Florida Passes the Collaborative Process Act

After unanimously passing in the Florida House and Senate, on March 24, 2016, Governor Rick Scott signed and enacted the Florida Collaborative Process act.  This act recognizes and establishes requirements for the use of the Collaborative Process in family law matters in the State of Florida.  The Collaborative Process is a dispute resolution method used as an alternative to Court litigation.  In enacting the Collaborative Process Act the Legislature stated the purpose of the Act was:

The Legislature finds and declares that the purpose of the Part III of Chapter 61, Florida Statutes, is to:

  • Create a uniform system of practice for a collaborative law process for proceedings under chapters 61 and 742 of the Florida Statutes
  • Encourage the peaceful resolution of disputes and the early settlement of pending litigation through voluntary settlement procedures.
  • Preserve the working relationship between parties to a dispute through a non-adversarial method that reduces the emotional and financial toll of litigation.

In the Collaborative Process, each party, with the help of a specially trained attorney, meet jointly and privately to respectfully negotiate the settlement off all the issues in their dissolution.  Information and documents are exchanged voluntarily without the need of going to Court or the expense of formal discovery.  A neutral financial expert, such as a certified public accountant or a financial planner, helps the couple gather and understand their assets, liabilities, income and expenses, to help the parties negotiate a settlement of those issues.  A specially trained mental health professional acts as a facilitator to assist the parties with issues involving their children and to stay focused on resolving the issues in their dispute rather than attacking the other person.

The cost and time required by the collaborative process is typically less than half of a litigated divorce.  Best of all, the parties learn how to problem solve together, lessening the possibility of future litigation.  This is in stark contrast to litigated divorce cases which may leave bitterness and anger for years leaving the parties without a working relationship and solving future problems through more litigation.  Further, the Collaborative process allows the parties far greater privacy for themselves and their finances than traditional litigation.

We at the Marks Law Firm have been have been utilizing the Collaborative Process for years to help our clients in their disputes.  The attorneys in our firm have received special training in the use of this process, and one of the attorneys in our firm aided in the creation of this statute.  It is our hope that, with the passage of this act, the use of the Collaborative Process will become more common as we believe it will greatly benefit Florida’s families.

Collaborative Law vs. Divorce Mediation in Family Law

By Orlando Family Law Attorney Tom Marks

First, let me say that both the Collaborative Law Process and Mediation have their place and each can be very beneficial in the right circumstances. However, although they may appear similar at first blush, their focus and processes are different. Both attempt to help the Parties resolve their issues without formal litigation, with the goal being a Settlement Agreement in their case.

One calls that agreement a Collaborative Law Agreement and the other calls it a Mediation Agreement.

Let’s look at the differences.

Collaborative Law vs. Divorce Mediation

Mediation typically involves “positional bargaining,” while Collaborative involves mutual “goal setting.” An essential difference is that in Mediation the parties typically take their respective corners and usually start bargaining from polar extremes.

Each Party normally hopes to end up somewhere closer to the middle or, depending on his or her perspective, closer to their position.

In the collaborative family law, collaborative divorce or collaborative problem solving, the parties come together in a more transparent fashion. They outline their goals together and work together to find common purposes like “protecting the minor children.”

Another difference is the people involved. The Collaborative Process includes a team working together, not just the Clients and their Attorneys. The team includes a Collaborative Mental Health Professional and a Financial Collaborative Professional. These two professionals are considered “neutrals” and they do not advocate for one side or the other; they are part of the solution. And the attorneys, because they sign the Collaborative Agreement stating that they will not take the case to Court, are also vested in reaching resolution in the Collaborative Process.

One last important difference: although all Family Law cases in Central Florida are required to go to Mediation before they proceed to any contested Hearings, Collaborative Cases only proceed where both parties agree. There has to be some level of trust and willingness to be open and transparent for the Collaborative process to be effective. However, the potential benefits are tremendous for the parties, their children, finances and futures. But if the trust isn’t there or the Collaborative Process is not an option, Mediation is still far better than formal litigation, which usually results in substantial pain to everyone involved.

