New Hampshire & Collaborative Divorce

“Two roads diverged in a wood, and I —
I took the one less traveled by,
And that has made all the difference.” – Robert Frost

What is Collaborative Divorce in New Hampshire?

A focus of Attorney Phinney, Collaborative Law defines a fast-emerging “interest-based” divorce process where the parties agree to settle the issues arising from the dissolution of the marriage in a cooperative way, through confidential settlement conferences.

Both parties commit to negotiate in good faith, to exchange information in an honest and timely manner and to maintain an atmosphere of honesty, integrity and professionalism. The parties and their attorneys sign an agreement promising to adhere to these principles. If the agreement is violated, or the parties cannot reach an agreement, the attorneys must withdraw and cannot represent their clients in further litigation.

What are the benefits of a NH collaborative divorce?

First, the process is typically more time-efficient and cost-effective than a contested divorce; you can reach the terms of the agreement without going to court.

Second, in a collaborative process, the lawyers do not speak for their client; the parties work at settling the disputes together. This practice is especially helpful to the parties with children so that they can effectively co-parent in the future.

Moreover, the process focuses on a conflict-free resolution of the issues, which can reduce unnecessary destructive behavior between the parties. The collaborative process encourages the parties to end their relationship amicably — in a respectful and civilized manner. It allows the parties to divorce with dignity.

What are the risks of a collaborative divorce?

A collaborative divorce is not for everyone. For example, in cases of domestic abuse or where a party will only respond to threats or to decision by a judge, the collaborative process would likely fail.

Additionally, if a party does not feel comfortable speaking on his or her behalf and prefers a lawyer to speak instead, the party may feel unprotected during meetings where the parties are expected to speak for themselves. Finally, if the collaborative process fails, the parties will have to spend additional money retaining new lawyers and may have to start at square one in a courtroom.

Who is involved in the collaborative process?

The collaborative process includes at least the clients and their respective trained collaborative lawyers. Often times a neutral mental health professional trained in the collaborative law process is retained to help manage any emotional conflicts that may arise.

If the parties have complex finances, a financial neutral can be retained to gather financial information, create balance sheets, provide tax analysis for various scenarios, etc.

Other neutral professionals who may be involved in the collaborative process include: a child specialist, a business valuator, appraisers and stock option experts.

Why does my attorney need to be trained in collaborative law?

Unlike a typical case where a lawyer takes on an adversarial role and speaks for his or her client, a collaborative lawyer is not involved in the negotiations. The parties are encouraged to speak on their own behalf to settle their disputes.

Additionally, a collaborative lawyer agrees that if the process fails, he or she will withdraw from the case and not represent their client if the case ends up in a courtroom. Because collaboratively trained lawyers do not have a trial in the forefront of their mind, they approach the case with a totally different goal: coming to an agreement as a team vs. winning in court.

A collaborative lawyer is a new kind of advocate who, of course, should advise their client about the law and provide counsel. He or she should refrain from using adversarial techniques and represent their client's interest while taking into account the spouse's and family's interests. There are a number of principles a lawyer should be familiar with before taking on a collaborative case and, therefore, should be trained in this field for the process to work.

What is the difference between collaborative divorce and mediation in New Hampshire?

In a collaborative divorce there is no neutral third-party mediator to facilitate the discussions). Instead, the collaborative attorneys are trained in “interest-based” negotiation and are responsible to ensure that negotiations are moving forward in a productive manner and consistent with the protocols surrounding the collaborative process.