A TYPICAL COLLABORATIVE FAMILY-LAW AGREEMENT

 

 

[WIFE] and her attorney [NAME] and [HUSBAND] and his attorney [NAME], have chosen to use the principles of Collaborative Law to settle the issues arising from the dissolution of their marriage.  The primary goal of Collaborative Law is to settle in a nonadversarial manner the issues of the parties= separation and dissolution of their marriage.  The parties have retained Collaborative lawyers to assist them in reaching this goal.  Whenever the pronoun “we” is used in this agreement, it is implied that our attorneys agree and will actively participate to achieve the desired result.

 

1.         PURPOSE AND GOALS  We acknowledge that the essence of "Collaborative Law" is the shared belief by participants that it is in the best interests of parties and their families in typical Family Law matters to commit themselves to avoiding litigation.  We therefore adopt this conflict resolution process, which does not rely on a Court‑imposed resolution, but relies on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well‑being of the family.  Our goal is to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to the participants and their families.  We commit ourselves to the Collaborative Law process and agree to seek a better way to resolve our differences justly and equitably.  Specifically, we agree as follows:

 

a.         No Court Intervention:  We commit ourselves to settling our case without court intervention.

 

b.         Full Disclosure:  We agree to give full, honest and open disclosure of all information, whether requested or not.  The parties and their lawyers agree to deal with each other in good faith to promptly provide all necessary and reasonable information requested.  No formal discovery procedure will be used unless specifically agreed to in advance by the parties.

 

i.          Documents:    A List of Documents proposed to be shared among the parties and counsel is attached to this Agreement as Exhibit A.  Additionally, all correspondence, and a memo of telephone or personal contacts, between an attorney and a neutral expert retained by the parties shall be shared with the other counsel and client.

 

ii.         Requirement of Good Faith. We acknowledge that by using informal discovery, we are giving up certain investigative procedures and methods that would be available to us in the litigation process.  We give up  these measures with the specific understanding that both of us shall make full and fair disclosure of all assets, income, debts and other information necessary for a fair settlement.  Participation in the Collaborative Law process, and the settlement reached, is based upon the assumption that both of us will and have acted in good faith and have provided complete and accurate information to the best of our ability.

 

(1)       Sworn Statement.  We may be required to sign a sworn statement making full and fair disclosure of their income, assets and debts.

 

c.         Communication:  We agree to engage in informal discussions and conferences to settle all issues.  We intend to communicate effectively with each other to efficiently and economically settle the dissolution of our marriage.

 

i.          Tone of Communications.  Written and verbal communications will be respectful and constructive and we will not make accusations or claims not based in fact.

 

ii.         Focus of Communications.  Communications during settlement meetings will be focused on the economic and parenting issues in the dissolution and the constructive resolution of those issues.

 

iii.        Interruptions.  We will not interrupt each other or the attorneys during settlement discussions.

 

iv.        Acknowledgment and Respect.  We will respectfully acknowledge and make every effort to understand the other party=s point of view, even if we do not agree with it.

 

v.         Past Events.  We understand that the costs for settlement meetings are substantial and require everyone=s cooperation to make the best possible use of available resources.  To achieve this goal, we agree not to engage in unnecessary discussions of past events.

 

vi.        No Pressure Outside Collaborative Process.  To maintain an objective and constructive process, we agree not to pressure each other to discuss settlement of their dissolution issues outside the settlement-conference setting.  Discussions outside of the conference setting must be agreed to by us.  Neither of us will attempt to discuss settlement at unannounced times by telephone calls or appearances at the other party=s residence.

 

vii.       Directions to Consultants.  We agree to direct all attorneys, accountants, therapists, appraisers and other consultants retained by us to work in a cooperative effort to resolve issues without resort to litigation or any other external decision- making process except as agreed upon.

 

2.         SCOPE OF AGREEMENT:   We may at any time by subsequent agreement decide to expand or narrow the scope of this Collaborative Law Process.  At present, however, we agree that the issues to be determined are summarized on the Collaborative Family-Law Checklist attached to this Agreement as Exhibit B.

 

3.         CONSEQUENCES OF COURT INTERVENTION:

 

a.         Withdrawal of Attorneys: We understand that our attorneys' representation is limited to the Collaborative Law process and that neither of our attorneys can ever represent us in court in a proceeding against the other spouse.

 

i.          Disqualification.  In the event a court filing is unavoidable, both attorneys will be disqualified from representing either of us.

 

b.         Disqualification of Consultants and Experts.  In the event that the Collaborative Law process terminates, accountants, appraisers, arbitrators, mediators, neutral evaluators, therapists, and any other consultants and/or experts will be disqualified as witnesses and their work product will be incompetent and inadmissible as evidence unless we agree otherwise in writing.

