For the past several years there has been an increase in the use of a “collaborative” process when dealing with family law matters, and now there is an official Collaborative Law Process Act that governs this process. Florida is now the 14th state, along with the District of Columbia, to pass such a law. As this area of dispute resolution becomes more available, it may be helpful to provide a breakdown of exactly what the collaborative divorce process entails and what the benefits, and potential downfalls, of using this process may be.
What is collaborative divorce?
The underlying theory behind the collaborative process is that it is generally better for parents and spouses to resolve their disputes between themselves informally rather than leaving the determination of these issues to a judge, who will be a stranger to the parties and may hear a few hours of testimony and then make decisions that will have lasting effects on all the parties and their children. In Florida, this works by creating a safe environment in which each party can freely express their feelings and positions. Legally, this has been established through the creation of a statutory privilege which will prevent, except in certain, limited circumstances, communications and negotiations during the collaborative process from ever being used against the other spouse in court.
Probably the most important aspect of the collaborative divorce process is having parties who can keep an open mind and are able to effectively communicate with the other party. This will mean coming into the process and being willing to accept the recommendations and proposals of the various professionals that will likely be assisting the parties with the divorce. If the parties are open to this process, then the chances of resolving your case through the collaborative process increase exponentially.
What exactly does this process entail?
The collaborative divorce process will typically bring together a set of qualified professionals to discuss and resolve all issues that generally arise in divorce proceedings, including issues related to minor children and the distribution of finances and personal property. These outside professionals could include the following:
1. Financial Planner
In order to assist with the allocation of the marital estate, including marital assets or liabilities, it is likely a professional from the financial sector – such as a financial planner, investment advisor, or a similar finance professional – will be involved. In using such a professional, the parties will receive professionally driven advice as to the best ways to divide, distribute, or otherwise dispose of financial accounts – including bank, investment, and/or retirement accounts.
2. Child Psychologist
Going through the divorce process is hard enough on the adults, but many times the effects on the children can be even greater. To try and address some of the issues that can come along with parents splitting up, the use of a child psychologist or counselor may be necessary in order to ensure your children are receiving the care and attention they need during this process. The mental-health professional may assist the children, one parent, both parents, or the entire familial unit to ensure a smooth transition for the family into separate units by recommending the best ways for moving forward, including possibly therapy or individual or family counseling sessions.
3. Parenting Coordinator
A parenting coordinator may be utilized to establish a parenting plan for the parents to work from going forward, which will detail all aspects of how they should be co-parenting post-divorce. This may include issues related to decision-making or establishing a timesharing or contact schedule, and a parenting coordinator would be used to facilitate the negotiations between the parents on the terms of a parenting plan.
4. Real Estate Broker
If there is real property at issue in your divorce, then it may be necessary to involve a real estate professional in your collaborative process. This may include someone who can appraise property and/or list and then sell marital properties.
Why would someone want to use this collaborative divorce process?
One of the main benefits of the collaborative divorce process is being able to control the outcome through measured negotiations. By using some of the professionals above, along with your attorney, you will be assured that a thorough review of the issues has been conducted and that you are receiving advice from qualified professionals in their areas of expertise. By bringing these additional professionals into the process, there generally will be a greater attention to the specific needs of your family. Lastly, another benefit of the collaborative process would be to avoid protracted and extended litigation, which could end up saving you considerable money in the long run should your divorce turn highly contested.
What should I be aware of before starting this collaborative process?
While it’s important to keep a long-term perspective on your family law case, you should understand when going into the collaborative process that it can be costly to engage the services of the outside professionals referenced above. Having said that, however, the costs of the collaborative process may end up being nominal if the case does not resolve and you are forced to litigate the case. It must be understood, however, that if the case does not resolve through the collaborative process, then you will have to start from scratch, and remember, due to the privilege that exists during the collaborative process, nothing that was said or done during the collaborative process can then later be used by either party in the court case.
Attorney Russell J. Frank is a partner at CPLS P.A. and focuses his practice areas on family and marital law.