Two top Florida divorce professionals discuss collaborative divorce from the perspective of a family lawyer and a certified public accountant.
Dan Couvrette, Publisher of Family Lawyer Magazine
I’m Dan Couvrette, the publisher of Family Lawyer Magazine. I’m speaking with two top Florida professionals on the subject of collaborative divorce. Some of our family lawyer listeners may be very familiar with the collaborative process and perhaps offer this as an option for their clients; some lawyers may be unfamiliar with the process; and, at the other end of the spectrum, there are some lawyers who practice family law that might be dead set against the collaborative process.
My guests today are Harriett Fox and Robert Merlin. Harriett Fox is a Florida Certified Public Accountant and a Florida family mediator. As a forensic accountant, Harriett specializes in complex financial analysis in the areas of family, commercial, and civil litigation issues. As a mediator, she helps settle cases in all areas of commercial and civil litigation.
Harriett has served as an expert witness in numerous cases. She is a member of the American Institute of Certified Public Accountants, the Florida Institute of Public Accountants, and the American Woman’s Society of Certified Public Accountants.
Robert Merlin is a Florida Bar Board Certified Family Law Specialist. He practices in the areas of divorce; time-sharing of children and parenting plans; child support, alimony, paternity, same-sex dissolutions, prenuptial and postnuptial agreements; and same-sex and unmarried partnership agreements.
Bob is an experienced collaborative law attorney and one of the leaders in the field. He trains other professionals in the process and has a long history of involvement in community organizations, taking on leadership positions both throughout the state of Florida and with the International Academy of Collaborative Professionals. He recently received the President’s Award for the Florida Chapter of the Association of Family and Conciliation Courts.
Can you give us a short history of the collaborative divorce process?
Robert Merlin: It was created in 1990 by a man named Stu Web, who woke up one day and decided there had to be a better way for attorneys to represent their clients in divorces. Stew communicated with some of his colleagues and a Supreme Court justice in Minnesota about creating a system where the two attorneys work together, instead of against each other, to help their clients resolve the issues of a divorce outside of the judicial system and then present it to the court for approval once there is an agreement.
Around the same time, psychologists in California – in particular, Peggy Thompson – were using the same process for their clients, but from a psychological perspective rather than a legal one. Ultimately, the two systems merged and the process now involves mental health professionals as an integral part of the professional team, along with neutral financial professionals that Harriett will talk about.
There are two basic models that are followed with respect to mental health professionals. One is using a neutral mental health professional as a facilitator and coach, but not a therapist, involved with the family to help them get through the process and to deal with children’s issues. The other model has each party represented by a coach and there may be other neutral professionals involved in the process.
In Florida, for the most part, everyone follows a single facilitator or mental health professional model.
How does the collaborative process work from the perspective of a financial professional?
Harriett Fox: The collaborative process works really well from a financial standpoint. From the beginning, the whole team is working toward the goal of providing the best financial plan for the family: the soon-to-be ex-wife, the soon-to-be ex-husband, and the children. Oftentimes in a litigated situation, the earner has been told that they will never have to pay alimony or support, the non-earner has been told they will be on permanent alimony for the rest of their lives, and I have to come in and throw reality at both situations.
In a collaborative situation, everyone knows that we’re working towards the best outcome for the family, particularly in dividing the assets. In an inequitable distribution in a litigated situation, there isn’t much flexibility. However, a 50/50 division may not be the best situation; it may have to be split 60/40. In a collaborative divorce, we have a more creative ability to come up with a solution that will work.
Also, we’re not facing documents. In litigation, we spend a lot of time and money trying to complete the discovery and their part of the agreement, but in the collaborative model, the documents are forthcoming. There aren’t accusations of hidden assets or trying to chase things that may or may not exist.
From a family lawyer’s perspective, what is the difference between litigation and the collaborative process?
Merlin: The collaborative process involves professionalism at a higher level. Instead of attorneys battling against each other, oftentimes acting inappropriately, they work together towards the common goal of helping the parties resolve their own case. We don’t have to go to court, schedule hearings, or wait for a ruling.
We have to develop different skills, especially communication skills, so that we’re able to work together with the other professionals to help the parties resolve the case.
Collaborative meetings are scheduled in advance so that you’re able to plan your calendar appropriately. The meetings have an agenda, are well organized, and typically take two hours – unlike mediation sessions, which can take hours. We have organized meetings and we take minutes. Temporary agreements are entered into and they become enforceable once the parties sign them at the next meeting.
One very important aspect is that the receivables in a collaborative case are significantly less than in a litigated case. You may bill more time in a litigated case, but one of the biggest problems that family attorneys face is collecting the fees they bill. In the collaborative process, we get paid as we go along. I’ve had over 30 collaborative cases and only one receivable. I end up taking home more money because of how organized the collaborative system is.
What are the conditions of the collaborative divorce?
Fox: One of the reasons I’m in favor of the collaborative process is that it’s less expensive and more efficient. It could be the same cost as litigation and oftentimes it’s less, but because there are no hearings and no filings with the court, there’s immediate savings.
The first thing the collaborative team addresses is the temporary situation for the family. The first meeting doesn’t end without a temporary parenting plan and a temporary financial plan for how they’re going to pay the bills. In a litigated divorce, it could be two or three months before you have the opportunity for a hearing on the temporaries – time has gone by, stress is building, and fees are building without accomplishing the goal of getting the couple divorced.
