Collaborative Divorce FAQ
Collaborative law is a structured process in which you each are represented by a collaborative law attorney, whom you hire to attempt to reach a settlement of the matter which is hopefully good for both parties, rather than battling in court. The goal is a result that is acceptable or even positive for both of you, versus trying to defeat the other party. This happens through meetings led by a mental health professional (MHP), with often a neutral financial professional when there are significant financial issues.
Here is a video by a number of collaborative law professionals describing the process.
Research shows success rates of 90% for Collaborative Law cases, with success meaning a complete settlement of all issues in the case. Here is a link to one of my recent blog posts describing the success rates and the research studies detailing the results.
I think there are many answers to this question.
Interest-based Negotiation. Part of it is that Collaborative Divorce is based on something called “interest based negotiation” versus “position based negotiation”.
In positional negotiations one side will say I want/demand this – for example, I want most of the time with the children or I want my entire retirement account, and the other will say no, I want x amount of time with the children, or no I’m entitled to half of your retirement.
It’s a bit hard to describe on paper versus seeing this in action, but asking the next question about a position, for example what are the reasons it is important for you to have a majority of time with the children, or what are the reasons that it is best for the children (both parents may have very different opinions about this), often reveals ways to address concerns other than by completely satisfying the initial demand. You can probably recall events in your own experiences where one person’s making a demand, and the other reflexively taking a contrary position and saying “not a chance” leads to an argument, versus being able to talk through each person’s concerns, which can lead to some resolution, even if not totally acceptable to each person.
Structured Process. In collaborative law, this process is led by the MHP with each spouse or parent’s attorney there to help keep the process going, which sometimes involves letting their own client know if they’re taking a position that goes beyond what is reasonable. Clients in collaborative law for most issues are not required to follow what the end result might be under Florida law, but sometimes a collaborative law attorney’s feedback to their own client could be something along the lines of – that would not be a likely result in front of a judge.
It is a structured process, with the support of the MHP and both attorneys, as well as a neutral financial professional for financial issues. Each attorney advising their own client in a sense helps provide guard rails, to help keep the process from going off the rails; and the MHP is there to help be sure each person’s concerns are addressed.
It can be important to have an attorney trained as a collaborative law attorney.
The Best in Each Person. This is another factor that is difficult to describe on paper versus seeing it in action, but when the conflict of litigation is removed as well as the attorneys’ contribution to the conflict, it is often amazing to see the best in each person come out, and parents or spouses finding compromises. One factor that can contribute to this, is a spouse or parent seeing that the other party and their attorney are trying to help arrive at solutions that are fair to you also.
The bottom line is that research results consistently show a 90% success rate, and that is based on reports from both the attorneys and parties. There are probably many additional reasons – in part that you have an entire team, and if someone is having a difficult time there are other participants there to keep the process moving and intact; part that if you and the other parent or spouse choose this process, there is the factor of the two of you having self-selected to seek to resolve the case outside of Court.
The benefit in this regard of the MHP should not be underestimated. Generally, your team members, including the MHP, will have a great deal of experience, and if things become difficult, having the MHP there to help address each person’s concerns helps. Each attorney and the financial neutral can contribute as well by helping to see concerns a client is having. It’s one of the potential advantages of a Collaborative Divorce team, over for example mediation with one mediator.
I’ll summarize the answer to this questions by saying: a Collaborative Law attorney is someone trained to seek, and who, by interest and values as to what is best and appropriate for family law cases, seeks to assist you in arriving in good faith at a settlement of your matter that is acceptable to both you and the other spouse or parent, versus seeking to defeat or destroy the other party in Court.
You can find a longer answer to this question, What is a Collaborative Law Attorney by following this link to that page on the website.
The neutral financial will usually be a forensic accountant and sometimes a certified divorce financial analyst (CDFA) as well.
The financial neutral gathers all of the financial information, produces schedules of assets and liabilities for the couple, as well as income and expenses for each person; completes a support analysis for alimony and child support when applicable; and sometimes completes valuations of assets – e.g. businesses.
In addition, the financial neutral assists in developing options for financial issues that need to be settled.
There are a few answers to this question also.
Rather than each attorney doing the initial review of statements and accounts to develop schedules of assets, liabilities, income and expenses, the one neutral financial preforming these tasks usually represents a significant cost savings, and it is a task for which the financial professional has specific training and expertise.
It is sometimes easier for each spouse to trust the numbers provided by the neutral, than financial information provided by the other spouse and his or her attorney.
