The Role of an Attorney in a Collaborative Divorce
In a divorce, the role of an attorney can vary depending on whether the case is approached through litigation or the collaborative process. While both processes aim to resolve the divorce, they do so in fundamentally different ways. The role of the attorney in a collaborative case is vastly different from the role of the attorney in a divorce that goes to court.
The Adversarial vs. Collaborative Mindset
In a traditional litigation setting, the attorney’s role is primarily adversarial. The courtroom becomes a battleground, where one party seeks to “win” by securing a favorable judgment, often at the expense of the other party. The attorney in this scenario is focused on advocating for your interests as their client, whether they are rational or not, often leading to a “winner-takes-all” outcome (and the reality is, the only one who “wins” is the attorney who was paid with marital funds that are no longer available to the parties). This approach to a divorce strains relationships, as the goal is to outmaneuver the opposition, rather than preserve any ongoing connection between you and your spouse (if you have children, the connection is always ongoing). In the end, you may have “won” on a particular issue, but your attorney is gone, and surprise! You left alone to interact and communicate with your spouse. This can cause more adversarial feelings, more mistrust, and frankly, you are worse off than before the divorce began.
Conversely, in a Collaborative Divorce, the attorney’s role (and goal) shifts dramatically. Here, the emphasis is on working as part of a team to find mutually beneficial solutions for the entire family. Rather than seeking to win at all costs, the attorney in a collaborative case is committed to helping you to reach an agreement that respects your needs and your spouse’s needs and preserves your relationship. This approach is particularly important for families with children. The reality is, that the relationship does not end when a child turns 18, like many people think. As your children’s parents, you will need to maintain a functional relationship for future events like graduations, weddings, and other significant milestones that may even include grandchildren.
Creative Problem-Solving
One of the most significant differences in a collaborative divorce is the opportunity for creative problem-solving. In litigation, outcomes are largely dictated by the court, with limited flexibility, and seen as black or white, with no room for gray. However, in a collaborative setting, your attorneys work alongside other neutral professionals (mental health, financials, and even child specialists) to explore a wide range of options that might not be available in a courtroom. This allows for innovative solutions tailored to the unique circumstances of your family, whether it involves customized parenting schedules, creative financial arrangements, or the division of assets in ways that honor your family’s values and long-term goals. The collaborative process also protects your financial and family privacy from being spread across public records and accessed by anyone with a computer.
The Importance of Training and Mindset
For attorneys, transitioning from litigation to the collaborative process is not simply a matter of choice; it requires a fundamental shift in their mindset, and it requires extensive continuous training, far more than what you learn in law school or “on the job.” It means that they are committed to the (750 ILCS 90/) Collaborative Process Act and willing to sign a Participation Agreement. A collaborative divorce attorney must learn to move away from the “win-lose” mentality and embrace a more holistic approach to conflict resolution. This shift can take time to fully internalize, even years, as it involves learning to work effectively within a team of professionals and to prioritize the family’s long-term well-being over short-term victories.
The role of an attorney in a collaborative divorce requires a commitment to the collaborative process, creativity, and ongoing professional development. Anyone can “say” they are collaborative, and that they settle cases. However, hiring an attorney who is committed to the collaborative process means that the attorney, and the client both agree to discharge their collaborative process attorney if the collaborative process fails. Those attorneys who choose this process, are committed to the process and not the dollars. Being able to discharge the attorney if the process fails, gives incentive to the entire team so families can work together to create solutions that honor their relationships and set the stage for a more positive future. Striking the discharge language is tantamount to saying if it fails, we have another shot with litigation—which should never even be an option on the table.
Tania Harvey is an experienced family law attorney who focuses her practice on Collaborative Divorce. With over 20 years of working in matrimonial and family law, Ms. Harvey is able to successfully guide her clients to a successful and positive resolution with their divorce by avoiding the complex issues of litigation.
She may be reached by calling 312-803-5845 or emailing tharvey@tkhfamilylaw.com or visit www.tkhfamilylaw.com
Offices are located at 2100 Manchester Road, Suite 1630 Wheaton, Illinois 60187 and 155 North Wacker Drive, Suite 4250 Chicago, Illinois 60606
Serving Cook, DuPage, Will, Kane and Kendall Counties
As a family law attorney, my primary responsibility is to ensure that after the case, you receive results that are beneficial to you, and all parties involved in the process. With 20+ years of experience in the matrimonial and family law field, I know that Collaborative Law is the most effective method to ensure that the most favorable outcome is achieved.
