Collaborative Divorce: Is it the Way of the Future?
Divorce can undoubtedly bring out the worst in people. Today, one modern development in family law is the collaborative divorce process. Collaborative divorce is known as the kinder, gentler way to divorce. It is a process that encourages communication around difficult issues, allows each side to hear the others’ perspective in a safe environment, and uses mental health and financial professionals, as well as attorneys, to guide the parties towards a settlement that addresses their concerns.
The collaborative process recognizes that divorce is not just a legal matter, but also a financial and emotional matter. Rather than spending attorneys’ time and energy trying to get probative information from the other side, and utilizing the court system to do so, parties in the collaborative process commit to attempting an amicable outcome and avoiding adversarial litigation. A mental health professional and a financial professional are appointed to the case to help assist the parties with working through the issues that may arise. Through a serious of collaborative meetings, the parties, the professionals, and the attorneys all work towards reaching an amicable resolution.
The attorneys involved in the collaborative case also agree that if a settlement is not reached during the collaborative process, then neither lawyer will represent the client if the case proceeds to litigation. This helps to align the lawyer’s and the client’s interest, as the lawyer is discouraged from attempting to litigate the matter as he or she will not be able to represent the client. This provision is included as part of the collaborative divorce participation agreement.
The team assisting the parties through the collaborative divorce process generally includes the lawyers for each of the parties, a mental health neutral, and a financial neutral. The neutrals do not represent either party, rather they are to assist the parties through the process by providing support and information to help make a settlement possible. The mental health neutral assists with any emotionally charged issues that may prevent a resolution. The financial neutral provides the information necessary to allow each party to make educated financial decisions. The process is designed so that the parties, neutrals, and attorneys work together to increase the probability of an amicable settlement.
Florida recently became the 13th state to pass a collaborative divorce statute. The Florida statute creates a statutory privilege to help preserve the confidentiality of the collaborative process. Unlike traditional divorces, the information in a collaborative divorce is kept out of the court file and does not become subject to public disclosure. The Florida Supreme Court has been tasked to develop rules of procedure governing the collaborative process.
Unfortunately, cost of the collaborative process can be a prohibitive. The collaborative process, if successful, is usually significantly less expensive than litigation. However, it is still costly since it normally involves retaining mental health and financial neutrals. Although the collaborative process is designed to avoid litigation, there is no guarantee of success.
When going through a divorce, it is important to be aware of all of your options. While collaborative is not for everyone, it is beneficial to evaluate whether it may be a good fit for you. For those who are successful in the collaborative process, it is often a much les stressful and more pleasant process than a divorce that is litigated through the court system. However, both parties must be committed to make a good faith effort in order for the process to effective.