Check out this video of Attorney Tom Marks and Attorney Ronald Sims discussing Collaborative Law vs.  Mediation:

 

Orlando Collaborative Family Law and Professionalism

By Orlando Collaborative Family Law Attorney Tom Marks

I believe that the vast majority of attorneys are caring and professional in their behavior and advocacy for their clients. In our adversarial system it is only natural though that by the end of the case, at least one of the parties will feel like they lost. That is especially true in Family Law, the area I practice in.

Of course, it doesn’t have to be that way and that is one of the reasons I have developed a Collaborative Family Law Practice where husbands and wives agree to work together to resolve the issues without having to take the case to Court.

Not only are both parties winners in Collaborative Law, because they avoided acrimonious Litigation, but also because both parents together have focused on their kids’ best interests.

I have actually participated in Collaborative Law Cases where both parties have felt like they are not only happy with the final results but that they believe they have done everything they can mutually to protect their children and to ensure that their children thrive even after the Dissolution of Marriage. They have chosen to love their children the most and to continue to be friends in order to co-parent their children in the most healthy and productive way possible.

A Word About “Collaborative” Family Law Attorneys

Attorneys who practice Collaborative Family Law are some of the most professional, ethical and caring lawyers I have ever met. The focus is no longer on litigation and winning at no small expense, financially, emotionally, psychologically and spiritually to the clients. And in  addition to the Collaborative Family Law Attorneys, there are highly professional Neutral Collaborative Professionals like the Financial Collaborative Professional and the Mental Health Collaborative Professional. They assist the clients and attorneys in putting together Equitable Distribution Worksheets and other financial documents as well as the Parenting Plan and other important documents in the case.

I am not saying that Family Law Attorneys involved in the Litigation aspects of Family Law are not for the most part Professional. There certainly are many. But those Attorneys who have decided to focus on Collaborative Family Law, do it I believe, because they care about the process of helping clients resolve their cases in the healthiest and most productive way possible.

Reaching a Common Ground

By Family Law Attorney Tom Marks

I went this last week to visit Regent University in Virginia with my daughter and we went to an event called the “Clash of the Titans.” It was a debate from the political left and right moderated by Dana Perino, of the Fox news show called “The Five.”

The two conservatives, Newt Gingrich and Jay Sekulow debated the two liberals, David Axelrod and David Plouffe. The focus of the debate was on “Executive Powers” and involved some of the most divisive issues of our day, including Obamacare, the medical exchanges currently in disarray and the IRS targeting conservative political groups. Of course, issues like the recent partial federal government shutdown and the threat of defunding Obamacare were on the table for a potentially polarizing and out-of-control argumentative free-for-all.

However, even though the participants did not agree on many of the pressing issues facing America today, they maintained civility and respect for each other’s ideas, goals and positions. It made me think of The Marks Law Firm’s Family Law Practice and how even opposing parties in the Dissolution of Marriage Proceedings can still act civilly and seek common goals of protecting the minor children and properly co-parenting them into the future. I see those successes in my Collaborative Family Law Cases and even in the more traditional litigated Family Law Cases.

Even with gridlock in Washington DC, these politicians from opposite sides of the political spectrum could still agree to disagree in a debate on the issues and then sit down and have dinner together and try to reach common ground for the good of the country.

I believe parents should and can do the same thing even through a divorce, for the good of their minor children.

Collaborative Law: An Orlando Divorce Alternative

by Family Law Attorney Tom Marks

Divorce is not always possible to avoid and that we don’t live in a perfect world. It is our goal at The Marks Law Firm to help our clients through what is probably the worst time in their whole lives. We do this so our clients are clearly better off for having been our Client than they would have otherwise been, and they are better off leaving our office than when they came in to see us.So what are some of the options if you and/or your spouse are not able to reconcile or work out your differences?

