Collaborative Divorce Law in Wisconsin

In January of 2001, following in the footsteps of numerous other states,  Wisconsin Family Law practitioners formed the Collaborative Divorce Council of Wisconsin, Inc. offering Collaborative Divorce as an option for clients to choose in the appropriate case.  Collaborative law is deemed, by many, to be a thoughtful, forward-looking response to the current state of affairs in the area of family law where parties too often are embroiled in bitter conflict, which is prohibitively expensive, and with which neither party is happy with the end result.   Many lawyers, and clients, have long thought there “has to be something better,” which will enable divorcing parties to take control of their case and to exit the marriage with the ability to communicate and cooperate with one another, and being able to attend their children’s graduations and weddings.&

Collaborative law is a process by which the two clients, and two attorneys, work together, with the mutual objective to reach fair and comprehensive settlement of all issues in a time and cost efficient manner.  The parties sign an agreement, at the beginning of the divorce, that they will not go to court to let a judge decide the issues, but will work cooperatively, together, through a series of four-way meetings to reach a fair and just result on those issues.   If the collaborative process fails to reach an agreement, and either of the parties wishes to have the matters resolved by a judge, then both collaborative attorneys are disqualified from further representation.  In other words, if the collaborative process fails, the parties must retain new lawyers, and start at ground zero.   This is a strong incentive to make the collaborative process work.

The essence of the Collaborative Divorce process is the parties’ binding commitment to voluntarily disclose all relevant information, to proceed respectfully, candidly, and in good faith, and to work towards an amiable and fair resolution of the issues. 

The mechanics of the collaborative process involve carefully managed four-way settlement meetings preceded by considerable groundwork between the lawyer and the client, and between the two collaborative lawyers.    The focus of the negotiation is on what is termed “interest based” bargaining, rather than “positional” bargaining.  In collaborative law, each party’s attorney advises his or her client on what the law is on a particular issue, but the parties are free to look beyond “the statutes or what a judge would do”, to focus on what is really important (of “interest”) to them.   For example, under Wisconsin law, there is no authority for a court to order the parties to provide for the higher education needs of their children because, under “divorce law” the financial obligation to a child ends when that child reaches the age of 18.  The collaborative law model allows the parties to address and meet this issue in their agreement if it is one of importance to them.

The prospect of working together may appear daunting to clients at the commencement of an action.   Collaborative lawyers are, however, committed to, and skilled in, creative conflict management.    Threats, “positioning”, and posturing are out the window:   A free exchange of ideas, mutual creative problem-solving and commitment to a win-win philosophy  “is in.”  Sometimes parties need to regain, or develop, effective communication, and the collaborative lawyers are skilled in assisting them in accomplishing this goal.

In a Collaborative Divorce, the parties contract to provide full and honest disclosure of all finances.   If experts are needed to value a pension plan, or a business, they are mutually selected, retained, and instructed that they are working for the parties jointly to arrive at a fair value.   It should be noted that, just as lawyers are disqualified from further representation if the collaborative process is not successful, experts (known as specialists in the collaborative context) may not be used in any court process.  

Collaborative law cases are resolved through a series of four-way meetings between the parties and their collaborative counsel, all working towards a mutually beneficial resolution of the case.  Mechanically, what happens in a Collaborative Divorce is that an agenda for a four-way meeting is determined, setting forth what issues will be discussed.  Then a four-way meeting is held and, following that meeting, minutes are typed up and distributed in order to keep the case focused.  There may be things the parties need to do, between meetings, such as obtain an appraisal on their home, and a further four-way meeting is scheduled, with an agenda, at a time appropriate to the task at hand.   The four-way meetings may occur close together, or there may be some lag time between them, depending on the task at hand.   Obviously, the goal is to continue to meet as frequently as possible in order to make progress on finding solutions to the parties’ problems.  After all issues have been resolved, the attorneys will draft the parties’ agreement, which will be presented to the court.

Collaborative Divorce has been used with great success in many areas of the country.  Although this is a new process to Wisconsin, it holds great promise as an alternative for divorcing parties in the appropriate case.   We would be happy to provide additional information on Collaborative Divorce.