Introduction to the Collaborative Process and the Legal Dissolution Proceeding
Step 1: Understanding the Collaborative Process
Your collaborative lawyer typically spends a substantial portion of the first meeting with you describing the Collaborative Process and other collaborative team members. At the first four-way meeting, the clients and collaborative lawyers review the process and tools. The Principles and Guidelines or the Statement of Understanding and Stipulation and Order are signed by all participants. The Collaborative Process is more likely to succeed when the participants understand and commit to the process.
Step 2: Information Gathering Stage
Your collaborative lawyer will provide you with a questionnaire and other forms which will assist in gathering information. In addition, during four-way meetings, the lawyers and clients determine what additional information or documents will need to be gathered and who will be responsible for which items.
You and your spouse may also decide to retain other professionals to assist you, such as coaches, a child specialist, financial consultants and vocational consultants. 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.
In addition, each party in a California divorce is required to give the other party his/her "Preliminary Declaration of Disclosure." This is part of the legal requirement that each spouse must 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 which 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.
Step 3: Temporary arrangements
Clients often need some type of immediate arrangements for financial support, parenting arrangements and/or management of assets and debts. Either formal or informal agreements can be reached during the Collaborative Process. 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. 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. If the Respondent acknowledges receipt of the Petition by signing and returning the Notice and Acknowledgment of Receipt, he/she has been effectively served. In the alternative, 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 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 possibilities of reaching a mutually acceptable agreement, the collaborative lawyers 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 lawyers. The clients can also work with coaches to assist them in determining their interests, needs and values.
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 lawyers can start to brainstorm possible settlement options.
During the brainstorming phase, financial specialists can provide projections regarding the impact of different options. Financial and vocational consultants can also assist in brainstorming options.
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
After you have reached an agreement, the collaborative lawyers 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 in reaching a satisfactory resolution.