Collaborative Divorce in Washington: The Option Most People Never Hear About

The short version

Almost everyone who calls our office about a divorce assumes there is one way to do it: you hire a lawyer, the other person hires a lawyer, and eventually a judge decides. That is one way. It is not the only way, and for a great many families it is not the best one.

In a collaborative divorce, both spouses and both attorneys sign an agreement at the outset committing to settle the case out of court. Nobody files declarations attacking the other person. Nobody hires competing professionals. The two of you sit at a table across a handful of scheduled meetings, with your attorneys beside you and neutral professionals helping where help is needed, and you make the decisions yourselves.

Two processes, not one

It helps to see the two side by side, because they are not two flavors of the same thing. They are structurally different, and they produce different families at the other end.

Who actually makes the decisions

This is the difference that matters most, and it is the one people underestimate. In the collaborative process, the parties make each and every decision about the outcome of their case. Collaborative is built on the framework of empowering the two people who know the most about their lives, their children, their finances, their struggles to decide issues that will impact their lives for years to come. Who is better suited to guide your future – you or a stranger in a black robe?

What litigation puts in the public file

Court files are, as a general matter, public. When your spouse's attorney files a declaration describing your spending, your drinking, your parenting, or your mental health, that document does not stay between the parties, it goes into the public court file.

In the heat of a contentious divorce, most people do not consider the potential impacts of these records being reviewed for security clearances, employment, professional licensing, or by your children, friends or family.

• Certain records are sealed, such as financial source documents, healthcare records, or documents with personal identifying information. However that protection is narrower than most people assume. The documents built from those records, including financial declarations and child support worksheets, are generally not sealed, and neither are the declarations that may reference information contained in the sealed documents.

Collaborative proceedings generate no such file. The discussions are confidential by agreement, and Washington's Uniform Collaborative Law Act (RCW 7.77.110) makes collaborative law communications privileged. What gets filed at the end is the paperwork required to finalize the divorce — not the argument that got you there.

One financial neutral instead of two hired professionals

In litigation, when a case needs a business valued or a parenting plan evaluated, each side hires its own professional. Both professionals do substantially the same work and may render completely different conclusions.

Collaborative practice uses neutrals. One professional is retained jointly, works for the process rather than for either spouse, and reports to everyone at once:

• The financial neutral — assembles the full financial picture, models what different settlements actually look like over time, and gives both of you the same numbers. This neutral is often a Certified Divorce Financial Analyst or financial professional trained in collaborative practice.
• The divorce coach — helps build a parenting plan that reflects your children rather than a template, and helps the adults stay functional in difficult conversations.

The work is done once, paid for once, and shared. Everyone in the room is working from the same set of facts, which is a remarkably efficient way to reach a decision and a remarkably rare one in a contested divorce.

The Participation Agreement, and the teeth in it

At the beginning, everyone — both spouses, both attorneys, and any neutrals — signs a Participation Agreement.

It commits everyone to three things:

• Full, voluntary disclosure. Both of you put everything on the table without being compelled to. No hiding accounts, no waiting to be asked the right question.
• Confidentiality. What is discussed and produced in the process stays in the process.
• No court. Nobody uses the threat of a hearing as leverage while the process is running.

And it carries a consequence that gives the whole structure its integrity. If the collaborative process breaks down and either spouse decides to litigate, both collaborative attorneys are disqualified and can no longer represent you in the case.

Under the Participation Agreement, no work product of the collaborative process, with a few limited exceptions may be used in any proceeding outside it. If the process ends and the case goes to court, everything the process uncovered has to be uncovered again through formal discovery, and paid for again.

That is a genuine risk. It is also, deliberately, what makes the disclosure work: people share openly because they know it will not be turned into an exhibit.

What the meetings actually look like

Collaborative divorce is not one long conversation. It is a series of scheduled meetings, and the attorneys design each one to cover a specific set of decisions.

A typical sequence moves from the ground rules, to the full financial picture, to the parenting plan, to support, to the division of property, to the final review. Each meeting has an agenda set in advance, and both spouses know before they walk in what is being decided that day. That structure is not bureaucratic. It is what keeps a divorce from becoming an unbounded argument about everything at once.

Most collaborative cases finish in four to six meetings. Cases with genuinely complex issues — high net worth, business interests, multiple properties, a child with significant needs — can take longer.

Meetings can get angry and emotional because ending a marriage is hard. The difference is that in a collaborative meeting the heat comes from the subject, not from a strategy. The professionals are trained to guide the spouses from positional to productive.

What your attorney is doing in the room

A collaborative attorney operates as a traditional attorney does. What changes is the objective. A litigator's job is to advance your position against the other side. A collaborative attorney's job is to make sure you are making informed decisions while moving the entire case toward resolution, not just to ensure that you “win”.

A large part of the work is helping clients say what they mean. Many spouses arrive unable to state a need without it landing as an accusation, and unable to hear one without treating it as an attack. A meaningful part of a collaborative attorney's job is helping a client find their own voice in the room — especially the quieter spouse, who in litigation typically just gets spoken for.

What couples take with them afterward

Litigation does not end when the decree is signed. If you have children, you are going to deal with this person for years — graduations, medical decisions, a schedule change in March, eventually weddings and grandchildren. The process you choose is also the training you get for that.

Contested litigation trains people badly. It rewards the least generous reading of the other parent, and it produces a written record of it. It pits parents against each other, pulls children into loyalty binds, and burns whatever trust was left. Families arrive at the end of it legally divorced and functionally unable to co-parent.

Couples who go through a collaborative process routinely report the opposite. Having spent four to six meetings practicing how to raise a hard subject, hear an answer, and reach a decision together, they end up better at it than they were while married. They learn that the other person can pursue what they need without it costing you what you need. For parents, that skill is worth more than any single line in the final order.

What it costs, honestly

Collaborative divorce is usually less expensive than a contested litigated divorce, for structural reasons rather than promotional ones: the outside professional work is done once instead of twice, there are no motions, no hearing preparation, and no discovery fights.

But it is not free, and anyone who quotes you a figure before understanding your case is guessing. A collaborative case with a business valuation and a contested parenting plan will cost more than an uncontested litigated divorce with a short marriage and no children. The honest comparison is collaborative versus litigation — this same case, with the same people and the same issues, either worked through at a table or fought in court.

When collaborative is the wrong choice

Collaborative practice depends on two people who can sit in a room and negotiate on roughly level ground. If your case involves any of the following, seek a consultation with a collaboratively trained attorney who can advise you whether collaborative is the right process for you:

• Domestic violence, coercion, or power imbalance.
• Concealment or waste of assets by a spouse unwilling to honestly disclose required financial records.
• Need for emergency temporary family law orders
• Unwillingness by either spouse to participate.
• Untreated addiction or acute mental health crisis by either spouse.

What to do this week

Learn both processes before you commit to either. Most people choose litigation by default, having never been shown an alternative.

• Ask any attorney you consult whether they are collaboratively trained. It is specific training, not a description of temperament.
• Think about the record. If you hold a clearance, a professional license, or a public-facing role, factor in what a court file might contain after your divorce.
• Think about the next ten years, not the next ten weeks. If you share children, the relationship does not end — only the marriage does.
• If safety is a concern, say so first.