I am a divorce lawyer located in Venice, Florida. A growing part of my practice is collaborative divorce. Collaborative divorce is a special solution oriented process for getting a divorce. It is designed to be more amicable than a traditional court-driven divorce.
Collaborative divorce is a relatively new option, but it has been picking up steam. In 2017, the Florida Legislature created a brand new section of law dedicated to the collaborative divorce process. The law is contained in Chapter 61, Part III, of the Florida Statutes. This new section of the statutes formalizes the rules of collaborative divorces in Florida.
All this is to say that clients, divorce lawyers, and now legislators in Florida are realizing that collaborative divorce is different option over the traditional court driven divorce. For some divorcing couples, collaborative divorce can be a better option than a traditional divorce.
The goal of this article is to explain what a collaborative divorce is, how it compares to a traditional divorce, and provide you with information to help you decide whether the collaborative approach is an option worth exploring. As always, these articles are not intended to be legal advice. This is general information. If you are considering a divorce of any kind you will want to speak with a lawyer who practices in the county you reside in.
The Goal of a Divorce Proceeding
I’m a fan of keeping the goal in mind when solving a legal problem, so lets start by identifying what the goal of a divorce proceeding is. The goal is the same whether you have a collaborative or traditional divorce, and that is to reach an agreement with your spouse resolving all of the issues of your divorce.
Your divorce agreement should include dividing marital assets and liabilities, calculating alimony if alimony is an issue, and resolving issues involving minor children if the parties have minor children together. I have written on all of these issues more deeply in the past.
Typically the financial issues are handled in a document called a “Marital Settlement Agreement” while parenting and child time sharing issues are agreed to in a document called a “Parenting Plan”. These settlement documents should contain all the essential terms and conditions that the parties agree to in their divorce. Ideally the agreement should be clear and easy to follow.
Once the settlement agreement has been signed, the parties have resolved the legal issues of their divorce. This agreement is filed with the court, and is signed off on by a judge. Ultimately, the parties’ agreement becomes a court order. All that is left is to carry out the terms of the agreement.
The challenge in any divorce is for the parties to reach an agreement. That is the hardest part. The actual paperwork is relatively easy produce. It’s getting everyone to agree to the terms that is the hard part.
If the parties cannot reach an agreement, then a judge must decide on the issues of the divorce. This is done through a divorce trial. The judge listens to the attorneys, the parties, and any witnesses the parties put on. It can take days to introduce all of the evidence to the judge through a trial. The rules of civil procedure and evidence must be followed strictly. Ultimately, after the judge has heard everything, he or she makes a decision.
After the judge has made their decision the parties are stuck with what the judge decides, and a massive legal bill. 95%+ of all divorce cases do not go to trial because a trial is a painful, expensive, and uncertain process. It represents the failure of the parties and their lawyers to work through the issues of the divorce and come to an agreement. In rare instances a trial is unavoidable, but most of the time a trial is avoidable if everyone involved puts in the hard work to settle the case.
Reaching an agreement should always be the goal.
The Collaborative Divorce Process and its Potential Benefit
The idea behind collaborative divorce is to reach an agreement more quickly, easily, and efficiently than through a traditional litigated divorce. It re-frames the process from being an adversarial proceeding, to one where the parties work together to resolve the issues of their divorce. They “collaborate” with each other rather than fight, and the process is designed to facilitate that collaboration.
Here is the short version as to how a collaborative divorce works:
Each party hires their own attorney. Then the parties share a financial expert and a communications expert (or a “facilitator”). The experts are neutral and work for both sides. The Husband, Wife, attorneys. and experts all work together with the goal of reaching a divorce settlement agreement in a less adversarial manner. They do this by having or more meetings with the lawyers and experts. The parties informally exchange all of their financial information (account statements, tax returns, etc.) with the lawyers and experts, and everyone reviews this information in advance. Then everyone meets in the same room, and everyone works together to identify the issues, find common ground, and resolve any differences.
Once an agreement has been reached on all of the issues, the lawyers put together a settlement agreement. The parties review the agreement, and once everyone is comfortable with it the agreement is signed by the parties, and filed with the Court. This agreement and will govern the parties’ divorce just like a traditional divorce agreement.
