No judge needed: Pa. law gets behind collaborative divorces

In a contested divorce, the judge has a lot of power. That might mean ruling that a couple’s marital assets be divided 50-50 when in reality one of the spouses may be in need of a greater share in order to transition to single life. Or the judge might set a visitation schedule for the non-custodial parent that would make it tough to spend time with the children.

Hence the growing appeal of the do-it-yourself approach, the collaborative divorce.

“With the collaborative law process, we can customize the division of assets for a couple as well as the custody schedule to meet the needs of the mother, the father and the children,” said Liberty Weyandt, chair of the family department at The Lynch Law Group in Cranberry.

For years, people have been working out settlements on their own outside of court using the collaborative process. Now Pennsylvania has a law that will encourage that process and provide guidelines for how these kinds of divorces should operate.

The Pennsylvania Collaborative Law Act, which was signed into law June 28 by Gov. Tom Wolf, has made collaborative divorces legitimate in the eyes of the state Legislature. The law will set standards for how couples can go about creating their own divorce outcomes.

Couples also are free to agree on any type of financial plans that work for them, even if it might be outside of the authority of the courts.

A good example would be college tuition.

“In Pennsylvania, once a child reaches age 18 or graduates from high school, there is no further responsibility by either parent to be obligated to pay for college,” said Donna Cheswick, a certified divorce financial analyst and owner of Cheswick Divorce Solutions in Cranberry.

“In the collaborative law process, parents can agree in writing how they will pay for college whereas the court will not rule on this issue,” she said. “Spouses can be creative in coming up with their own solutions that meet their family’s needs.”

Candice Komar, a partner and family law attorney at Pollock Begg Komar, Downtown, has been handling collaborative divorces since 2010, and she said overall they are less expensive for both parties.

“The parties don’t do the typical jostling for position and posturing in court by way of motions and

asking for hearings or fighting over the exchange of pertinent information,” she said. “In the collaborative process, everyone commits to being forthcoming.”

Even before the law passed, such divorces were not illegal. The process just wasn’t regulated.

Different areas of the state had practice groups with their own set of guidelines. Although all the practice groups would be following the collaborative guidelines and ethical rules as set forth in the International Collaborative Law Association, there was no specific state law here.

“Now collaborative professionals across the state will be following the same rules to guide individuals through the collaborative process,” Ms. Komar said. “Also, many states are following suit. At least onethird have enacted the Model Collaborative Act or some variation.

“Collaborative law attorneys are trained to diffuse conflict and create a mutually respectful and communicative environment for all parties in a divorce,” she said. “What I love most about the process is one is not bound by what could happen in court. Most times, the collaborative process results in creative solutions benefiting both of the divorcing spouses and any children involved.”

Allegheny County court records show 2,730 divorce cases filed in 2017; and 2,702 divorce cases in 2016. It is not clear how many of those were settled through the collaborative process.

In a collaborative divorce, each spouse is represented by an attorney and enters a participation agreement with the goal of preparing a legally binding agreement resolving all issues. The parties agree at the outset that, should they fail to negotiate a resolution, they will each be required to retain new counsel and new law firms for any subsequent litigation.

“The main reason for that is so that the lawyers and parties understand their role is to negotiate a settlement only and not preparing for court,” said David Miller, former chair of the Pennsylvania Bar Association’s collaborative law committee and one of the drafters of the Collaborative Law Act.

Mr. Miller pointed out the collaborative process can be applied to any dispute between family members, such as custody, support, business disputes and estate litigation.

The process allows divorcing couples to take more control of the outcome and to have privacy in resolving their differences. It typically involves numerous meetings with both parties, a collaborative coach and the attorneys.

The meetings address all elements of the divorce, including custody, support and equitable distribution of the marital assets. The spouses usually also are assisted by specialized experts such as tax accountants, financial planners, parenting coaches and counselors who are jointly retained by the parties.

Mr. Miller, who has worked behind the scenes to make the new law a reality, said families in Pennsylvania have been using the collaborative process for about 12 years now.

“Families do not belong in court,” said Mr. Miller, a sole practitioner with offices Downtown and in Cranberry. “This process does a very good job of keeping families out of court and the emotional trauma that goes along with the court process, especially for kids.”