FOR
COLLABORATIVE PRACTICE
Note: These Principles and Guidelines were given to us at the start of our case and we had to sign them in agreement. There are a number of difference versions of these used in practice. For one online current version, please see www.Nocourt.org. Others abound and may be found using search engines.
1.01.
The essence of "Collaborative Divorce" is the shared belief of the
participants that it is in the best interests of parties and their families to
commit themselves to avoiding adversarial legal proceedings and to adopt a
conflict resolution process that does not rely on a court-imposed
resolution. Collaborative Divorce
relies on an atmosphere of honesty,
cooperation, integrity and professionalism geared toward the future well being
of the parties and their children.
1.02.
One of our major goals in adopting Collaborative Divorce is to minimize, if not
eliminate, the negative economic, social, and emotional consequences of the
traditional adversarial legal process to the parties and their family. The divorcing parties in signing this
document commit themselves to the Collaborative Divorce process and agree to
seek a better way to resolve their differences justly and equitably.
II. NO COURT OR OTHER INTERVENTION
2.01.
By electing to treat this matter as a Collaborative Divorce Case, the parties
and their Collaborative Divorce professionals are committing ourselves to
settling all divorce-related issues without court intervention. The parties
agree to give complete, full, honest and open disclosure of all information
having a material bearing on the case, whether requested or not, and to engage
in informal discussions and conferences for the purpose of reaching a
resolution of all issues. All legal, financial, and mental health professionals
working as a team in this matter pursuant to this document, as well as any
appraisers, evaluators and other consultants retained by the parties to assist
in this Collaborative Divorce, will likewise be directed to work in a
cooperative effort to resolve issues without resort to litigation or any other
third-party decision making process.
III. LIMITATIONS OF COLLABORATIVE LAW PROCESS
3.01.
In electing the Collaborative Divorce, we – the divorcing couple – each
understand that there is no guarantee of success. We also understand that we
cannot eliminate concerns about the disharmony, distrust and irreconcilable
differences that have led to the current circumstances. While we are intent on
striving to reach a cooperative and complete resolution of all issues, we
understand that our actual experience in our Collaborative Divorce may fall
short of that goal.
3.02.
Even though we have chosen Collaborative Divorce, we – the divorcing couple –
understand that each of us is still expected to protect his or her respective
interests and not to lapse into a false sense of security in the assumptions
and expectations each holds about the other, the collaborative lawyers, or the
Collaborative Divorce process. Subject
to the requirements of applicable law and good faith commitments of theses
Principles and Guidelines, each of us may continue to act in our won respective
best interests, even where those interests diverge from the other party’s
interests.
IV. PARTICIPATION WITH INTEGRITY
4.01.
As participants in the Collaborative Divorce process, all signatories to these
Principles and Guidelines agree to respect the privacy and dignity of all
involved, including parties, lawyers, and if applicable, collaborative coaches,
financial specialists, child specialists and any consulting professionals. Further each of us agrees to uphold a high
standard of integrity. The parties and
all Collaborative Divorce professionals specifically agree that they shall not
take advantage of inconsistencies, misstatements of fact or law, or others’
miscalculation, but shall disclose them and seek to have them corrected at the
earliest opportunity. In the event a
Collaborative Divorce professional discovers inconsistencies, misstatements of
fact or law, withheld information, or miscalculations by a party or by any
other professional, the Collaborative Divorce professional shall inform that
person of the discovery and remind him or her of the obligations under these
Principles and Guidelines to make the required disclosure. In the event a Collaborative Divorce
professional discovers that another Collaborative Divorce professional has made
a misstatement of law or a miscalculation, she or he shall inform the other
Collaborative Divorce professional of the discovery and request disclosure and
correction.
V.
COLLABORATIVE DIVORCE TEAM AND OTHER PROFESSIONALS
5.01.
Each divorcing party shall retain a Collaborative Lawyer and is urged either to
retain or at minimum to have a preliminary consultation with a Collaborative
Divorce coach. Where appropriate, the
divorcing couple (with the advice of the Collaborative Lawyers) will retain a
Collaborative Financial Consultant to assist in their evaluation of financial
considerations and, if they are parents, will retain a Child Specialist (with
the advice of their Collaborative Divorce Coaches) to give support and a voice
to their children during the divorce process. These professional helpers are
referred to collectively as the Collaborative Divorce professionals.
5.02.
