Collaborative Law is a relatively new concept. Many attorneys are not aware of what truly constitutes Collaborative Process. Collaborative Process goes beyond solving the immediate problem and resolves the underlying issue for a lasting resolution and personal healing.
Although the following answers to your Frequently Asked Questions may focus on Divorce, the collaborative process works in all areas of Family Law, including enforcement and paternity cases. In fact,Collaborative Divorce Team can help you move the disputes that keep you trapped in the same conflict patterns by using the Collaborative Process.
Collaborative Family Law is a specific negotiation process designed to SAVE THE PARTIES MONEY, AVOID EMOTIONAL PAIN and to AVOID ACRIMONIOUS LITIGATION!
The collaborative process presents obvious benefits to children subjected to divorce as well. Child Specialists can also be added to your Collaborative Divorce Team when there are parenting issues.
Both parties and their individual attorneys commit themselves to resolving all issues of the dispute by negotiated agreement. They promise not to resort to going to court for ANY reason except to introduce their Agreement into evidence and obtain a Final Judgment of Dissolution of Marriage. Supplemental Judgment, Judgment of Paternity, etc. which approves and adopts their agreement. The parties then convene their Collaborative Divorce Team with the professionals appropriate to their individual situations.
How will I know what to agree to?
Collaborative Family Law uses a combination of formal and informal methods. You and your collaborative attorney will meet to discuss your situation before the first negotiation meeting occurs. Unlike mediation, you will always have professional legal advice during the collaborative family law process.
Here are some of the other differences in the collaborative process:
- Instead of asking a judge to compel the parties to disclose their finances, they agree to voluntarily produce all financial documents.
- Instead of asking a judge decide matters, they engage in conferences and negotiation with their Collaborative Divorce Team members.
- Instead of hiring two financial professionals and/or psychologists and other experts to fight it out in court, the Collaborative Divorce Team agrees on one financial professional or other expert.
Each member of your Collaborative Divorce Team pledges to work for the best outcome for all family members. By working together, you reach the best possible result for all family members.
Each attorney I’ve interviewed says he will try to settle my case. What difference would Collaborative Family Law make?
The attorneys you have seen have good intentions. They truly do want to resolve your case and save you attorney’s fees and costs. The problem is there is no structured agreement or process. Your spouse and his or her attorney may say, “If you don’t settle on my terms, we’ll just go to trial.”
In Collaborative Family Law, the parties AND their attorneys enter in to a Participation Agreement, which provides that they will facilitate a fair and reasonable settlement without resorting to litigation.
If any party to this agreement breaches the contract, there are heavy consequences. Both attorneys must withdraw. They cannot take the case to trial and earn larger fees. The parties must retain new attorneys, incurring additional fees and costs.
Collaborative Family Law works because, very simply, it is in everyone’s best interests to resolve the issues and enter into an Agreement.
What should I look for when interviewing a Collaborative Divorce Lawyer?
Attorneys who are truly involved in the Collaborative Process will have formalized training in the Collaborative Process. Membership in the International Academy for Collaborative Professionals is an excellent indicator of commitment to collaborative principles.
Do I give up any rights when my spouse and I sign a Participation Agreement?
Basically, you give up the right to waste your assets and income and the right to unconsciously harm your children as they watch their parents fight with each other. View a sample Participation Agreement to get an idea of what the spouses’ and their attorneys’ rights and responsibilities will be.
Why is it so important that my Collaborative Lawyer cannot continue to represent me if we go to court?
When attorneys know they might end up in trial, they may be cautious about voluntarily talking about certain facts, authoritative law, and strategy. Their job is to advocate their individual clients’ perception of the facts, even if that’s not what is best for the family members overall.
Divorce trials are an emotionally and financially exhausting ordeal for those going through them. Trial is a stage for the attorneys, not the people who are experiencing the most traumatic event of their lives. When you take away an attorney’s ability to go to trial, he or she can only “win” by resolving the problem fairly and reasonably out of court. That is also why it is important to hire an attorney who truly believes in and follows the Collaborative Process.
Why don’t I necessarily want my attorney to “win?”
You’ve heard the saying, “Be careful what you wish for?” For example, your attorney convinces the judge that your spouse should be able to earn significantly more income than he can. Then the judge, who thinks he is awarding you 40% of his income for alimony and child support, actually awards you 80% of his income.
So what? You and the children need it. Right? But he can afford no more than an efficiency apartment and cannot keep up with his car payments. Your ex-spouse loses his job and has no acceptable residence for the children. The children feel that their father doesn’t love them. The support arrearages mount up and you spend thousands of dollars in fees trying to collect. You’ve also become an angry, bitter victim. You only truly “win” if you explore creative solutions to the problems facing you, your spouse and your children.
It sounds as though the Collaborative process may increase attorney’s fees and costs if we cannot reach an agreement and must retain new attorneys and experts. Is this true?
You are correct. Both parties and their attorneys must be truly committed to achieving a fair settlement. Collaborative Family Law is not for everyone. Some spouses and former spouses are so angry that they will incur thousands of dollars litigating over ownership of a 13-year-old freezer or filing groundless custody claims.
Florida Supreme Court and appellate cases have attempted to address the problem of abusive litigation, however, by authorizing the trial judge to award one party fees and costs based on the other party’s unnecessary and excessive litigation. But, it is difficult to actually obtain these awards.
The cost savings benefit will likely be substantial when a case is resolved amicably through the collaborative process. In addition, the emotional benefits and peace of mind for the parties and their children (if there are children) is enormous and impossible to value. And perhaps most importantly, the deep resolution that comes from the Collaborative Process makes it unlikely that you will keep returning to court for enforcement issues – a great money saver in the long run!
What if my spouse has already filed a Petition for Dissolution of Marriage? Can we still engage in the Collaborative Process?
Absolutely, although it is best if your spouse dismisses the action because both parties would be less tempted to run into court if problems arise, the action can also be abated while you and your spouse work collaboratively toward a settlement.
I haven’t hired an attorney yet, or I just hired an attorney. How do I get started in the collaborative process?
If you haven’t hired an attorney, we can suggest consulting our attorney members who have all trained in the Collaborative Process. In fact, all the members of the Collaborative Divorce Team have been trained in the Collaborative Divorce Process.
If you have already retained counsel, we suggest discussing this option with your attorney very soon, since the collaborative process works best before litigation has begun. If your attorney is not familiar with this process or has not received formal training in this process, suggest that your attorney review our website or have the attorney contact us for more information.