In Florida, collaborative divorce is a form of dispute resolution that takes the divorce process mostly out of the courtroom. During a collaborative divorce, the parties will work with certain professionals to settle some or all of their disputes. Examples of such issues include child custody, visitation, child support, property distribution, and spousal support. The process is designed to be as non-adversarial as possible.
How Does Collaborative Divorce Work?
The Florida Family Law Rules of Procedure contain the collaborative divorce procedures at Rule 12.745. The process begins when both parties sign a collaborative law participation agreement. The parties can initiate the process at any time, even in the middle of litigation.
- The Participation Agreement
- The agreement to participate in the collaborative process must contain the following information:
- The parties’ mutual agreement to participate in the process;
- The nature and scope of the issues involved;
- The identity of each party’s attorney;
- A declaration from each party that they will be candid and make full disclosure of any relevant information without formal discovery;
- An acknowledgment that participation is voluntary and that any party can terminate the process at any time;
- An acknowledgment that the process automatically terminates if one party involves the court in any related matter; and
- An acknowledgement that both parties understand their lawyers cannot represent them or their families in any related court proceeding.
- The agreement must be in writing and signed by both parties and their attorneys.
What If There Is Already Ongoing Litigation?
Any related litigation is paused pending the outcome of the collaborative process. If litigation has already begun, the parties must inform the court of their decision to participate in the collaborative divorce process after they sign the participation agreement. The parties apply for a stay of the litigation when they notify the court. The judge may require a hearing on the motion and has the right to request periodic status reports on the collaborative proceedings. These status updates are only to ascertain whether the process is moving forward. They cannot contain any substantive information such as reports or assessments.
The judge can even dismiss the pending litigation if the parties delay it for too long. The court would have to give notice to both parties and give them an opportunity to oppose the dismissal. The court can also get involved if emergency relief is necessary to protect the health, safety, or welfare of one of the parties or their family members.
What Happens During the Collaborative Divorce Process?
During the process, the parties will work with certain professional experts to try to resolve the issues involved. Examples of such experts include mental health professionals or counselors, someone to value the businesses or assets, financial experts, and child advocates. Generally the parties sign partial agreements as each issue is resolved. The process concludes when the parties sign a settlement agreement containing the resolution of all the issues involved. If the parties cannot agree on all the issues, they can either litigate them in court or decide to live with them going unresolved for the time being.
One party can terminate the process at any time for any reason by giving written notice to the other party. The written notice of termination will lift the stay on any pending litigation. A party can also terminate the process by moving forward with any pending litigation or initiating litigation.
What Are Some Pros and Cons of Collaborative Divorce?
Collaborative divorce has more good points for it than bad:
- Couples make their own decisions for their family’s future and have more control over the outcome;
- The process is more private than traditional litigation;
- Resolutions can be more creative than what a court can offer—judges are bound by the laws;
- It is usually less expensive—the parties are not paying for formal court preparations or proceedings and they share experts;
- Generally it is more efficient than traditional litigation—the parties are not bound by hearing dates and court deadlines; and
- The process is better for the mental health of the parties and their children because of the focus on preserving relationships.
However, the parties still must consider that there are some negatives. If a couple is not willing to negotiate, the process will not work. Collaborative divorce also may not be a good solution for spouses who do not trust one another—you must be able to rely on your spouse’s honesty in presenting all relevant information.
The lack of independent experts may also prove to be undesirable if you do not agree with the experts’ assessments. And the process also does not completely avoid the courtroom—you must still submit the settlement agreement and have it approved by the court. In fact, if you are not able to resolve all your issues by the collaborative process, you may still end up litigating them in court.
How Can an Attorney Help Me with My Collaborative Divorce?
In a collaborative divorce, you and your spouse must hire your own attorneys. One attorney cannot work for both sides. In fact, if one party fires their attorney or the attorney withdraws their representation, they have 30 days to hire a new attorney or the collaborative process terminates. You also may need a second attorney to deal with any other litigation if you cannot resolve all your disputes through the collaborative process.
Your attorney should make every effort to discuss the benefits and risks of using the process. They should have a clear understanding of what issues you are retaining them to help you resolve. They can explain alternative methods of resolution to you and give you a general idea of the costs involved.They must have some level of relevant training. If they are not qualified, they should not be representing clients in the collaborative process.
Wendy Doyle-Palumbo Is Here to Help
If you are considering divorce, you will need a skilled attorney on your side. Wendy Doyle-Palumbo has the experience to help you with any of your family law needs. From alimony and child support to complicated child custody issues, she will fight for your best interests. Contact Wendy Doyle-Palumbo today to set up your consultation.