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An Orlando Divorce Attorney’s Perspective on When Collaborative Divorce is your Best Option.
Believe it or not, what sounds like a brand spanking new way to divorce was actually put into motion thirty years ago.
Collaborative divorce was the brainchild of Minnesota divorce attorney Stuart G. Webb in 1990. His vision was to help couples dissolve their marriage in a private and humane way, without attorneys churning the emotional and financial pot, and without a judge dictating how they would live their lives.
Only recently has Florida’s collaborative divorce gained some traction in the mainstream, largely due to the passing of the Collab. Law Process Act by the Florida legislature in 2016.
The purpose of this part is to create a uniform system of practice for the collaborative law process in this state. It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process.
The collaborative law process is a unique non-adversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation. [1]
If you are looking to end your marriage, it sounds almost idyllic.
But what is Collaborative Divorce Really? Is Collaborative Divorce Right For Me? How does it Work, and is it Right for your Case?
Is collaborative divorce right for me if we have already tried mediation? Collaborative divorce is an alternative dispute resolution process that differs from mediation in a number of ways.
To begin, each spouse hires an attorney who is specially trained in the process. While a collaborative attorney is your legal advocate and not “neutral,” they have a very different role and responsibilities than a divorce attorney in a contested litigation case.
Why is This Such a Big Deal?
Because it utterly shifts the attorneys’ perspective and dedication to helping their clients resolve all of the issues in their case within the process, and without going to court.
Instead of using their strategy skills to spar in a courtroom battlefield, collaborative attorneys will use their analytical reasoning ability to solve problems and form creative alternatives that ideally result in a positive context for full settlement.
The attorney disqualification requirement in a collaborative divorce case also fosters transparency in the process. Sensitive matters can be candidly discussed without the couple fearing those same matters will come back to bite them in court.
Like mediation, all communications within the negotiation process are strictly confidential and cannot be revealed by anyone. [2]
What if my Spouse is Hostile in the Divorce? Is collaborative divorce right for me?
Is collaborative divorce right for me if I am unsure whether my spouse will agree to a collaborative divorce or my spouse flat-out refuses? Do not despair. There are a couple of options here.
Your first step is to hire your own collaborative divorce attorney. Your attorney is trained to effectively (and respectfully) reach out to your spouse, explain the collaborative process to him or her, and make clear your desire to divorce collaboratively.
As a collaborative divorce lawyer in Orlando, I have had success in recommending collaborative attorneys to the other spouse. Believe me, it can be done. Where there is a will, there is a way!
If an attorney already represents your spouse, your attorney will reach out to your spouse’s attorney and advise him or her of your choice to proceed collaboratively.
In turn, your spouse’s attorney will then be required to communicate your choice to your spouse. Thereafter, it is your spouse’s decision whether to accept or decline the invitation, not the attorney’s.
Is collaborative divorce right for me if my spouse won’t get onboard with the idea? Even if you cannot get your spouse onboard initially, nothing prevents a switch to collaborative divorce mid-stream in litigation. The judge will be more than happy to grant your attorneys’ motion to stay the contested proceedings and have one less case on the docket.
Also, keep in mind that once your spouse has endured some battle time in divorce court at contested hearings with cross-examinations (and has forked over the legal combat pay that comes with that territory), you may be surprised at an abrupt about-face when collaborative divorce is recommended as an alternative in the middle of your case.
If you are looking for collaboratively trained attorneys in Orlando, they will also be members of the Collaborative Family Law Group of Central Florida and the Florida Academy of Collaborative Professionals. A directory of these attorneys can be found on the websites of both organizations by clicking the respective links above.
Now that you and your Spouse Have Agreed to Collaborative Divorce, What Happens Next?
You get your very own divorce team.
Once you and your spouse have agreed to this voluntary process and your collaborative attorneys are in place, your attorneys will then tailor the rest of your collaborative team according to the unique set of challenges your case presents.
In most cases, there will be two other professional members on the team: a neutral mental health professional (MHP), and a neutral financial professional (FP). These two professional neutrals work for the couple, not the individual spouses.
Contrast this with the “dueling experts” scenario in court, where each spouse retains a hired gun to advance their positions regarding rights to the children and the marital assets.
The Role of the Neutral Mental Health Professional in Collaborative Divorce:
The neutral mental health professional (MHP) on a collaborative team is really the maestro of the process. They meet with you and your spouse individually and confidentially before your first collaborative session and are thus fully versed on your emotional pain points in advance.
They also can be magical in their ability to diffuse red-hot topics and move you and your spouse past your psychological sticking points, because they already have a heads-up about what those triggers will likely be.
As the facilitator of the process, the MHP, along with the attorneys, helps you and your spouse identify your short and long-term goals. You and your spouse will be reminded of these goals throughout the process, especially when discussions veer off track.
The MHP also helps the parties deal with the emotional aspects of the transition of their relationship.
In cases where infidelity has occurred or where there are high emotions involved with one spouse perceived as abandoning the marriage and the other as being betrayed, these counselors can prove invaluable in keeping emotions separated from the business side of the negotiations.
If you have children, the MHP will help you and your spouse resolve sensitive timesharing and co-parenting issues. Their goal is to un-focus each of you on what is best for you and re-focus both of you on what is in the best interests of your children.
They also are adept at educating you and your spouse about how to healthfully communicate in the future, once a parenting plan is in place.
If there are root issues that need continuing therapy, the MHP can also make appropriate recommendations so members of your family continue on a healthful path after the divorce is final.
