Collaborative Divorce -- What is it?

Have you ever heard of the term "collaborative divorce"? If you haven't, you are not alone. While collaborative divorces have been an option for many folks for years in Colorado, it is not a well-known practice in many other states. I was lucky enough to work for an attorney who practiced collaborative divorce law early on in my career. Through this experience I gained first-person observations of its pros and cons. Is collaborative divorce right for you?

Let's start with a loose definition. Collaborative divorce is a legal process that aims to utilize alternative dispute resolution between the parties through individual counsel as a means to avoid litigation. In 2021, Colorado passed the Uniform Collaborative Law Act (UCLA), which specifies and regulates collaborative law practice in Colorado.

Sounds pretty good, doesn't it?

In theory, and most of the time, this is an incredible way to navigate a separation. Collaborative divorces are a unanimous process. Each party retains their own collaborative divorce attorney, and I specify collaborative divorce attorney because there are many attorneys that do not practice collaborative divorce law. This keeps the scales even throughout the process so that each party has their own legal counsel to obtain legal advice from and to advocate on their behalf. It is a conflict of interest in Colorado for both parties to be represented by one attorney due to privilege and advisory conflicts that arise.

The main process for collaborative divorces for a dissolution or legal separation case are comprised of settlement conferences wherein all four individuals (the two parties and their attorneys) meet regularly to discuss settlement options. Experts can also be brought into these conferences. These could be financial advisors, estate experts, or counselors.

In Colorado, once a Petition is filed with the Court and served on the other party, the deadline clock starts ticking. In a collaborative divorce process, a Co-Petition is drafted, and both parties will sign it. However, the parties will hold on filing this Co-Petition until the entirety of the agreements are completed. After everything is filed, the Court will simply set an internal deadline to issue a Decree after the statutory time period (91 days) passes from date of filing. So, the parties and their attorneys meet, come to agreements, draft and sign all agreements, and file everything at one time rather than piece by piece. This lets the Court know that their involvement is not required beyond surveying any agreements for any fraud, malice or disproportion in allocation of debts or assets.

The pros to this process are handsome. The decision to pursue a collaborative divorce process is commendable as it presents from the jump that the parties' ultimate goal is settlement rather than litigation. Should the process proceed as intended, the cost for the parties will be substantially less than engaging in litigation of any kind.

Further, attorneys that practice collaborative divorce law are almost always individuals who are believers in and advocates for dispute resolution. This keeps their focus on their clients and settlement rather than preparing for litigation from the start.

Because the paperwork is filed all at once, you won't be under pressure to adhere to Court deadlines or have to attend any Court appearances. Once you come to agreements and everything is signed and filed, you are simply in a holding pattern for a few months until you get a Decree from your attorney or in the mail from the Court.

But, as with anything, there are a couple of things to keep in mind when you choose the collaborative divorce route. The most glaring is that while collaborative divorce is generally going to cost significantly less than litigation, it is still a relatively expensive process. Both parties will have an attorney, so out the gate you are looking at two retainers, I'd say that would be an average of between $5,000 - $10,000. This will not include any costs or fees that exceed these retainers. Does that happen? Yes. Yes, it does.

Since most of the contact between the parties and their attorneys are settlement conferences which both attorneys attend and prepare for, you can count on each of those meetings costing a significant amount. For example, say both parties' attorneys' hourly rates are $300, an average for an experienced attorney in Colorado. And say your conference lasts four hours. That meeting just cost you $2,400. Likely you at least made progress toward settlement, but it is not likely that you sat down in one meeting and finalized all agreements. If that had been the case, neither party really needed an attorney in the first place.

Another big con for collaborative divorce is that if at any point the collaborative divorce process goes south, both attorneys must withdraw as counsel. Since the process of collaborative divorce is so interwoven between the parties and the attorneys, it then becomes a conflict of interest for the attorneys of each party to simply remove their collaborative law hat and put on their litigation one. If at any point either party raises their hand and decides not to pursue a collaborative divorce, or if an impasse occurs, both parties will have to continue pro se (representing themselves) or get new attorneys.

A fact that is neither a pro nor a con (or maybe a bit of both) but is important to note is that any and all settlement discussions that occur in these conferences are prohibited from being used in trial. In other words, one party can't stand up and tell the Court that this party was willing to sell the house in a settlement conference, so the Court should order that to happen. Just as in mediation, this kind of information is barred from being brought to the Court in a hearing.

Collaborative divorce is something I commend and is a wonderful resource. It mirrors mediation in a lot of ways. The most important is the goal of coming to agreements rather than letting a Court decide your fate.

If you are looking for a collaborative divorce attorney in Boulder County, the Boulder Interdisciplinary Committe (Boulder IDC) is a great resource.