Striving to Keep Divorces from Getting Messy

By Billy Shields
Daily Business Review
November 21, 2007

Imagine a world without messy divorce litigation.

The couple calling it quits would agree to separate based on the mutual agreement of their attorneys. The attorneys would agree to negotiate amicably or drop out of the case, and expert witnesses would be neutral, mutually agreed upon and paid for by both sides.
Joel Brown      

Sound like a far-fetched idea? It is already here and

being touted by Chief Judge Joseph P. Farina as a kinder, gentler way to handle a divorce.

The judge last month signed an administrative order authorizing the collaborative model of family law to be used in Miami-Dade Circuit Court.

The model works like this: if a couple wants a divorce, the husband and wife go to different attorneys who are designated as collaborative lawyers. Working together, the lawyers agree on a neutral set of experts, and the lawyers come to an agreement on the value of the marital assets.

In a divorce, “the argument is over what people make,” noted Administrative Judge Joel H. Brown of the Family Division. With both parties attempting to mutually disclose financial information, the collaborative method “totally de-escalates the emotional impact because it’s not adversarial,” he said.

As a result, the collaboration model is a cheaper, shorter alternative to litigation, Brown said.

Collaborative lawyers point out that contentious divorces with minor children and lots of assets can take easily more than two years to resolve. By comparison collaborative proceedings can often take as little as three months or a maximum of eight months to complete.

Collaborative law was originally designed to separate litigation from the divorce process as much as possible, and spare the couple the escalating costs of contentious divorce proceedings.

It differs from quick-hit divorces that are often advertised for discount prices because those couples typically don’t have sizable assets, child custody disputes or debts — and thus wouldn’t need a lawyer.

According to Florida Bar estimates, up to 63 percent of divorcing parties in the state file to end their marriages pro se, a fact which can slow the process.

In Miami, there are about 35 lawyers handling collaborative divorce, according to Rosemarie S. Roth, a Miami solo practitioner who is the president of the Collaborative Family Law Institute in Miami. Roth said that while the practice is growing, a lack of publicity has kept it from being more popular among those looking for an easy way to split up.

“Part of the reason that there aren’t more cases is that people don’t know about it yet,” she said.

Advocates of collaborative divorce say it has one big advantage: It’s easier on children.

“Words can never be taken back [in the case of a traditional divorce proceeding], Roth said. “It makes it virtually impossible for those people to co-parent their children.”

The collaborative process is confidential until the agreement is finished, when attorneys file a dissolution of marriage notice for a judge’s approval.

Parties that can’t reach an agreement using the collaborative process can opt out at any time.

When that happens, the collaborative attorneys drop out and the husband and wife each have to find divorce lawyers.

That distinguishes the local collaborative divorce practiced here with that on the West Coast, in which a lawyer can stay on the case and litigate a divorce if the two parties discover they can’t come to an agreement.

Even if one of the parties opts out of a collaborative divorce, discovery made during the process is still available as the case moves forward in the courts.

“There will always be people who think they’re going to get a better deal from a stranger in a black robe,” Roth said.

Collaborative divorce started about 17 years ago, and was originally the brainchild of family attorney Stuart Webb in Minneapolis.

Frustrated with litigating and burned out on handling divorces, Webb tinkered with divorce law in an effort to remove the adversarial elements.

“I just declared to myself, ‘I’m not going to court anymore,’ ” he said in a telephone interview Monday. Collaborative law “forces the lawyer to be different. The lawyer cannot pound the table if he doesn’t settle.”

Webb estimated there are about 12,000 family lawyers practicing in the United States.

He came up with the “withdrawal provision,” which is the hallmark of collaborative law, after a divorce case he was trying to settle with another attorney “went to hell because we didn’t have enough sense to get out of the case.”

The International Academy of Collaborative Professionals lists practice groups in 33 states and the District of Columbia as well as countries such as Canada, England and France.

Cooperative law hasn’t been popular everywhere. The Ethics Committee of the Colorado Bar Association published an opinion in February saying the withdrawal provision is unethical since “the client’s consent to waive this conflict cannot be validly obtained.”

But earlier this month the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued an opinion stating the practice “does not create an inherent conflict of interest. … Rather, it recognizes an agreement between participating lawyers and their clients … to seek mutually acceptable solutions to disputes between the parties.”

Other state bars, like Kentucky, New Jersey and Pennsylvania, have issued opinions agreeing with the ABA stance.

One stumbling block that always will plague collaborative law is that a couple that decides to split is usually not in a cooperative mood.

“Unfortunately, the nature of divorce actions is that usually one or both people have hurt feelings that stem from a lack of trust,” said Evan R. Marks, a former chairman of the Family Law section of The Florida Bar and a Miami-based divorce lawyer. “When you have those issues, it is impossible to collaborate.”

Advocates for collaborative law argue the practice cuts down considerably on attorney fees — the theory being an attorney spends less time dealing with his client in a cooperative process than the attorney would drafting court filings, attending hearings, investigating and handling discovery in adversarial litigation.

But traditional divorce lawyers don’t have to worry about finding a new job.

With more than half of Florida marriages ending in divorce, lawyers enamored with litigation should have nothing to worry about in the future, Marks said.

“There is so much divorce work that the litigators who do this don’t need to drum up business,” he said. “It will always be there.”

Web Extra:
Administrative order

Collaborative agreement

Joel Brown photo by A.M. Holt

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