Is it best to file with the court when starting a divorce? Likely not. Filing with the court makes you subject to the court’s rigid rules about when and how things should get done. A unilateral court filing can easily create unnecessary acrimony. Some options for reaching agreement may also become unavailable once you file—for example, some mortgage options that may be helpful for a successful settlement become unavailable. Unless a court filing is required to provide necessary safety protections or for tax filing purposes, we generally recommend delaying filing a divorce with the court until all options have been considered and the timing of filing is considered by both spouses.
I met with a lawyer who says she’s a collaborative lawyer but hasn’t been through the training. A collaborative disposition is a wonderful thing and can help. However, there is a big difference between a “collaborative” disposition and the Collaborative Divorce process. The latter is a specific process that requires both training and skill sets that are different from a natural inclination towards cooperation. To avoid confusion, ask whether the lawyer practices Collaborative Divorce, and whether the lawyer has received specific training in the Collaborative Divorce process and meets the other requirements prescribed by the International Academy of Collaborative Practitioners (IACP). Absent that training, it is extremely unlikely that the attorney can offer a Collaborative Divorce, no matter how well-meaning she may be.
What about “cooperative” divorce? There are some attorneys who advertise that they handle “cooperative divorce.” Unlike Collaborative Divorce, which is a process that is legally defined, offers specific legal protections, and requires prescribed training to be able to offer, there is no generally accepted understanding what the term “cooperative divorce” actually means. Often, cooperative is just a rebranding of old-style adversarial divorce. If you meet a divorce lawyer who claims to practice “cooperative divorce,” the best policy is to ask of questions so you can learn how that lawyer defines the term, and whether your spouse’s other lawyer has the same understanding, and be sure that you are comfortable with the approach.
More FAQs on Collaborative Divorce are on our Collaborative Divorce FAQ page.
Must I have grounds to dissolve my marriage? Washington is a “no fault” state. No specific grounds are required to end a marriage, so long as the marriage is irretrievably broken. The parties are legally unmarried (single) after a decree of dissolution of marriage has been entered by a Judge or Court Commissioner of the Superior Court. In an agreed divorce, the court’s role is essentially limited to ratifying agreements.
What is the difference between a legal separation and dissolution of marriage? The legal proceedings for a legal separation are similar to a dissolution of marriage. The same issues are addressed: spousal maintenance, property division, parenting, and child support. The primary differences are: (1) there is no waiting period for a legal separation, and (2) the spouses remain legally married after a legal separation. Legal separations can be converted to dissolutions of marriage after six months (in Washington).
Do unmarried couples have rights and obligations? Yes, even if they are not registered as domestic partners. For the many couples who choose a long-term committed relationships without marriage, there are legal and moral rights and considerations that flow from those relationships. Because the law in this area can be complex and is evolving, we recommend that you consult with an attorney to learn about the legal rights following a non-marital relationship. The Collaborative Law process and mediation are both well-suited to help unmarried couples arrive at good solutions for their futures.
Do I have to be a Washington resident to file for divorce in Washington? One of the spouses must be a resident, or must be in the military service and stationed in Washington, in order to file in Washington. There is no specific time requirement. Even if you just arrived, your presence will be sufficient if you intend to permanently remain in Washington.
Who issues a divorce decree? Only the Superior Court can grant a dissolution of marriage decree. After a Collaborative Divorce or a Mediation, court approval of the required orders is normally just a formality.
Is a process server necessary? Not in a Collaborative Divorce, where service is waived, or co-petitioning for divorce is common. Even in non-Collaborative divorces, your spouse can sign either a “joinder” or an “acceptance of service” form which avoids the necessity of a process server. There is no benefit to avoiding service, and agreeing to accept service saves the expense, hassle, and possible embarrassment of formal service. It will also avoid any inadvertent service when children may be present.
What if I have needs between now and when the divorce is final? In a Collaborative Divorce or mediation, short-term agreements can be reached to address immediate needs. Commonly, those agreements address items such as logistics for moving into separate housing, how to tell the children about the divorce, residential arrangements, how bills and expenses will be paid, and any other agreement needed to address short-term questions. Because the result is reached by a constructive dialogue in the Collaborative process, these agreements can also set the stage for making further agreements.
If litigation is used, temporary orders are available from the court. Motions for temporary orders must be supported by evidence, usually in the form of sworn affidavits which become public records. Oral testimony is ordinarily not permitted at hearings for temporary orders. The affidavits and responsive affidavits must be filed and served by the deadlines given in the court’s rules. If financial relief is requested, a detailed “Financial Affidavit” and financial source documents are required. Attorney’s fees for such orders can often be high (easily $3,000 to $7,000 (or more) per side). Because each side wants to “win,” statements may be made in documents that may make reaching agreements later more difficult. While court commissioners and judges do their best, the hearings for temporary orders are often heard together with many other cases, with only a few minutes devoted to each case.