The Roles of the Parties in a Collaborative Divorce
Lets talk a little more about the roles of parties in a collaborative divorce and how these roles differ from a traditional divorce. This will help you understand the differences between a traditional and collaborative divorce.
The Attorneys – In a traditional divorce the attorneys are the quarterbacks. They set the tempo and drive the case along. They work with their clients in private to understand the issues of the case, initiate the divorce behalf of the clients by filing the initial divorce paperwork, request discovery (usually financial information) from the other side and any relevant third parties, engage the help of experts such as forensic accountants to assist in understanding the discovery and “work up the case”, and ultimately advocate for their clients by negotiating, mediating, or litigating the matter to conclusion.
In a collaborative divorce the attorneys take more of a back seat role. They still help their clients understand what the law is, and make sure their interests are represented, but they don’t drive the bus. The attorney instead needs to defer to the financial expert to handle the financial issues, and the communications facilitator to handle the issues with children (if applicable) and any of the softer issues. Once the parties have reached an agreement on all the issues, then the attorneys put together the agreement and supporting paperwork and handle any remaining legal work.
The Communications Facilitator – The communications facilitator is typically an experienced psychologist or divorce counselor. Their job is to help parties resolve communication issues, assist the parties in developing an appropriate parenting plan if applicable, and to help with any other “soft” issues that may surface during the process.
The Financial Expert – The financial expert is typically an accountant. Often we find divorce forensic accountants fill this role, as they are already familiar with divorces and their financial issues.
The financial expert’s job is to help parties identify and value their assets, and assist in working out the tax and financial issues that the parties may encounter. This can include alimony and child support. Both the Husband and the Wife will provide the financial expert with any documentation the expert needs to understand the financial issues. This includes providing bank statements, brokerage statements, tax returns, and anything else required to shine light on all of the family finances.
The Husband and Wife – In a traditional divorce the communication between the Husband and Wife is often filtered through the lawyers. This is often a good thing, as lawyers can smooth rough edges, help their clients identify the legal issues and set aside the emotional ones. This leads to more efficient and effective negotiations. Lawyers can provide a lot of value that way. And lawyers can still provide that value in a collaborative divorce. However, the collaborative divorce process encourages more direct communication as well.
Other Differences Between a Traditional and Collaborative Divorce
I’ve already discussed how a collaborative divorce is generally different from a traditional divorce, as well as the roles of the parties and how they differ. There are a couple additional important differences you should know about.
- Before starting the parties and their attorneys need to enter into a binding agreement where they commit to resolve all the issues of their divorce through the collaborative process.
- If for some reason the parties are unable to settle their divorce through the collaborative process, then the attorneys must withdraw from representing the clients, and cannot represent them if the parties need to use the traditional litigated path to divorcing. In theory, this incentivizes the parties and their lawyers to settle the case. Generally speaking no one wants to change lawyers in the middle of a proceeding if the lawyer and client are functioning as a good tea. There is a cost to doing that.
Is Collaborative Divorce Right for Me?
This is tough question to answer generally. Every situation is different and you should discuss this question with a divorce lawyer that has experience with both traditional and collaborative divorce. In order to answer this question we need to consider the issues in the divorce, and the attitudes of the parties.
Collaborative divorce requires all parties to be willing to participate. If one party is not willing to participate then the process wont work. You may not be able to get that “buy in” from both parties at first. Many times one spouse is ready to consider a divorce when the other spouse is not ready. That kind of friction can make it difficult to get the parties to commit to collaborative divorce.
Collaborative Divorces in Sarasota County – Final Thoughts
I hope this article has provided you with a good overview of the collaborative divorce process. This can be an effective and less difficult way to go through a divorce. More people are realizing the value in this process, and I don’t see collaborative divorce going away any time soon.
In theory, collaborative divorce shifts the entire paradigm of the divorce process. That said, I think people should be working towards an agreement regardless of whether they choose the traditional or collaborative route due to the expense, stress, and uncertainty of a trial. Collaborative divorce takes my solution oriented approach to divorcing, and dials it up another notch. For some, it can be highly effective. Others may benefit from a more traditional approach. Each situation is unique.
If you are contemplating a divorce, whether it’s in the traditional manner or a collaborative divorce, I invite you to contact me so we can discuss your specific situation. You can call my office at 941-882-4367 or send me an email any time.
