Collaborative divorce is often described as a “no court divorce,” and for good reason. Personal decisions concerning issues of child custody, child support, alimony, and division of assets and debts are made by the clients in the private offices of attorneys, financial professionals, or collaborative facilitators. This is in contrast to traditional divorce litigation, where these decisions are adjudicated by judges in a public courtroom.
Based on Florida law, however, there are certain formalities that must be done through the court system. I recently completed a collaborative case and thought it would be helpful to clients and attorneys to discuss finalizing a collaborative divorce in the Thirteenth Judicial Circuit of Florida. The Thirteenth Circuit consists of Hillsborough County and includes the City of Tampa.
In 2012, Chief Judge Manuel Menendez, Jr., signed an administrative order which recognizes and regulates the practice of collaborative family law in the Thirteenth Circuit. The administrative order prescribes some specific procedures to follow.
In my collaborative case, the clients had already gone through the collaborative process utilizing a mental health professional/collaborative facilitator (Dr. James Morris) and financial professional (David Harper, CPA), exchanged financial affidavits, and executed a marital settlement agreement prior to filing. The clients also both signed a Joint Petition for Dissolution of Marriage Utilizing the Collaborative Process.
When we opened the case with the clerk of the court, we filed the petition, the collaborative participation agreement, and redacted versions of the financial affidavits. To maintain our clients’ privacy, unlike traditional divorce, we did not file the marital settlement agreement, nor did we file the original, unredacted financial affidavits.
When we filed the participation agreement, the clerk automatically provided us with an Order Setting First Collaborative Status Conference. The Status Conference is generally scheduled about six months from the date of filing. This order usually comes more into play when people begin the collaborative process after they had already filed for divorce, or when – by consent of both clients – there is a temporary agreement which they want ratified by a judge.
Since the clients in my case had already come to a full agreement before filing, we ended up scheduling a final hearing prior to the Status Conference. The final hearing was scheduled on the Court’s regular Uncontested Hearing Docket.
Though not required by law or the administrative order, both clients and both attorneys appeared for the final hearing. Of the ten or so uncontested divorces that were scheduled for the same block of time, the judge called our collaborative case first.
We all went before the judge, and the other attorney on the case, Beth Reineke, began “proving up” the divorce by having her client testify that the statutory requirements (such as the six month residency requirement and the belief that the marriage is irretrievably broken) were met.
We then notified the judge that the clients had exchanged fully executed and unredacted financial affidavits during the collaborative process, and we requested that the parties not be required to place the unredacted financial affidavits in the court file. The judge granted the request.
Next, we provided a copy of the marital settlement agreement to the judge for inspection. We requested that the judge sign a final judgment which incorporated the marital settlement agreement by reference rather than place a copy of the agreement in the court file. The judge granted our request and returned the marital settlement agreement to us.
Finally, the judge signed the final judgment granting the divorce.
All cases are different, and you should keep in mind that judges do have discretion regarding agreements. They have the power to reject marital settlement agreements if they violate the public policy of Florida. For example, a judge would reject a marital settlement agreement if it required one of the parties to do something illegal. Further, a judge will reject a parenting plan if it is not in a child’s best interests. On the other hand, judges almost always find that it is in the best interests of children for their parents to agree on a parenting plan, and, accordingly, it is unlikely that a parenting plan developed during the collaborative process will be rejected.
The judge asked both clients their thoughts on the collaborative process. They both expressed that it was surprisingly quick, relatively (though not completely) painless, and that they would recommend its use to others.
Adam B. Cordover is a family law attorney and Vice President of Next Generation Divorce, formerly known as Collaborative Divorce Institute of Tampa Bay. Adam served on the task force that drafted the Thirteenth Judicial Circuit’s collaborative family law administrative order.