Herman Article

COLLABORATIVE DIVORCE: A NEW CONCEPT IN WISCONSIN (Abridged)

Before reading further, please answer the following questions:

Question One: What percentage of your divorce cases eventually settle? If your answer is 80% or higher, go to question Number 2.

Question Two: In general, do you believe that the legal process, including the
involvement of attorneys, formal discovery, unilateral appraisals and the pressures of trial dates and trial preparation, promotes or detracts from the ability of the parties to cooperate in the future as parents of their children? If your answer is that, for the most part, the stresses imposed by the divorce process can create wounds which take years to heal, please go on. If your answer is in the negative, before leaving, please consider what the answer would be if asked to your potential clients.

Question Three: Would you be interested in a system which is consistent with the manner in which most good family law attorneys practice anyway, but would give a level of assurance to potential clients that the harm to their future relationship would be minimized?

If you are still reading, this system is called collaborative law. Collaborative divorce has been tried and tested in a number of states and is spreading throughout the country.

Now, it is coming to Wisconsin. The Collaborative Family Law Council of Wisconsin, Inc. is dedicated to developing this system in Wisconsin.

Collaborative divorce is voluntary in every case. It requires the written consent of both parties, both counsel and the assigned judge. There may well be cases which an attorney believes are not appropriate for this approach, or where a client declines to sign a collaborative divorce agreement.

Where all parties are in agreement, they will sign an agreement (we are working on an approved form) which will provide as follows:

  • There will be no contested hearings or motions. All disputed issues,
    including temporary issues, will be resolved through negotiations.
  • There will be no formal discovery. All financial information will be
    exchanged on an informal, voluntary basis.
  • Both parties will make full disclosure of all relevant financial information.
  • Both attorneys will refrain from sending “attack” letters or conducting themselves in any manner detrimental to the future relationship of the parties.
  • Alternative Dispute Resolution methods, mostly mediation, are encouraged but not required.
  • The case will be settled. If it is not – and this is critical – both attorneys must withdraw.

The most difficult part of the concept is the mandatory withdrawal requirement, yet this is the sine qua non of collaborative divorce. Without such a requirement, there are no teeth – the agreement would then be only a statement of intent rather than a meaningful, enforceable contract.

How will this work? A potential client comes into your office and relates circumstances which would benefit from a collaborative divorce approach. A typical scenario would be one where the marriage must end, but both parties want to remain involved in the lives of their children, whether the children are minors or adults. You explain collaborative divorce to the prospective client and provide two informational pamphlets – one for the potential client and one for the spouse. When the spouse reads the pamphlet, if he or she is interested, s/he will access our website which will include an explanation of collaborative law and a link to lawyers who belong to the group. Each lawyer will have the opportunity to link to his or her resume and office website.

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