In addressing questions about sharing the enjoyment of and responsibility for
their children, the parents and the Collaborative Divorce professionals shall
make every reasonable effort to reach amicable and well-informed solutions that
promote the children’s best interests.
The parents agree to act quickly to resolve all differences related to
their children in a manner that will promote a caring, loving, and involved
relationship between the children and each parent.
5.03. Other Professionals. In securing additional professional
assistance, the parties shall ordinarily retain joint neutral experts and
specialist consultants as recommended by the Collaborative Lawyers and/or
Collaborative Divorce Coaches. While neither party and neither Collaborative
Lawyer is precluded by these Principles and Guidelines from consulting
privately with separate experts or consultants, each such expert or consultant
shall be directed to follow the spirit and direction of these Principles and
Guidelines, and when appropriate to collaborate with each other, meet and
confer, and, if possible, render joint statements on the matters in
question. Each party agrees not to
retain separate experts or specialist consultants without advising their
respective Collaborative Lawyers of their intent to do so, during this
Collaborative Divorce process.
6.01.
The parties understand that even with full and honest disclosure, the
Collaborative Divorce process will involve vigorous good faith
negotiation. Each party will be
expected to take a reasoned and constructive approach on all disagreements and
disputed matters in the interests of reaching consensus, and, where such
approaches differ, each party will be encouraged to consider modifying his or
her approach in order to reach a resolution of all disputed matters. While the parties shall be informed by
their Collaborative Lawyers about applicable law and about the litigation
process, neither party nor any Collaborative Divorce professional will use
threats of going to court as a way of forcing settlement.
VII. ABUSE OF THE COLLABORATIVE PROCESS
7.01. A Collaborative Lawyer shall immediately
either withdraw from or terminate a Collaborative Divorce case upon learning
that her or his client is knowingly withholding or misrepresenting information
having a material bearing on the case or otherwise acting so as to undermine or
take advantage of the Collaborative Divorce process. Examples of such behavior include: the secret disposition of marital,
quasi-marital, or non-marital property, failure to disclose the existence or
the true nature of assets and/or obligations, ongoing emotional or physical
abuse by either party, secret preparation to engage in litigation while
appearing to participate in a Collaborative Divorce process, or withholding a
secret plan or intention to leave the jurisdiction of the court with their
children. Each divorcing party shall
clarify separately, in writing, with his or her respective Collaborative
Lawyers whether the lawyer will withdraw from or terminate the Collaborative
Divorce process in the event his or her client abuses the process.
7.02. Both divorcing parties understand that the
Collaborative Lawyers each represent only one party and not both parties. Both parties understand and acknowledge that
neither Collaborative Lawyer owes a legal duty to a party he or she does not
represent. Nothing in these Principles and Guidelines shall be interpreted to
mean that either party could ever have a claim against the other party’s lawyer
with respect to any aspect of Collaborative Divorce, including, without
limitation: disclosures, negotiations, and/or terms of settlement.
7.03. All understand that the ultimate sanction
against professionals who abuse the Collaborative Divorce process, or condone
and/or encourage such abuse by clients, is the diminution of that
professional’s reputation in the legal community, including the judiciary.
VIII. DISQUALIFICATION BY COURT INTERVENTION
8.01.
The parties and their Collaborative Divorce professionals shall sign these
Principles and Guidelines, and such other documents as the Collaborative
Divorce professionals request, including but necessarily limited to fee
agreements, a Coaching Agreement, and a Stipulation and Order Re: Collaborative
Divorce, and agree to be bound by their terms and provisions.
8.02. The parties understand that their lawyers’
representation is limited to the Collaborative Divorce process. Thus, while your Collaborative Lawyer is
your counselor and advocate, he or she cannot ever represent you in court in
proceedings against your divorcing spouse, nor be named or remain as you lawyer
of record on any document filed with the court.
8.03. None of your Collaborative Divorce
professionals, including the Collaborative Lawyers, Collaborative Divorce
Coaches, Collaborative Financial Consultant, and Child Specialist, and none of
the other jointly retained experts and specialist consultants participating in
your Collaborative Divorce, may ever assist you in court proceedings against
your divorcing spouse, nor give evidence in such a matter.
8.04. In the event a party files adversary
documents with the court, all Collaborative Divorce professionals will be
disqualified from further representing or assisting their respective clients,
and the Collaborative Divorce process will automatically terminate. Upon
termination of the Collaborative Divorce process, all Collaborative
Professionals will be disqualified as witnesses and their work product and the
work of all other jointly retained experts and consultants will be inadmissible
as evidence in any adversarial court proceeding.
