Most people getting divorced wisely want to stay out of the courtroom. Most also want the assistance of divorce lawyers during their divorce negotiations for many reasons, including:
- Divorce lawyers have the technical expertise to correctly formalize agreements so they don’t create problems in the future and legal aspects are correctly done. Examples include ensuring that title to real estate is correctly transferred, that IOUs are enforceable and secured, and that retirement is correctly handled.
- Lawyers can provide advice about consequences of different decisions, the impact of different laws, and options for addressing concerns.
- Lawyers can help with perspective-taking, to help you discern the difference between a fear and a real risk.
- Lawyers have the skills and experience to navigate the labyrinth of the courthouse, so agreements can be efficiently approved and the formalities of divorce handled.
- A skilled and creative lawyer can help you get to solutions that would not be possible without the skill in structuring the solutions. An example is structuring an agreement in a creative to maximize tax benefits.
If you are relying on your lawyer to help you negotiate your divorce settlement in many locations, including Seattle, you have two main options: (1) Conventional Lawyer-Assisted Negotiation, and (2) Collaborative Divorce. In both processes, you get one-on-one help from your lawyer, whose job it is to help ensure that what’s important to you is addressed if possible. However, there are big differences in the way negotiation works between these options–here are the big differences:
|COLLABORATIVE DIVORCE||CONVENTIONAL LAWYER-ASSISTED NEGOTIATION|
|Lawyers are trained in non-court methods of dispute resolution||Yes||Maybe|
|Ground rules for negotiation are agreed in advance||Yes||Unlikely|
|Disclosure of information is mandatory||Yes. Full disclosure is required by law (RCW 7.77.100) and by binding contract||Disclosure is optional|
|Threats are an acceptable negotiation technique||Never. Threats violate the ground rules. Instead, all are held to work respectfully towards a agreement||Yes. Both veiled and explicit threats to go to court are common|
|Discussions are confidential, assuring freedom to fully explore options to reach agreement||Yes. The confidentiality required by the Participation Agreement is enforceable by law. (RCW 7.77.140)||No|
|You are fully involved in the negotiations
||You’re expected to be a full participant in negotiations. You’re expected to share your perspective, consider the perspective of your partner, and prioritize and weigh possible solutions||Maybe. Usually the lawyers do most or all the negotiation, even if you happen to be there. Information is usually filtered through others|
|Subject matter expertise of financial specialist, child specialist, and divorce coach helps you make good decisions
|Structural incentives help everyone keep working towards agreement||Clients must hire new lawyers if they end the process; this creates incentive for all to continue to work together through the tougher discussions||Anyone can abandon negotiations prematurely|
|Court proceedings are guaranteed to be stayed (suspended) so negotiations can proceed without worry about court-imposed deadlines||Yes. (RCW 7.77.050)||No|
|Professionals and clients can be compelled to testify in court about what was discussed||No. The collaborative communication privilege assures no one can testify about the discussions. (RCW 7.77.150)||Mostly yes. Only one-on-one private conversations with your own attorney are protected|
|Safeguard of mandatory withdrawal by a lawyer whose client does not act in good faith||Yes. A lawyer must withdraw if his/her client does not negotiate in good faith||No|
|Lawyers handle all legal aspects of divorce||Yes||Yes|
|Lawyers can go to court for approval of agreements||Yes||Yes|
|Lawyers can go to court on contested matters||No||Yes|
|You can be ambushed with a surprise court proceeding||No. If negotiations end, a waiting period gives everyone time to transition before a court proceeding||Yes. Anyone can start a court proceeding without advance notice|
|Lawyers may seek an emergency court order if needed||Yes. RCW 7.77.080(3)||Yes|
|If negotiations are not successful, agreements reached and information learned and agreements reached can carry over||Yes||Yes|
|More stringent ethical standards for lawyers (in excess of standard requirements)||Yes. There are supplemental ethical standards for Collaborative professionals. (See below)||No|
Because Collaborative Divorce has its own unique choreography and different rules than conventional divorce negotiation, it’s essential to work with a divorce lawyer who is trained in Collaborative Law if you wish to choose that process.
RCW references are to the Uniform Collaborative Law Act, which is part of the Revised Code of Washington. Additional ethical standards for Collaborative professionals are established by the International Academy of Collaborative Professionals.