The first step to ensuring your divorce is as easy and expedient as possible is researching the different options and approaches available in your state. Florida CPA and divorce mediator Harriett Fox discusses the options for alternative dispute resolution available to people going through divorce, and compares mediation and collaborative divorce to traditional litigation.
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Fox: As divorce is also financial, but primarily an emotional event, people oftentimes want to, shall we say, attack each other. They are angry and oftentimes they say, “I’m going to get a divorce; I’m going to get the biggest litigation attorney and get back at my spouse.” When they think of divorce, they think of going to an attorney and filing for divorce, while their spouse goes to another attorney and answers the pleading.
I know that there are other options available. Let’s start with mediation. Tell me a little bit about mediation and, specifically, about the mediation process in Florida.
Fox: Sure, I would like to do that. However, I would like to spend a little bit more time talking about litigation divorce so that we can get a good basis for what’s been happening in the courts.
A traditional divorce can be very lengthy. It involves a lot of people, including judges, bailiffs, process servers, court reporters, and it can be very lengthy. It can certainly be very costly and ultimately the couple loses control, in my opinion, on the decisions that are made. You ask a judge who has seen you a few hours here and there during hearings to make a decision for the rest of the life of your family, not just the divorcing couple.
In Florida, mediation is required for all divorces, even traditional divorces. The court will require the couple to go to mediation, which means that they will hire a person who has been trained as a mediator—who could be a CPA, an attorney, or a mental health professional—to help the couple resolve the issues of their divorce. It’s an opportunity for the couple to participate in the decisions that will affect them and their family going forward.
How does mediation work? What is it and how does it work?
Fox: Mediation comes in two flavours. One would be that the couple can decide if they want to use mediation as an alternative in the resolution process, or ADR, rather than going along the traditional litigation route that I just described. In that case, mediation is a process they would use. They would choose a mediator to work through and develop a settlement agreement between them—that’s one way to use mediation as a process to get divorced. The other flavour of mediation is what I call mandatory mediation. Judges do require that couples in Florida go to mediation before they go to the judge for a decision.
What do you see as the benefits of mediation?
Fox: Mediation allows the couple to participate in the decisions. It allows them a forum to negotiate with the help of a neutral mediator to formulate a decision on either splitting assets or a parenting plan or alimony or child support issues.
If the couple has complex issues, whether it has to do with parenting or with financial matters, can you still use a mediator?
Fox: Yes, you can. In fact, I would highly recommend it; because the mediator is different from an arbitrator. The mediator does not make decisions but the mediator helps the couple to make decisions. Oftentimes, the couple has their attorneys there or any other experts who might be involved.
As a financial professional who does mediation, do you have a sense that looking at the financial aspects help take the emotional out of the divorce a little bit? Have you seen that in your practice?
Fox: No, not really. There is no question that there are three elements that affect people or that divorce is made up of. If you ask an attorney, divorce is a legal matter that has a financial and an emotional component. If you ask a mental health professional, they’ll say divorce is an emotional issue that has a legal and a financial component. If you ask me, of course as a CPA, I think it’s totally a financial issue and it has an emotional and a legal component, but all three do come together and we’ll talk about that in a little bit when we get into collaboration.
What happens once an agreement is reached through mediation? What are the next steps?
Fox: If mediation is used as a divorce process and each person has represented themselves as to that point, then each person will take the agreement that was reached to their own attorney to look at it and make sure everything in there is legal and that their respective rights are adequately covered. One would want to go to an attorney whose practice is not 100 percent litigation, because, in that case, a settlement agreement could be thrown out or disputed by an attorney who would prefer to litigate.
Let’s move on and talk a little bit about the collaborative divorce process. We should probably start by explaining what is collaborative divorce?
Fox: Collaborative divorce is a civilized and positive approach to getting divorced. There is a collaborative team that is made up of the two couples, their two attorneys who have to be collaboratively trained, a financial professional, and a mental health professional—also collaboratively trained. They all work in the spirit of co‐operation and respect in the divorce process.
This doesn’t mean that we all sing Kum Ba Yah at the end. People say, “Well, it could work if the couple’s getting along,” but if the couple were getting along, they wouldn’t be getting divorced. This is for couples who want to maintain decorum in the process and maintain positive relationships after the divorce.
How does the collaborative process actually work? Can you break that down for me?
Fox: There are six attributes required in collaborative divorce. One is disclosure of documents. The couple agrees that no information will be hidden. In traditional divorce, often the hurdle is getting the documentation and the discovery. Here the couple is saying that everything is going to be transparent.
Secondly, they agree to maintain respect for each other; everyone is going to act like an adult.
Thirdly, they agree to insulate the children. They don’t need to be involved in these issues. Fourth, they will be sharing experts to the extent that there are other experts, sometime realtors required to do an appraisal, but they are going to be sharing experts and split the cost.
These are win‐win solutions. The couple agrees to use good faith in the negotiation to reach a mutually acceptable settlement and avoid court. The couples sign a collaborative participation agreement that describes the process and one of the elements is that neither party will pursue litigation. If the process breaks down, the attorneys involved must withdraw and they can no longer be involved in this divorce. What that does is it incentivizes the process to work. The attorneys are not thinking, “If this doesn’t work, we’ll go to court.” They won’t be involved if it goes it court. It really does provide an incentive to make it work.
Not only an incentive for the attorneys, but for the divorcing couple because they would have to kind of start over again wouldn’t they?
Fox: Absolutely. They would have to start over again.
