In recent years, divorce has become an ugly beast that pits two people against each other. Collaborative divorce has sprung up as an alternative in an effort to give aid to couples who wish to part amicably. But how does collaborative divorce work? How does it begin and end, and what happens if a peaceful settlement cannot be reached?
Collaborative divorce is defined in Florida law under Statutes 61.55 – 61.58. Specifically, 61.57 defines how the process begins, concludes, and what happens if it is terminated early.
61.57 Beginning, concluding, and terminating a collaborative law process.—
(1) The collaborative law process begins, regardless of whether a legal proceeding is pending, when the parties enter into a collaborative law participation agreement.
(2) A tribunal may not order a party to participate in a collaborative law process over that party’s objection.
(3) A collaborative law process is concluded by any of the following:
(a) Resolution of a collaborative matter as evidenced by a signed record;
(b) Resolution of a part of the collaborative matter, evidenced by a signed record, in which the parties agree that the remaining parts of the collaborative matter will not be resolved in the collaborative law process; or
(c) Termination of the collaborative law process.
(4) A collaborative law process terminates when a party:
(a) Gives notice to the other parties in a record that the collaborative law process is concluded;
(b) Begins a proceeding related to a collaborative matter without the consent of all parties;
(c) Initiates a pleading, a motion, an order to show cause, or a request for a conference with a tribunal in a pending proceeding related to a collaborative matter;
(d) Requests that the proceeding be put on the tribunal’s active calendar in a pending proceeding related to a collaborative matter;
(e) Takes similar action requiring notice to be sent to the parties in a pending proceeding related to a collaborative matter; or
(f) Discharges a collaborative attorney or a collaborative attorney withdraws from further representation of a party, except as otherwise provided in subsection (7).
(5) A party’s collaborative attorney shall give prompt notice to all other parties in a record of a discharge or withdrawal.
(6) A party may terminate a collaborative law process with or without cause.
(7) Notwithstanding the discharge or withdrawal of a collaborative attorney, the collaborative law process continues if, not later than 30 days after the date that the notice of the discharge or withdrawal of a collaborative attorney required by subsection (5) is sent to the parties:
(a) The unrepresented party engages a successor collaborative attorney;
(b) The parties consent to continue the collaborative law process by reaffirming the collaborative law participation agreement in a signed record;
(c) The collaborative law participation agreement is amended to identify the successor collaborative attorney in a signed record; and
(d) The successor collaborative attorney confirms his or her representation of a party in the collaborative law participation agreement in a signed record.
(8) A collaborative law process does not conclude if, with the consent of the parties, a party requests a tribunal to approve a resolution of a collaborative matter or any part thereof as evidenced by a signed record.
(9) A collaborative law participation agreement may provide additional methods for concluding a collaborative law process.
In plain English, the collaborative process begins when the parties voluntarily enter into a collaborative law participation agreement. The collaborative process ends when either a resolution is reached and signed into record, or the collaborative process is terminated with or without cause by one of the parties. Florida law goes on to require that the attorney of the terminating party needs to give prompt notice to everyone else involved.
If the collaborative process was terminated because one of the parties’ attorneys quit or was dismissed, that party has 30 days to find a new one, have both parties reaffirm the participation agreement, amend the participation agreement to list the new attorney, and have the attorney affirm their participation.
Just because the parties have decided to use the collaborative process does not mean nothing can be decided in court. Both parties can agree to request a tribunal to decide the resolution of a collaborative matter.