COVID-19 Update: How We are Serving and Protecting our Clients

Articles Posted in Collaborative Family Law

There are some divorces in which you are able to settle all of the issues quickly and easily, often without attorneys. There are Florida Supreme Court approved forms online with many of the forms you need to complete a divorce, including a form marital settlement agreement, parenting plan, and divorce petitions.

In cases where there are disagreements, the disputes can center around children’s issues, financial issues and often both. I believe a process called collaborative law or collaborative divorce is clearly better to resolve children’s issues where possible, versus engaging in a “custody battle” in court – which can be an unpleasant, hostile and destructive process for both the parents and children.

I believe the collaborative process is far superior for resolving financial issues as well, especially for high net-worth or high asset value cases.

In a recent appeals court decision in Minnesota, the Court decided that the State’s telephone stalking statute was unconstitutional, because it was “facially overbroad”, i.e. because in addition to penalizing conduct which could appropriately be labelled as criminal, it could be read as also penalizing 1st Amendment free speech, protected by the U.S. Constitution.

The particular case before the Minnesota Court involved a parent yelling and cursing or being threatening, during telephone calls and voicemail messages for child protection workers and other county employees.

The First Amendment issues are of course important – they are relevant also regarding what kinds of things you can post online about businesses or other people, but the issue I wanted to raise here is the importance of not reacting immediately to emotions in a family law case.

Continued from Part I, Non-Competition Clauses and Valuing a Business in a Divorce.

Part I of these posts addressed general issues in business valuations, and some of the special issues in valuing a business for a divorce. Which brings us to the main topic of these posts, how a buyer’s requiring a non-competition clause as part of the purchase of a business, affects and relates to calculating personal goodwill and the value of the business.

Generally, when someone buys a business, they don’t want the new owner opening up right down the street and siphoning away business. So, a non-competition clause prohibits a seller from doing that for a certain period of time, within a certain geographic area.

Although I’m not sure this happens for all divorcing couples, an article in Psychology Today explains that hating your spouse at some point during a divorce is common and normal. Writings out of the Mental Research Institute in California, I believe back in the late 70s/early 80s, described it in terms of “attributions of madness and badness”. When someone does something that causes sufficient distress (these days that can be disagreeing with a social media post), we don’t think very highly of the other person – there must be a problem with them as a human being – a bad person, or “BAD” as a particular person active on social media likes to post; or even more, there is probably something wrong with them.

In this context, I find it actually pretty remarkable how facilitators in collaborative law cases (our mental health professionals, or “MHPs”) are able to keep communication on a positive track. A large part of it I believe is because people who choose collaborative law self-select to try to participate in a successful process, and each has some level of commitment to that.

I think it’s the approaches MHPs use, the orientation and commitment of the attorneys trained to collaborate, and the neutral financial professionals trained to seek fair solutions and results for both clients. It’s probably all of this and more – the entire process and contribution of everyone and the process – sometimes described as a crucible.

A Tampa television station recently reported on parents seeking to relinquish custody of their children, in order to get them mental health services within Florida’s dependency system. Although fights in Florida family courts between parents are more frequently over who gets custody or more time-sharing, rather than parents relinquishing custody, the Tampa story reflects how far parents are pushed sometimes in trying to provide for their children.

A parent or any person pushed to their limits will sometimes try almost anything, which raises the question – does the normal process in divorce court fights – accusations, attacks, financial and emotional pressure, make sense as a way to handle family disputes, especially involving children.

Although many attorneys and parties in divorce or other family law litigation seek nothing more than to resolve the case reasonably and fairly, the strategy in litigation can often be to pressure the other side from as many angles as possible. It’s viewed as a war – in fact the book The Art of War by Chinese author Sun Tzu is often viewed as a template for litigation, or important reading underlying the approach of good litigator. I recall also a line from a handbook on negotiation, I believe it was a Florida Bar continuing education publication, describing the essential elements of negotiation as something along the lines of communicating to an opponent how you can harm them, and then how you can help them.

An article came out recently listing several apps which can make communication between divorced spouses or separated parents easier, especially communicaton about children’s issues.

