There are several different ways to approach divorce. Among the gentlest, yet sophisticated dispute resolution methods is collaborative divorce. The parties in a collaborative divorce enter into a contract (“Participation Agreement”) to negotiate a divorce settlement without involving the court, or a mediator, but rather assembling a team comprised of collaborative attorneys, a neutral psychological professional (divorce coach), and often a neutral financial professional. During the collaborative law process, the parties sometimes engage experts for assistance, such as appraisers.
Among the benefits are more control over the process than you have by going to court, less acrimony and stress, usually less expense and time than a highly litigated case, and the preservation of existing family relationships. In many cases, collaborative law is the best choice for parents trying to protect their children from the emotionally destructive aspects of traditional divorce litigation.
The parties also have the benefit of counsel advice during the process, which they sometimes don’t during mediation (even though people are advised to use review attorneys in mediation). However, critically, if a matter does not get resolved through the collaborative process, the attorneys who represented the parties in the collaborative divorce cannot represent them in the litigation that follows. The rule is intended to allow the divorcing parties to be more honest and direct and posture less. It also ensures that attorneys commit themselves to the collaborative process, rather than abandon it for litigation.
It is important to be aware that in order for a collaborative law process to be honored in New York, the parties must sign and acknowledge a participation agreement. In Mandell v. Mandell, the defendant tried to disqualify an attorney for the plaintiff on the grounds that she’d represented the plaintiff in collaborative law proceedings prior to the divorce being filed. The couple had married in 1998 and had three children who were minors. In 2011, the husband defendant, an attorney earning about $260,000 a year, moved out. His wife volunteered as a social worker without pay.
The wife wanted to pursue a collaborative law process for their divorce. Her attorney wrote to the defendant to let him know that her firm had been retained to represent the wife and that the wife wanted to use a collaborative law process. However, it also clearly stated that collaboration would only be appropriate if the plaintiff’s interim financial concerns were addressed before moving forward with the process. The plaintiff’s retainer agreement with the lawyer included items related to representation in contested litigation and negotiation.
The defendant also hired an attorney trained in collaborative law and signed a collaborative law retainer. The agreement specified it was a limited scope retainer for collaborative law, and the firm wouldn’t be obliged to represent the defendant in litigation or an appeal.
The couple met to sign a participation agreement for a collaborative law process. The parties were supposed to then resolve immediate issues and develop an agenda, among other things. The agreement was not actually signed on that date. The defendant’s second attorney, who wasn’t there, stated that it was understood this would be done at a meeting two weeks later. The plaintiff’s attorney said later that the agreement wasn’t signed because the defendant refused to enter into a support agreement acceptable to the plaintiff.
The second meeting occurred, but the parties didn’t resolve the issue of temporary support and didn’t sign the participation agreement. A third meeting was held with the same result, and then the plaintiff sued for divorce.
The defendant then argued that the plaintiff’s attorney should be disqualified because she’d participated in the collaborative law process, even though there was no formal agreement. The plaintiff’s lawyer argued that the sign of whether they’d entered into the process was the signing of a participation agreement.
The court explained that the collaborative law process is relatively new and voluntary. There are few New York decisions interpreting the rules of this process. Generally, this process is entered into by signing an enforceable agreement. Without a written agreement, parties’ settlement offers or evidence of statements made to negotiate are inadmissible in New York.
The court further noted that what most distinguishes collaborative law is the commitment of the parties’ attorneys not to represent clients in future litigation. However, in this case collaborative law was a settlement technique. The court reasoned that in a matrimonial action, no agreement made before or during a marriage is considered enforceable unless that agreement is signed and acknowledged by the parties. Since the participation agreement wasn’t signed and acknowledged in this case, it was unenforceable.
If you and your spouse are considering a collaborative law divorce in New York, you should consult the Law and Mediation Office of Darren M. Shapiro. Mr. Shapiro is a trained collaborative law attorney. Contact him at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family law attorney and mediator.
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