This guide provides an overview of the collaborative divorce law process in Florida and aims to assist people contemplating a divorce in deciding whether a collaborative divorce is the best option for your Florida divorce case.
Step 1: Understand collaborative law terms and benefits
What is collaborative law? Florida Statute 61.55 became law in 2017 and states, “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 nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.” The process involves a team approach with each party retaining their own collaborative law attorney and then agreeing on a facilitator and financial neutral professional to assist in the process. The team agrees to keep the case out of court and work together to reach an amicable and fair resolution. The main benefit of the process is that the case is resolved more quickly and less expensively than traditional litigation.
Step 2: Determine if your case is eligible for the collaborative law process
What types of cases are eligible for the collaborative law process? Florida Statute 61.56 (5) provides a list of the types of family law cases eligible for the collaborative law process including, but not limited to, divorce, dissolution, marital property distribution, child custody, visitation, parenting plan, parenting time, alimony, child support, parental relocation with a child, paternity, premarital, marital, and postmarital agreements. Basically, almost all family law cases are technically eligible. Next, we will explore whether this process is right for your case.
Step 3: Determine if the collaborative law process is the best/right option for your situation
The collaborative divorce process requires both parties to agree to participate in this specialized team approach and requires both parties (and their attorneys) to be civil with each other and transparent during the process. During your information gathering process, you should identify and interview collaborative divorce lawyers in your area. If your spouse refuses to cooperate with the collaborative law process and does not retain a collaborative divorce lawyer, then you can’t engage in the collaborative divorce law process.
In the ideal situation, both parties are able to be civil with each other despite their differences. Both parties make the wise decision to resolve their case with a “win-win” approach rather than spending tens of thousands of dollars on lawyers to pursue litigation that rarely ends with a clear “winner,” but just less in the marital estate to divide between the parties. If you or your spouse’s goal is to “destroy” or “bury” the other party out of revenge, then collaborative divorce is not the right option for your case! While emotions may be strong, the collaborative divorce process requires a level of composure and transparency that ultimately leads to a much less emotionally and financially draining process than traditional litigation.
Step 4: Retain a divorce lawyer trained in collaborative divorce law
If you are uncertain whether an attorney is trained in "collaborative divorce," ask the attorney if he/she has completed specialized training and to which family law collaborative professional group(s) he/she belongs. You should also ask how many collaborative divorces they have participated in since this is an emerging field and not many family law attorneys are trained in or have experience in this unique field. Note, if you are not sure whether your spouse will participate in the collaborative divorce process, it may be best to retain a lawyer who is able to represent you in either a collaborative divorce or the traditional, litigation based approach. A diverse skill set is important in selecting a family lawyer. A family lawyer should excel in collaborative law as well as be proficient in mediation and litigation. This knowledge and experience provides more leverage in negotiating a settlement of your case. It is possible that if you start on a litigation track and then later decide to convert to a collaborative law method that your "litigation" attorney can be your "collaborative" lawyer. However, it should be noted that once you formally start the collaborative law process, your lawyer can't then later be your litigation lawyer should the process fail.
Once you have retained your collaborative divorce lawyer, he/she can reach out to the other party (assuming he/she’s not yet represented by counsel) and can invite that person to consider the collaborative law process and encourage the spouse to consult with a collaborative divorce lawyer.
Step 5: Assemble the rest of your collaborative law team by selecting the neutrals
Once both parties have retained their respective collaborative divorce lawyers, then the attorneys and parties determine who the neutral facilitator and neutral financial professional will be in your case. Both neutrals must be trained in collaborative law. The neutral facilitator, often, but not always a mental health professional (MHP), is the professional tasked with keeping the process on track, setting the agenda for meetings and ensuring the integrity of the process. The financial neutral, often, but not always a CPA, is tasked with preparing the financial affidavits of the parties and assessing from an objective perspective the financial positions of the parties for purposes of equitable distribution and support matters.
Step 6: Schedule and attend the first collaborative divorce team meeting
The collaborative team holds the first meeting where the parties identify their goals and objectives in the process. The team discusses ground rules and protocols and sets the agenda for the process. The process is supposed to achieve a "win-win" for the parties. This involves respectful discussion on issues and exploring options for fair compromises and resolution of those issues. A timeline for completion of various "homework" is set so the process can stay on track and be resolve in an efficient and affordable manner.
At the first meeting, (if not before), the parties and their attorneys sign the “Collaborative Law Participation Agreement” committing to the collaborative process. Note, once the parties have entered into this Agreement, the attorneys are then barred from representing the parties in litigation in the rare event that the collaborative law process is terminated. This unique characteristic of the collaborative law process encourages the parties to continue to pursue settlement options rather than opting for litigation and having to retain a new attorney to pursue litigation. Some opponents of the collaborative process see this limitation as a drawback in the collaborative law process, but in my experience, eliminating the "threat" of litigation and having to start over with a new attorney incentivizes the parties to persevere in the collaborative process and almost always results in a favorable outcome for both parties. Finally, it's important to point out that either party can terminate the process any time for any reason. So, while the pressure to continue with the process is present, there is never an obligation to remain in the collaborative law process if the process truly is not working for either party. The collaborative law process is confidential so communications occurring during the process are not later admissible in court in litigation. In addition, the neutral parties can't be called upon to testify later in a litigation context.
Step 7: Attend subsequent meetings as needed to reach resolution of your case
The parties and professionals complete their “homework” and meet again once the financial and other necessary information is provided to the financial neutral and the team can begin discussing terms of settlement. The goal is to reach and execute a Marital Settlement Agreement and Parenting Plan (if applicable in your case). Meetings can last for a few hours at a time depending on the issues involved. There is no limit to the amount of meetings you can have in a case. Some cases are finished in two or three meetings over about a two month period. Other cases that are more complex can require more meetings and last longer. However, collaborative cases almost always resolve sooner than litigated cases which can drag on for years and end up draining the parties' resources and emotions. Each case is different and the parties and the team determine together what schedule is appropriate for their case.
Step 8: Finalize your collaborative divorce
Another attractive aspect of the collaborative law process that parties appreciate is not having to ever enter a courthouse or courtroom. Once a Marital Settlement Agreement is signed in the collaborative process, the lawyers alone can handle the remaining paperwork and have a Judge enter a Final Judgment ratifying the Agreement via electronic correspondence. Once the Final Judgment of Divorce is entered, you are officially divorces. You will receive a copy and can then move on with your life!
If you have additional questions about the collaborative divorce law process and whether it is the best option for your case, we would be glad to answer any questions you may have. Contact us online today or call (941) 837-5071.