One of the things I like about the collaborative law process is that it can be a good start for parents with conflict regarding children’s issues to begin communicating differently, to find a way to divorce more amicably, and also avoid some of the ongoing conflict that can come up in family law cases. There are some divorces where the court battles after the divorce continue for years. In addition to the cost and toll on the parents, at some point the conflict can have a negative effect on the children.

Collaborative divorce can be a flexible, open process, but it can also be a highly structured process, with a mental health professional (MHP) and two collaboratively trained attorneys there to manage the process – which involves each spouse having a chance to name their concerns and interests – what’s important to them.

So you are interested in a collaborative divorce – in keeping the divorce from becoming a fight in court, and believe it is a process that would work for you and your spouse. A next question is whether your spouse is interested in this collaborative approach also.

You can find more information about Collaborative Divorce by following that link, and by reading through some of the other posts about this topic on this blog. You can also visit the website for the Collaborative Family Law group in Broward County or Collaborative Family Institute in Dade County.

One Option

One first step in talking with your spouse about Collaborative Divorce, is to describe Collaborative Divorce as one option for the two of you to consider. You can give your spouse the web site address for the Collaborative Divorce organization in your county  The web site will have information about collaborative divorce, and the contact information for collaborative divorce professionals in the county. Many attorney websites will contain information about collaborative family law as well.

Staying Out of Court

You and the other spouse can discuss Collaborative Divorce as way to keep the case out of court.  You ultimately have to go in front of the family law Judge for a final hearing, but the final hearing for an uncontested divorce – where the parties have a settlement agreement, and parenting plan if there are children, settling all of the issues in a case, lasts about two (2) minutes – perhaps a little longer if the Judge takes a minute to congratulate the parties on successfully resolving their case.

Continue reading ›

Paradigm Shift may sound to you like a phrase a consultant would use – it reminds me a little of a meeting I was in many years ago, when the consultant in the room talked about different community agencies and institutions “interdigitating”. A paradigm shift, though, as part of a collaborative approach to your divorce or other family law case, might be something you’ll want to consider.

In a Collaborative Divorce, the parties may be in conflict and angry or hurt, but agree to attempt to reach a resolution that is fair to both sides, rather than one side trying to get as much as they can, at the expense of the other side. The parties recognize and understand that ongoing conflict between the parents can damage the children. Your spouse’s attorney will let you know that he or she understands your position and what you’re saying, versus coming after you during cross-examination, or writing nasty pleadings or letters about you.

Continue reading ›

Continued from Part I. A collaborative divorce often includes a therapist as part of the team, as a person to facilitate positive interaction in the meetings, or address the dynamics or emotions that aren’t necessarily readily apparent to the parties and the attorneys. Moving from angry interactions to a process that has the potential to be curative or healing, in many cases is a positive thing. Even if you do not believe a therapist is necessarily capable of super-human results, or that therapy works, in the context of a collaborative divorce process I believe a therapist can help nudge the process in a more positive direction, and possibly help the parties leave feeling a little better. If you couple that with attorneys who are looking to represent their clients but cooperate and move the process forward peacefully, versus encouraging or going along with a party’s first inclination to fight, you have the prospect for a more positive option for resolving a divorce.

Continue reading ›

It’s a choice that has to be made by both spouses, but it comes down to a choice to fight, or to attempt to resolve the divorce peacefully.

If there are minor children and the divorce is conflictual, it is rare that the children are not somehow put in the middle and affected by the divorce. Some parents are able to go through the conflict of a divorce and keep the children out of it, but if both parents are able to do that, they are often able to find a way to settle the divorce also without a heated court battle.

Collaborative Divorce is process in which both parties agree to attempt to settle all of the issues in the divorce without litigation – you can read more about the process by following this link – collaborative divorce.

Continue reading ›

Badge - Wealth Counsel Member
Badge - Collaborative Law Practice
Badge - Florida Academy of Collaborative Professionals
Badge - Collaborative Family Law Institute
Badge - Collaborative Family Law Professional of South Florida
Badge - Expertise, Best Family Lawyers in Forth Lauderdale, 2020