Another Tool in Your Toolbox

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When surgeons prepare for procedures, they will inevitably have different instruments on hand depending upon: each patient’s diagnosis, the specific procedure being done, the patient’s physical condition, and the goals of the surgery and the prognosis.

Like surgeons preparing for a difficult procedure, as divorce attorneys, we too must be prepared and armed with different “instruments” to obtain the best possible results for our clients. Do we litigate, mediate or engage in Collaborative Divorce? The answer is, of course, it depends.

You may have heard the adage “Divorces are like snowflakes, no two are alike”: and it is true. Each client walks into our offices presenting different issues, familial circumstances, financial positions, and goals and objectives for their divorce. 

Some of the questions we ask are: 

  • What are the circumstances of the marriage?
  •  How large or small is the marital estate?
  •  Are both spouses employed?
  • Is alimony an issue? 
  • Is the supporting spouse self-employed? 
  • Has there been any dissipation of assets? 
  • Have there been domestic violence issues? Substance abuse? 
  • Are there children with special needs? 
  • Will timesharing be an issue? 
  • Complexity of assets and liabilities?
  •  Are the parties contentious or are they like-minded in terms of wanting to protect their children from the negativity of divorce? 
  • The list is endless.

The importance of providing our clients with options has been affirmed by The Florida Bar Family law Section: Bounds of Advocacy §2.3: A LAWYER MUST ADVISE THE CLIENT ABOUT ALTERNATIVE DISPUTE RESOLUTION: 

A lawyer should advise clients of various methods of alternative dispute resolution, including collaborative law, mediation, arbitration, private judging, and parent coordination, among others. Many clients favor an alternative dispute resolution model over litigation. Family lawyers must have sufficient knowledge about alternative dispute resolution to understand the advantages and disadvantages for a particular client and to counsel the client appropriately about the particular dispute resolution method selected.

While I continue to practice divorce litigation, it is generally seen as a last resort. However, there are cases that simply must be litigated. Litigation demands the court’s intervention when: (i) parties just cannot agree; (ii) either or both parties’ flout court orders; (iii) transparency is an issue; and/or (iv) there is abusive or threatening behavior or dissipation of assets.

There are cases where pro se mediation may be appropriate. These clients tell us that they are both on the same page with regard to knowledge of their income, assets, liabilities, and common goals for parenting and time sharing. They do not necessarily need the assistance of attorneys to advise and advocate for them at mediation, but they do need an impartial facilitator to assist them in crafting a post judgment agreement, also known as a Marital Settlement Agreement or  Parenting Plan.

Often clients will tell me they want to resolve their divorce or other family matter in a way that spares their family the emotional and financial devastation of messy, contentious divorce litigation. They are looking for an efficient, cost-effective process which will empower them to decide what their future—and the future of their children, if any—will look like. These parties need the expertise and assistance of professionals who will work with them to resolve the issues surrounding their case. For this reason, I  have dramatically increased my use of Collaborative Divorce in my practice. 

On May 18, 2017, the Florida Supreme Court issued an opinion which adopted rules of procedure and professional conduct in the collaborative process to accompany the Florida Collaborative Law Process Act, Fla. Stat. Ch. 61, Part III. The Act and the Rules became effective as of July 1, 2017. The Collaborative Law Process Act statutorily recognized the collaborative process in matters within the purview of F.S. Chs. 61 and 742 — generally, divorce and paternity actions.

The rules as set forth in 12.745 of the Florida Family Law Rules of Procedure governs all matters that fall within F.S. Ch. 61, Part III and should be read and understood in the context of the public policy in Florida, as stated in F.S. §61.55: 

“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.”

This article is not intended as a Collaborative Divorce primer.

There was a time when clients had no idea what Collaborative Divorce was. Now, prospective clients call my office interested in pursuing a Collaborative Divorce.

Through the years, we have listened to countless clients complain that litigation was expensive and filled with delay, drama and devastation. Having a judge who has an overloaded docket and knows little or nothing about the litigants’ family apart from what the opposing lawyers argue, leaves litigants feeling like they are out of control.Leaving their destiny and the fate of their children in the hands of the court.

Collaborative Divorce may not be appropriate for all of our divorcing clients; however, it is certainly appropriate for those who:

  • Value their privacy and do not want their financial records and private information in the public record for all to see.
  • Want an efficient divorce that can be completed in a fraction of the time it takes for a litigated divorce.
  • Do not want to spend their savings on drawn out litigation, depositions and battling experts.
  • Do not want to destroy their roles as co-parents.
  • Do not want to leave their future and their children’s future to a person in a black robe who knows little about their family.
  • Have seen and heard about divorce war stories and do not want that to be their story.
  • Are concerned about the welfare of their children during and after the divorce.
  • Want the assistance of professionals who, together, problem solve to create workable, attainable and durable solutions.

The Florida Academy of Collaborative Professionals (FACP) engages in research and data collection to provide statistics regarding collaborative cases in Florida. The data is based on surveys completed at the end of each collaborative case. The data collection is ongoing and the information below is based on responses submitted between December 16, 2013 and January 31, 2018. The statistics show 92% of cases completed with a full settlement agreement and approximately 31% of cases took less than 3 months; 65% of cases took less than 6 months; and 84% of cases took less than 9 months. These cases resolve faster because the process is efficient and streamlined. In Collaborative Divorce, unlike in litigation, we do not encounter continuances, motion practice, backlogged courts and, oftentimes, needless delay tactics. Collaborative divorce, like mediation and litigation, is by no means perfect. It is, however, an effective and efficient means of assisting our clients that most often reflects their values and goals without the often devastating emotional and financial impact that divorce litigation has on families.

As advocates and advisors to our clients, we must listen to their goals and objectives. There is more than one way to help them achieve their desired results. We all must have our “tools” at the ready and wield them in such a way so as to articulate and distinguish them to our client’s best advantage.

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