Splitting a business in divorce (or splitting a business under any circumstances) can be a messy business—but it doesn’t have to be. When spouses are guided through the collaborative divorce process by their attorneys mindfully, the end result can be incredibly transformative. But that is only if the process for separating and figuring out how to deal with an ongoing business is deliberate. While each step along the way is crucial, the importance of beginning with a written agreement establishing the collaborative divorce process cannot be understated.
When approached with a collaborative mindset, a written collaborative agreement becomes a blueprint in the divorce for avoiding a devastating battleground. Throughout the collaborative process, which still can be trying, it can be referred back to to remind spouses of their ultimate goals and desires. When splitting a business in divorce, something that is often the product of years of hard work, it can be easy to fall into an adversarial mindset—but the collaborative participation agreement can focus the task and set a more understanding tone for the process ahead.
Such agreements are unique to the collaborative law process They completely refocus the center of control. In non-collaborative negotiations, the power is with the attorneys. Even though settlement decisions are ultimately up to the clients, the attorneys are the ones most competent to guide the client in what he or she should demand and what he or she should accept as a settlement. In a collaborative process, the respective needs and interests of the clients drive the negotiations. There is a basic assumption that the clients are the ones most competent to determine what their needs and interests are. It’s true that clients may need the help of their attorneys to understand the legal aspects of the division, to get clear on what the important interests are, and to negotiate effectively to achieve their goals, but ultimately the client, and not the law or the attorney, determines what is important when splitting a business in divorce.
In short, written collaborative participation agreements are the keystone of the collaborative divorce process. They encourage both parties to become more transparent, forward-thinking, and empathetic. They can make for a much smoother transition for everyone.