlement of all issues. The clients and lawyers sign agreements limiting the lawyers’ work to settlement negotiations and require the lawyers to withdraw if a court is asked to decide any of the issues.

The parties and attorneys communicate and negotiate directly with one another in structured four-way settlement meetings. Binding commitments are made by both parties and their respective attorneys to voluntarily disclose all financial and other relevant information, and to proceed respectfully and in good faith in settlement negotiations. In order to succeed in collaborative divorce, both clients must be willing to hear the interests and concerns of the other spouse and be able to move forward respectfully.

What Are the Advantages of Collaborative Divorce?

There are a number of advantages to choosing collaborative divorce, here are just a few:

Greater control. Each participant has the opportunity to voice interests, concerns and requests, thereby giving more voice and more control over the outcome to the spouses.
It can be more efficient. Collaborative divorce encourages direct communication to resolve issues without court intervention. Communicating directly in meetings avoids misunderstandings and avoids attorney fees expended in preparing for unnecessary court proceedings.
More discreet option. All negotiations are private. Also, Collaborative lawyers are often able to keep settlement details less visible to the public.
Promotes a more respectful environment. Participants have a larger voice in the settlement. By choosing this process both participants in good faith show commitment to attempt to agree on the terms of how their marriage ends.
Focuses on restructuring. While collaborative divorce still results in the dissolution of a marriage, the process is more about restructuring family relationships following a divorce. For those with children, this can be especially important. The resources afforded to those in a collaborative divorce promote easier transitions for children and help prevent future conflict.

Commitment to an Out-of-Court Settlement Agreement

If you find yourself seeking divorce options, arm yourself with as much information as possible. Whatever your choice, it’s a very personal one and collaborative divorce requires commitment to a settlement agreement. Those considering a collaborative divorce must be willing to resolve all related support, custody, and property disputes in a constructive and reasoned atmosphere. As previously mentioned, both parties must agree that they will not go to court and if anyone wants to do so, both attorneys must withdraw.

Diane S. Diel practices family law including collaborative divorce and mediation. She brings practical problem-solving skills to your family matter and seeks creative and respectful solutions. For questions or to schedule a consultation, please contact us.

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