Introduction to the Collaborative Process and the Legal Dissolution Proceeding
Step 1: Understanding the Collaborative Process
Your Collaborative Attorney typically spends a substantial portion of the first meeting with you describing the Collaborative Process and other Collaborative team members.
At the first meeting with clients and professionals, the clients and professionals (Collaborative Attorneys and any other members of your Collaborative Team that you have agreed should be present at this first meeting) review the process and tools. The Collaborative Process documents are then signed by all participants. The Collaborative Process is more likely to succeed when the participants understand and commit to the process together.
Step 2: Information Gathering Stage
The first task in the Collaborative process is to gather information to assist you and your professionals in developing a creative and appropriate settlement. It is not just helpful, it is mandatory in order to be divorced in California.
Each party in a California divorce must give the other party his/her "Preliminary Declaration of Disclosure." This is part of the legal requirement that each spouse share with the other spouse his/her understanding of the marital assets and debts, separate property assets and debts, incomes, and potential opportunities and/or liabilities. There are specific forms that are used to disclose this information. A Final Declaration of Disclosure must also be exchanged unless both parties waive the exchange of these documents before the final agreement is signed.
If you are working just with attorneys, they will provide you with your initial “homework” (forms and questionnaires) to assist you in gathering this information. If you have chosen to work with a financial professional, this professional will give you those forms and guide you through the disclosure process. The professionals and clients will together determine what additional information or documents will need to be gathered and who will be responsible for which items.
Sometimes a third party will need to be contacted to provide records or to appraise an asset. The work of the professionals will be coordinated to provide you with the best possible assistance in the most cost-effective manner.
You and your spouse may also decide to retain other professionals to assist you, such as coaches, a Child Specialist, and vocational consultants. The information-gathering stage will be different for these professionals, who will need to know about more about you and your family than just your financial situation.
Step 3: Temporary arrangements
Clients often need immediate structures for financial support, parenting arrangements, and/or management of assets and debts. Either formal or informal agreements can be reached during the Collaborative Process. An informal agreement is usually captured in the minutes, and may not be written up or signed. Even so, the clients’ commitment to the Collaborative process bind them ethically to follow through.
A formal agreement can be either in the form of a written agreement or can be a "Stipulation" which will be submitted to the court to issue a temporary order. Typically, a Stipulation and Order is only used in the Collaborative Process if a third party is involved (i.e. retirement benefit plans).
Step 4: Filing and Service of the Petition
The Petition is the initial step in starting the legal dissolution process in the court system. There is no specific requirement regarding when during the Collaborative Process a Petition is filed, but it must be filed in order to ultimately obtain a Judgment of Dissolution of Marriage. The only time frame which may be a consideration is that there is a minimum of six months between the date the Petition is received by the Respondent and the date the parties can be restored to the status of single persons. This can have tax and other implications which may affect the timing of the filing of the Petition.
The Petition, in general terms, sets forth statistical details and “requests” regarding child custody, support, property, and attorney fees. These “requests” are not intended to cause the other party any distress, but are simply there to serve as an outline of what the issues might be if the matter were to end up being tried. For so long as you are participating in the Collaborative Process, the court will take no action on these “requests”.
When the Petition is filed, the parties will be assigned a case number and file within the court system. A Petition must be served on the "Respondent", the person who did not file the Petition. The easiest method is for someone other than the Petitioner to mail the Petition and Summons, along with a form entitled "Notice and Acknowledgment of Receipt", directly to the Respondent instead of personally handing the papers to the Respondent. Once the Respondent signifies that s/he has received the Petition by signing and returning the Notice and Acknowledgment of Receipt, he/she has been effectively served. Alternatively, the parties can agree that the Summons and Petition will be handed to the Respondent during a four-way meeting.
Technically, a Response must be served and filed within thirty (30) days of the service date of the Petition. Like the Petition, the Response sets forth the Respondent's information and “requests” regarding all issues. It is typical during the Collaborative Process for an "open extension" to be granted. This means that the Respondent will not be required to serve and file the Response unless the Petitioner gives notice that a Response will be required.
Step 5: Exploring the Interests, Needs, and Values of the Participants
In order to increase the possibility of reaching a mutually acceptable agreement, the Collaborative professionals and clients explore the interests, needs, and values of each client. Each spouse is asked to consider his or her core interests, needs, and values and to communicate those needs to the other spouse and the professionals. This process can be done with your Collaborative attorneys, with your coaches, or with any combination of professionals on your team that makes sense for you.
Step 6: Brainstorming Settlement Possibilities and Negotiating a Settlement
Once all factual information has been gathered and the spouses have exchanged information regarding their interests, needs, and values, the spouses and Collaborative Attorneys can begin to brainstorm possible settlement options.
During the brainstorming phase, Financial Specialists can provide projections regarding the impact of different options. Financial Specialists and vocational consultants can also assist in brainstorming options, and coaches can help facilitate the process.
There are often many ways of putting together the "pieces of the puzzle", and an open-minded discussion of all the possibilities usually leads to the discovery of a good fit for your circumstances.
Step 7: Memorializing Your Agreement and Obtaining Permanent Orders: Your Judgment
Once you have reached an agreement, the Collaborative Attorneys will prepare a Marital Settlement Agreement and any other settlement documents for your review. During this time period, you will also prepare your Final Declaration of Disclosure, unless both spouses agree to waive its exchange. When everyone has agreed on the language of the agreement, the agreement and necessary court forms are signed and submitted to the court.
Occasionally, a Judgment is separated into parts. You may have one Judgment terminating your marital status (usually referred to as a "bifurcation"), and a separate Judgment on reserved issues (i.e. support, parenting and division of property). Together, these papers resolve all issues of your divorce.
This is only a general outline of the typical marital dissolution process. Each couple's divorce is unique in its own way. Although the divorce process may be confusing and frustrating at times, our goal is to assist you both in reaching a satisfactory resolution.