Collaborative Divorce – Worth the Time and Money?
Posted in Florida Family Law on May 22, 2017
Simply put, the collaborative process is designed to help people resolve issues without jumping into or if the case has been commenced, jumping out of the wonderful world of divorce court. A worthy endeavor to be sure but, like anything else, the devil is in the details. Without question, couples who choose to get divorced are generally better off if they work together to resolve property/debt and child related issues. One thing I know for sure – most divorcing couples would prefer to resolve matters without resorting to family court. Some couples can work together without assistance but they’re in the minority to be sure. We see many couples who give it a go on their own only to be frustrated at the perceived lack of cooperation or commitment by their spouse. Once that happens, no chance that resolution will occur without some outside help.
The collaborative divorce process is aimed to help people who want to make an honest effort to get matters resolved and usually before jumping into the litigation game. Make no mistake about it, litigation is a game, and a horrible one at that. Sometimes it just can’t be avoided – relocation cases being a prime example – and you need a lawyer who understands the game, the rules, how to play and how to win – winning being defined as getting a fair and reasonable result based upon the facts and the applicable law. The trick is getting a reasonable result without having to mortgage the farm.
You and your spouse agree about getting divorced, understand the issues that must be addressed but, for whatever reason, can’t get it done and would like to avoid litigation. Now what? Enter, the collaborative divorce process. Each party hires a lawyer. The lawyers agree that they will only represent their client in the collaborative process. If the process fails (i.e., the case is not resolved in full) the lawyers agree that they will not represent their client in any future litigation. There are no formal rules, no motions, no hearings, no discovery. The parties agree to work together – exchange necessary financial information; schedule and attend conferences; essentially act like normal human beings to one another in a joint voluntary effort to wind down the family without undue costs or wasting of time. In addition to the division or marital property and debts, attorney’s fees will be discussed – who pays and from what source of money.
The process begins with a meeting between the parties to discuss the process, the documents to be exchanged and when, identity of the issues and to set another conference. Each conference is a building block that hopefully leads to agreements on all issues. Rules have yet to be enacted but it’s not rocket science. Keep in mind the nature of the process: civil discourse between all parties, regarding identity of issues and how to resolve them. In theory, collaborative lawyers are not adversaries; rather, partners in “crime” engaged in the search for peaceful resolution.
The collaborative process utilizes neutral professionals. A mental health professional may come in to discuss the trauma associated with the breakup of the family If there are children, to discuss the impact on them and ow to move forward to maintain stability. The only thing you need to concern yourself with is the best interests of the children, period. Should you not resolve your issues and wind up in the bowels of your local county courthouse shaking your head asking, “what the hell am I doing here,” you will wish you had a nickel for every time you will hear those words: “best interests of the children.” Nothing else matters.
A financial planner may be brought in to discuss, well, all things financial; they will analyze the family finances and present that to the parties for consideration. Like the mental health professional and the lawyers, the financial planner is merely a facilitator; a messenger of sorts. Remember, if you don’t like the message . . . don’t shoot the messenger. If you have a pet, the parties may choose to bring in an expert to facilitate the trauma it may encounter. Don’t laugh, there are experts for everything.
Collaborative Law Process Act
Created in 2010, the Uniform Collaborative Law Act, was created to establish a uniform set of laws in an effort to have consistency between states in collaborative matters. Florida passed the Collaborative Law Process Act in 2016. The purpose of the law: “to create a uniform system of practice for the collaborative law process…to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process.” The key word is voluntary. It takes two to tango, two to make a baby and two parties who want to get a case settled. If not, no go.
The process begins with a written agreement to utilize the collaborative process. IF case is in already in court, the parties can agree to utilize the collaborative process. The lawyers must agree to represent their client in court should the case not settle. If it goes back to court, need to get a new lawyer. Reach a partial agreement during the process and want to get an order from the court – no problem so long as the parties agree. Unlike mediation, the court cannot compel parties to participate in the collaborative process; it is 110% voluntary. Want to stop the process and got to court – just say the word.
What’s the upside? Not a fan!
Here’s the thing: the collaborative process is a lawyer created vehicle with the altruistic goal of helping parties resolve their issues in a civil manner. It isn’t cheap. Lawyers, mental health professional, financial planners, meetings, agendas, more meetings, more experts. At the end of the process, and either the first or last thing to be discussed, one thing I know for sure: the lawyers will get paid. They should, believe me. However, as my clients will tell you, our goal is to get in and out of a case as quickly and cost effectively as possible. Most people we talk to simply want to divide their property and debt, figure out the parenting plan if you’ve got kids, and get it over with. The thought of my client paying money to participate in a process that either side can walk away from at any time – not a fan! I would dissuade them from doing so. Best way to get a contested matter resolved is to file a petition and get to mediation as quickly as possible. Most cases settle there. If not, off to see the judge. Simple. No fuss, no muss. Upside for clients? I don’t see one that justifies the expense. Upside for the facilitators; lawyers, mental health expert, financial planner, dog whisperer? You do the math!
Remember, “When it’s time to leave, Call Steve” – Just not for collaborative divorce.