Collaborative law or collaborative divorce is an alternative to the traditional divorce process in the court system—it is a process in which spouses hire attorneys to help dissolve the marriage by resolving differences through agreement rather than by litigation in court.

In collaborative law, the spouses try to come to agreements on the division of property, spousal support payments, child support payments, and child custody schedules—rather than the judge making these decisions by court order. Collaborative law is designed to reduce some of the more confrontational, destructive conflict in the divorce litigation process, while offering the spouses greater privacy and confidentiality in their personal lives.

The characteristic elements of collaborative law include:

• a written agreement signed by the spouses and their lawyers that no one will use or threaten to use the court process during the collaborative process

• each spouse has a lawyer and actively participates in all negotiations

• financial and other experts are retained jointly and are prohibited from working for the spouses if the spouses decide to use the litigation process

• neither lawyer can participate in any litigation against the other spouse after working as a collaborative lawyer on the matter

• the lawyers are terminated (“fired”) if the spouses decide to use the litigation process

Many states have laws that define the collaborative law process and give effect to the agreements made by the spouses. These laws are generally located in the state’s statutes—often in the family or domestic relations code.

In South Dakota, collaborative law is recognized as an alternative to traditional divorce litigation. This process involves both spouses hiring attorneys specifically trained in collaborative law to negotiate the terms of the divorce, such as property division, spousal support, child support, and child custody, outside of court. The key principles of collaborative law include a commitment not to litigate, active participation by both spouses and their attorneys in negotiations, the use of jointly retained neutral experts, and the understanding that should the process break down and move to litigation, the collaborative attorneys will withdraw from the case. South Dakota's legal framework supports the enforceability of collaborative law agreements, ensuring that the decisions made during the collaborative process are respected by the legal system. However, it is important for individuals considering collaborative divorce to consult with an attorney who is experienced in this area to understand the specific legal implications and to ensure that their rights and interests are adequately protected throughout the process.