Lawyer Legislators Introduce Divorce Process Alternative

Colorado State Capitol Denver

Attorneys might have another tool for out-of-court dispute resolution if the Colorado General Assembly approves a bill establishing the Uniform Law Commission. HB21-143 would enact the Uniform Collaborative Law Act, which authorizes a process for litigants to work together to find resolution while being represented.

The concept of collaborative law grew out of lawyer activism to provide alternative options for the practice area of family law. Having grown from a small movement into a ULC-supported initiative, the Uniform Collaborative Law Act could provide another option for divorce cases where the parties don’t want to go through the current court process, according to industry experts.

Sponsoring the bill in the state House of Representatives are Reps. Kerry Tipper and Marc Snyder, both of whom are attorneys.

The bill authorizes a collaborative law process where disputes are resolved without intervention by a court or other tribunal. The bill would specify details of the process, such as requirements for an agreement that both sides be represented and advised by collaborative law attorneys and the communications throughout the process are confidential and not to be used in later proceedings, except in specific situations.

“The Collaborative Divorce process recognizes that you and your spouse, and not a judge, are best suited to make decisions that are in the best interest of your family,” the Colorado Collaborative Divorce Professionals website states. The process also attempts to create an emotionally safe environment for parties to express interests, goals and resolve the dispute without going to court.

Andrew Schepard, professor at the Hofstra University School of Law and member of the Family Justice Advisory Committee of the University of Denver’s Institute for the Advancement of the American Legal System, was the drafter of the collaborative law document for the Uniform Law Commission.

“What collaborative law does that mediation doesn’t do is give you a lawyer,” he said. Basically, the collaborative process gives each side representation. He said it’s another option for people looking to resolve their issues.

To Schepard’s knowledge, the group of lawyers who created the collaborative law practice sought a remedy for concerns they had in the existing process for family law through the courts. Dissastisfied by how their practice was affecting themselves and their clients, they created the alternative collaborative law agreement to address these concerns, eventually taking it to the Uniform Law Commission to help states adopt this option for their citizens.

Jennifer Schaffner, special counsel with Griffiths Law and a collaboratively trained attorney, said that to her knowledge, the only training in collaborative law in Colorado is through the Colorado Collaborative Divorce Professionals, a nonprofit organization that promotes collaborative divorce as a form of dispute resolution. Schaffner added that most Colorado collaborative law occurs in family law, though the bill doesn’t limit it to family practice.

“I think if more people knew what it was, and how it could assist them through the process, they would want to take advantage of that,” she said. “So, my hope with this legislation, if it is enacted, it could help grow collaborative law in Colorado — which I think would be beneficial to a lot of people going through the divorce process.”

Although some attorneys practice collaborative law in divorce cases, the legislation will help create a process that doesn’t involve courts or tribunals that oversee it. Mediation is often a part of divorces going through the court system in Colorado, she said. While some ADR exists, the entire process is administered through the court system and geared toward a contested divorce if unable to reach an agreement via mediation.

But collaborative proceedings are a completely different model, Schaffner said. In these proceedings an agreement is signed at the start of the process with a goal of completing the case outside of court, Schaffner said. At the outset, the entire attitude is different, she said. Attorneys are trained to use different language and terms in collaborative proceedings than the normal divorce proceedings.

“It’s not supposed to be adversarial,” Schaffner said. “Collaborative divorce is intended to take everyone’s needs and desires and then try to work within them with trained professionals.”

Schepard added that no one can be compelled to use the process, and the statute specifically states that no one can compel the use of the collaborative law process. He said that for some people it’s a good option, but maybe not for everyone.

At the outset, it’s important for parties to select collaboratively trained attorneys, because these professionals are necessary to go through a collaborative process, Schaffner said. Disclosures must be made to clients about confidentiality. The people involved in the collaborative divorce proceedings set goals and interests at the start, and then state their positions.

This process can give people a feeling of having more of a voice and more control in their situation, she said. In the collaborative process, it’s not a judge telling parties what will happen with their family, future and children. Instead, they’ll help be in control of the outcome.

The collaborative law process benefits people by giving an outlet to those who want their divorce to have minimal damage, while still being represented by lawyers, Schepard said. For lawyers, it gives them the outlet of being able to be proud of what they practice.

For children in collaborative cases, a child specialist, usually a therapist, works with the family to figure out what their needs are with respect to the child and parenting. This professional also sets up a parenting plan suiting everyone’s needs, Schaffner said. In a typical case, the only time a professional becomes involved with a child would be an investigator or evaluator who makes recommendations on parenting time to the court, Schaffner said. But that’s not necessarily wanted by the parties to develop a plan.

An important aspect to Schaffner is that, if the process were to break down, the parties cannot be represented by the same attorneys in court.

If Colorado were to approve the legislation, it would join 20 other states that have enacted the collaborative law process. Three other states have introduced legislation for adopting the act this year, according to the Uniform Law Commission website.

“My hope is that the legislature of Colorado will enact this — it’s a good thing,” Schepard said. “It will give their people one more option, and one less reason to be discontented with the family law system.”

But Schaffner agreed that if there’s a high degree of mistrust between the parties, the collaborative process might not work. There needs to be a lot of trust between the parties, and if one party is manipulative or coercive, it would probably not be a good case for collaborative proceedings. “That does weed out a number of prospective collaborative cases,” she said, adding that divorces can have those complications of not having the ability to communicate or collaborate.

If there’s extensive violence, hiding assets — the process may not be a good option, Schepard said. For those people who are reasonable and willing to put aside dislikes of each other for their children’s benefit — it’s a good option.

“Because it’ll get them on with their lives and move forward,” Schepard said. “That’s the basic idea.”

Schepard, however, did note that the collaborative law process unfortunately doesn’t aid much in access to justice because of the need of funds for participating in the process.

“I fully believe that this is a better way of people resolving their divorce, they can preserve control, they can maintain a relationship with the other person,” she said. “And possibly, the legislation, would be an important step about this alternative.”

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