Navigating a Divorce Without Traditional Litigation Could Be a Great Alternative for Your Family.
Many families elect to forego a traditionally litigated divorce, and seek an alternative dispute resolution process. Collaborative divorce is one such alternative dispute resolution process. The concept of collaborative divorce has been around for over 15 years in South Florida, and it is now gaining popularity among divorcing families and attorneys who practice marital and family law. A collaborative divorce is a process in which the parties elect to settle their divorce completely outside the judicial process. Couples who elect to engage in the collaborative divorce process are agreeing not to use the threat of litigation to coerce each other into taking actions or accepting offers.
What is Collaborative Divorce?
A collaborative divorce is one in which: (1) you and your spouse each retain a collaboratively trained attorney, (2) you, your spouse and your respective attorneys enter into a Participation Agreement and (3) if negotiations in the collaborative process break down or one party elects to terminate the collaborative process, then both attorneys must withdraw from representing you and your spouse, and you must retain new attorneys to commence the process afresh. If the divorce process does not have these 3 elements, it is not a collaborative divorce.
Finding a collaboratively trained attorney is relatively simple. A Google search for collaborative divorce attorneys in your area is a good place to start. Many cities or counties have collaborative divorce practice groups who have many collaboratively trained attorneys as members. Once you find a collaboratively trained attorney, schedule a consultation. The attorney will discuss the various methods for obtaining your divorce, including a collaborative divorce. If you feel like a collaborative divorce is right for you, that attorney will likely have several names of other collaborative divorce attorneys for you to take home and share with your spouse. This process only works if both you and your spouse elect to engage in this process. Your spouse should contact another collaborative divorce attorney and after both attorneys have spoken and agreed upon the collaborative divorce process, everyone will sign a Participation Agreement.
What is a Participation Agreement?
A Participation Agreement is a contract that everyone involved in your collaborative divorce must sign. The Participation Agreement details how everyone agrees to communicate and behave during the divorce. It also sets forth how discovery will be conducted. Lastly, it sets forth procedures as to what happens if the collaborative divorce process is terminated. For example, in addition to both attorneys withdrawing from the matter, the Participation Agreement may determine what happens to other divorce professionals working on your collaborative divorce. The attorneys will prepare the Participation Agreement and after it is approved by you and your spouse, everyone will sign it. Everyone signing the Participation Agreement is bound by its terms and the Participation Agreement terms can be enforced by any party against another.
What are examples of other professionals in the collaborative divorce process?
In addition to collaboratively trained attorneys, you might engage the services of a neutral accountant who will gather the financial documents relevant to your divorce and provide all of the gathered information to both you and your spouse. The neutral accountant might also work with you to prepare your financial affidavit, which is a document every person going through a divorce in Florida must prepare and file. The neutral accountant might also spend time with you reviewing what your finances will look like after the divorce to prepare you for settlement negotiations.
Many couples engaging in the collaborative divorce process engage the services of a facilitator. The facilitator is usually a therapist, psychologist or other type of mental health professional who is trained in collaborative divorce. The facilitator is trained to assist in helping you and your spouse communicate constructively while resolving the issues of your divorce in the face of flaring tempers and high emotions. The facilitator will work with you and your spouse in preparing a Parenting Plan which describes when your children will spend time with each of you, where they will spend holidays and vacations, and how you and your spouse will communicate about extra-curricular activities and your children’s health-related and education issues. The facilitator will also run the meetings attended by the collaborative attorneys, you and your spouse, the neutral accountant, and any other professional whose services you and your spouse have elected to retain to help you resolve your divorce. The financial neutral and the facilitator are required to sign the Participation Agreement.
How does the process work?
You and your spouse will attend many meetings individually and together with the neutral accountant, facilitator, and other hired professionals. You and your spouse will also meet individually with your respective attorneys to prepare for your group meetings and to move the case forward. There may be several meetings of all professionals, attorneys and you and your spouse. During each meeting, there is an agenda and you and your spouse will attempt to resolve all issues listed on the agenda. Once there is a full settlement of terms, then one attorney will prepare a collaborative divorce agreement. There will be a final meeting in which you and your spouse will review, approve and sign the agreement. The agreement is filed with the Court and the Court will ratify it in a final order granting your divorce.
The collaborative divorce process is generally less expensive for you and your spouse when compared to a traditional divorce. It is less expensive because the attorneys are not preparing for litigation. The attorneys are solely focused on helping you and your spouse resolve your divorce on your terms. Further, because you and your spouse agree that if there is a breakdown in the collaborative process new attorneys must be hired, both you and your spouse will seriously consider the financial consequences of foregoing the collaborative process once it has commenced.
Courts and family law attorneys know that agreements reached by you and your spouse are more likely to be adhered to after the divorce is concluded than orders issued by the Court. By selecting the collaborative process, you and your spouse are in the driver’s seat when resolving your divorce. Your attorneys will guide you, educate you, and most importantly, empower you to amicably resolve your divorce in the best interests of your family.
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