Some family lawyers might be concerned because if the collaborative process doesn’t work, each of the parties has to hire different attorneys. Is that a valid concern?
Merlin: It’s an understandable fear for attorneys who have not tried the collaborative process because that’s what they’ve heard about it. The one distinguishing factor in the collaborative process is the disqualification provision, which is of benefit to everybody, including the attorneys. Instead of threatening to go to court, everybody is dedicated to helping the parties resolve their case. It’s a voluntary process, so the parties can leave at any time, but if they do, the collaborative attorneys will not represent them in contested litigation. Ninety percent of cases that start collaboratively also end collaboratively. The chances are extremely high that you’re not going to lose your client. You’re going to do everything you can to help the client resolve their case.
Is collaborative divorce effective if the financial issues are complex?
Fox: The complexity of the case really doesn’t have a bearing on whether it would be successful collaboratively or not. In fact, the bigger the assets, such as a family-owned business, the more the family wants to protect the privacy of that business and the more important it is to choose collaborative rather than litigation. As soon as a pleading is filed in the court, everything becomes publicly accessible, including financial information and financial affidavits. A couple who wants to maintain their privacy would choose collaborative because nothing is revealed except at the very end when the final agreement is filed with the court.
Merlin: There are circumstances under which I am able to not file it with the court, but it normally is filed with the court. This confidentiality provision, especially for someone with wealth, is a huge benefit. Instead of airing out your dirty laundry and finances in the public record, you’re keeping the information private and it’s only being exchanged between people participating in the process.
How has the collaborative process evolved over the past ten years?
Merlin: When it first came to Miami, it was as an attorney-only process. As time went by, we learned how to use neutral financial professionals like Harriett Fox and mental health professionals to help the parties.
The whole process is about helping our clients get through a difficult time in their lives. It’s continuing to evolve. We’re constantly learning new ways to do things and be more effective. Attorneys in the state of Florida should know that the Family Law Section of the Family Law Bar has a standing position in favor of statutory recognition of the collaborative process. It has been presented to the legislature and got all the way to the last vote this past session, but was not brought to the floor of the house; however, we’re hopeful that it will be passed in the next legislative session. Then the Florida Supreme Court will pass the rule and all attorneys will be in a position to intelligently and effectively offer it as an option to their clients.
Divorce is not just about litigation; it’s about doing what’s in the client’s best interest. The more I practice collaboratively, the more I realize that it’s a great process and in the best interest of most people who are going through dissolutions of relationships.
Fox: Since Bob is an attorney and I am an accountant, we’re leaving out a bit of the behavioral part. One of the benefits of meeting together as a team is that it establishes the communication pattern for the couple to continue for the rest of their lives. If they have children, they’re tied together forever. In a litigated divorce, the parties don’t talk to each other; when it’s over and they have a final decision, how are they going to navigate the rest of their lives with their children? In collaborative divorce, that communication is established during the process. They’re negotiating each step of the way through creating the parenting plan, the financial plan, and they have a basis under which to continue to communicate going forward after they’re divorced.
Is there anyone who wouldn’t be a good candidate for the collaborative process?
Fox: It can be successful in almost every circumstance. There may be a situation of extreme domestic violence where you might not want the people in the same room, but other than that, it’s the best way to go.
Merlin: There’s an interesting philosophical discussion about whether collaborative is appropriate for domestic violence cases. Some people believe mediation is not appropriate for domestic violence cases. However, I believe that as long as the parties are properly protected and safeguards are in place, then the collaborative process is the one way for a victim of domestic violence to get as many options as possible and control his or her own destiny.
If a person thinks they can enter the collaborative process and control everything, including the process, then they are not going to do well in the collaborative process. If someone is willing to listen to the advice they receive from their attorneys, mental health professionals, and financial professionals, they’ll do well in the process no matter what the issues are. Whether there are children or no children, extramarital affairs, gambling, or alcohol abuse – those issues can usually be handled better than they would be in court. The parties are convinced along the way of why a decision is in their best interest and the best interest of their family.
Fox: Another aspect involving mental health professionals is how often in a non-collaborative situation there is a sticking point that one party cannot get passed. Neither Bob nor I have the skills to tease out the real issue, which often isn’t the issue being discussed. Mental health professionals are very skilled at getting to the core of what is holding up one party or the other and getting them to move beyond it to keep the process moving forward.
Bob, as a family lawyer who spent most of his life as a litigator, did you have to turn yourself inside out to become a good collaborative professional? What was the process for you?
Merlin: You’re referring to a paradigm shift. Collaborative lawyers have to think, act, and talk differently. Instead of threatening the other side, we have to try to convince the other side about why they should do something.
I have had to go through substantial changes in the way I act, talk, and practice law. I don’t think it’s possible to reach the end goal, because you’re always evolving and always becoming a better professional. I find the collaborative practice more fulfilling than doing battle in court. I still get to advocate, but it’s a different way of doing it and I’ve had to develop different skills. I have to pay attention to body language and the way people are talking. It’s changed me as a person because I’m more aware of what’s happening in interpersonal relationships. As Harriett says, those are things that mental health professionals are attuned to and we learn an awful lot from them and become better professionals as a result.
You can learn more about Harriett Fox on her website: www.harriettfoxcpa.com.
You can learn more about Bob Merlin on his website: www.merlinlaw.com.
Each year, the number of collaborative cases falls and the number of failures rises.