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Easing
Families' Pain
Collaborative Divorce Good Model for Florida
Daytona Beach News Journal
Editorial
December 26, 2007
Divorce can shred a family, leaving wounds that take years to
heal -- if they ever do. The pain tends to flare up during the
holidays, as former partners battle over where children will spend
time and struggle to make ends meet on incomes drastically reduced
by the aftermath of a breakup.
Yet some experts say that even the most combative
soon-to-be-ex-spouses can, with proper guidance, work their way
through a marriage breakup while minimizing conflict, reducing
expensive litigation and protecting children.
The concept, known as collaborative divorce, is gaining ground
across the nation. Thousands of lawyers, mediators and counselors
have been trained in the techniques (though the International
Academy of Collaborative Professionals, the trade organization for
the practice, doesn't list any in Volusia or Flagler counties).
In collaborative divorce, both sides are represented by trained
professionals -- but attorneys involved in negotiations agree that
they won't litigate the case if settlement talks break down. (In
that situation, both parties would have to obtain new attorneys
before going forward.) The settlement "team" usually also includes a
financial professional skilled in sorting out difficult issues,
including dividing assets like real estate, and possibly a counselor
trained to help couples resolve issues that commonly arise during a
breakup. Both parties agree not to take advantage of mistakes made
by the other side and to be utterly truthful about financial data
and other pertinent facts. Attorneys on each side are responsible
for holding their own clients to this vow.
Research consistently shows that collaborative divorce is less
expensive, quicker and more successful than traditional litigation.
The American Bar Association's ethics and professional regulation
committee put its seal of approval on the practice. California,
North Carolina, Utah and Texas officially recognize the practice and
made changes in family courts to support the collaborative model.
Local jurisdictions across the country have done the same.
Florida should follow suit. This state has more divorces than any
state in the nation, with 87,789 marriages dissolved in 2006. That's
not a statistical blip: Florida's led the nation in divorces for
years. Shocked by those numbers, state leaders toyed with the idea
of abolishing (or severely limiting) no-fault divorce, potentially
forcing battling spouses to prove irreconcilable differences,
cruelty or infidelity before ending a marriage. That approach would
only have heaped more trauma on families already in shock.
But a collaborative model might actually help save some families
teetering on the brink of splitting up. And because cooperative
divorce would be voluntary, it wouldn't force couples into a process
that doesn't suit their needs (most agree that collaborative divorce
doesn't work well in marriages where there is significant abuse or
fraud).
Working with the Florida Bar, the state could encourage -- or
even underwrite -- training for lawyers and other professionals in
the collaborative process and make courts more adaptable to
non-litigious alternatives.
The Florida Legislature and the courts don't have the power to
smooth away differences between spouses or mend marriages that are
irretrievably broken. But they should work together to make the
process less painful and expensive for divorcing couples -- and more
protective of their children.
Collaborative Divorce Is Gaining Fans in Santa Fe
By Anne Constable
The New Mexican
May 8, 2005
 Divorce
is almost always emotionally and financially painful for couples.
But it doesn’’t have to end in a costly, all-out war over the house,
the bank account, the kids —— or even the cat.
Four Santa Feans recently described a process that left them, if not
exactly bosom buddies, at least on speaking terms with
Lawyer Catherine Oliver sits among
colleagues One woman
said she moved away from
at a 2005 Collaborative Divorce Training
Santa Fe thinking she
and her former
seminar Friday at the Albuquerque Convention
spouse a high-profile
professional could
Center. Advocates say a growing number of
never live in the same
community "because
Santa Fe residents are using this procedure,
we would be so mad at
each other." But
in which divorcing spouses and their attorneys
a few months later, she
moved back here.
make decisions in four-way discussions outside
"This is where my life
and friends are," she
court. - Photos by Tina Larkin/The New
said. Now she even
occasionally meets
Mexicantheir former spouses.
her ex for dinner, and
they walk the dog
together. "It’s like old times, but without all the stress," the
woman said. This could never have happened if a judge had decided
how to divide their assets. But the couple, like a growing number of
people, decided to use a dispute-resolution process called
collaborative practice. In this nonadversarial approach, each
partner has a specially trained lawyer to represent his or her
interests. All parties agree to negotiate a mutually acceptable
settlement without going to court. If either client decides to sue,
the attorneys must withdraw.
Collaborative practice is different from mediation, where a neutral,
third party helps the disputing parties settle their case. In
collaborative practice, the spouses and their attorneys make these
decisions in four way discussions.
