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THE COLLABORATIVE DIVORCE PROCESS

24December
2015

Collaborative law process is now recognized in Arizona with the codification of the Uniform Collaborative Law Rules into Rule 67.1, Arizona Rules of Family Law Procedure. The collaborative procedure is most known as a divorce process, but extends to other family law matters as well as other areas of law.

Collaborative divorce is a process whereby the two clients in a divorce each retain their own collaborative attorney. Then both clients and both attorneys enter into a participation agreement that they will resolve the case out of court. The agreement also provides that should the matter become litigated for any reason, the collaborative attorneys are disqualified from further participation.

The new rule applies to collaborative law participation agreements that meet the requirements of the rule and are signed after January 1, 2016. The rule provides flexibility in that the parties can make certain modifications in their participation agreement.

A written collaborative divorce agreement requires a record signed by the parties describing the nature and scope of the matter and affirming the parties’ intention that they will resolve the matter through a collaborative process as set out under the rule.   The agreement must also identify each party’s collaborative lawyer and contain a statement by the attorneys confirming the scope of their representation in the collaborative law process.

The signing of a collaborative participation agreement serves to stay any legal proceeding. The parties may be required to provide ongoing status reports to the court, however, the status reports may only include information on whether the process is ongoing or concluded. It may not include a report, assessment, evaluation, recommendation, finding or other communication regarding the process or matter.

The parties further agree to provide timely, full, candid, and information disclosure of information without the need for formal discovery such as interrogatories, requests for production, subpoenas or depositions. The parties may define the scope of disclosure during the collaborative law process. They can also agree to utilize common third party experts. In a dissolution this could typically be a financial neutral, child specialist and/or a divorce coach.

The collaborative process is entirely voluntary; a party cannot be ordered by a tribunal to participate over his or her objection. A party can discharge his or her collaborative lawyer [and retain new counsel if they wish to remain in the collaborative process] or a party may withdraw from collaborative process at any time with or without cause.

During a collaborative law process, a tribunal may issue emergency orders as necessary to protect the health, safety, welfare or interest of a party or other protected person as defined under the Arizona Rules of Protective Order Procedure.

A noted feature of the collaborative process is that the collaborative lawyer is disqualified from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter. In other words, if the collaborative process ends or concludes, whether or not a full agreement is reached, the attorney may not provide further representation to the client. There is an exception in the rules for low-income clients where the attorney is providing services without charge.

The International Academy of Collaborative Divorce Professionals [IACP} is the organization that supports collaborative practice as a conflict resolution option worldwide. Incidentally, their world headquarters are right here in Phoenix. According to their website, the IACP has over 5,000 members from twenty four countries around the world.

 

This post originally appeared on the MediationPlus™ website blog: The Collaborative Divorce Process

 

 

 

 

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