Right. What are the advantages of collaborative divorce?
Fox: First and foremost, privacy is one of the biggest advantages. What people don’t realize is that when they go to an attorney and file for divorce, everything becomes public at that point. The petition is public. When they file a financial affidavit that becomes public. When we read in the newspapers about all these celebrities that spend all this money on vacations, the source of the information is court documents in the court proceeding. In collaborative, there are no financial affidavits filed. They are prepared but they are not filed with the court. No information goes to the court. In fact, this entire process takes place outside of the court until the very end.
The second is transparency. The couple and all the professionals agree that any decision that’s made will be with the knowledge of everybody else.
Thirdly, the parties have personal control over the outcome. You don’t have a judge who has only known them from court and decides what will be the best situation for the family.
Finally, the collaborative process is more expedient. The couple have total control over how quickly it goes. The process goes as quickly as the slowest participant—there will always be times when someone is not ready to move forward.
Tell me about the collaborative team. You mentioned the lawyers. Are there other professionals involved in the process as well?
Fox: Yes, there are. There are the two lawyers that are specially trained in collaborative law. There’s also the mental health professional, whose job is to keep the parties on track and to help with any issues that may be of an emotional nature.
As a CPA, my clients will come to me and we have to deal with the emotional issues before we can get to the financial issues. I don’t have the skills to help them with that, but we can’t get to what I need until we get passed it. In a collaborative situation, I can always say, “Why don’t you call the mental health professional who is on this case and when you get passed that, then we can get down to business.”The neutral financial professional is often a certified public accountant, like myself, although that is not a requirement. The financial professional’s responsibility is to determine the elements of income, expenses, and assets and liabilities that make up the marital estate. Also, we help the couple to craft the financial part of the agreement to divide the assets and for spousal or child support. A judge has to divide the marital assets 50/50. A collaborative process does not and 50/50 may not be the best division for a particular situation, so it gives the couple a lot more flexibility in crafting an agreement that will work for them.
How is the cost of the collaborative divorce process covered? Is it shared?
Fox: The couple pays and usually each pays half of the cost. It sounds like it should be very, very expensive, because of all of these professionals involved. However, there are fewer people involved in a collaborative divorce, because in traditional divorce, the attorney submits a petition to the court clerk, it has to go into the judge’s docket, a process server has to be used to notify the other party, and any time there is a hearing there will be a bailiff and a court reporter and there may be expert witnesses. I just named a half a dozen people who are not involved and you still may have a financial professional or two in a given divorce. Even though it seems like there are more professionals, there are really fewer people.
I would like to stress one thing. One huge difference between traditional and collaborative divorce and that is what happens with the first $10,000. When you have a traditional divorce, each party typically pays a retainer to their attorney for $5,000, which gets a filing and the answer to a filing and maybe mandatory disclosure. Yet nobody knows who’s picking the children up from school on Tuesday or who’s paying next month’s mortgage; what we call temporaries are not in place, even after spending that kind of money.
In a collaborative situation, at the first meeting that the team has—which is the couple, the two attorneys, the financial and the mental health professional—they sign all the agreements and then they decide all the temporaries. They don’t leave the first meeting without knowing what the temporary parenting plan is and what the temporary financial plan is, and that is huge when it comes to stress levels for a divorcing couple.
Does it ever occur that a mediator is involved in the collaborative process as well?
Fox: That can be the situation if there is an issue or specific matter that is difficult to negotiate. It is seen that a third person uninvolved with the case would be helpful. That would be a good time to use a mediator in a collaborative process.
What happens if one spouse wants to use a collaborative divorce process and the other spouse is against it? Is there anything that can be done?
Fox: Unfortunately, we can’t make people do what they don’t want to do. Usually, that’s why divorces occur; you can’t make somebody do something that they don’t want to do.
What I would like—and what I do offer people—is to find out what the options are before they go to any attorney. Research it. I am always willing to sit down with someone for 45 minutes and tell them what their options are and why this is better than that.
What happens if the collaborative divorce process doesn’t work?
Fox: If it breaks down and it does not work, then the parties, as per the agreement they signed, each have to go to a different attorney for representation. It doesn’t happen very often. It does happen, but I think the numbers are around 90 percent successful.
Right. Is there anything you would say in summation about the options available to people. It sounds like you’re pro‐mediation and pro‐collaborative. Do you want to say anything as a conclusion about litigation, mediation, or collaborative divorce?
Fox: There is a fourth way, which is to do it yourself. The courts in South Florida all have very good staff to help out couples who want to do divorces on their own.
In summary, I ask three questions of my clients. The first is what kind of relationship do you want with your children post‐divorce? The way you get divorced will have an effect on your relationship with your children. Secondly, how much do you value privacy in the divorce? As I talked about, there are no filings in court, in collaborative. Thirdly, how effectively do you want to use resources, which are money, time, and energy, during the divorce? I made it clear that I lean toward collaborative, because it is more open and has more positive outcomes.
You’ve seen divorcing people when their divorce is complete. What comments do you get from them?
Fox: Collaborative divorce actually establishes a communication pattern for the couple during the divorce which they can continue post‐divorce. People who have gone through the process are sometimes on their second divorce and they say, “Oh my god, I wish I did this the first time.” The openness of the communication is really, really key, especially compared to a nasty litigated divorce. If you’re not talking to each other during the divorce, you don’t know how to get back together and start to talk again. I know couples who haven’t talked in 25 years and they share grandchildren. I think that’s really sad. That’s what we’re trying to avoid.