Divorce, Privacy, And Collaborative Law

One of the unintended consequences of litigating a divorce case in Colorado is the loss of privacy and control over what is disseminated into the public sphere. Most filings in a litigated or contested divorce are publicly available to colleagues, neighbors, media organizations, and even solicitors. Chief Justice Directive 05-01, which governs access to court records, limits only a select number of documents in a divorce from public consumption. While separation agreements, sworn financial statements, custody evaluations, and parenting plans are suppressed under CJD 05-01 and accessible only to the court, the parties, and their counsel, almost all other filings are public. Business valuation reports, trial management certificates, exhibits uploaded for trial (including bank statements, tax returns, and paystubs), trust expert reports, and embarrassing allegations made in motions can all be viewed online by anyone willing to pay a small fee and make a few clicks.

Under the ever-increasing scrutiny and push from media organizations for open court records, courts are reluctant to suppress an entire divorce proceeding. Parties seeking suppression of a specific document or the entire case must meet the high burden of showing that “the harm to the privacy of a person in interest outweighs the public interest.” Even suppression of a sensitive document does not guarantee privacy; when a pleading or document refers to, or even quotes, a suppressed court record, “that pleading or filing shall be accessible to the public unless the court orders otherwise.” As a result, details such as asset values, family trust terms, investment holdings, executive compensation packages, business revenues, and operating agreements become part of the public record when stated in motions or trial management certificates.

Attorneys should advise their clients about the risk of public dissemination of both sensitive financial and personal information when evaluating litigation and alternative dispute resolution (ADR) options. This includes traditional ADR options like mediation and arbitration as well as lesser-known options like Collaborative Law.

Using Collaborative Law to Resolve Family Law Cases

Enacted by the Colorado General Assembly in 2021, the Uniform Collaborative Law Act (UCLA) formalized the decades-long practice of collaborative divorce in the state. Collaborative Law is a voluntary and confidential ADR process in which parties contract with each other to resolve their family law disputes outside of court. It is not limited to divorces – custody matters, premarital agreements, child support disputes, adoptions, and parentage cases can all be resolved in the Collaborative Law process.

Collaborative Law emphasizes minimizing harm to families, fostering needs and goals-based negotiation, and protecting privacy. Colorado law still provides both the framework for resolution and defines the parties’ rights, but the focus shifts to creating a facilitated dialogue to find flexible solutions that meet the parties’ financial or parenting goals rather than positional bargaining driven by the best-case outcome in a courtroom. Attorneys continue to advocate for their clients but with dialogue that is respectful instead of adversarial.

The process begins when the parties voluntarily execute a Collaborative Participation Agreement bringing the case within the purview and protection of the Uniform Collaborative Law Act. Parties may enter the process before filing a case or divert into the process after litigation has commenced. If an action is already pending, upon notice of entry into a Collaborative Participation Agreement, the court will stay all proceedings until agreements are filed, or the Collaborative Law process terminates.

Parties are required to be represented by attorneys throughout the process. After attorneys are retained, a multidisciplinary team of neutrals is identified. This typically includes a mediator-like Collaborative Divorce Facilitator who acts as the “quarterback” of the process and a Certified Divorce Financial Analyst. Depending on the case, additional neutrals may include parenting experts, divorce coaches, business valuators, trust experts, or real estate and mortgage professionals. While no specific training is required, collaborative training by all the professionals involved is paramount to a successful case.

Unlike mediation, which typically occurs in a single day, Collaborative Law involves a series of one to two-hour sessions over the course of the process where parties and counsel meet to discuss their concerns and goals before proceeding to negotiate written agreements. Neutral experts attend sessions when needed, which may occur with just one party and their attorney or with all parties and attorneys together. Once agreements are finalized, counsel submit them to the court for adoption and entry of decree. Although termination of the Collaborative Process typically occurs only after full agreements are adopted by the court, either party may elect to terminate the process at any time by giving written notice.

Confidentiality, Experts, and Collaborative Law

All written communications, offers, discussions, and expert reports prepared during the Collaborative Law process are inadmissible before any tribunal. Unlike litigation, the only documents filed with the court during a Collaborative Law process are the initial pleadings, status reports confirming the parties’ continued engagement, and the financial statements and final agreements necessary to obtain a divorce (all of which are automatically suppressed under CJD 05-01). The public sees little to none of the sensitive information that would otherwise be publicly accessible in a litigated case.

Like a litigation case, expert valuations are common within the Collaborative Law process, but unlike litigation or mediation, the “battle of the experts” is avoided. Instead, the experts assist in reaching resolution by participating directly in collaborative sessions with parties and counsel.

Disqualification of Counsel and Ethical Considerations

Parties do not waive their right to litigation or arbitration when entering the Collaborative Law process. They are free to leave and end the process at any time. However, to keep both parties and counsel focused on resolving all disputes within the Collaborative Law process, attorneys, and their entire firms, are disqualified from representing their clients in any subsequent contested hearing before a tribunal (whether before the court, an arbiter, or special master) except in emergency situations requiring forthwith relief.

The disqualification of counsel, along with the time and financial cost of restarting the divorce, serves as a powerful incentive to stay at the negotiating table. For counsel, it reinforces a critical paradigm shift away from the adversarial system taught in law school and encourages candor and creativity in settlement discussions.

Representing a client in a Collaborative Law process does not affect the lawyer’s professional responsibilities and obligations. Given the effect of disqualification on clients, lawyers are required to obtain client’s informed consent in writing prior to entering the Collaborative Law process. As parties to a Collaborative Law process contract with each other that their counsel is disqualified should they proceed to litigation, no potential conflict of interest is created between the lawyer and a third party. Further, advance agreements to limit or terminate representation between a lawyer and client are ethical.

Ensuring Positive Outcomes

Collaborative Law is not suitable for every case. Early in the intake process, a screening is performed by trained professionals to identify parties with unmanaged mental health issues, active substance use disorders, child abuse, domestic violence or coercive control, and parties seeking to take advantage of or punish each other.

Ultimately, parties who enter into a Collaborative Law process typically spend less on attorney and expert fees than litigation cases, with no discernible increase in the time necessary to resolve a case. Studies show that 94% of Collaborative Law cases reach full settlement within process, 89.4% of participants are very satisfied with the level of privacy in the process, participants are less likely to engage in post-decree litigation, and overall satisfaction is higher than traditional litigation or mediation.

Collaborative Law is a proven dispute resolution process for protecting client privacy and minimizing the harm to families. Practitioners interested in learning more can find collaboratively trained professionals and training opportunities at the Colorado Collaborative Divorce Professionals website: www.ccdp-law.org. Mentorship and advanced training opportunities are also available.

Resources: https://dbadocket.com/divorce-privacy-and-collaborative-law/