What is a restraining order? Restraining orders typically protect parties from harassing or abusing one another (or children), selling property, or hiding property. In addition, a restraining order can provide court protection against the cancellation of insurance, the removal of furniture, unauthorized withdrawal of money from bank accounts, etc.
In Collaborative Law cases, restraining “orders” are rare, because they would only be entered with the court by agreement of all parties. Usually there is no need for restraining orders in Collaborative Divorce cases, because of incentives inherent to the process. Most of the issues covered by restraining orders are often covered by ground rules or the participation agreement, which are among the first documents that are signed in a Collaborative case. If you do not believe that agreements can provide sufficient protection, then a court order may be the better option. If in doubt, discuss your situation with a qualified Collaborative Divorce attorney.
Is a restraining order the same as a domestic violence protection order? A family law restraining order is different from a domestic violence “Order for Protection.” Protection orders are available on an emergency basis from any District and Superior court in Washington, and have simplified procedures. There is no requirement of marriage, and no requirement that a proceeding to terminate a relationship be maintained. There is no filing fee, and advocates are available at many courthouses to assist victims. If you are a victim of domestic violence, a domestic violence protection order may be able to afford you with some needed protection. Forms and information are available at any courthouse or at www.courts.wa.gov. There is no equivalent in the Collaborative Law process for a domestic violence order of protection, and you should seek one without hesitation if you believe you or your child are in danger of continued domestic violence.
Publicly labeling someone as a domestic violence perpetrator can stigmatize that person. Often, treatment can be more effective if entered into voluntarily and without a stigmatizing label in the public record. For that reason, for non-active and mutually-acknowledged domestic violence, a Collaborative Divorce may be able to provide a better outcome than a litigated outcome with voluntary treatment. Appropriate structure and protections are generally essential in such cases, including agreed treatment for both the perpetrator and the victim, with accountability to ensure follow-through.
Recent research differentiates “intimate partner violence” (a newer clinical term for the traditional term legal “domestic violence”) into several categories, which carry different risks and are perhaps best addressed in different ways. Understanding domestic violence requires special training and knowledge, which is not possessed by all lawyers or all mental health professionals. Lack of training or knowledge by professionals can result in unintentional problems. If you have a situation with domestic violence, we strongly recommend that you select providers who have the specialized knowledge for domestic violence situations.
How important is information before reaching agreement? Transparency and good information is very important. You (and your spouse) should each have a good understanding of all factors that could impact your decisions, including the value or amount of all assets, debts, income, etc. You should also have an understanding about the effects of different choice points on your future.
In the Collaborative Law process, there is a contractual requirement that all material information be exchanged. Both sides are prohibited from taking advantage of mistakes of the other. Financial information is usually exchanged through a neutral financial specialist, usually a Certified Divorce Financial Analyst. A team is used to ensure that you have legal, financial, and emotional support, and to address all aspects of a divorce much more efficiently (therefore less expensively) than in a traditional legal case. A child specialist may be called in to advocate to both parents for the child. In Collaborative Law cases, you have everything you need to make fully informed and healthy decisions for your future and your family’s future. Because specialists are used in their fields and in coordination, efficiency is maximized and cost is minimized.
Does a adversarial divorce provide better access to information than is available in a Collaborative Divorce? Probably not. In litigation, formal “discovery” procedures are available to get information. Those procedures typically include interrogatories (written questions), requests for production of documents, depositions, and subpoenas for documents. However, even in most litigation, the information is provided by the other party. In a litigation case, the other party is usually motivated or tempted to provide the information that is requested but little more. If a party withholds information that is not obvious, it is usually impossible to know that, let alone do much about it.
In a Collaborative Divorce, the participation agreement specifically requires that both parties voluntarily disclose all material information. It also provides that the parties may not take advantage of mistakes of the other. Anyone involved may ask for information that must be provided. The attorneys are required to withdraw if they believe their client is not abiding in good faith with the agreement to disclose information. Once agreement is reached, the spouses often give each other a signed warranty that they have each fully disclosed all information pertaining to property, debt, income, and expenses. By mutual agreement, subpoenas can still be issued to get information from third parties. While the Collaborative Divorce case does not guarantee that someone will hide or withhold information, the structure and safeguards in the process may make it less likely that they will try to do so (or be successful at it) than in a litigated case.
How long will a dissolution of marriage take? By law, a final decree ending a marriage cannot be entered until 90 days after filing or service of the papers, whichever occurs later. If you and your spouse agree on all issues, a Decree of Dissolution may be entered on the 91st day or later.
In the Collaborative Law process, every couple makes its own decision as to when the filing is appropriate for them. One couple may decide to file for dissolution when they start the process; another couple may decide to delay filing until some or all agreements are reached. As noted above, some options are no longer available once a court filing has occurred.
