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Should collaborative divorce be legislated?

Another state is currently struggling with issues related to how attorneys serve their clients during divorce. A bill is expected to be introduced to legislators later this year concerning collaborative divorce, and debate is rising on whether the matter requires legislation. Should the bill be passed into law, divorce attorneys who enter into a collaborative divorce process would be prohibited from shifting into a traditionally litigated approach if the collaborative process fails. As it stands, couples in Colorado and all other states have the ability to pursue a collaborative divorce.

Collaboration within divorce is a simple matter; spouses agree to work together to resolve the details of their split, without taking the matter before a court of law. For parents, this approach can pave the way toward a positive and productive co-parenting relationship. Collaboration can be a far faster, simpler and less costly path to the end of a marriage, but it requires the commitment and active participation of both parties.

In some cases, spouses enter into a collaborative process, but find that they are unable to come to terms on all aspects of their divorce. They then transition to a divorce that involves a higher degree of negotiation, and can sometimes even escalate matters into litigation. The anticipated legislation would serve to give divorce attorneys an incentive to aid and support their clients through a collaborative divorce. Should those efforts fail, the attorney would be banned from providing any additional divorce assistance.

While the motivation behind this Pennsylvania bill seems well-intentioned, many in Colorado and beyond may feel that the measure is somewhat heavy-handed. If a couple enters into collaboration in good faith, but finds that the approach is just not working, the outcome of this legislation could place them right back at the starting line in terms of securing legal counsel for their divorce. The reality could be that instead of promoting collaborative divorce, such a law may scare spouses away from trying this less contentious approach. On the other hand, the proposed law -- known as the Uniform Collaborative Law Act -- has already been passed in the District of Columbia and four other states and is simply legislating the generally accepted practice for proceeding with a collaborative divorce.

Source: Pittsburgh Post-Gazette, "Divorcing? Dial it down", Debra Denison Cantor and Ann V. Levin, July 5, 2015

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