Of course there is the traditional litigation model which can be very expensive in terms of money, time, emotions and family devastation. This option is sometimes unavoidable because of the issues and perhaps personalities involved. It however, should never be the first choice. If the case goes all the way to Trial it can take months if not more than a year and it can cost tens of thousands of dollars.

I have always practiced law in a collaborative way with what we call a small “c”. By that I mean that I do everything I can to help the parties and counsel work together collaboratively or amicably to save time, money and emotional/psychological trauma. I have been trained now for a number of years in Collaborative Law with what we call a capital “C”.

The difference is in the Collaborative Law with a capital “C”, the Parties sign a Collaborative Agreement that basically says they are willing to pursue a resolution of the case without the expense and trauma of litigation and the Collaboratively trained Attorneys in the case also sign the Collaborative Agreement committing to the Collaborative Process.

The Collaborative Attorneys also commit not to take the matter to Court and through the Litigation Process if the Collaborative Process fails. This removes any and all interest an Attorney might have in the Collaborative Process failing because, 1. They lose a client and 2. They do not get the work to take the case through the Litigation Process.

Essentially the Parties and their Attorneys are all committed to seeing the Collaborative Process be successful because all of them have a vested interest in seeing it succeed. In order to further the prospect of seeing the process succeed, the Collaborative Process also includes a Mental Health Collaborative Professional and a Financial Collaborative Professional. These two “Neutrals” help the team move the process forward within their spheres of expertise.

The Mental Health Collaborative Professional leads the team, insures that the Parties appropriately express their goals and expectations, and moves everyone toward a successful resolution of all issues. The Mental Health Collaborative Professional also meets with the Parties to develop the Parenting Plan if there are minor children.

The Financial Collaborative Professional compiles all of the financial data, drafts Child Support Guideline Worksheets, Equitable Distribution Work Sheets and perhaps Alimony Analyzer Worksheets as options for the Parties and their counsel to consider. Both the Mental Health Collaborative Professional and the Financial Collaborative Professional are “Neutral” and so they do not take sides.

Finally, because the Attorneys are not involved in drafting the Parenting Plan, Child Support Guideline Worksheets, Equitable Distribution Work Sheets, or Alimony Analyzer Worksheets typically, the Attorney Fees in Collaborative Cases can be substantially less than in a traditional Litigation Case.

The Attorney Collaborative Professionals are still actively involved in Providing Legal Input and Advice to their Clients and the Clients still enjoy an Attorney Client privilege with their respective Attorney.

Probably the best thing about the Collaborative Process is that the Husband and Wife are able to express their respective goals in a safe, open and professional environment while receiving both neutral input and legal advice.

They can reach an informed and very personal and specific resolution that meets their overall expectations and family needs. They can walk out of the process knowing they have each been fully heard and their goals have been met. They can move forward without the devastation which so often occurs in standard family law litigation.

Divorce on a Dime: Part I

In general, there are four main methods that can be used to obtain a divorce:  Collaborative Law, Traditional Divorce via Litigation, Pre-Suit Mediation, and “Kitchen Table” Negotiations.

Collaborative Law is a relatively new type of Family Law which first began to be utilized in the U.S. in the 1980s.  Collaborative Law has quickly grown in popularity and recently became more organized in the Central Florida area.

Collaborative Law is a process in which the parties and a team of professionals, including collaboratively trained lawyers representing each party, analyzing the best outcome for the entire family in a team-like process.

The professional team generally includes, but is not limited to, a neutral mental health expert (“coach”), a neutral financial specialist, and two attorneys representing the respective parties.  The collaborative law divorce process is especially helpful in situations where children are involved, as it helps develop better cooperation and ultimately better relationships for everyone involved.  It is also financially beneficial because it may help limit the extensive cost associated with a traditional divorce through the overcrowded court system.

Collaborative Law has been described as a form of divorce which incorporates respect, allows for more control to the clients, provides lower stress overall, and utilizes creative problem solving skills.  However, Collaborative Law may not be for everyone, particularly for cases involving domestic violence, mental abuse, mental illness, drug abuse, and other similar scenarios.