What is Collaborative Divorce, and Why is it so Misunderstood?

Just as every marriage is different, so is every divorce case. The Virga Law Firm, P.A., handles every type of Florida divorce, and we pride ourselves on strong representation in contested divorces. But not every case requires that level of conflict. Sometimes, two parties are simply ready to move on, and wish to do so in a polite, fair, and equitable manner. That’s when collaborative divorce may make sense.

This blog post will provide an overview of Florida’s collaborative divorce law. It will discuss what collaborative law is…and isn’t. This post will further differentiate between collaborative law and other forms of alternative dispute resolution, such as mediation.

Finally, we will discuss three commonly held myths about collaborative divorces. But before we dispel any myths, let’s first define exactly what collaborative law is.

What is Collaborative Law?

Collaborative law is a relatively recent development, having originated in the ‘90’s. Both attorneys must be trained in collaborative law to pursue this option, so if you and your ex desire a collaborative divorce it’s important to retain not only lawyers who are licensed in the state, but also specifically trained as collaborative divorce lawyers. Many of our attorneys here at Virga Law Firm, P.A., are trained in collaborative divorce.

Collaborative divorce is a process that takes a case outside of the court system. That means that the collaboratively trained attorneys and their clients will work together (and at times with other professionals) to negotiate a mutually beneficial divorce. Some of the benefits of this process are avoiding the time and costs of court or arbitration.

A focus on a congenial atmosphere, rather than strictly competitive, places an emphasis on the best interests of the parties and their children. In collaborative divorces there is less of a focus on “winners” and “losers,” and more of an emphasis on problem solving. However, it must be stressed that for a collaborative divorce to work, both parties (and their attorneys) must enter into the process in a spirit of good faith.

Indeed, the parties and their attorneys must sign a contract at the start of a collaborative divorce acknowledging that they will negotiate in good faith and attempt to avoid unnecessary conflict.

At the end of a successful collaborative divorce case, the parties will still appear before a judge to finalize the terms of their settlement and to formalize their divorce. Collaborative law can therefore be seen as process to remove a case from the court process and all its procedural implications. But every case, once finalized, will still be placed on the record.

Some of the hallmarks of a collaborative divorce include:

  • A Client-focused rather than litigation-based approach to the case.
  • A less competitive process, looking to the “best interests” of the parties (and their children), and seeking mutually beneficial opportunities.
  • A process that is usually completed faster and at less overall cost because courts, judges, and arbitrators are avoided.
  • May be an appropriate consideration when the parties do not have a high level of personal animosity and are both willing to negotiate in good faith.
  • In a collaborative divorce, both parties and their counsel must act in good faith, or the process will not work. If one or both parties cannot move past their disappointment or anger at their ex, then a contested divorce may be necessary.

Perhaps this all seems like your idea of mediation. Below, we’ll briefly review the key differences in these two forms of “alternative dispute resolution.”

How Do Collaborative Law and Mediation Differ?

Collaborative divorce is different from divorce mediation because in a mediation both parties meet with a mediator, and they may do so with or without counsel present. Mediators need not be attorneys. In addition, mediation may occur during either a contested or an uncontested divorce and may even be court ordered.

In a mediation, the parties do not enter into an agreement to act in good faith, or to work together to reduce divorce costs or to seek mutually beneficial avenues. Although mediation is considered a form of “alternative dispute resolution,” and is appropriate in many circumstances, a collaborative divorce law engagement requires an even greater commitment to good faith negotiation. For that reason, collaborative law divorces may not always be appropriate in high-conflict cases, or in cases that involve a history of domestic violence.

Three Myths of Collaborative Divorce Law

With a firm understanding of what collaborative law is, and how it differs from mediation, let’s review three of the primary myths surrounding collaborative law.

Myth #1 of Collaborative Divorce Law: Collaborative Law Means Waving the White Flag

Please don’t think that collaborative law waives your interests. You will still be able to seek alimony, child support, the distribution of assets, and just about anything else you could pursue in the courtroom. Collaborative law is more about the spirit of the negotiations and the nature of the process itself, rather than waving a “white flag” or waiving any rights.

Instead of arguing about custody before a judge or an arbitrator, you will use experts and work together to find the best outcome for your family. As it has been said, it’s often best to make your own decisions in a divorce, rather than to trust the decision of a “stranger in a black robe.” Collaborative law empowers both parties to seek a mutually beneficial result.

Myth #2 of Collaborative Divorce Law: Any Attorney Can Handle These Types of Cases

As noted above, being a licensed attorney is not in itself sufficient to represent a party to a collaborative divorce case. Your attorney must also be certified as a collaborative divorce lawyer. That means taking extensive training to become certified, and ongoing education to maintain their license as a collaborative lawyer.

Myth #3 of Collaborative Divorce Law: You Can Force Another Party into a Collaborative Divorce

The third and final collaborative divorce myth we will cover here is whether you alone can decide to pursue a collaborative divorce. The answer is no, as both parties are required to consent to a collaborative divorce process.

If either of the parties will not agree, then there will be no collaborative divorce option available. That means that your attorney will need to negotiate with opposing counsel to either enter into collaborative divorce, or to avoid collaborative divorce, based on your desired venue for the case.

Ready to Pursue Your Collaborative Divorce?

If you’re considering collaborative divorce, be sure that you engage a firm like Virga Law Firm, P.A. Our lawyers are collaboratively trained and ready to assist you with any type of divorce you wish to pursue.

Collaborative divorce presents an opportunity to maintain control over your divorce process, to work with collaboratively trained professionals, and to help mitigate the time and financial costs of a contested divorce.

Whether you wish to pursue collaborative divorce, mediation, arbitration, or a contested divorce action, the Virga Law Firm, P.A., is ready, willing, and able to stand with you and to work toward a brighter future for you and your children.

If you would like to learn more about retaining our firm for your collaborative divorce, please call (800) 822-5170 today to schedule an initial consultation with the Virga Law Firm, P.A. Or utilize our contact form.

We look forward to working with you.

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