In February 2013, the Center for Disease Control affirmed that forty-one percent
(41%) of first marriages end in divorce, and nearly 2,400 divorce decrees are granted on a
daily basis. Said statistics aver approximately 876,000 divorces take place per year! This
is a rapid increase from 1960, where there were approximately 393,000 divorces. It
appears that the implementation of judicial remedies (circa 1970s), which are inculpatory
in nature, significantly increased the United States divorce rate.

It is well established that a courtroom is neither a positive, nor constructive venue
for families going through the traumas associated with a divorce. The Judicial System is
ill equipped in handling the emotionally laden process of dissolving a marriage. As such,
during divorce proceedings, discussions should be veered towards the parties’ own well
being. This is despite the fact that traditional divorces often settle before a trial, but the
interim adversarial approaches from an initiated lawsuit cause an extremely challenging
environment for all involved. Accordingly, a Collaborative Divorce (hereinafter “CD”), a
type of Alternative Dispute Resolution, is an advantageous and expeditious method of
divorce, abating the lengthy and painful litigious procedures.

Similar to mediation, during a CD all members of the team waive their rights to
litigate and partake in the aforementioned alternative. Members of said “team” include
the parties, their Attorneys, Mental Health Professionals, and/or Financial Professionals.
From the outset, team members agree to work from a problem-solving approach, as
opposed to a legally competitive, adversarial, or strategic method. In furtherance of this
plan, a signed “Participation Agreement” prohibits the Attorneys from representing the
spouses if litigation arises. Furthermore, a CD is not only a private and dignified process,
but also prepares both parties for their futures. Upon completion, the Attorneys
representing the respective spouses approach a Family Court Judge, with a contract
containing the mutually agreed terms, to finalize the divorce via an uncontested
procedure.

The long-term benefits of a CD is likely attributable to the recent increase in
divorces. Firstly, with the help of a Mental Health Professional (hereinafter “MHP”), the
couple seeking the divorce learns to deal with conflict in a more constructive manner.
During a divorce process, spouses are filled with intense and potent feelings of anger,
betrayal, guilt, fear, and/or resentment. Therefore, the MHP is capable, equipped, and
trained in working with the spouse(s) to reduce the aforementioned emotions. There may
be a single MHP, a “Neutral Coach,” who works with the parties on both an individual
and collective bases. The Neutral Coach attends Attorney conferences and is present at
negotiations to offer the spouses emotional support, and to help process and/or
reconstruct information. Alternatively, the parties may consult with their own MHP to
form a more personalized relationship and prepare for meetings (to process information
afterwards). Lastly, a MHP is not only hired for the parties seeking a divorce, but also to
conduct forensic examinations, custody evaluations, etc. if and when children are
involved.

An additional member of a Collaborative Divorce “team” is a Financial Specialist,
or “Financial Neutral” (hereinafter “FN”), who could be an Accountant or Certified
Public Accountant. Sometimes, a value designator is desired if a primary asset(s) of the
marital property is a business. The FN is yet another impartial member of the “team” with
whom the parties may discuss their financial matters, fears, and concerns; he or she offers
a safe and unbiased environment. When financial difficulties stem, most divorces result
in a suit, augmenting that the FN is probably the most imperative member of the CD
team. Duties of the FN include, but are not limited to, (a) identifying and gathering
necessary financial documents, (b) affirming separate or marital property, (c) providing
projections of future cash flow and net worth, (d) analyzing the ability of the higher
earning spouse (to make maintenance payments), the implications of taxes for various
scenarios (i.e., child support, marital property division, etc.), budgets, property, business
interests, debt pay-off situations, and/or (e) assessing economic consequences of keeping
one spouse’s asset over the ether. Essentially, the FN’s focus is to assist the parties and
Attorneys in producing pragmatic financial options; they must also educate the parties
about the future financial impact of each option. Lastly, the FN should obviously possess
traits of a keen problem solver, in efforts to offer realistic solutions for the parties, during
their decision-making.

Throughout this process, the role of the parties’ Attorneys is to help their Clients
by providing legal support. They deal with the overall issues concerning the divorce, as
well as correspond with the other Attorney. As previously stated, a CD requires an
agreement between both parties to collaboratively settle and stay out of court. Therefore,
at the start, the Attorney notifies his or her Client (the spouse) that they are not an
Attorney of Record except for preparing and submitting documents comprising the
judgement roll, and are unable to represent the Client in litigation, even if it is the other
party who wants to litigate, or represent the Client in any other family or matrimonial law
matter should the Collaborative Process end prior to a settlement. Of significance, the
terms enumerated in a retainer agreement may cause Clients to fear that their Attorney
will solely focus on settling and their lack of exporting zeal and ardor may inhibit a
superior outcome. Further, Clients in this predicament may have also waived the
Attorney-Client privilege even if they choose to litigate in the future, in the event the CD
renders unsuccessful.

Based on the foregoing, it is highly likely that the increase in inculpatory legal
remedies have invoked a greater amount of divorces. If a CD should occur, both spouses
will comply, which will simply ease and expedite the divorce. The use of one or multiple
MHPs, and a FN further assists in smoothing the divorce proceedings because of an
impartial view of the spouses’ mental and emotional, and financial situations. In essence,
the outcome of a CD is a win-win for both parties (as well as others involved, such as
children).

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