 

c.         Cooling-Off Period:  If one of us decides to withdraw from the Collaborative Law process, prompt written notice will be given to the other party through his or her lawyer.  Upon withdrawal from the Collaborative Law process there will be a thirty [30] day waiting period (unless there is an emergency) before any court hearing, to permit the other party to retain another lawyer and make an orderly transition.  All temporary agreements will remain in full force and effect during this period.  The intent of this provision is to avoid surprise and prejudice to the rights of the other party.  It is therefore mutually agreed that either of us  may bring this provision to the attention of the Court in requesting a postponement of a hearing, and the other party will acknowledge this provision.

 

4.         OTHER TERMINATION OF ATTORNEY SERVICES.  Either of us is free to discharge our attorney, for any reason, and to retain the services of another attorney, without causing an automatic termination of the Collaborative Law process.  Similarly, if an attorney is unable, for any reason, to continue representation in this matter, the affected party shall be free to obtain the services of substitute counsel.  However, no attorney who has been involved at any stage of the Collaborative Law process in this matter shall be competent to appear on behalf of either of us in an adversarial court proceeding against the other party.

 

5.         FINALIZATION OF AGREEMENT:  Unless otherwise agreed, prior to reaching final agreement on all issues, no Summons and Complaint  will be served or filed, nor will any other motion or document be prepared or filed which would initiate court intervention.

 

a.         Form of Written Settlement Agreement:  Neither we nor our lawyers will use the court during the Collaborative Law process unless it is mutually agreed. When we have reached a final agreement, our agreement will be reduced to writing in a document designated a North Carolina Collaborative Family-Law Settlement Agreement, in the form of either:

 

i.          A Separation Agreement, in which we are bound by contract, and which may be enforced in the event of breach by an action for damages or specific performance (although we commit to attempt to use further Collaborative processes to resolve the dispute prior to initiating court action);  or

 

ii.         A AFriendly Lawsuit.@

 

(1)       Parties:  For the purposes of the Collaborative Law proceeding, if we use a Afriendly lawsuit,@ the named plaintiff shall be the *, and the defendant shall be the *, without any implication that the plaintiff is the injured party nor the defendant the responding party.

 

(2)       Venue:  Venue for the Afriendly lawsuit@ shall be * County, and by signing this Agreement we expressly, knowingly and intelligently waive any objections to venue.  In the event that either of us withdraws from the Collaborative process and institutes litigation, venue shall be as in this subparagraph, absent further written agreement signed by both of us.

 

(3)       Form of Document:    If we formalize our agreement in this way, the document filed with the court shall be designated a consent judgment and/or order, signed by us and our respective attorneys.  The consent judgment and/or order may incorporate by reference all or only some of the terms of our North Carolina Collaborative Family-Law Settlement Agreement.

 

iii.        Special Orders: We understand and agree that in some cases it may be necessary to obtain a court order to achieve a desired result, even we would prefer to memorialize our agreement solely in a private Separation Agreement. Therefore, we do agree, upon the terms set out above as to a AFriendly Lawsuit,@ that the Collaborative Law process may necessitate entry of, by way of illustration and not by limitation, the following types of orders (for example, to divide retirement benefits or secure medical insurance benefits):

 

(1)       Qualified Domestic Relations Orders (for pension or retirement benefits governed by ERISA);

 

(2)       Domestic Relations Orders (for pension or retirement benefits not governed by ERISA);

 

(3)       Decrees of Separate Maintenance (to achieve division of IRA benefits or to effect the desired filing status for tax purposes);

 

(4)       Qualified Medical Support Court Orders (to secure insurance benefits); and/or

 

(5)       Absolute Divorce Decrees (an absolute divorce cannot be secured by contract in North Carolina, and must be obtained by court order.)

 

iv.        Enforcement of Temporary and/or Final Orders:  In the event that either of us requires a temporary agreement for any purpose, the agreement will be put in writing and signed by the us and our lawyers.  If either of us withdraws from the Collaborative process, the written agreement may be presented to the Court as a basis for an Order, which the Court may make retroactive to the date of the written agreement.  Similarly, once a final agreement is signed, if either of us should refuse to honor it, the final agreement may be presented to the Court to be enforced in any subsequent action.

 

(1)       Collaborative Attorneys Will Not Participate: Except as a possible fact witness, neither of the our attorneys will appear in an adversarial procedure in court to enforce, modify, challenge or vacate an agreement reached during the Collaborative process.

 

(a)       Exceptions: Our attorneys shall, however, remain available to assist in any further Collaborative process that may be required to resolve problems arising under agreements reached during the Collaborative process.­ Our attorneys may also make court appearances for the purposes of entering agreed-upon and uncontested orders, such as QDRO=s, DRO=s, Decrees of Separate Maintenance, complaints for absolute divorce (uncontested), and motions for summary judgment in uncontested divorce cases.

