Collaborative Divorce
Collaborative Family Law Promotes Divorce with Dignity
A: Collaborative family law is a process through which the parties to a divorce and their individual attorneys commit to resolve all issues of the divorce by negotiated agreement without resorting to or threatening litigation.
Collaborative law requires all parties—spouses and attorneys—to sign a collaborative law participation agreement, pledging to take a reasoned approach on all issues. All participants agree to create proposals that meet the fundamental needs of both parties and, if necessary, to compromise to settle all issues. After this agreement is signed, each spouse meets with his or her lawyer. Then, both spouses and their attorneys attend the first collaborative meeting.
A: A collaborative process is less time-consuming, less expensive and less confrontational than a traditional adversarial divorce. Reducing such stress allows parties to focus on problem resolution. The parties’ lawyers represent their respective interests and can prepare all necessary paperwork, but the parties have more control over a collaborative settlement than a traditional divorce. The collaborative process is also more private than a contested divorce, which generates court filings, transcripts and hearings in open court. Where parties cannot work out differences, or do not value a negotiated solution, the collaborative process will probably not be effective.
A: In divorce mediation, a neutral mediator meets with both parties to help them reconcile their differences, but provides no legal advice to either party. The mediator is not authorized to make any decisions on the parties’ behalf. Like collaboration, mediation works only when the parties intend to be reasonable and fair. Frequently, agreement on certain issues may be reached through mediation, while other issues are referred to a court proceeding or a binding arbitration. Mediators generally do not prepare court paperwork or appear in court with clients. Parties using mediation generally consult with their lawyers outside the mediation process.
In collaboration, each party is fully and individually represented by legal counsel throughout the process. Collaborative attorneys can prepare all necessary paperwork and attend the required hearing where the divorce agreement is presented to the court for approval. The costs for collaboration and mediation are roughly comparable.
A: Most collaborative family law practice groups include non-lawyer members who are collaboratively trained financial professionals and can act as neutral advisors on tax and planning issues. Some groups also include, as adjunct members, licensed real estate appraisers who are committed to doing neutral appraisals so the divorcing couple does not have to pay for two appraisals as well as for two appraisers to argue in court.
A: Most collaborative family law practice groups also have non-lawyer members including psychologists, family counselors and child specialists or licensed independent social workers. Such an individual may act as a “coach” for a client who is struggling with the emotional side of a domestic case, or as a neutral child specialist who helps clients work out an effective, age-appropriate parenting plan.
Property Division
In addition to parenting issues and support, another topic to address as part a divorce is deciding who gets what; whether assets or debts. . Property covers both real property, such as your home, and personal property, such as household items or cars.
Equitable Distribution
Florida courts divide a couple's assets in an ''equitable'' (fair) manner, called equitable distribution. Equitable is what is fair to both spouses, and fair may not mean equal.
Florida statute 61.075 gives the factors courts use in deciding what is "equitable." Factors include:
- a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
- (b) The economic circumstances of the parties.
- (c) The duration of the marriage.
- (d) Any interruption of personal careers or educational opportunities of either party.
- (e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
- (f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
- (g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
- (h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
- (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
- (j) Any other factors necessary to do equity and justice between the parties.
Before deciding how marital property is to be shared, the Court must determine what property is marital and what is the non marital property of each spouse. Your attorney will work with you to identify what assets and debts are subject to distribution between you and your spouse.
Property Settlement Agreements
If you and your spouse can agree on how to divide your assets, whether it follows Florida’s guidelines or not, your lawyers will write up a formal agreement called a ''property settlement agreement" or a "marital settlement agreement" (MSA).. Detailed lists of who gets what are included in this agreement.
Often, a voluntary property settlement is preferred to having the court decide those issues. There's no way to predict or guarantee how a court will decide property division issues, so many couples prefer to work out a property settlement on their own.
The language of a settlement agreement is important- a poorly worded agreement may be unenforceable, and not worth the paper it’s written on. An attorney’s involvement in drafting and reviewing the agreement is vital to ensure that you get what you agree to. Do read the property settlement agreement carefully, and ask your lawyer about anything you don't understand. Once an agreement is signed and approved by the court, it's likely be difficult and expensive to change.
Taking a Property Inventory
Before you can negotiate aproperty settlement, you need to know what there is to divide. . One of your first tasks, even if you're thinking about a divorce, is to make a property inventory. It's vital to list all property you and your spouse own. Don't try to hide assets as it will only complicate dividing your property.
Property Transfer After the Divorce
As soon as the property settlement is approved or the court finalizes the divorce, you'll want to take care of the details of the property transfer. This includes preparing and signing the documents needed to transfer ownership.
While it may be the last thing you want to do, taking care of these details will save future trouble and make it easier to gain closure on this chapter of your life.
