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entails. Lawyers for both spouses agree to assist their clients in resolving conflict through cooperation, rather than the more traditional legal role of opposition. Instead of being adversaries, the two spouses work together to negotiate a mu- tually beneficial outcome. Toward that end, the spouses and lawyers all enter into a “Participation Agreement.”
Some of the typical features of this agreement include:
• A statement that, while being aware that the outcome of the negotiation cannot be guaranteed, they are making a sincere commitment to dissolve their marriage in an amicable manner.
• All communication among the parties will be for the purpose of efficiently and economically settling issues neces- sary to the dissolution of the marriage. This communication will be fact- based, respectful, and constructive. Meetings will be for the resolution
of custodial and financial issues. To minimize their costs, these meetings will not be used for airing griev- ances or discussing past incidents.
• Other communication between the parties about the divorce should be minimal. Unless agreed to by both spouses, settlement issues
are not to be brought up via tele- phone calls or personal visits.
• If children are involved, the spouses agree to act in their children’s best interests, support and promote the re- lationships between the children and both divorcing parties, and minimize any emotional damage caused to the children by the impending divorce.
• Both parties agree to use neutral experts, as well as to how the ex- perts will be hired and paid. Some agreements also specify that any results from these experts will
be inadmissible in any later legal proceeding should the collaborative process terminate unsuccessfully.
• Parties forgo discovery and agree to provide all necessary and reasonable information to one another promptly and accurately.
• Both spouses agree not to file indi- vidually with the court while the collaborative process is ongoing.
• If for any reason the collaborative process fails, the attorneys who as- sisted each spouse will be forbidden from representing either party in the subsequent divorce proceeding.
• All communications while
the collaborative process was ongoing is to be considered privileged information between attorneys and their clients.
• During the process, both spouses agree not to take any action that materially affects their mutual financial resources (transfer of assets, new debt, changes in health coverage, and so on).
The agreement can also describe penalties for any failure to uphold its provisions by either spouse.
The idea of collaborative divorce has been around for about 25 years, and federal law formally recognized and codified it in 2009 with the adoption
of the Uniform Collaborative Law Act. The Tennessee General Assembly has not yet modeled any legislation on that act, and consequently collaborative divorce is still a relatively new process here. According to Jackie Kittrell, ex- ecutive director of Knoxville’s nonprofit Community Mediation Center, training for attorneys in collaborative divorce became available in Tennessee only six years ago. Nevertheless, the Tennessee
Bar Association (TBA) has recognized its advantages and disadvantages.
According to the TBA, collabora- tive divorce can be less expensive and time-consuming. It also gives the divorcing couple more control over their case because its outcome is
not left up to a judge (or jury). This greater control means the couple can frequently employ creative problem- solving that might be impracticable in a courtroom setting. Finally, the TBA says that the increased involvement
of non-legal professionals in the out- come can make for better preservation of children’s interests, family peace, and economic stability because these professionals help spouses “learn to communicate with each other in a constructive manner.”
Even so, the TBA also cites disad- vantages with collaborative divorce.
In particular, it may not be the right approach for any divorce involving do- mestic violence. Obviously, if the couple expects a highly contentious litigation, an attempt at collaboration may be a waste of everyone’s time. Unlike media- tion, the divorcing spouses will not have an objective third party to resolve any impasse (although some Participation Agreements may include a provision to use mediation in such a case).
Collaborative divorce is one more tool in the toolbox for family law attorneys to familiarize themselves with and educate their clients about. In the case of a rea- sonable couple looking to minimize their costs and dissolve their marriage ami- cably, collaborating in a non-adversarial process helps cut the time and expense of litigating the divorce.
David Valone is a veteran family law attorney who has been practicing law in Knoxville, Tennessee for the past 28 years. He is a sole practitioner who has tried thousands of cases in most counties in East Tennessee. Mr. Valone is also certified as a Family Law Mediator by the Tennessee Supreme Court. His areas of concentration include cases dealing with divorce, child custody, and child support issues.
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