In many of my divorce consultations, the potential client will tell me that he or she already has spoken with his or her spouse about their impending divorce, often in a therapeutic setting, and that both wish to resolve the matter amicably and without court intervention.
These parties frequently gravitate toward ending their marriage using the collaborative process.
It is a client-driven model, with the parties setting the pace rather than the court or rules of procedure. In its most common form, each party is represented by his or her own attorney trained in the process. A neutral mental health professional and neutral financial professional are engaged and together, the parties and the professionals form a team.
The parties sign a participation agreement reflecting their commitment to resolve their matter outside of court, as well as the requirement that should the collaborative process break down, their attorneys would be precluded from representing them at trial.
It is here where the role of the neutral mental health professional comes into focus. He or she will lead team meetings, read the verbal and non-verbal cues of the parties and work to ensure that neither the attorneys nor the parties fan the flames of conflict (inadvertently or otherwise), as often happens in litigated family law matters.
Next, both short- and long-range goals for the family are identified. They often extend well beyond what could be fashioned by the court in a litigated case and they are revised as needed throughout the process, as the parties deem appropriate.
In family law, there can be gamesmanship in discovery, which results in an increase in the litigation’s length – and cost, financial as well as emotional.
By contrast, the collaborative process is completely transparent, meaning there is no formal discovery. The parties agree that documents and information will be obtained by the person with the readiest access and then circulated among the team.
Each team meeting is governed by an agenda provided to all participants in advance to avoid any surprises. At the conclusion of each team meeting, minutes are drafted to summarize discussions, agreements reached and assignments given to the participants to be completed in advance of the next team meeting.
Simply because the parties choose to proceed collaboratively does not mean their case is an “easy” one.
Infidelity, the most appropriate timesharing schedule for children, and how much alimony is to be paid and for how long, affect those in the collaborative process just as they do those who choose litigation.
However, the participants have the commitment of the entire team to develop as many solutions as possible to achieve their goals.
Because the parties set the pace, a collaborative case could take comparatively more or less time to resolve than a litigated case. In my experience, collaborative cases are typically resolved more quickly than litigated cases because the parties have ready access to the neutral mental health and financial professionals who can assist, for example in developing a timesharing schedule with children, or preparing proposals regarding distribution of the parties’ assets and liabilities.
Sometimes, the parties can take advantage of the allied professionals’ hourly rates being lower than the attorneys’, contributing to potential cost-efficiency of the process. In the litigation setting, competing experts often are retained, which necessarily increases costs.
Once a settlement has been reached, a joint petition is filed with the court that, in essence, states the parties have reached a resolution and are requesting that the court dissolve the marriage. By committing to the collaborative process, there are no inflammatory pleadings or motions in the court file for a curious child, coworker, friend, family member, patient or client to find.
While only one party is required to attend the final hearing during which the court formally dissolves the marriage, it has been my experience in collaborative cases that both parties (and sometimes the neutral professionals) will attend to acknowledge that even though the marriage has ended, they remain a family that has worked with dignity through one of life’s most difficult experiences.
The collaborative process and the multitude of benefits it offers to families in transition were given formal recognition in Florida with passage of The Collaborative Law Act in March 2016 (Fla. Stat. Ch. 61, Part III).
Laura Giovannetti practices exclusively in the areas of marital and family law and is secretary of the Collaborative Family Law Group of Northeast Florida.
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