The following article, written by Paul Pinkham for Jacksonville.com, details the progress made in Florida incorporating collaborative divorce into and as a viable alternative to the litigation process.
Collaborative divorces can save couples money and emotional distress.
Attorney Nickolas Alexander remembers returning to his Orange Park
office seven years ago excited about a new, less confrontational way to
resolve divorces he'd learned about at a family law seminar.
of the acrimonious game-playing that characterizes traditional divorce,
he said he was drawn to the "collaborative process," bringing legal,
financial and mental health professionals together with divorcing
couples in a roundtable setting designed to encourage cooperation over
He immediately hosted a training session at his office. Three people showed up.
Attendance wasn't much better at subsequent attempts two years later.
"The collaborative process has just been kind of limping along since that time without enough support," Alexander said.
the tide may be turning. For the second straight year, the Florida Bar
is drafting legislation designed to codify collaborative divorces in
state law. A similar bill died in a House committee last year.
judicial circuits in Florida – none in North Florida – already have
administrative orders in place, establishing frameworks for
This month about two dozen people showed
up for a collaborative law seminar sponsored by the Jacksonville Bar
Association. More than half were mental health professionals, whom
Alexander and other participants believe are key to giving the idea
"I said to myself, 'There's got to be a better way for
people to get divorced because they get set up to fight forever, and
the kids are the ones who suffer,' " said Ross McDonough, a licensed
clinical social worker in Neptune Beach. "People who go through divorce
are at the worst emotional place in their lives. They can benefit by
having somebody … help separate emotions from judgment."
'A growing phenomenon'
divorce is a voluntary process that begins with a contract signed by
the couple and their lawyers stating they won't go to court and instead
will try to dissolve their marriage together.
mental health professionals become part of the team to advise the
couple, taking into account the family's unique financial and emotional
situation. Marriages marred by violence, abuse, mental illness or
coercion generally aren't candidates for the collaborative approach,
If the process doesn't work and the couple
decides to go before a judge, the contract specifies neither side can
use anything in court that they learned during negotiations, and the
lawyers and other professionals are required to step down.
really changes the tone of negotiations," said Talia Katz, executive
director of the International Academy of Collaborative Professionals in
Phoenix. "Clients make their own decisions about their own lives. No
judge, no attorneys, no outside force can understand the dynamics and
needs of a family better than that family."
She said the process
can be less financially and emotionally devastating for couples because
of its emphasis on cooperation. And it can lower family court case
Though the concept has been around nearly 30 years, it is
still in its infancy in the United States, said Andrew Schepard, who
teaches family and collaborative law at Hofstra University School of
Law in New York.
"It is clearly a growing phenomenon," Schepard
said. "It's a very attractive idea because it returns the lawyer to the
role of counselor."
Schepard said studies by Canada's Justice
Department found high satisfaction with the process in that country,
but no mechanism exists to keep track of collaborative settlements in
the United States. He is working with the Uniform Law Commission to
develop a national standardized policy.
Efforts by The Florida
Bar Family Law Section to pass a state law have been under way about
two years. Last year the House Civil Justice and the Courts Policy
Committee shelved the proposal for future consideration, said Longwood
attorney Matthew Capstraw, a leader of the Bar effort.
"There was a lot of interest, but there were some different ideas and concerns with the bill," he said.
Listening instead of leading
Circuit Judge McCarthy Crenshaw of Clay County said he's long supported the collaborative concept.
that can help people in divorce cases be a little less antagonistic to
each other and be a little more sensitive to the children involved I'm
all for," Crenshaw said.
But he said the provision that
disqualifies the lawyers if the process doesn't work is the biggest
hindrance to acceptance in the legal community. He said he doesn't know
of any other situation where lawyers have to get off a case they can't
Jacksonville divorce attorney Barry Zisser said he fears
that provision could actually make the process more expensive because
couples would then have to find new lawyers. He said about
three-fourths of divorces in Northeast Florida work out in mediation,
which is required before a trial.
But Atlantic Beach attorney
Nicole Habl said the disqualification requirement provides incentive
for everyone to come to an agreement.
"It's an amazing process because the attorneys have to listen rather than lead," she said.
and Michelle Ash, a certified divorce financial analyst in
Jacksonville, said collaboration generally costs far less than
litigation. In the long term, it enables families to structure
financial settlements that can benefit both sides with less rigidity
than traditional divorce proceedings allow.
Ash said her role in
the process is to meet with both sides together and separately to help
them understand what their new household will look like financially.
not so much about the asset division. It's about the cash flow, meaning
is each of these households going to have enough money to live a
certain lifestyle," she said.