Litigating a family law matter, such as a divorce, paternity, or post-judgment action, is one of the most stressful experiences a person will ever have to go through. There are many contributing factors to that stress – financial concerns, impatience surrounding the lack of available hearing and trial dates in court, and never really knowing how a judge, someone with their own opinions and predispositions, will rule. What if I told you there is another way to handle your family law case that avoids these serious stressors?
In 1990, a family lawyer in Minnesota named Stuart G. Webb became frustrated with the damaging effect traditional litigation often has on parties and their families. Stuart G. Webb prepared and sent a letter to a Minnesota Supreme Court Justice detailing his vision of a non-adversarial approach to practicing family law, a practice that became known as Collaborative Law. Since 1990, Collaborative Law has gained popularity among family law practitioners in the United States and worldwide.
In 2016, the Florida legislature adopted the Collaborative Law Process Act, which specifies the practice and uniform procedure family lawyers in Florida are required to follow in a Collaborative Matter (Florida Statute §§61.55-61.58). The Collaborative Law Process Act starts by explaining the purpose of the act. Specifically, it states: “It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The Collaborative Law Process is a unique non-adversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.” It is important to note that the State of Florida recognizes the various benefits of resolving a family law case outside of the judicial system, and encourages litigants to do just that.
So, what exactly does it mean to handle your case collaboratively? Collaborative cases involve a team of professionals, each dedicated to resolving your matter outside of court. Meetings are scheduled wherein you, your spouse/partner and all members of the team are present and participating.
Both you and your spouse/partner would each be represented by an attorney specially trained in the Collaborative Process. Your respective attorneys represent only you and advocate exclusively on your behalf. In the Collaborative Process, your attorney’s goal is to brainstorm ideas and come up with a resolution that is beneficial to the family as a whole, not the “win at all costs” mentality that many family litigators have, often destroying familial relationships and negatively affecting any children that may be involved in the litigation in the process.
In addition to being represented by Collaborative attorneys, a Collaborative matter also involves a neutral facilitator, often someone with a mental health background, and a neutral forensic accountant. The facilitator will meet with you and your spouse or partner to get a history of your relationship and the main issues that may come up in the case. The facilitator will then share his or her insight with the rest of the Collaborative team so that the team may start brainstorming potential resolutions at the outset of a case. When there are minor children involved, the facilitator also meets with you and your spouse or partner to prepare a Parenting Plan, saving you attorney’s fees since the facilitator’s hourly rate is almost always significantly lower than your attorney’s hourly rate. The facilitator does not act as a therapist during the Collaborative Process, but rather, helps facilitate the amicable resolution of issues by identifying and addressing problems as they come up.
Lastly, if your case involves significant assets or it is anticipated that financial issues will arise, your case will certainly benefit from a neutral forensic accountant. Often in traditional litigation, parties with financial issues will each retain their own separate forensic accountant to investigate the case’s finances. Each accountant pushes his or her own agenda on behalf of the client. By handling your case via the Collaborative Process, you have saved a significant amount of fees because you are paying for one financial professional, who is completely objective throughout the process. Rather than skewing the numbers to defend a certain position, your neutral forensic accountant will educate you, your spouse/partner and the Collaborative team regarding the financial history of your marriage or relationship. An added benefit of a neutral forensic accountant is to educate one of the parties if that spouse or partner has had limited involvement in the parties’ finances up to that point.
The goal in most Collaborative teams is to resolve a case in 4 – 5 team meetings. At the first team meeting, the parties and the members of the team will sign a Participation Agreement. The most important provision of that Participation Agreement is a clause referred to as the “disqualification provision.” That means that if your matter is not resolved via the Collaborative Process, both attorneys are disqualified from representing you and your spouse/partner in contested litigation. The disqualification provision ensures that everyone, including your respective attorneys, are committed to resolving your case without resorting to litigation. It provides that necessary element of “buy in,” giving the parties an added incentive to approach their case with a Collaborative mindset.
If the disqualification provision concerns you, it shouldn’t. Over 85% of cases that start collaboratively end collaboratively. With such a high success rate, you should strongly consider using the Collaborative Law Process before initiating a family law action against your partner, spouse or former spouse – especially if one of your goals is to make it through with your sanity and dignity intact.
If you have any questions related to Collaborative Family Law, or family law in general, please contact us.