Collaborative Divorce: The Better Way
It may seem counter intuitive to collaborate with your spouse during a divorce. After all, most of us are so angry, so hurt, so disappointed that all out “war” seems the only way to get want we want or need. We often think of the other party as the enemy and our attorneys as our warriors who will lead us to battle and whatever victory we may desire. Those of us who are in the trenches, battling divorce wars every day, know something that gets lost in the bloodthirsty battle. We know that there is no real winner in this war.
Collaborative divorce is a process that requires that the parties and the attorneys commit to each other — much as they did when they began the marriage. This time, however, they commit to engaging in a process to end the marriage. They commit to mutual respect, transparency and to resolve issues in a way that takes into account the needs of both parties. If the divorcing spouses have children, they commit to doing what is in the best interest of the children and to minimizing the negative impact on them.
So, why would divorcing parties want to engage in collaborative divorce? Perhaps it is most important to discuss how the divorce process works outside of collaborative law. Typically one person files the Petition for Dissolution of Marriage and has the other party served with papers by a process server. Once the Petition is served, the other person has to file an Answer and Counter Petition within 20 days. Thereafter, the parties engage in basic “discovery” which entails providing extensive financial records and information to the other party. Even basic mandatory discovery in Florida requires providing 12 months of bank records, credit card records, business records, tax returns and other information. After this process, the parties are ordered to attend Mediation to attempt a resolution of some or all of the issues. This is usually one meeting lasting several hours in which the mediator shuttles between the two parties trying to reach a solution. The mediator has no authority to make decisions and cannot tell the parties what to do. If the parties cannot reach a settlement at mediation, the next step is litigation. Litigation means going to trial. This is what most people do not want to engage in. It is extremely costly, time consuming and most often, emotionally devastating for both parties. Although Florida is a “no fault” state, as most people think, this does not mean that there is nothing to litigate. People still have long, knock-down, drag out fights over children, spousal support (alimony), division of assets, and even battles over whether one party should pay the other parties’ attorneys fees. The parties testify against each other, often relegated to making allegations against the other party that results in a lack of trust that can never be bridged. No matter the outcome of the trial, the parties must continue to “co-parent” and engage with each other as parents. Even if there are no children, no matter the allocation of assets, it is usually the case the both parties experience significant financial impairment. Collaborative divorce offers a better solution.
In a collaborative divorce no one gets served, nothing is filed, and no battles are waged. The parties and the attorneys commit to being respectful to each other and to providing all the information necessary to have meaningful and productive meetings about the parties’ respective needs. In collaborative cases the parties hire a mutually agreed-to mental health professional who is a neutral facilitator. The role of the neutral mental health professional is to get to know both parties and to help the attorneys and the clients make good decisions. In cases involving financial issues, the parties also have a neutral financial professional who evaluates the assets and debts and is involved in structuring a financial plan that benefits both parties. The attorneys still act as advocates for their respective clients, but they do not grandstand or threaten. Instead they communicate with both parties in a respectful manner and roll up their sleeves to create a solution that truly works. In Collaborative cases, even though the parties no longer wish to be married to each other and, most likely, have lost trust and confidence in each other, they are called upon to work together to a viable resolution