The Merriam-Webster online dictionary defines the term collaborate as follows: “to work with another person or group in order to achieve or do something.” You may be surprised to learn, as I was, that there are North Carolina lawyers practicing collaborative law. (I am happy to be among their ranks.) You may be even more surprised that this practice is a creature of statute. Although collaborative law is largely limited to the family arena, the model is adaptable to other areas of law.
So, what does the law require in this collaborative setting? Not a lot, actually. There must be a written collaborative law agreement signed not only by a husband and wife but also by their attorneys. N.C. Gen. Stat. § 50-71(2). This agreement must contain a provision requiring the collaborative attorneys to withdraw if settlement is not reached. Id. at § 50-71(2). This limitation is important to ensure that collaborative lawyers are not tempted to discourage settlement in order to represent their clients in subsequent litigation and collect a double pay. And just in case a collaborative attorney might be tempted to move from the settlement table to the court room, they are statutorily barred from doing so: “If a civil action is filed or set for trial…the attorneys representing the parties in the collaborative law proceedings may not represent either party in any further civil proceedings and shall withdraw as attorney for either party.” Id. at § 50-76(c). Moreover, all work product, whether that of experts or attorneys, is “inadmissible in any court proceeding” unless the parties otherwise agree. Id. at § 50-77.
The statute’s focus is on preserving the sanctity of the collaborative law process – ensuring that participation will not be used against the parties in any subsequent litigation and that collaborative attorneys do not benefit if settlement is not reached. However, the statute provides no guidance on what the process should look like. “Collaborative law procedure” is defined as: “The process for attempting to resolve disputes arising from a marriage as set forth in this Article.” Id. at § 50-71(2). No process or procedure is described in the article, leaving collaborative lawyers as the architects of the process.
The collaborative law statute contains some other interesting features. A collaborative law agreement tolls all legal deadlines, including statutes of limitation. Id. at § 50-73. If the parties are already involved in litigation, they must file a notice of collaborative law agreement with the court in order to stay the proceeding. Id. at § 50-74(b). If no lawsuit was filed, no such notice is required. Id. at § 50-74(a). Upon failing to reach a collaborative law settlement agreement, either party is still free to sue. Id. at § 50-76(a). If one spouse dies, the personal representative of the estate may continue the process with respect to equitable distribution. Id. at § 50-79.
As the dictionary tells us, in a collaboration, two people work together to achieve something – in the context of divorce that “something” is the emotion-laden business of winding down a shared life. When children are involved, that something also includes creating independent but interconnected futures. In divorce as in life, it is always better to pursue the path of peace (or in the words of Vanilla Ice to “stop, collaborate and listen.”) And if all else fails, you can rent The War of the Roses and pursue mutually assured destruction but I would not recommend it.
By Christie M. Foppiano
Christie M. Foppiano
Attorney and DRC Certified
Superior Court Mediator
PO Box 4661, Cary, NC 27519-4661