In a litigated divorce with significant assets, you’ll often have each spouse hiring their own forensic account, at a significantly greater cost than one financial neutral. In addition, it is a value added in my opinion for there to be a financial professional doing the financial analysis, versus a case in which the parties do not hire accountants and the attorneys do all of the financial analysis, usually at a greater combined cost than having the one financial neutral.
The MHP leads the meetings, helps make sure each parent’s or spouse’s concerns are adequately addressed, and is a resource for issues regarding minor children. For example, often parents will sit down with the MHP to develop the parenting plan for the case (a parenting plan is a specialized agreement regarding time-sharing and other children’s issues required under Florida law when there are minor children).
The MHP leads the meetings and helps keep the process focused on each person’s interests and concerns, versus the process becoming a battle or back and forth between attorney’s trying to represent their clients.
The MHP will almost always be a specialist in children’s issues as well, and is significant value added in addressing questions that come up regarding best interests of the children, and in keeping the focus on the children when working on the parenting plan. It’s easy at times for the parties and attorneys to focus on what is fair for each parent.
I had a case recently where the parents were trying to figure out which school district was best for the their children, one of whom had special needs, the MHP was very familiar the programs at the schools in each district, and was able to assist the parents in making a decision.
Having the MHP sit down with the two of you to develop the initial draft of the parenting plan can be a significant cost savings.
An uncontested divorce or other family law case, where you and the other spouse or parent yourselves arrive at an agreement, and one of you takes that to an attorney to write up, will be much cheaper the Collaborative Law.
Mediation with just you and the other party, in which you arrive at a settlement will almost always be less expensive than Collaborative Law. You can read more about a comparison of mediation and collaborative law by following the link to that page here on the website.
Collaborative Law will almost always be less expensive than adversarial litigation.
A survey of 101 collaborative cases in Florida between December 2013 and January 2018 found the approximate total, median cost for “easy” cases was $15,000 (54% had a total combined cost for both clients of $15,000 or less); $30,000 for “moderate” difficulty cases (53% of “moderate” difficulty cases had a total, combined cost of $30,000 or less); and less than $75,000 for “difficult” or “very difficult” cases (62% of these cases had a total combined cost of $75,000 or less).
Seventy-six percent (76%) of the cases included a Mental Health Professional on the collaborative team, and 71% a neutral financial professional. The cost amounts are combined costs for the attorneys, Mental Health Profession and Financial Neutral.
A survey by the International Academy of Collaborative Professionals of 933 cases in the United States and Canada from October 2006 through July 2010, found an average cost of $12,127 for easy cases; $21,633 for moderate cases, and $32,588 for difficult cases.
For all cases, this study showed an average total cost of $24,125 – $17,826 for cases with no minor children and $25,576 with children.
Most (87%) of the cases were from the U.S. The hourly fees for attorneys in the cases was similar in the U.S. and Canada, but there was a wide range in cost depending on the region in the U.S., for example an average total cost of $14,054 in Minnesota and $41,485 in California.
It is a little difficult to compare exactly the cost amounts from the two studies, but it appears that the recent Florida amounts are higher than the 2006 to 2010 average amounts from this earlier survey, which is probably accounted for by Florida being more costly than the national U.S. average, and by the fact that hourly rates have increased since 2006 and 2010.
In my opinion, definitely. Litigation can be a nasty process, with each side trying to put the other at risk. You can read a blog post of mine regarding litigation as an abusive process.
In adversarial litigation you’ll have multiple, sometimes stressful conversation with your attorney regarding the threat from the other side and how to prevail; and the end result of the case can be ongoing conflict or bad blood.
Litigated cases have the possibility of being settled on a friendly basis, with the two of you moving forward on a positive basis, but I believe this is more likely in a collaborative case; in addition to the collaborative option leaving in place a good process for resolving issues in the future. I’ve seen highly conflictual, litigated cases continue to have conflicts, contempt motions, motions for enforcement, petitions for modification, numerous hearings, and appeals for years, sometimes for as much as a decade or more after the original final divorce order.
Where privacy is a concern, a Collaborative case is handled without adversarial pleading and allegations in the Court records. Even the Settlement Agreement, other than the Parenting Plan, can be retained as confidential to be filed with the Court only if some enforcement action in the future is needed, which hopefully would never be the case – with the two of you returning to Collaborative Law rather than the Court, if an issue arises in the future.