When a Collaborative Divorce Falls Through
A collaborative divorce process is a voluntary way of resolving divorce disputes outside of a litigation and court setting. Both parties and their respective attorneys work together in a cooperative team-like setting to reach a mutually agreeable settlement – all before even filing a divorce case. Usually, this is done through a series of meetings between the parties, their attorneys, and potential specialists, such as a financial neutral or parent coach, to negotiate, identify goals, and resolve all aspects of your divorce.
The Illinois Collaborative Process Act (ICPA), 750 ILCS 90/, governs the collaborative divorce process. It outlines voluntary participation, full disclosure, a commitment to settlement, and the possibility of using neutral professionals. The ICPA ensures that the parties involved agree to resolve matters outside of court, work together in their collaborative team, and come to an agreeable divorce settlement.
However, a collaborative divorce does not always work out as intended, and spouses may be unable to reach a mutually agreeable settlement with their collaborative team. If the collaborative process does not work out, your lawyers must withdraw, and you must obtain new counsel.
Factors such as misaligned incentives, poor communication, lack of trust among participants, conflicting personalities, and lack of compromise, to name a few, can often be significant issues that prevent the collaboration process from working.
Both parties must be committed to a successful collaborative divorce process. Suppose either party acts in bad faith, such as withholding important information or discovery documents, lying, giving inaccurate information, or missing scheduled meetings. In that case, it can make reaching a mutual agreement very difficult and potentially cause a collaborative divorce to fall through.
When spouses enter the collaborative process, they will both sign a participation agreement in which they legally commit to using the collaborative process to resolve their divorce. Each spouse's counsel will also sign this agreement. Failure to reach a mutually agreeable settlement will require both attorneys to withdraw from further representation, as they are prohibited from representing the client if the case goes to litigation. 750 ILCS 90/20 of the ICPA provides discretion on this matter.
It is important to note that if you withdraw from your collaborative case, all work product within the collaborative team must be discarded, and both parties must start entirely from scratch with a new attorney. Work product is any materials created by your attorney, such as documents, emails, strategies, and agreements made during the collaboration case. So, if you and your spouse agreed on a parenting plan, maintenance agreement, or estate plan during your collaboration case, you may not use them. Many times, the fact that clients still have to pay for the work done by the attorneys in the collaborative case and can't use any of the work product in their new litigation case is motivation to stay in the collaborative process.
What are the next steps if you withdraw from the collaboration process? If the collaboration process fails and you and your spouse cannot work together, the best next step would be to file a Petition for Dissolution of Marriage and proceed through a traditional litigation route with new counsel for each spouse.
Whether you are considering a collaborative divorce or need new counsel since you withdrew, The Law Office of Erin M. Wilson LLC can help guide you through this process. Our team has talented attorneys able to represent clients in the collaboration process or through a traditional litigated divorce. You may contact The Law Offices of Erin M. Wilson LLC to schedule a consultation or for any questions you may have.
NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.