If you or someone close to you is facing divorce, you understand the anxiety that comes with unresolved issues regarding child custody, child support, alimony and other spousal rights and equitable distribution. To some, the thought of a judge, who has never met their children deciding custody and visitation, is appalling. Others may be concerned about acrimonious custody fights, the lack of privacy and/or the time and expense involved resolving issues such as child custody, child support, alimony, and equitable distribution in court.

In North Carolina, Chapter 50-70 et. seq. provides for collaborative law as an alternative to a trial judge deciding your case, with the exception of a claim for absolute divorce. What is

Collaborative Law?

Collaborative law is a process whereby parties who are separated and seeking a divorce, or contemplating a divorce, and their attorneys voluntarily agree to use their best efforts to resolve issues arising from the marital relationship such as child support, child custody, spousal support and equitable distribution without litigation. The procedure also requires that a written agreement that the parties’ attorneys will not serve as counsel in any litigation, except as may be necessary to ask the court to approve a settlement agreement.

How are family law issues resolved in Collaborative Law without litigation?

The parties and their attorneys determine the clients’ goals and areas of disagreement and work together in a specialized style of negotiation to achieve those goals and resolve areas of disagreement through negotiations. Third – party experts such as CPAs and child psychologists may be hired pursuant to the collaborative process to assist the parties in resolving their family law issues.

How is Collaborative Law Different From Mediation?

Mediation is another alternative process to resolve family law disputes without litigation. However, in mediation, there is a third party, called a mediator, who is trained to work with attorneys and their clients to help the parties reach an agreement. Mediation may occur before litigation is filed or in the course of an on-going lawsuit. Attorneys and clients may elect to share information with the mediator only and not disclose the information to the other side. In the event the parties are unable to reach an agreement in mediation, there is no requirement that the attorneys withdraw in the event of litigation.

What advantages are there to the Collaborative Law process?

Perhaps the greatest potential advantage of the Collaborative Law process is that it is less adversarial. In cases such as custody, it is generally accepted even by North Carolina’s courts, that custody disputes are better resolved without litigation. That does not mean that the collaborative law process is an easy one. To the contrary, the process will not change the personality of your spouse or provide vindication to a spouse who has been cheated on or mistreated. To be successful, parties must have realistic legal and financial goals. In addition, the ability to understand the other party’s concerns is helpful to negotiating creative solutions to issues involving child custody, support, alimony and equitable distribution.

The Collaborative Law process can also save time and money. Since the process does not require judicial intervention, except to have the court approve settlement agreements, the parties are not subject to delay caused by crowded court calendars. In addition, many family law cases will require the assistance of an expert. In a litigation setting, the parties typically engage their own expert. Each party will incur costs related to obtaining their expert’s opinion but may also incur expenses to critique and attack the opposing party’s expert opinion. In the Collaborative Law process, if experts are needed, the parties typically agree to use a joint third-party expert to assist the parties in resolving their disputes.

Are there any disadvantages to the Collaborative Law process?

Perhaps the greatest disadvantage with the Collaborative Law process is the fact that if the parties are unsuccessful in reaching an agreement, their attorneys must withdraw from representation of the parties in litigation. In addition, all statements, communications, and work product made or arising from a collaborative law procedure, including communications and work product of any third-party expert, are confidential and may not be used in any court proceeding. Accordingly, where the parties have been unable to reach an agreement, the Collaborative Law Process may end up being more expensive and time-consuming than if the parties had litigated their family law disputes initially.

If you are interested in learning more about the Collaborative Law process or other methods of alternative dispute resolution, you should contact an attorney with specialized knowledge or training in this area.

Contributor: Kimberly A. Wallis – Kimberly A. Wallis, a Raleigh Family Law Attorney is a North Carolina Board Certified Family Law Specialist with the Raleigh, North Carolina Divorce Law Firm of Gailor, Wallis & Hunt, PLLC with training in collaborative law. For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, NC 27604. Tel: 919-832-8488, www.gailorwallishunt.com.

Disclaimer: The Information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223.

This entry was posted on Wednesday, November 26th, 2008 at 5:49 pm and is filed under Separation and Divorce. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.