The Role of the Neutral Financial Professional in Collaborative Divorce:
A neutral financial professional (FP) in a collaborative case is charged with the responsibility of gathering financial records necessary for you and your spouse to make informed decisions on the division of your marital assets and liabilities, [3], alimony, [4], and child support [5].
The exchange of financial records in a collaborative divorce is very different from the discovery process in contested litigation.
In a collaborative case, there is no requirement for the exchange of financial records that would be required in a contested case in court [6].
Therefore, the FP may relieve you of Florida’s mandatory disclosure obligations, as well as not requiring a Florida Supreme Court-approved financial affidavit signed under oath.
Instead, the FP may require the exchange of payroll records, evidence of other income, recent bank account and asset statements, and valuation information.
Like the neutral MHP, the FP will meet with you and your spouse individually and confidentially before your first session.
The purpose is for him or her to learn about your separate understandings of marital assets and debts and where you each stand on issues such as alimony and child support.
Unique to the collaborative process, the FP will not tell you and your spouse how to divide your marital estate or how much spousal or child support should be paid. Instead, the FP gathers information informally.
Thereafter, you and your spouse (along with your attorneys) make informed decisions about how to divide your assets and debts and how to best address spousal and child support in Florida.
The FP, along with the collaborative attorneys, will also be adept at providing alternative options and creative solutions for these decisions.
An added bonus is that no financial records are filed into a public court file; thus, your financial life and that of your spouse will remain private and confidential.
Other Professionals May be Used in Collaborative Divorce:
In addition to the collaborative lawyers, neutral MHP and neutral FP, there may be other professionals involved if needed. Examples are business or property appraisers, vocational placement experts, educational advisors, or estate planning attorneys.
Now your Collaborative Divorce Team is in Place. What’s Next?
So, you and your spouse now have a collaborative divorce team of (at least) six members: you and your spouse; your individual attorneys; your neutral MHP; and your neutral FP.
What happens next?
Before your first session is scheduled, your attorneys and the neutral professionals (known as the “professional team”) will have a preliminary conference to discuss the dynamics of your case and the structure that will best serve its orderly progress to conclusion.
Then, after you and your spouse have met separately with your attorneys, neutral MHP, and neutral FP, (and have completed any initial foot work they require), you are ready for your first session.
Sessions are carefully structured by the professionals on your team, and you will be given an agenda beforehand. There will never be any surprises.
While there are no precise rules for how many sessions are required in a case, you can typically expect at least three. The number of sessions will depend upon the issues and complexities of your particular circumstances.
There is also no formal time-line by which sessions must be scheduled or completed. The professionals on the collaborative team are trained to keep the appropriate tempo so your case continues to move forward at a comfortable pace.
The Speed of your Divorce will Largely Depend on the Wishes of you and your Spouse.
Where you and your spouse have differing opinions on this, your professional team will step in to ensure your case neither languishes nor becomes too rushed.
Sessions are generally no longer than two hours, so you do not become overwhelmed or decision-fatigued. The professional team meets before and after each session, usually for a half hour each.
The utmost priority of the professional team is providing guidance on all the legally required terms of your divorce, while providing the support you need in all areas of concern: legal, emotional, and financial.
How do I Decide if Collaborative Divorce is the Best Way to Handle my Case?
As a die-hard advocate of collaborative divorce, I firmly believe it is one of the best ways for any couple to part ways and re-structure their family.
Historically, attorneys have been called on to also be therapists and financial advisors to their clients. It is very difficult to wear all three hats, I will be the first to admit.
It is far more effective to combine the skills and experience of all three professionals in order to obtain the optimal outcome.
I also believe every couple is deserving of the highest level of support and respect when divorcing. It is a tragic and traumatic process for most. If there are children involved, I double that sentiment.
Here are Some Factors to Consider if you are Trying to Decide:
- There are emotional or psychological dynamics going on with you and/or your spouse, such as extra-marital affairs, addictions, or personality disorders.
(Check out my article about love addiction as a personality disorder)
- Alimony is an issue in your case.
- You and your spouse do not agree about how your children should be parented.
- You and your spouse are not on the same page about timesharing with your children.
- You and/or your spouse have complex marital assets or multiple income streams.
- You and/or your spouse carry a heavy debt-load.
Is collaborative divorce right for me if these apply? If any of these considerations exist in your case, the collaborative process may well be the most efficient and cost-effective way for you to proceed.
Citations:
[1] Section 61.55, Florida Statutes, Florida Collaborative Law Process Act https://www.flsenate.gov/Laws/Statutes/2016/61.55
[2] There are some narrow exceptions to the confidentiality protections, such as the commission of criminal acts or child abuse. Section 61.58, Florida Statutes https://www.flsenate.gov/Laws/Statutes/2016/61.58
[3] This division of marital assets and liabilities in Florida is known as “equitable distribution,” pursuant to Section 61.075, Florida Statutes https://www.flsenate.gov/Laws/Statutes/2018/61.075
[4] Florida’s statutory scheme for alimony is contained in Section 61.08, Florida Statutes https://www.flsenate.gov/Laws/Statutes/2011/61.08
[5] Florida’s statutory scheme for child support is contained in Section 61.30, Florida Statutes https://www.flsenate.gov/Laws/Statutes/2013/61.30
[6] Florida’s requirements for the exchange of mandatory disclosure is contained in Florida Family Law Rules of Procedure 12.932.