A collaborative divorce is one that is negotiated in a cooperative manner. It is different from a litigation-oriented "win-lose" approach which some people have taken. The goal is to resolve differences peacefully without the need for an adversarial trial.
There are associations of attorneys and mental health professionals who promote collaborative divorce. Some of these even offer "certifications" in Collaborative Divorce. This is not the same thing as being Board Certified by the Florida Bar. The Florida Bar does not offer a collaborative divorce certification. The Florida Bar only offers a "Family Law" Certification. Ironically, in order to be Board Certified in Family Law, a lawyer must have fully litigated a number of adversarial divorces completely through a trial. Thus, if you are seeking an attorney to assist you with your divorce in a collaborative or cooperative manner, Board Certification in Family Law may not be a good indicator of the type of attorney that you are looking for.
In the classic Collaborative Divorce scenario, each party is represented by counsel who is present for all negotiating sessions. Each attorney is trained to focus on the overall well-being of the entire family unit. The attorneys work as a team, seeking to reduce conflict and generate constructive solutions. In a collaborative divorce, the attorney can advocate the client's position within the overall framework of a restructured family because each attorney remains focused on a "win-win" solution.
However, some couples who have resolved many of their financial and parenting issues may only retain one attorney to help with a cooperative divorce. Under the ethics rules of the Florida Bar, an attorney should not undertake Dual Representation in a divorce. So, if only one attorney is used, it should be made clear which spouse is actually the attorney's client. Also, the other spouse should be advised that they can see their own attorney and have their own legal counsel review any documents before they sign them.
The goal of any cooperative divorce is to resolve issues that arise when a couple decides to separate. The goal of the collaborative process is to offer a couple a structured, non-adversarial process within which to resolve their property, support and parenting disputes. The collaborative approach creates an atmosphere of open communication and cooperation that assists the couple in shaping an agreement that fits the needs of their restructured family.
How does Collaborative Divorce differ from Mediation?
In mediation, one neutral professional works with the couple to resolve disputes. The mediator assists the parties in understanding each other's points of view and developing settlement options. The mediator cannot give legal advice or advocate for either party.
What other professionals are involved?
Couples who choose to divorce cooperatively have a wide option of resources upon which they can draw. As their circumstances require, they may choose an accountant, a real estate or business appraiser and a retirement account advisor to be present at their meetings or to provide information to assist in their decision-making process. The couple can share the costs of these third-parties, who will provide neutrally-based information regarding their assets and various methods of valuing and dividing them.
The couple may wish to involve a child psychologist to discuss special developmental or educational issues regarding their child. The goal is for all professionals to participate in the joint effort to achieve a settlement agreement between the couple.
What if we have to go to Court?
In the classical collabortive model, the collaborative attorney may not represent the client in Court. However, this does not have to be the way the case is structured. The parties could work in a cooperative approach, but still allow for a judge to resolve any differences that cannot be resolved between the parties. Usually, the cooperative approach is successful because the divorce laws are very clear as to the rules for splitting up assets and liabilities as well as child support and time sharing with the kids. In most cases, the Court system does not become involved in the collaborative process until the final agreement is signed and the couple is ready to submit it to the Court. However, if some issues remain unresolved, it is possible to get agreement on the agreeable issues, and then submit the unresolved issues to the judge for a resolution.
How can we collaborate if we aren't getting along?
Many people recognize that the marriage is over, and yet they want a secure and private setting for entering into agreements regarding the parenting of their children and the distribution of their property.
But Collaborative Divorce isn't limited to those individuals. A collaborative attorney is specially trained to address conflict and disagreement in a creative and calming fashion. The team of attorneys works with their clients, individually and in the meetings, to acknowledge fears and concerns, and then focus the client toward a productive, non-adversarial resolution that is acceptable to the client.
How does a Collaborative or Cooperative Divorce work?
The process itself utilizes a series of informal conferences attended by the attorneys and the clients, as well as any jointly-retained expert. An agenda can be set prior to each meeting, to limit the prospect of a "surprise issue" being raised. Clients work closely with their attorneys prior to the meetings, so that they are familiar with the issues to be discussed and have an understanding of the law in that particular area. All pertinent documentation is available prior to the meetings, to allow ample time for review, discussion and further research. All negotiations are conducted openly and the clients fully participate in the discussions.
How much does it cost?
There is no set fee for a Collaborative Divorce. Collaborative representation requires a fee agreement between the attorney and client, and time is billed by the hour. Jointly-retained professionals are paid separately. However, the time spent in a collaborative meeting is much more cost-efficient than Court time, in that the attorney's time is solely focused upon resolving the client's case.
In most cases, a cooperative approach to divorce will save thousands of dollars in attorneys' fees when compared with an adversarial litigious approach. This is probably the major reason that 80% of the divorces that I handle are resolved in a cooperative manner.
How long does it take to finalize the divorce after we have an agreement on the issues?
The divorce can be finalized with the court in as little as 3 weeks after the spouses have signed a full agreement.
Why shouldn't I just "do it myself" if my spouse and I can agree on the issues?
Although the Florida law on divorce is very clear on a lot of issues, it is also very complex. It is often well worth the money to make sure you obtain competent legal advice before agreeing to any divorce proposal. Additionally, in order to make sure that your agreement with your spouse is legally enforceable, you should have it written and prepared by an attorney. Finally, it actually takes much longer to get divorced if you "do it yourself." The Courts have a "Pro Se Family Law Clinic" that you are required to attend and meet with a court employee to review your divorce documents. This can delay your divorce from being finalized for many months. Many people are ready to "get it over with," and these additional months of waiting when you already have an agreement with your spouse can seem torturous. Using an attorney can expedite this process.
If you are interested in consulting with an attorney regarding divorce issues in Florida, call Zana Holley Dupee at Cusumano & Dupee, P.L. at (352) 379-5900 to schedule a consultation.
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