What is Collaborative Family Law?

Collaborative law is approach that allows willing parties to take their disputes out of the litigation setting of a courtroom and settle cases through structured negotiations.  Divorce settlements are reached through the use of mediation and negotiation.

What makes collaborative divorce unique is that it takes two willing parties who are committed to reaching a resolution.  If both spouses facing divorce are willing to take the approach there are significant benefits to both parties.  First, it allows a couple to resolve a divorce in an informal setting which can reduce added stress significantly.  Second, it is a cost saving approach for couple’s who are already facing certain financial demands from the process of separating households.  Third, it can facilitate a faster and more efficient resolution; allowing both parties to move on sooner.  Fourth, the parties can determine how they want to address future disagreements and incorporate that plan into their agreement.  Finally, it keeps the power of the family decision in the hands of the parties rather than in the hands of a judge who may or may not fully grasp the dynamics in the family.

Process of Collaborative Divorce

Step 1 – Both Parties hire attorneys who are experienced in Collaborative Law

Step 2 – the parties’ attorneys prepare an agreement outlining the terms of the mediation/negotiation and agree that anything discussed in the collaborative process is confidential and cannot be used in litigation should the parties decide to abandon the negotiations.  Also the parties agree that their attorneys will withdraw from representation if they decide they cannot resolve their dispute.

Step 3 – the parties sit down with their respective attorneys and a possibly certified mediator and any other needed specialists (ex. Therapist or Accountant) and work out a settlement of their family law dispute.

Collaborative Family law is an effective non-confrontational way to help divorcing couples and families handle their case in a thoughtful, less confrontational manner.  It gives families the opportunity to work together through a difficult transition to make decisions that benefit all parties as a whole and saves participants time, money and unnecessary stress.

The laws in Florida are adapting to acknowledge this approach to resolving family law disputes and just this year, Family Law Rule of Procedure 12.745, governing collaborative law was enacted in Florida.  Below is a summary of the new rule.

Rule 12.745 is added to Florida’s Family Law Rules of Procedure.  Among other things, Rule 12.745 does the following:

  • Provides that a collaborative law process begins when the clients sign a collaborative law participation agreement;
  • Directs judges to pause any proceedings if a collaborative process starts after a case has already been filed;
  • Explains how to successfully conclude a collaborative case or terminate it without an agreement;
  • Provides for procedures if a collaborative attorney is discharged or withdraws;
    Allows courts to approve interim (non-final) agreements reached within the collaborative process;
  • Permits clients, by mutual agreement, to use other forms of private dispute resolution, such as mediation or parent counseling, while the collaborative process is ongoing;
  • Grants judges authority to issue emergency orders to protect the health, safety, welfare, or interest of a party or household member as defined in section 741.28, Florida Statutes;
  • Blocks collaborative attorneys from appearing in contested court hearings related to the collaborative matter; and
  • Prevents attorneys in a law firm associated with the collaborative attorney from appearing in contested court hearings related to the collaborative matter.
Kenney & McDonough, P.A Trial Attorneys
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