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Mark Schlueb | Sentinel Staff Writer
May 18, 2009
You've heard of happily married, but is it possible to have a happy divorce?

A growing number of lawyers -- including some who've spent careers brawling in divorce court -- say yes. They're disciples of "collaborative divorce," which tries to bring civility and cooperation to the traditionally bitter battle over the kids, family home and Grandma's silver.

Rather than each spouse paying a pit-bull attorney to spar in court, they and both attorneys agree to work out an amicable divorce that both sides can be happy with. Along the way, they receive guidance from a neutral mental-health professional and financial adviser.

Collaborative law's converts say it can be faster, less divisive and cheaper than a traditional divorce. And because the parties may never step into a courtroom until final paperwork is filed, it's more private -- probably the reason celebrities such as Roy Disney and Robin Williams chose it.

"It's so much better for clients and their families. In my experience it reduces the costs significantly, and the results are better," Orlando attorney Richard West said.

'Wave of the future' In the collaborative process, husbands and wives have their own lawyers, but they're there to provide legal advice, not extract a pound of flesh from the other side. The parties and the lawyers sign an agreement at the outset to share all information.

The divorcing couple is free to back out if talks fail, but then they have to get new lawyers. That's because the attorneys agree to drop out if the collaborative process fails -- a way to make sure they work hard to come up with a fair agreement.

Meetings are run by a neutral mental-health professional, who can steer discussion in a productive direction and minimize sniping. The counselor also helps design a parenting plan with the goal of working out what's best for the children rather than using them as legal bargaining chips. That's better in the long run than traditional divorce, in which a court battle can worsen a relationship so much that it's tough to co-parent once the dust settles, Maitland psychologist Barbara Kelly said

"You're focusing on the children from the start," she said. "And people who have been through it say they came out with communication skills they didn't have before."

The team approach also includes a neutral financial adviser who helps the couple untangle assets.

The idea came from Minnesota attorney Stu Webb, who in 1990 came to the realization that divorce lawyers often were doing irreparable harm to families. Collaborative law has since spread across the country, including Florida, where there are nine regional groups of its adherents.

Maitland attorney Sam Weiss, who brought collaborative law to Central Florida in 2001, said it's a great alternative to lawyers sparring in court.

"It's become the wave of the future of divorce," Weiss said. "Instead of attorneys harping at each other and each party trying to denigrate the other, they're all on the same page."

Numbers are growing Tom, a 43-year-old Sanford man who asked that his last name not be used, said his collaborative divorce last year was as positive as a divorce can be.

"Being able to sit across the table with all the parties in the room was very different than me telling my attorney something, my attorney telling her attorney, her attorney telling her, and then the whole thing in reverse," he said.

Collaborative divorces represent only a fraction of legal break-ups, but the number of couples choosing a more-civil divorce is growing. There are more than 75 lawyers, mental-health professionals and financial advisers in the regional association Weiss founded, the Collaborative Family Law Group of Central Florida, with regular training sessions adding more to the ranks.

Alice Blackwell, the administrative judge for the Orange-Osceola circuit's family division, helps teach collaborative divorce to law students at Barry University.

"What makes judges so sad is we see people fighting desperately, but if they would refocus on what's best for the family, they could find common ground. They'll spend all their assets on the divorce, and all they know how to do at the end is fight," she said. "I wish we could change the law so people had to consider collaborative law first, before they came to court to fight."

When two people marry, the feeling is one of pleasant thoughts and a lifetime of hope for the future....as it rightfully should be. A simple marriage contract is signed by both parties without ever a real thought about the possibility of divorcing. It is unfortunate, but statistically speaking, divorce occurs in 50 percent of first marriages and 60 percent of second marriages.

What is even more unfortunate is that the emotional, financial, and legal process of divorce that the (once in love) couple can find themselves in, is anything but pleasant or hopeful. It has been said that on its best day the family law system in this country is ‘inefficient,’ on its average day it is ‘uncaring,’ and on its worst day is ‘totally corrupt.’

It has also been said that the best decision a judge can make is one that neither party likes. As a licensed Financial Advisor with a specialty as a Certified Divorce Financial Analyst, I have seen how adversarial divorce affects – and oftentimes destroys the entire family. The results can be emotionally crushing to children and spouses, with the added result of the loss of needed financial assets and additional soaring legal costs.

In the worst cases, the couple keeps coming back to court, even after the divorce, for many years in an attempt to correct the ‘injustice’ of the system. For many, it is a horrible life changing experience that could only be described as ‘surreal.’

The question begging to be asked is why then would anyone purposefully choose this way to divorce knowing that the ultimate result could devastate them and oftentimes number their children among the casualties?

What If There Was Another Way?

What if there was a different system that could be used by divorcing couples? A system that not only values honesty, openness, and respect, but also actually achieves it?

A process that provides a much greater chance of emotional success, less financial loss, and a renewed hope for the stability of the children. Well there is – its called “Collaborative Divorce.”

In a Collaborative divorce, each participant signs a binding contract (the Collaborative Participation Agreement) that requires all participants to treat each other with honesty and respect, and which prevents the professionals working in the process from ever testifying in court.

This does two important things. First, it removes any incentive for an attorney to torpedo a settlement, since they will not earn any additional money if the case goes to trial. Second, signing the contract creates a serious financial disincentive for either party to abandon the process.

The Collaborative Agreement creates a new environment for the divorce. Since the only way to resolve the issues is by the agreement of the parties, the environment rewards honesty, openness, respect, creativity, courtesy, and cooperation. Rather than destroying a couple’s parenting relationship, the Collaborative Divorce provides an opportunity to rebuild the trust and communication skills the couple will need post-divorce.