If a case is filed with the court, you and your spouse are unable to agree on every issue by the trial date, the decision will be made by a judge following a trial. At a trial, both sides will present their evidence and the judge will make a decision based on the evidence and the applicable law. No judge, no matter how well informed, will be able to understand your circumstances the way you do. The evidence rules limit the information that a judge may consider. The judge bases her or his decision based on what is proved by a preponderance of the evidence that is allowed.
In a Collaborative case, all information that is important to you can be considered, even if it cannot be “proved.” Instead of limiting information to what is allowed by the law, you and your spouse may — and should — consider all information that is important to you. In the unlikely event that you are unable to reach agreement, your Collaborative Law attorney will not go to trial, because the Collaborative Law participation agreement states that neither attorney may represent a client in court (other than for entry of agreed orders or other similar agreed matters). The contract binds both parties and both lawyers, and helps to ensure that negotiations are conducted in good faith and that neither lawyer has even the remotest financial incentive other than to work in his/her client’s best interests.
Can a dissolution of marriage be settled? Yes. Your case can be settled at any time–even before the case is filed with the Court. Almost all cases are settled, including non-Collaborative cases. There are many reasons to settle instead of going to trial. These reasons include: (a) trial is extremely expensive, (b) trial is emotionally difficult for you and the witnesses, (c) the outcome at trial is difficult to predict, (d) the future relationship between parents and between parents and children can be permanently impaired due to trial.
There is a significant difference between a “conventional” divorce settlement and a Collaborative Divorce settlement. In a conventional case, the parties and lawyers spend most of their time and resources collecting evidence and proof, and preparing for trial, even though trial is not likely to occur. They then each try to coerce the other to settle. Because the system demands both to be engaged in this to avoid conceding, it can easily end up like an expensive arms race until one or both are depleted. If a settlement is reached, inevitably one or both will have to compromise, often without time to carefully consider the consequences.
In a Collaborative Divorce, the parties and lawyers do not spend any time or resources preparing for a trial or trying to coerce the other. Instead, resources and time is focused on reaching agreement by sharing information, determining what needs to be addressed to reach agreement, and allocating resources to address those needs.
Do I have to attend the parenting class? You do if you have children, even if you are participating in a Collaborative Divorce. Almost every county requires that parents take an approved parenting class as part of the dissolution of marriage. Most parents report that it is interesting and helps them understand what the children are going through. In some Counties, including King County, your case cannot be completed without the parenting class.
Should a lawyer represent or advise me? A family law attorney can be of great assistance. A skilled lawyer will be able to assist you in selecting the most appropriate dispute resolution process for you, and in getting to a fair resolution. He or she can assist you by advising you of your options, properly preparing papers, advising you about the law and legal requirements, appearing in court, and facilitating settlement. A qualified lawyer can get things done right the first time, efficiently and correctly. In a Collaborative Law case, both parties must have their own lawyers. We have information to help you select an appropriate divorce lawyer on our Selecting an Attorney page.
How about mediators? There are lots of different types of mediation. It is a surprise to many people that mediation is not a regulated profession. As a result, there are many different skill levels and approaches for mediators, regardless of the diplomas that may hang on the wall.
Non-attorney mediators will usually use a “facilitative” or “transformative” style of mediation, which uses mediation skills to facilitate a discussion about the issues that matter most. The mediator’s personal talent, skill, education, and experience are factors that will affect the mediation experience. A dissolution of marriage is a legal proceeding and a settlement relates to legal rights and obligations, making it essential to have the legal and tax issues reviewed with a lawyer and/or accountant, especially if you use a non-lawyer mediator.
Many lawyer-mediators do not have training or significant experience in mediation skills. Practicing law in an adversarial framework places lawyers in a different mindset from that of mediators. As a result, most lawyer-mediators will use an “evaluative” method of mediation, where they provide their view of what will happen in court, and seek to convince everyone to agree based on that view. Some lawyers are trained and experienced in integrative/facilitative mediation. Most Collaborative Law organizations include basic mediation training as a requirement for membership
Should I use a paralegal or document preparation service? We do not recommend it. Contrary to popular belief, there are no licenses for “paralegals.” While there are some certificate programs offered by colleges, anyone, regardless of background or education, can call himself or herself a “paralegal.” A “paralegal” is not the same as a paramedic. Paramedics are carefully trained and regulated and work under a doctor’s supervision. Paralegals may or may not be trained, may not be working under supervision of anyone, and may be preparing documents that are the legal equivalent of brain surgery. Some mistakes that a “paralegal” can create by improperly preparing documents can never be fixed; when a mistake can be fixed, it will cost more than doing it right first.
What are unbundled services? More and more lawyers provide so-called “unbundled” services, where they only prepare the paperwork necessary to complete a dissolution of marriage, or only provide other limited specific services. This differs from traditional legal representation, where a lawyer performs all tasks.
Must I tell my attorney everything that could make a difference? Yes. Your attorney should not be surprised by hearing information for the first time from others. Be honest–it only helps you and allows your attorney to be prepared and to help you with what is really going on. Your attorney cannot assist you with things he or she does not know about.