AGREEMENT TO COLLABORATE
{Name of the Wife} and [name
of the wife’s attorney], Esq., {Name of the Husband} and [name of the
husband’s attorney], Esq., all agree and contract as follows:
RECITALS
TO AGREEMENT - -
A.
{Wife’s name} and {Husband’s name} (sometimes referred to
in this document as “the Participants”) are currently married to each
other. They wish to engage in a
non-adversarial process that enables them to address and resolve all of the
legal issues raised by their separation and/or the dissolution of their
marriage.
B. The Participants and their attorneys all wish to proceed in a
cooperative manner. We all desire to
avoid the traditional litigation approach to problem solving. To accomplish our shared goal, we are
agreeing to participate in the Collaborative Process, a recognized ADR
process. The Participants are retaining
their respective attorneys to assist and advise them throughout the process of
collaboration. The Participants and their
attorneys subscribe to the terms of this Collaborative Law Agreement with the
understanding that this Agreement limits the role of each attorney.
C. We understand that the essence of the Collaborative Process is
the belief that it is in the best interests of parties and their families in
Family Law matters to commit themselves to avoiding litigation. In this Agreement, we agree to engage in a
conflict resolution process that does not rely on a Court imposed
solution. We all choose to engage in
Collaboration because of its reliance on honesty, cooperation, integrity and
professionalism geared toward the future well-being of the Participants and
their child[ren].
AGREEMENTS
THEREFORE, the Participants
and advising attorneys agree as follows:
1. The four of us agree to treat this Family Law matter as a
Collaborative Law Case, as more fully defined by this Agreement. Our signatures at the end of this Agreement
indicate that we have read and reviewed this Agreement before we signed
it. Each of the four of us agrees to
act in compliance with the goals and recommendations set forth in this
Agreement, and to abide by the Principles and Guidelines of Collaborative Law,
which are printed elsewhere and are incorporated into this Agreements as though
fully reprinted here.
2. Collaborative Law Attorneys May Not Represent Clients In
Litigation. {Here we put the name
of the two attorneys} and any attorney in association with their offices, are
hereby and hereafter disqualified from appearing as attorneys of record for
either Participant, whether in this proceeding or in any other family law
matter involving these two Participants.
This disqualification includes proceedings or actions for marital
dissolution, parentage, modification, enforcement, writs and/or appeals. An attorney shall be deemed "in association"
if, at any time during the pendency of this Collaborative process or future
Family Law proceedings between these Participants, such attorney is the
employer or employee of, or co-employee with, partner of, or shares a
relationship of independent contractor or “of counsel” status with either
attorney now retained to represent either participant. If an attorney is already of record before
the Collaborative Law process has started, he or she shall substitute out
contemporaneously with the execution of this Agreement. The restrictions on the attorneys recited
here shall continue to apply to each of them, and to all attorneys “in
association” with them, even if one or both of the Participants terminates or
withdraws from the Collaborative Process, and even if the attorney chooses to
withdraw from the Collaborative Process.
3. Agreement Not to Use Court. We agree to devote
our efforts to reaching a negotiated settlement in an efficient, productive and
cooperative manner. To that end, we
agree that neither Participant nor his or her attorney may file any document
requesting intervention by the court, including but not limited to a Request to
Enter Default, Notice of Motion, Order to Show Cause or At-Issue Memorandum
without having the consequence of terminating the Collaborative Process.
4.
Termination of Collaborative Law Process. Either Participant may unilaterally and
without cause terminate his or her participation in the Collaborative Process,
by
(a) serving a Termination Election on the other
Participant and on both attorneys in this proceeding, or
(b) by taking any step to incorporate this
Agreement to Collaborate into a court order, or
(c) by seeking judicial intervention to address
and resolve any issue presented by the Participants’ separation or divorce;
provided, however, simply filing a Petition for Dissolution (or Legal
Separation or Annulment) and related required pleadings (such as a Summons or
UCCJEA Declaration) or a Response to and Request for Dissolution (or Legal
Separation or Annulment) and related pleadings, or a Judgment and related final
pleadings, shall not terminate the Collaborative Process.
5.
Agreed Protective Orders. While staying
within the bounds of behavior established by this Agreement, each Participant
would like to have certain protections associated with the litigation
process. In light of that, we have
agreed to certain protective orders and restrictions as set forth here:
We agree that all issues regarding what
would otherwise be interim or temporary financial orders may be retroactive to
the date this Agreement is signed, regardless of when agreements on such
issues are finalized;
Each Parent is restrained from removing
[any of] our minor child[ren] from the state of California without the prior
express consent of the other Parent or a court order;
Each of us is restrained from borrowing
against, canceling, disposing of, transferring or changing the beneficiaries
of any insurance, including life, health (medical, dental, optical),
automobile, liability, and/or disability insurance held for the benefit of the
Participants (or either of them) or our minor child[ren];
Each of us is restrained from transferring,
encumbering, pledging, hypothecating, concealing, or in any way disposing of
any property, real or personal, whether community, quasi-community, or
separate, without the written consent of the other Participant, or an order of
court, except in the usual course of business or for the necessities of
life;
Each of us shall notify the other of
any proposed extraordinary expenditure at least five business days prior to
making such extraordinary expenditure, and shall account to the other
Participant for all such extraordinary expenditures. However, nothing in this Agreement precludes either of us from
using community property to pay reasonable attorney's fees in order to retain
and maintain legal counsel in this action;
Neither of us will incur any debts or liabilities for which the other Participant may
be held responsible, other than in the ordinary course of business or for the
necessities of life.