But signing a contract alone is not enough. In order to make the process successful, the couple will need a team of professionals who are trained to help them with the problems inherent in divorce.

In a Collaborative Divorce, the clients use specifically trained professionals, whose sole job is to settle the case without going to court. Think about building a house. The General Contractor, while potentially capable of doing the plumbing or electrical work, will typically hire a licensed plumber and electrician. Why? Well, the plumber and electrician are experts in their fields and will do their job faster and cheaper because they are experts. The same is true with Collaborative Practice. Each professional brings a different and much needed skill set to the negotiating table.

Collaborative Process Maintains Respect, Honesty and Dignity

In a Collaborative Divorce, the clients use specifically trained professionals, whose sole job is to settle the case without going to court. The Collaborative Process starts with the clients’ needs, and the legal aspect of divorce is only one part of addressing those needs.

• Mental Health professionals usually play one of two equally important roles: Child Specialist and Divorce Coach. The Child Specialist gives the children a voice, and gives needed suggestions for creating a successful post-divorce parenting partnership.
• Financial Specialists are needed not only to craft a fair distribution of assets to both partners, but also to plan a distribution of financial resources in a way that maximizes financial security and opportunity for each party and their children currently, and in years to come.
• The Divorce Coach acts much like a football or basketball coach, helping a couple to focus on improving communication around parenting concerns, and to improve the emotional climate within the family. These mental health professionals provide needed support during the transition to two households, and supply the best chance of minimizing any long term negative effects from the separation and ultimate divorce.

The Collaborative process is faster because a typical contested divorce generally takes at least 18 months to resolve. The Collaborative process averages 6-9 months. Also, recent data shows that 90 percent of all litigated cases will return to court, while 90 percent of Collaborative cases never return to court.

It is cheaper for the parties because the typical litigated divorce locally costs approximately $30,000 (total for both sides), while Collaborative Divorce, even with financial specialists, child specialists and divorce coaches, tend to average $15,000. And, let us not forget that these numbers do not take into consideration the emotional savings that are achieved in utilizing a process that creates and maintains a safe environment of respect, honesty and dignity.

The Collaborative process acknowledges that divorce is not simply a legal problem, but is rather a family problem with legal, financial and emotional aspects. It engages trained lawyers, financial planners and mental health professionals to work together as a team to serve the diverse needs of the clients.

Collaborative Practice is not right for everyone, but for most divorcing couples it offers a faster, less expensive, more satisfying way to end their marriage respectfully, and take their first steps into a positive future for themselves and their children.

ABOUT THE AUTHOR

Alan Ross Frisher is a licensed Financial Advisor who specializes as a Certified Divorce Financial Analyst. He is the owner of Sage Financial Management and Sage Divorce Planning. Alan is the Co-founder of the Collaborative Association of Brevard and a co-leader in the Collaborative Family Law Group of Central Florida. As an Adjunct Professor at Brevard Community College, Alan has lectured extensively throughout Florida to professional groups of attorneys, mental health and financial professionals. For more information call 321-242-7526.

Each party retains an attorney who subscribes to the goals of Collaborative Family Law. The parties and attorneys enter into a Participation Agreement in which they pledge to resolve all issues through the use of negotiation rather than litigation. The parties pledge to be truthful and forthcoming with full disclosure of economic circumstances. While the parties can change their minds and abandon the collaborative process, if either party does so, then both lawyers will withdraw from the matter. Both parties must then retain new attorneys (or represent themselves) to conclude the divorce. In the course of the process, the lawyers will complete the necessary paperwork to have the Court approve and accept the financial and child centered agreements reached by the parties. The lawyers will assist the parties in obtaining the final court judgment of divorce that incorporates the terms of the parties' Divorce Agreement.

Mediation is the voluntary use of a third party neutral in facilitating the negotiation and settlement of a dispute between the parties. In mediation without lawyers, the parties do not have the access to the professional knowledge, wisdom and guidance that one's own attorney can provide. Mediators cannot give independent legal advise to either party. Representation by an attorney can "level the playing field" between spouses who may have unequal knowledge or negotiating abilities.

When parties with lawyers participate in mediation in an ordinary divorce, while settlement is the goal, attorneys who are not parties to a Collaborative Divorce Agreement may still suggest litigation as an alternative. Collaborative Family Law attorneys are committed to continuing the negotiation and dialogue until a satisfactory solution is reached.

The Collaborative Law method works so well because everyone engaged in the process is focused on finding creative solutions to all of the problems presented by both parties. But, if yours is one of the rare cases is which a solution is not reached, your Collaborative Lawyer will not be able to try your case. This insures that your Collaborative Lawyer is fully invested in settling the matter. Nonetheless, you will still have the benefit of all the work that has been done. The information gathered will be available to your new lawyer if litigation is unavoidable on unresolved issues.

Not every case will be appropriate for collaborative law, nor will every client be interested in avoiding the adversarial contest. Not every lawyer will want or be able to practice collaborative law. For those clients who see the wisdom of avoiding the courtroom battle and for those experienced lawyers who have learned over time that the commitment of time, energy, and money to an adversarial case often does not work well to solve family problems, Collaborative Family Law is a good solution.

The goal of Collaborative Family Law is to offer divorcing couples an alternative to the litigation model of divorce. Spouses seeking to divorce have the advantage of skilled, highly qualified legal counsel and advocates to assist in the evaluation and resolution of the economic, child centered and life changing problems of divorce without the loss of control and spiraling costs created by the traditional litigation path to divorce.

Visit Collaborative Family Law Group of Central Florida