Collaborative Divorce, a misnomer

  • Article
  • 4 Minute Read
  • Author: James Jeffcott

Collaborative Divorce, Collaborative Law, Collaborative Family Law, Collaborative Practice and Collaborative Process are all terms which are used somewhat interchangeably to describe a formal, interest-based negotiation process in which the participants agree to proceed outside of court to resolve their issues.  While none of them is “wrong”, Collaborative Process is probably the most accurate way to describe what we mean when we do what we do.

What we are referring to when we use these terms is the process in which clients who have a dispute related to their family relationships work with an inter-disciplinary team of professionals who are trained to resolve disputes using an interest-based model. The clients and the professionals sign a participation agreement, in advance, which describes the process and the expectations of the participants, one of which is that they commit not to engage in adversarial proceedings to resolve the dispute.

In the early days, this process was commonly called Collaborative Family Law or CFL.  In its first iteration the process involved two lawyers who assisted the clients, but over time we have refined the model to include financial and family relations professionals in the negotiation process.  In fact, it is often the financial or the family professional who is the first point of contact for one or both of the clients.  As a result, it is not only more inclusive but also more accurate to refer to the process in more neutral terms and to de-emphasize the focus on the legal reference in our terminology.

We recognize that family disputes have many components, only one aspect of which is the legal implications related to the dispute.  Often financial, emotional or parenting issues are at the heart of the problems which have given rise to the dispute.  In addition, we wish to emphasize the fact that the parties are free to come up with solutions that are not necessarily what the law model would provide.  We are always conscious of the provisions of the law when deciding how to resolve a particular issue and one of the key roles that a Collaborative lawyer plays in the process is to advise his or her client about the law and how it might impact on the situation, however, it is not the only route.

“Divorce” refers to a legal status. It is defined as a legal separation of married spouses by a court order or decree dissolving a marriage.  By definition, a divorce cannot be obtained unless it is granted by a court. So, it is something that necessarily occurs outside of a Collaborative Process.  The legal agreements that are developed by the participants in the process typically refer to how a divorce can be applied for but it is a distinct process.  Generally, a divorce, if required, is acquired via an administrative exercise once the resolution of the dispute is finalized by way of a written Separation Agreement. Divorce is not a consideration for unmarried parties.  We use the Collaborative Process to resolve disputes involving all types of family relationships. 

Often people use the work “divorce” colloquially to refer to separation and the process of breaking up or dissolving the relationship, which is why it sometimes results in confusion about what one means when one talks about “divorce”. In the same way, we might hear reference to Collaborative Divorce even though that is not technically correct.

Whatever you call it, there are a large number of Collaborative professionals who are willing and able to assist people who are facing disputes within their families and wish to resolve them in an amicable way, with a goal of transitioning their relationships in ways that work for everyone involved.  It is worth it to talk to a Collaborative professional about how this process might work for you.

James Jeffcott is the Head of the Family Law Group at LMR and a Collaborative lawyer and is President of the Ontario Collaborative Law Federation and Past President of Collaborative Practice Ottawa    

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