If
(and only if) a protective order listed above is initialed by both
Participants, then that order shall be become a court order if either
Participant later seeks to have this Agreement incorporated into a court order,
even though the act of incorporating this Agreement into a court order will
also terminate the Collaborative Process.
6. Limits on Work Product.
Unless the
Participants agree in writing to the contrary, any person or firm whose work
product is used by either Participant or attorney during the Collaborative
process is thereafter forever disqualified from appearing as an expert witness
for either Participant regarding any matter related to such person's or firm's
work product which was generated in connection with the Collaborative law
process. Similarly, all notes, letters,
audio and video tapes, ledgers, work papers, summaries and reports created or
generated by such person or firm shall be inadmissible as evidence in any
proceeding involving these Participants; provided, however, these items shall
be furnished to successor counsel and shall therefore be available for
non-evidentiary use even in litigated proceedings. Such persons or firms might include, but are not limited to,
accountants, attorneys, therapists, personal or real property valuation
experts, vocational consultants, private investigators, doctors, health care
professionals, and any other persons retained or employed during the
Collaborative Law process. Any such
persons or firms may appear to give testimony solely as a percipient witness in
a capacity which existed independent of the Collaboration Process.
7.
Exchange of Preliminary and Final Disclosure Documents. Unless we agree to
the contrary, both Participants shall deliver their respective Preliminary and
Final Disclosure Declarations as required under the California Family
Code. They shall also provide each other with any requested
written authorizations which may be required in order to obtain information or
documentation, or to prepare a Qualified Domestic Relations Order or any other
order facilitating agreements we reach and documentation requests that either
of us submits.
8. Agreement to Exchange Information Informally. All requests for
information and document production shall be made informally. No discovery requests (as defined by the
Code of Civil Procedure), nor any motion to compel or for sanctions for any
discovery request, is available during the Collaboration Process. Responses to all discovery requests shall be
made within a reasonable time. Each
Participant shall verify the completeness and accuracy of their response to discovery requests under
penalty of perjury if the other specifically requests it. All parties to this Agreement acknowledge
and understand that cooperation, honesty and the full disclosure of information
is integral to the success of a Collaborative Law case.
9.
Prohibition Against Taking Advantage All of us are concerned about protecting the privacy,
respect and dignity of all involved, including parties, attorneys and
consultants. Therefore, each Participant shall uphold a high standard of
integrity. This means, among other
things, that none of us shall take
advantage of inconsistencies and/or others’ miscalculations, but shall disclose
them and seek to have them corrected.
10. All Documents to Be Treated as Confidential and
Subject to Settlement Process. All documents prepared for the Collaborative
Process shall be deemed to include a heading as follows: "Confidential, For Settlement
Purposes Only in the Collaborative Law Process", even though such
heading might not actually appear on the document. Such documents shall be inadmissible in evidence for any purpose
in any subsequent proceeding except as hereafter otherwise agreed between the
Participants in writing.
11. All Discussions to be Treated as Confidential and
Subject to Settlement Process. To encourage full and frank disclosure about all relevant
matters, all four-way conferences (among both Participants and both attorneys)
and all discussions between or among either/any of the attorneys involved in
this matter shall be deemed in the nature of settlement conferences, and in
the nature of mediation. Therefore, all
such conferences and discussions shall be deemed to be confidential under
sections 1152 and 1152.6 of the California Evidence Code, and all statements
made during such conferences and discussions shall be deemed to be inadmissible
in evidence in any later court or other formal proceeding.
12. Exceptions to the Two Previous Paragraphs. There are exceptions to the two foregoing
paragraphs. Documents that could be
recorded or filed with the court clerk, and Preliminary and Final Disclosure
documents, are not confidential.
Similarly, agreements signed by both Participants are not confidential
unless their terms provide for that. In
this same vein, statements made by any Participant or attorney which indicate
an intent or disposition to endanger the health or safety of any Participant
or attorney, or of the Participants’ child[ren], or to conceal the whereabouts
of the child[ren], or change the residence of the Participants’ child[ren]
without the other parent’s consent, or to commit irreparable or substantial
economic damage to either Participant or attorney, or to violate the agreed
upon protective orders, are not privileged and such statements shall be
admissible in evidence.
13. Withdrawal of Attorneys. Either attorney may unilaterally withdraw
from the Collaborative Process by giving written notice of such election to
both of the Participants and any and all attorneys who are involved in this
matter. Notice of Withdrawal by any
attorney does not necessarily terminate the Collaborative Law process, nor
does such withdrawal release that attorney from his or her promises as set out
in this Agreement. The Participant
losing his or her attorney may continue in the Collaborative process upon
retaining an attorney who signs this Agreement.
14. Transfer of Case to Successor Counsel. Upon termination of
the process or withdrawal of any attorney, a withdrawing attorney shall
promptly cooperate with his or her client to facilitate the transfer of the
client's matter to successor counsel.
15. This Agreement Is Binding Even if Not Filed With the
Court. This Agreement need
not be filed as a Stipulation and Order with the Superior Court in any marital
dissolution or other Family Law action to make it binding on both Participants
and their attorneys; provided, however, either participant may request the
court to incorporate this Agreement into a court order, and the court shall
order performance of all terms of this Agreement, including the Protective
Orders initialed by both Participants in Paragraph 5. Filing this Agreement will terminate the Collaborative process
pursuant to Paragraph 4, thereby disqualifying the attorneys identified by
Paragraph 2 from continuing to represent either party.