How is it different from mediation?
In mediation, a neutral third party facilitates and does not represent either spouse. Each spouse takes the resulting agreement to their own attorney for review.
In a collaborative divorce, each spouse has their own attorney present throughout, advising in real time. There are usually four-way meetings, and where useful the process brings in neutral financial professionals or child specialists jointly retained by both spouses.
Mediation is cheaper. Collaborative gives you counsel in the room while you negotiate.
What does the participation agreement commit you to?
- Full, voluntary disclosure of financial information without formal discovery
- Good-faith negotiation toward a settlement both spouses can accept
- Joint retention of any neutral experts, whose work is not usable in later litigation
- Withdrawal of both attorneys if either spouse initiates contested litigation
Because the representation is limited in scope, the engagement is governed by Rule 1.2(c) of the New York Rules of Professional Conduct, which permits a lawyer to limit the scope of representation where the limitation is reasonable and the client gives informed consent, confirmed in writing.
When does it not fit?
Where there has been domestic violence, where one spouse will not disclose finances honestly, or where the imbalance between spouses is severe enough that unsupervised negotiation would not be fair. The process depends on both parties negotiating in good faith. Where that assumption fails, a contested divorce protects a client better.
Frequently asked questions
What is collaborative divorce and is it an option in New York?
It is a process where both spouses and both attorneys sign a written agreement to resolve the divorce without litigation. It is available in New York, though not through a statute — it is contract-based, created by the participation agreement itself.
What happens if we cannot reach agreement?
Both attorneys withdraw and each spouse retains new counsel for litigation. Neither collaborative attorney can represent their client in the contested case.
Is collaborative divorce cheaper than litigating?
Usually, where it works. The risk is the failure case — if the process breaks down you have paid for it and then pay again for new counsel.
How is this different from an uncontested divorce?
Uncontested describes the outcome: everything is agreed. Collaborative describes how you get there. A collaborative divorce ends as an uncontested one.
Related: No-Fault Divorce · Uncontested Divorce · Equitable Distribution · back to Divorce
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539