The Groundwork of Collaborative Divorce: Your “Participation Agreement” Guide

If you and your spouse agree to work through your divorce using the collaborative framework, one of the first things you will do is sign a Participation Agreement. This document allows you to go “all in” on negotiating the terms of your divorce by indicating—with your signature, as well as your spouse’s and your respective lawyers’—that you agree in advance not to go to litigation. This Agreement says that, if you fail to reach a settlement, your attorneys are bound by law to withdraw from the process—they cannot make the transition to litigation with you.

This Agreement both formalizes your commitment to the collaborative process and creates incentive for your lawyers to work towards a settlement. The Participation Agreement also details the nuts and bolts of the collaborative process:

  • You and your spouse will use what’s known as “interest based” negotiation to focus on what matters most to you, as opposed to more adversarial types of strategic negotiation;
  • You are encouraged to use the services of neutral experts to inform discussion and resolve issues;
  • You will utilize fair and constructive techniques to minimize harm and emotional trauma for you and for your children;
  • The Participation Agreement outlines how the communications process will work and temporarily freezes the “status quo” with respect to marital assets, insurance, real estate, etcetera, so that neither spouse can make a unilateral move absent the consent of the other person.

The main watchword is engagement. You, your spouse and your Collaborative professionals will meet and explore issues in a creative fashion. The focus is on building solutions, “expanding the pie” rather than simply dividing it, and on retaining dignity instead of victory, revenge and imperial notions of justice.

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