What is the “disqualification clause?” When you divorce collaboratively, you and your spouse sign a participation agreement where, if the process breaks down, their lawyers must withdraw from the case and may not represent them in court.
What? Why would you agree to that? Intuitively, if you have not experienced divorce litigation, it may not make sense. However the benefits are immense, creating a less painful, often more affordable, process that is focused on the best interests of both spouses and, when they have kids, the best interests of their children.
1. When the attorneys can’t go to court, the envelope in which you negotiate your settlement is safer. You don’t have to worry that, if you are open and honest about yourself, your wishes, your experiences, etc., that your spouse’s attorney will later use what you say against you in court. Your spouse’s attorney is there to represent your spouse’s interests, but he or she is not there to tear you apart. In fact, collaborative lawyers are often great at helping to generate divorce settlement options that work for both spouses.
2. When the attorneys can’t go to court, they can stop viewing the case with “court vision.” They don’t have to worry about preparing for trial while in the midst of settlement talks, where they must have one eye on settlement and the other on gathering evidence. Instead, the lawyers may focus unilaterally on getting spouses to mutually beneficially settlements.
3. When the attorneys can’t go to court, the spouses are much less likely to throw in the towel on negotiations. The collaborative process involves a considerable investment of time, effort and resources, and only rarely does a spouse go through all of this and then decide to blow up the process and proceed to litigation anyway.