When surgeons prepare for procedures, they will inevitably have on hand different instruments depending upon the patient’s diagnosis, the specific procedure being done, the patient’s physical condition, the goals of the surgery and the prognosis.
Like surgeons preparing for a thoroughly diagnosed 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, of course is, it depends.
You may have heard the adage “Divorces are like snowflakes, no two are alike”, that is true. Each client who walks into our offices presenting different issues, different familial circumstances, different financial positions and different goals and objectives for their divorce or other family law matter. Some of the questions we ask: 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 goes on and on.
I no longer practice divorce litigation as there are enough clients who want to stay far away from the court system. There are of course, cases that simply must be litigated. Litigation demands the court’s intervention when parties just cannot agree, when either or both of the parties’ flout court orders, transparency is an issue, 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 and liabilities, common goals for parenting and timesharing. 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, Marital Settlement Agreement or a Parenting Plan.
Most often, clients will tell us that they want to resolve their divorce or other family matter in a manner 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 of their case. For this reason, I have each dramatically increased my use of Collaborative Divorce in my practice. 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, I have listened to countless clients complain that litigation was expensive, filled with delay, drama and devastation to familial relationships. Having a judge who has an overloaded docket and knows little or nothing about the litigants’ family except for what the opposing lawyers argue, leaves litigants feeling like they are out of control, leaving their destiny and the destiny of their children in the court’s hands.
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 role 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 the divorce and after.
- Want the assistance of professionals who together, problem solve to come up with workable, doable 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 that approximately 31% of cases took less than 3 months; 65% of cases took less than 6 months; 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. However, it is an effective and efficient means of assisting our clients that most often reflects the values and goals of our clients 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 our clients’ goals and objectives. There is more than one way of getting them to their desired results. We all must have our “tools” at the ready, and to articulate and distinguish them in such a way as to be most advantageous to our clients.
Admitted in both Florida and New York State, Mara Bernstein, Esq is a Family and Marital Law Attorney, accredited Collaborative Divorce Attorney and a Divorce Mediator with offices in Boca Raton and Ft Lauderdale.
To learn more about collaborative divorce and other divorce options, go to: MaraBernsteinDivorce.com or call my office at 561-910-1870.