Your Guide to North Carolina Collaborative Family Law Procedure

Transcription

1 Your Guide to North Carolina Collaborative Family Law Procedure What is collaborative family Law? North Carolina law now offers a non-adversarial procedure for ending marriage and resolving family law conflicts that preserves privacy, power, and peace of mind. The collaborative process empowers couples to communicate with each other directly, with the aim of gaining a clearer understanding of their own and their spouse s (or former spouse s) needs and interests. This process opens the door to a healthier, more transformative way to reach peaceful settlements. Divorce can often be one of the most stressful, frightening, chaotic times of one s life. Unlike the traditional litigation model that often adds to the misery, the collaborative process combines compassion, problem-solving skills and practical guidance to expand the possibilities for divorcing couples in making a smooth transition from being married to being single in a way that is most beneficial for their restructured family. The goal of the collaborative family law process is to avoid the negative economic, social and emotional consequences of protracted litigation by using cooperative negotiation and problem solving. Collaborative practice can also be used to resolve family matters that arise after your divorce is completed including the implementation or modification of agreements and orders concerning family issues. Here is how it works 1. Independent Representation. Each partner hires an attorney specially trained in and dedicated to Collaborative Practice. 2. Focus on Settlement. Both partners and their respective attorneys contractually agree to remove the threat of going to court by signing a Collaborative Law Agreement. The Agreement sets forth the structure of the collaborative process and includes the requirement that the lawyers representation is limited to the collaborative process and that they both must withdraw from representation prior to contested court proceedings. Commitment to the Collaborative Law Agreement allows everyone to focus on settlement. Any existing court action is suspended.

2 3. Focus on Wellbeing. The parties and their respective attorneys work as a team to create an atmosphere of honesty, cooperation, integrity and professionalism in which to focus on the well-being of both parties and the family in reaching a settlement. 4. Collaborative Skills. Collaborative attorneys do not use litigation tools or an adversarial posture with each other or the parties, but rather are called upon to use a skill set based on cooperation, creativity and mutual benefit. 5. Transparency and Confidentiality. The parties give each other complete, full, honest and open disclosure of all relevant information, whether requested or not and participate in a series of informal four-way meetings for the purpose of reaching a settlement of all issues. Under North Carolina law all communications, statements and work product arising from a collaborative law procedure are confidential and inadmissible in any court proceeding. 6. Compassionate Listening. During collaborative meetings, each party uses specially designed methods of honestly expressing needs and desires and listening to and recognizing the needs and desires of the other party and family members. 7. Future Focused. Collaborative law operates from the assumption that the parties know what is best for themselves and their family in the long term. The process assists them in making decisions with a focus on the future rather than looking backwards or seeking to assign blame for past actions. A goal of the collaborative process is to discover interests and to fulfill needs. It is about finding the best possible solution for everyone involved. 8. Control of Process. Collaborative law allows parties to maintain control of the process. Collaborative dispute resolution offers couples the opportunity to take personal responsibility for the kind of divorce that takes place. They are the ones who ultimately decide the case. 9. Team Approach: Including Additional Professionals. Based on the parties particular circumstances, other collaborative professionals may be added to the team to gather necessary information or to address specific needs, such as financial, parenting, and emotional issues. If the parties need experts to support their collaborative process, they will retain professionals who have been specially trained in collaborative methodology in the areas of family relations and children s issues.

3 10. Protect Children. If the parties are parents of minor children, they agree to insulate their children from involvement in their disputes, and act quickly to resolve differences in a manner that promotes the best interests of the children. This commitment allows for a caring, loving and involved relationship between the children and both parents. The parties agree not to seek a custody evaluation as part of the collaborative process. 11. Interest Based Model. The parties (not the attorneys) negotiate in good faith using an interest based model and work to protect the privacy, respect and dignity of all involved. The collaborative process approaches conflict as an opportunity for deeper understanding, growth and transformation. This allows for good working relationships with former spouses following the divorce, and most importantly, children who are coparented effectively. 12. Control of the Timing. The parties and their lawyers control the calendaring of meetings. If parties need a break, the process can be stopped. If they are in a hurry, appointments can be scheduled sooner. Generally cases are resolved in weeks or months, not the months or years of litigated cases. 13. Voluntary Process. Since collaborative law is a voluntary process, either party is at liberty to withdraw from the process at any time. If a party withdraws from the process before a settlement is reached, both collaborative attorneys must terminate their representation and neither can ever represent the parties in an adversarial proceeding against the other. 14. Resolution. When the parties reach an agreement on all issues, their agreements are reduced to a written document called a Collaborative Law Settlement Agreement, to be signed by the parties. This Agreement will be an enforceable contract, binding the parties to its terms. If the parties so choose, the contract may be presented to a court as a basis for a court order. 15. Create What You Want. The collaborative method is a superb process for those who are capable of doing it. It is especially suited for those who take the long view of the divorce process and the personal history being created in the divorce. Ask yourself whether you want to look back on your own behavior in your divorce for the rest of your life and like what you see.

4 Advantages of Collaborative Practice Lower Cost: Collaborative Practice is generally less costly than litigation. Utilization of Interdisciplinary Team Supportive Approach: The attorneys and all other professional members of the team work cooperatively with one another in resolving issues. Less Stress: The process is much less fear- and anxiety-provoking than traditional court proceedings. Everyone can focus on settlement without the imminent threat of "going to Court." Win-Win Climate: Collaborative Practice creates a positive climate that offers the opportunity for participants to achieve "win-win" settlements. Speed: Collaborative Practice can be much less time-consuming than cases, which get bogged down by lengthy discovery, hearings and court calendars. Creativity: Collaborative Practice encourages creative solutions in resolving issues. Clients in Charge: The non-adversarial nature of Collaborative Practice shifts decision-making to the hands of the clients where it belongs, rather than into the hands of the Court. Clients are the ultimate decision makers on critical issues that will affect their lives. If you think the collaborative process may be right for you, here is what you should do to get started: 1. Schedule an appointment to get more information. We can help you make an educated decision as to whether the collaborative process could best serve your needs. Stallings Collaborative Law & Mediation Services Leigh L. Stallings, Attorney and Certified Mediator 3820 Ed Drive, Raleigh, NC Next, share a copy of this Guide to North Carolina Collaborative Family Law Procedure with your spouse/ former spouse/ co-parent.

5 3. Finally, encourage your spouse to get more information by contacting an attorney trained in collaborative law. Below is a list of local attorneys who have been specially trained in the Collaborative Family Law process, participate in regular on-going training and share our commitment to helping clients reach settlements: Radha G. Sehgal, J.D. Sehgal Law Firm, PLLC rsehgal@sehgallaw.com Mark Springfield, J.D. Kerry Burleigh, J.D. Springfield Collaborative Divorce Aida Doss Havel, J.D. Law Offices of Aida Doss Havel