Collaborative practice as an option for divorce
Simeon Levin 16 December 2015
As we approach the start of 2016, it’s interesting to note that the start of the New Year is so notorious for divorce appointments that among the legal profession, the first Monday back in the office after the Christmas break is known as “D-Day”.
While many of us are well versed on how to get married, there doesn’t seem to be much in the way of information or ‘neutral’ advice about how to get divorced. Considering that one in three marriages end in separation (which translates to almost 50,000 divorcing couples in Australia per year), I thought it would be useful to share some of the options available to those considering “the inevitable”, as we head into a new year.
There are generally five pathways to get divorced, you can choose to:
- Do it yourself (around the kitchen table)
- Collaborate (otherwise known as collaborative practice)
- Settle out of court (through lawyer negotiation)
- Litigate (go to court)
This diagram offers a simple overview of how each of these processes work and the parties involved:
With an understanding of the benefits of avoiding a toxic and protracted legal battle (and especially if you have children), I would like expand on a process that may not be familiar to many and one that I have become quite passionate about – Collaborative Practice.
Collaborative practice is a way to get divorced through a series of facilitated meetings. The end game is to work out what’s really important to the family unit as whole and then to agree on a settlement out of court.
This entails not only coming to terms about a property settlement, spousal maintenance or childcare plan, but also coming to an agreement on many other aspects of separation. So for example, it may include an agreement about how you will behave and communicate with each other in front of your children or how you want to deal with important family occasions. These are some of the issues that are often really important to people as they split up, but that the family court just isn’t able to consider. So a valuable outcome of using collaborative practice is that the needs of the family unit are central to the process and it’s the couple (not the lawyers or a family court Judge) who shape their own divorce agreement, with the support of a team of professional people.
As a starting point, the team of professionals in collaborative practice should include each party’s lawyer (who both sign a contract that they will not take the family to court), a financial neutral expert, a family Councillor, and sometimes a child specialist.
Each person on the team brings an important set of skills and expertise to the collaborative table. The lawyers facilitate the meeting process and work on the legal aspects of the divorce. The financial neutral helps to gather information about the pool of assets and assists the parties to make informed financial decisions. The family Councillor helps the couple to manage the emotional stress of getting divorced, particularly when communication breaks down and ensures everyone at the table has an opportunity to be heard.
While collaborative practice isn’t a process for all separating couples, when I talk to some of my legal colleagues, I’m told that one of the biggest impediments to the right people engaging in the process is that it takes both members of a couple to be committed to using it! If one person sets off to see an adversarial family lawyer before they have explored collaborative practice as an alternative, chances are you will both end up in a protracted and expensive legal battle.
In the end, collaborative practice can deliver great outcomes to divorcing Australian families. It’s a process that focuses on ending a marriage or relationship with dignity and respect. This is not only invaluable behaviour to model for our children but also something that you may look back on one day to say “we did that well”.
If you are interested to know more about collaborative practice or if you would like to register for a Divorce Options Workshop (starting in February 2016), please contact Simeon Levin on (02) 9956-3835 or email [email protected].
Simeon Levin is a Divorce Financial Neutral Specialist, Certified Financial Planner® and an authorised representative of Fitzpatricks Private Wealth Pty Ltd AFSL 247 429 ABN 33 093 667 595.