In some cases, the divorcing couple might select a specialist to
represent their children and a neutral financial expert in addition
to their collaborative lawyers.
Advocates say this model is cheaper and faster than traditional
divorce, reduces family conflict and results in higher compliance
with agreements.
It’s not for everyone, acknowledged Janet Clow, one of 23 local
attorneys who are members of the Santa Fe Collaborative Practice
Group. "It won’t work if people don’t trust each other," she said
recently.
But those who’ve succeeded say they are highly satisfied although
none of those interviewed was willing for his or her name to be
used, citing concerns about the privacy of divorce matters.
A man in the mortgage lending business said he and his wife decided
to end their 18-year marriage after many years of counseling, which
he described as "emotionally exhausting." His wife proposed
collaborative divorce.
"She viewed it as a way to negotiate a fair settlement, but not end
up with a litigious, argumentative, adversarial, downright ugly
situation which so many people go through," he said.
The couple’s financial situation was complex, but both husband and
wife were determined to come up with a fair settlement. "Nobody told
us how it was going to be," he said. "We came to an agreement. It
was our doing."
Through the process, each had the safety and security of knowing he
or she was "not being taken advantage of by the other party, because
there are lawyers there." And, he said, both attorneys were
experienced in handling divorces, understood how judges would divide
assets and were able to say what was fair and what was not.
Another advantage, he said, was their children thought neither
parent was taking advantage of the other. The custody agreement, he
said, allows the children, two of whom are still living at home, to
"make up their own minds where they want to be when."
The man in this case contrasted his divorce with that of his father,
who came home on a Friday afternoon, packed his bags and moved in
with his girlfriend. "I am angry at him for that," the man said. "I
don’t believe that was the right way to do it. Marriage is intended
to be a lifelong process. Getting out is not a one-day event."
A couple married 15 years wanted their divorce to go as smoothly and
cleanly as possible for the sake of their 9-year-old child. "We knew
we had to be friends to do this," the woman said.
"We were a family for many years," she added. A courtroom battle
"somehow discredits the times together that were good. My kids adore
him."
The conferences were emotional at times, she acknowledged, but this
was respected. And, she added, "I never felt his attorney was trying
to screw me and vice versa."
The partners reached a financial settlement in their back yard. This
was possible, she said, because "my husband is very generous. We
both care for one another still."
Collaborative divorce, she said, would not work for couples who are
too angry at one another. "Anger leads to, ‘I’m going to get as much
as I can.’ In this case, you enter (the process) knowing that this
is not the way this game is played."
The woman’s husband, who owns a family import business, said he and
his ex-wife are satisfied with the divorce arrangements, including
child custody, child support, alimony and cash settlement.""If you
both have good intentions and want to do the best thing for your
child and hang on to your sanity, this is certainly a good way," he
said.
But you have to go into it knowing you’re not going for the jugular,
he added. "If you are out to nail the other person, then you have to
go through the legal system and let the courts decide."
As for the ex-spouses who still sometimes walk their dog together,
neither thought they got a "good deal," according to the wife. But
neither, she said, believed they got a "raw deal" either.
Divorce Models
Do-it-yourself: Client acts as general contractor, making use of
legal counsel as needed for drafting papers, etc.
Mediation: Neutral person helps couple reach agreement; does not
give individual legal advice; may or may not prepare divorce
agreement.
Collaborative Divorce: Each party retains trained collaborative
lawyer to advise and assist; all negotiations take place in four-way
meetings; lawyers cannot go to court or threaten to go to court.
Arbitration: Clients choose a private judge or arbitrator to make
decisions for them as an alternative to taking the case to court.
Litigation: A court makes decisions for divorcing couples.
Advantages of collaborative divorce
You keep control of the process without going to court. Children’s
needs are given priority. You and your partner commit to reaching
agreement through a problem-solving approach. An atmosphere of
respect preserves self-esteem. Open communication provides tools for
effective problem solving in the future. There is full disclosure of
facts and information. Face-to-face meetings allow for mutually
created resolutions. Process helps couple plan for their futures.
Source: International Academy of Collaborative Professionals
On the Web
Collaborative Law online: www.NMCollaborativeDivorce. com;
www.collaborativedivorc e.com; http://www.collabgroup.com;
www.collaborativepractice. com; http://www.divorcenet.com;
www.ilawyer.com/kalw/ family.html; http://www.whileweheal.org;
www.proactive-coach.com/divorce/;
http://www.lawtsf.com
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