Traditional vs. Collaborative Divorce

'TRADITIONAL' DIVORCE: WHEN COLLABORATION ISN'T THE SOLUTION

By Barry I. Finkel, Esq.

As a long-time South Florida family law attorney, I have been involved in countless divorce cases. I've seen couples enter the process with the best intentions for an amicable outcome - and have it turn out as planned.

I've also seen those intentions quickly dissolve into heated debate and the process turn acrimonious. To paraphrase John Steinbeck, "The best laid schemes of mice and men often go askew..."

On numerous occasions, clients have come to me with hopes for a "collaborative" divorce. For those couples who are both W-2 employees earning roughly the same income and with no outside business interests or separate income, with general agreement over time-sharing of the children, and with modest possessions related to the home, bank accounts and retirement plans - and where both are agreeable to dispense with the legal requirements for discovery and resolution, a collaborative divorce can be an ideal solution. Such a couple should never see the inside of a courtroom. In fact, the collaborative divorce process can help ease the load on an already strained judicial system.

But rarely are such situations so cut and dry. Frequently, one spouse is the primary bread-winner - often in a business with substantial revenues, property and assets that must be accounted for by a business valuation expert. Possessions, like homes, real estate, vehicles and other tangible property, as well as personal financial holdings, are significant enough to require professional assessment and valuation. In the collaborative process, one mutually agreed-upon independent forensic accountant, and a business evaluator, are brought in to evaluate the holdings. Moreover, discovery is voluntary. In the case of business assets, this should never be the case. Subjectivity in business assessment is too great, especially when documents may not be disclosed voluntarily.

In short, you're assuming the other party will be honest and cooperate in good faith. When there's an opportunity for one spouse to hide or manipulate holdings, the discovery process in a traditional divorce - as well as the critical discovery tools of vocational and even psychological examinations - help ensure the other is protected. And when one party believes emergency injunctive relief is needed, especially if it is believed one party is attempting to hide or move assets, traditional divorce allows for such remedy.

Moreover, when it fails to go as planned, the collaborative divorce process then not only reverts to traditional divorce, it necessitates significant duplication of effort and expense. Both parties' attorneys - and even experts - involved in the collaborative effort must withdraw. Once retained, new counsel will need to be introduced to the case, and perform his or her own background, discovery and research - often at great expense. This effectively doubles the cost to each party.

Family law attorneys should seek to engage in the principles of collaborative divorce. A cooperative setting, where financial and other pertinent documents are freely exchanged and the resolution is achieved in a negotiated settlement, are the ideal. The courtroom should be the last resort.

But as situations do often go askew, it's vital to keep both parties protected and on course to achieve an outcome that positions them in the end free to move on with their lives.

Barry I. Finkel is a veteran attorney whose practice is limited to family law. He has more than 25 years experience in the South Florida market. Learn more at www.bfinkelpa.com.

Barry I. Finkel, P.A.
12 Southeast 7th Street
Suite 602
Fort Lauderdale, Florida 33301
Tel.: (954) 776-1414
www.bfinkelpa.com

barry@bfinkelpa.com