 

6.         CHILDREN=S ISSUES: The parties recognize that children frequently suffer greatly during the process of divorce, and commit to minimizing the trauma to and disruption of their children=s lives.  To that end, the parties agree as follows:

 

a.         Settlement Issues Will Not Be Discussed in the Presence of the Parties' Children, The parties acknowledge that inappropriate communications regarding their dissolution can be harmful to their children.  Communication with the children regarding these issues will occur only if it is appropriate and done by mutual agreement or with the advice of a child specialist.  The parties specifically agree that their children will not be included in any discussion regarding the dissolution except as described in this Agreement.

 

b.         The Children Will Not Be Interrogated.  Neither party will interrogate a child as to the activities of the other parent or the events in the home of the other parent.

 

c.         The Children Will Not Be Asked to Choose Between or Blame Either Parent.  The parties acknowledge that children should not be forced to choose between their parents, and should be permitted access to and affection for both parents.  The parties acknowledge that the children need both parents in their lives, and that they are hurt when one party criticizes or blames the other parent.

 

d.         Access to the Children Will Not Be Withheld.  Absent a serious danger of physical or sexual abuse, neither parent will attempt to impede access to the children by the other parent.  The parties by entering into this Agreement recognize that neither parent poses a threat to the children, and that the Collaborative Law process is inappropriate for cases involving physical or sexual abuse of a child.  The children shall have reasonable telephone access to the parties, and the parties shall have reasonable telephone access to the children.  Each party shall promptly inform the other of any serious accident, illness, or other mishap that may involve the children.  Each party shall have equal access to records regarding the children=s education, health, activities and general welfare.  Access to the children shall not be denied to the children=s extended family, such as grandparents, uncles, aunts, cousins and other relatives.

 

e.         Issue Resolution.  In resolving issues about sharing the enjoyment of and responsibility for our children, the parties, attorneys and therapists shall make every effort to reach amicable solutions that promote the children's best interests.

 

f.          Custody Evaluation.  The parties agree not to seek, absent further written agreement, a custody evaluation while the matter is a Collaborative Law case.

 

g.         Involvement in Disputes.  The parties agree to insulate the children from involvement in their disputes.

 

h.         Removal from State.  The parties agree not to remove the children from the State of North Carolina absent the explicit written consent of the other parent.  However, the parties further agree that consent to such removal for vacations or other legitimate activities shall not be unreasonably withheld.

 

i.          Parenting Programs.  Where such programs are available (such as APartners in Parenting,@  the parties agree to attend programs designed to help them understand and cope with children=s issues in divorce.

 

7.         EXPERTS.  When appropriate and needed, the parties will use neutral experts for purposes of valuation, cash-flow analysis, parenting issues and any other issue which requires expert advice and/or recommendations.  The parties will agree in advance as to how the costs of the third party expert will be paid.  If experts are needed, we will retain them jointly unless we and our attorneys agree otherwise in writing.  A List of Experts that will or may be used in the Collaborative process is attached to this Agreement as Exhibit C.

 

8.         SPECIAL DISPUTE RESOLUTION (ARBITRATION/MEDIATION).  We recognize that even in the Collaborative process, and even when both parties and their attorneys are fully committed to the process, issues may arise as to which agreement cannot be reached.  Should such an issue or issues arise, we agree to submit the matter to mediation, mediation/arbitration, or binding arbitration under the North Carolina Family Law Arbitration Act.  An arbitrator=s decision will be binding only in the Collaborative Law process, and if the process is terminated unsuccessfully, the arbitrator=s decision may not be used in court.   The parties further agree that (NAME) shall act as the mediator and/or arbitrator.  If (NAME) is unavailable, we will mutually agree to another arbitrator, and preference shall be given to an attorney who is board-certified in family law.  If we cannot agree on a mediator or arbitrator, our lawyers shall select the neutral facilitator.

 

The Arbitrator is authorized to adjudicate any issue which, in the discretion of both attorneys and clients, is better resolved by an informal submission for determination by a neutral third party but does not rise to the level of litigation that threatens the integrity of the collaborative law process.  All decisions of the Arbitrator shall be in writing and shall become part of our Collaborative Family-Law Settlement Agreement.  If we elect to have our Settlement Agreement adopted by the Court, all decisions of the Arbitrator shall be filed with our Settlement Agreement, as part of the Consent Order and Judgment, and shall be enforceable and/or modifiable as any other order of the Court.  Absent a subsequent written agreement, we waive our respective rights to appeal the orders or awards of the Arbitrator for errors of law.  We also agree that the Arbitrator may not be dismissed, disqualified, or challenged for cause unilaterally, but rather that the consent of both of us is required to do so.  The arbitrator=s decision is binding only within the Collaborative Law process, and will have no effect if the collaborative process ends.