9.01
If a Collaborative Lawyer deems it appropriate to withdraw from the case for
any reason, he or she agrees to do so immediately by a written Notice of
Withdrawal to the parties, their respective coaches and lawyers, and the
financial and child specialists, as well as any other participants and, if a
Stipulation and Order has been filed, to the court. This may be done without terminating the status of the case as a
Collaborative Divorce case.
9.02
The party losing her or his collaborative lawyer by virtue of withdrawal may
continue in the Collaborative Divorce process by retaining a new collaborative
lawyer who will agree in writing to be bound by these Principles and
Guidelines.
X.
ELECTION TO TERMINATE COLLABORATIVE PROCESS
10.01. If a party
decides that the Collaborative Divorce process is no longer appropriate and
elects to terminate the status of the matter as a Collaborative Divorce case,
she or he agrees to do so by sending a written Termination Notice to all other
parties, Collaborative Professionals, and other participants and, if a
Stipulation and order has been filed, to the court. Similarly, if a Collaborative Lawyer deems it necessary to
terminate the Collaborative Divorce process, a written Termination Notice shall
be sent to the recipients noted in the preceding sentence.
10.02. The
termination of the Collaborative Divorce proceeding shall occur automatically
in the event a party deems it necessary to initiate an adversarial court
proceeding to protect his or her property, self, or children.
XI. PROFESSIONAL FEES AND COSTS IN COLLABORATIVE DIVORCE
11.01. Both
divorcing parties understand that all Collaborative Divorce professionals are
independent of one another and have no financial connections or fee-sharing or
referral fee arrangements with one another. They also understand and agree that
each Collaborative Divorce professional must be paid separately for his and her
services in this Collaborative Divorce, pursuant to terms set out specifically
in separate fee agreements with each professional.
11.02. Because an
imbalance in payments to the parties’ respective coaches or lawyers can adversely
affect one party’s access to advice and counsel as compared to the other party,
both parties may agree that all coaches’ and lawyers’ fees will be kept
current. The Child Specialist and Collaborative Financial Consultant and other
jointly retained neutral expert consultants will also be paid in a timely
manner. Any disagreements about the
ultimate responsibility for payment of such fees will be resolved as and when
other financial issues are resolved. Each divorcing party understands that no
Collaborative Divorce professional can continue to provide services without
being paid.
11.03. The
Collaborative Divorce professionals will confer with one another from time to
time by telephone, in person, and via email, in service of ensuring full and
complete disclosure of material information and in service of ensuring an
effective Collaborative Divorce process.
Each professional will bill for time spent in such communications as set
out in his or her separate fee agreement.
11.04. Each party
should ensure that he or she clarifies with their respective Collaborative
Divorce coaches and lawyers how private confidential communications will be
handled by that professional.
XII. SELECTION OF NEW LAWYER, ADDITIONAL FEES
12.01. Once the
status of the case as a Collaborative Divorce matter is terminated, the
Collaborative Lawyers agree to assist their respective clients in the selection
of new lawyers.
12.02. The parties understand that in retaining new lawyers in the event of the termination of the case’s status as a Collaborative Divorce matter, each of them will incur further professionals’ fees – including by not necessarily limited to lawyers’ fees – that may be equal or exceed those paid during the Collaborative Divorce process.
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13.01. All parties,
lawyers, coaches, financial consultants, child specialists, and other expert
professional consultants who have signed below hereby pledge to comply with and
to promote the spirit and written word of this document.
Dated: ___________________ ___________________________
Xxxxxxxxx,
Wife
Dated: ___________________ ___________________________
Xxxxxxxxxx,
Husband
Collaborative Divorce Professionals:
____________________________ ____________________________
Pauline Tesler, Collaborative Lawyer for Wife Eugene
Seltzer, Collaborative Lawyer for Husband
_______________________________ _______________________________
Collaborative Divorce Coach for Wife Collaborative
Divorce Coach for Husband
_______________________________ _______________________________
Collaborative Financial Consultant Child
Specialist
Other Expert Professional Consultants:
_______________________________ _________________________________
Real Estate or Other Appraiser Actuary
_______________________________ _________________________________
Vocational Consultant Certified Public Accountant
_______________________________ _________________________________
Other Other