Divorce involves humans with all of our complexities and emotions. The divorce legal process, on the other hand, seems anything but human at times. This deficiency created the need for a better legal process to help families facing divorce. Collaborative divorce is a human-centered process that, much like most positive advancements in society, in hindsight, just seems like common sense.
Why was collaborative divorce created if there is already a procedure for getting divorced in Court? Necessity is the mother of invention and the same can be said about divorce litigation (divorce that is fought in Court). Divorce litigation can quickly become cold, complicated, destructive and bring out the worst of those involved. Collaborative divorce was created in 1990 by Attorney Stuart Webb in Minneapolis when he decided to do something about the road blocks and frustration involved in divorce litigation, not to mention the emotional and financial destruction faced by families stuck in litigation.
[Webb] said that he would no longer go to court for the clients of his who were to be divorced. He said that he would help them settle and negotiate their problems outside the courtroom only – where the couple could get together and work out their problems – and that if they decided to go to court over the matter, he would withdraw his aid and hand over the case to a lawyer who had a more litigious temperament. For those of us who do not use “litigious” in every day speech – I mean, for those of us who are not lawyers, this word means arguable or debatable. Hostile might also be used… 1
In litigation, couples pay attorneys to fight against each other, which can quickly become ugly. In the collaborative process, both spouses and their attorneys work together as a team with trained professionals to resolve disputes privately, respectfully, and, hopefully, without spending the extensive amounts of time and money that litigation entails.
Florida Legislature catching up. The Florida Legislature adopted the Collaborative Law Process Act (“Collaborative Act”) in 2016, which created a legal framework for families to resolve disputes outside of court. Other states have previously adopted such methods much earlier. California, for example, passed a collaborative law statute in 2013. The Florida Act specifies that family law issues under Chapters 61 or 742 of the Florida Statutes can be resolved via the collaborative process, including the following:
- Child support
- Marital property and debt distribution
- Child custody and visitation (parental responsibility and timesharing)
- Parental relocation
- Prenuptial and postnuptial agreements
Do attorneys have ethical rules specific to the collaborative process? New Bar Rule 4-1.19 (Collaborative Law Process in Family Law) describes the professional conduct required of an attorney in the collaborative law process. A client must be fully informed of the risks and benefits of the collaborative law process in resolving family law matters. Clients must be informed that the attorneys are obligated to stop representing them if either spouse decides to abandon the collaborative process and litigate. Though some see this as a hardship because, if a client decides to litigate, she needs to find a new attorney. The upside; however, is priceless. It incentivizes both the parties and the attorneys to stay civil and try to settle. It acts as a check on attorneys themselves from becoming too adversarial or “hostile”. Clients may also stop the collaborative process for any reason.
Another benefit to the collaborative process is that fees and costs a client can reasonably expect to incur during the process should all be fully explained to the client before the process begins (e.g., fees for attorneys, mental health professionals, financial professionals). The exact timeline of settlement depends on the complexity of each case as well as the preference of each spouse, so it’s difficult to estimate. The length and cost of litigation is even more difficult to estimate because it not only depends on the parties but the aggressive or litigious nature of each attorney. It only takes one overly-aggressive attorney to drag out a divorce process.
What about domestic violence? Section (c) of Rule 4-1.9 addresses an attorney’s duty to address domestic violence specifically. According to the statute, “A lawyer must reasonably inquire whether a prospective client has a history of any coercive or violent relationship with another party in a family law matter before agreeing to represent a client in the collaborative law process and must make reasonable efforts to continue to assess whether a coercive or violent relationship exists between parties in a family law matter throughout the collaborative law process.” If an attorney believes the safety of the client is compromised, he or she cannot represent the client in the collaborative law process.
Florida Supreme Court catching up. The Florida Supreme Court adopted the collaborative rules on May 18, 2017, and they will go into effect on July 1, 2017. As Robert Merlin, Esq., a staunch supporter of the collaborative rules has said, “I am pleased, rather overjoyed, to [announce that] the Florida Supreme Court adopted the Collaborative Rules. This is the culmination of many years of hard work by a handful of people. I hope and anticipate that this is going to make a big difference in the Collaborative Process in Florida.”