The Role of the Law in Collaborative Divorce

June 19, 2015

Previous blog entries here have focused mostly on the ways Collaborative Divorce is different from traditional divorce litigation and how the process takes into account the non-legal aspects of divorcing.  This post will explore more about the role Tennessee substantive law plays in the Collaborative Divorce process.

As has been discussed here previously, there are three different types of issues at play for divorcing clients,  all of which should ideally be addressed by the divorce process – legal, emotional, and financial.  One of the ways collaborative divorce empowers clients on the legal side specifically is by helping them reach settlement agreements related to the divorce rather than punting all of those decisions to a judge who does not know them or their children.  But some clients take the fact that collaborative is an out of court settlement process to mean that the law does not apply at all in collaborative divorce, which is not the case either.  A colleague of mine frequently says “there is no such thing as collaborative law.”  And he is correct.  Collaborative divorce attorneys are bound to follow the same body of substantive family law that divorce litigators and divorce judges use.  As such, agreements coming out of the collaborative divorce process must comport with Tennessee’s child support guidelines, the Parenting Plan statute, and the various statutes and cases dealing with property division and spousal support.  So Collaborative Divorce clients cannot ignore the law or make it up as they go for their own family.

Nonetheless, the benefit from a legal perspective of using the collaborative process is that the law becomes one important reference point for decision-making rather than the sole touchstone for everything that is done in the divorce, which makes sense given that divorce is by its very nature larger than a simple change in legal status from “married” to “single.”  So, for example, while a Parenting Plan must include a child support obligation because doing so is required by law, the parties are also free to consider advice that the Coach (a licensed mental health professional) may have about how best to structure a parenting schedule to meet the parties’ children’s developmental needs.

Similarly, while Tennessee’s property division statute requires that marital property be divided “fairly and equitably,” Collaborative Divorce allows the parties also to run particular settlement ideas through the filter of a neutral financial expert, who may have ideas about how to divide the estate in a way that is legally fair and equitable, but that also minimizes tax liability or maximizes growth on retirement assets, for example.

One of the main functions of the attorneys involved in the Collaborative Divorce process is to guide the parties so that they make settlement decisions the judge will approve.  Tennessee law is set up so that trial judges are relatively deferential to decisions parties make about their kids and their finances so long as the parties are mutually agreeing to a particular result.  But there are also limits to what sorts of agreements judges will approve, even if the parties have good emotional or financial reasons for wanting to do what they want to do.  And some judges are more or less deferential than others.  Collaborative Divorce lawyers end up serving as a sort of gatekeeper to the court system so that parties do not spend a lot of time and money making decisions collaboratively, only to have the judge refuse to sign off on the settlement documents.

In sum, the law is an important part of the Collaborative Divorce process and families who choose to use the process cannot ignore the legal requirements that apply to all divorces in Tennessee.  But Collaborative Divorce provides added value in that it tends to the legal divorce, but also folds in the emotional and financial components of divorce which are also usually just as important to divorcing families, but are oftentimes ignored in traditional divorce litigation.

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