Today, after decades of handling the "knock down, drag out" divorce cases where I actually did have a client murdered by her state trooper husband during the process, I heard about lawyers in other states handling divorces by the use of collaborative law.

Collaborative law is where the clients and lawyers agree from the beginning that the only goal is a fair resolution of all of the issues and agree that there will be no trial. The idea is that, if you can reach the agreement by this method, you will have saved lots of time, energy and money in the process. What seals the deal in the beginning is the agreement that if a deal cannot be reached, then both lawyers have to get off the case.

This allows each spouse to have confidence that the other spouse's lawyer will really try to help reach a fair deal. There is no incentive for the lawyer to churn up litigation.

The concept has been amazingly successful. I have only been involved in one collaborative method divorce that was not successful and fifteen or so where the former couple has reached an amicable division of parenting responsibilities, assets and monthly support.

At first, I was impressed at how successfully both sides used the services of a jointly-hired forensic accountant to create a list of all of the assets and debts, value privately owned business assets and analyze the couple's standard of living for alimony purposes. In previously contested cases, there had been occasions to use a neutral accountant for these purposes, but it has been even more successful with each party realizing that there is not going to be a contested trial.

There has been an even more dramatic change to the collaborative divorce process when the lawyers in my community began using mental health professionals as facilitators for the couples involved. These psychologists and mental health counselors have brought much more trust in the process. They direct each of the meetings, call timeouts when things begin to get "uncollaborative" and meet individually with each spouse periodically to make sure that both are still trusting of the process and prepared to work within it to reach their goals.

I have seen scenarios that in the past would have taken twice as long, been absolutely hostile the whole way and cost each party loads of money, turn into situations where time, money and energy have been saved. Not to mention the great intangible that the couple is much more likely to avoid harsh words with each other in front of the children both during the process and for the rest of their lives.

Bottom line: If you are a friend of mine heading for divorce, I am going to suggest that you explore trying to do it the collaborative way.

By: Stann Givens
Partner, Givens Givens Sparks

There are a myriad of reasons why resolving disputes outside of court is advantageous to protracted litigation. As an attorney for over 29 years and as a mediator of over 1000 cases, I have experienced many of these reasons firsthand. Here are some of the top reasons to consider settling a dispute, either through negotiation, mediation or a collaborative process, instead of going to court and allowing a judge to decide your fate:

1. Control. Human nature is such that when we are part of the decision making process, rather than being told what we must do by a judge, we have a much greater sense of "ownership" in the process, as well as satisfaction with the outcome. We experience a greater sense of power and participation in the process. We get to control our own destiny. Some refer to this concept as self determination.
2. Compliance. Statistically, it has been proven that agreements reached outside of court have a higher degree of being honored, than decisions imposed on individuals by a judge. Therefore, by resolving issues without court adjudication, the parties increase their chances of avoiding the need for future legal proceedings to enforce or modify the agreement. This, in turn, saves significantly in terms of time and money that would otherwise be spent on future court battles.
3. Creativity. In settlement scenarios, the parties have the ability to craft an agreement in a way that best suits the particular parties and their situation. Although we have many fine judges, a judge is restricted by the law in what he or she is allowed to do. In settlements outside of court, the parties have the option of being much more creative and are not nearly as limited as the judge must be in what is and is not allowed.
4. Cost. There is typically a significant savings in terms of time, money and energy when matters are resolved outside of court. Trial, on the other hand, involves countless hours of preparation, not to mention lost sleep and hours of preoccupation, thinking and worrying about the litigation and what may happen in court. This equates to huge financial and opportunity costs.
5. Certainty. Resolution outside of court creates closure for the parties and certainty as to the outcome. In contrast, going to court has been compared to signing the bottom of a contract, handing it to "the stranger in a black robe" i.e. the judge, who is then empowered to fill in all the terms of the contract dictating your future, and you have to live with it. Out of court settlements take away the time, risk and expense of going to court, wondering what the Judge will decide, and wondering if either or both parties will appeal the judge's decision. With out-of-court settlements, the parties have the freedom to move forward with their lives.

So, before proceeding down the path of litigation, consider the alternatives available to you for dispute resolution. In all likelihood, you will be glad you did.

By: R. Lynette Mancuso
Board Certified Marital & Family Lawyer

One:  Residency Requirement
You or your spouse must be a resident of the State of Florida for at least six (6) months prior to filing for divorce in Florida.    A Florida divorce legally starts when you or your spouse files a “Petition for Dissolution of Marriage” in the local circuit court.  The non-filing spouse is served with the paperwork and has twenty (20) days to respond.  If both you and your spouse agree on how to divide property, debt and responsibilities for any children, the divorce can be finalized without a trial.

Two:  Marital Assets and Debts
Any assets and debts accumulated during the marriage, whether real or personal property, tangible or intangible, are presumed to be marital assets or debts and are subject to division between the parties.  Any assets or debts one had prior to the marriage, or any assets inherited during the marriage, are generally considered “non-marital assets” or “non-marital debts” if they are maintained as “non-marital” property during the marriage.

Three:  Division of Marital Property
Typically all marital assets and debts will be divided equally between the parties.  In some circumstances one spouse or another may be entitled to an “unequal” distribution.  Factors to be considered in an unequal distribution include, but are not limited to, contribution of each spouse to the marriage including the care and education of any children, the economic circumstances of the parties, duration of the marriage, the contribution of one spouse to the personal career or educational opportunities of the other, and any other factors necessary to do justice and equity between the parties. “Non-marital” assets or debts are not subject to division between the parties.

Four:  Alimony
Alimony is an extension of a spouse’s obligation to financially support the other during the marriage.  Factors the courts must consider include:  the need of one spouse to receive alimony and the other’s spouse’s ability to pay; the standard of living established during the marriage; the length of the marriage; the age and physical condition of each spouse; the financial resources of each party; the contributions of each spouse to the marriage; the earning capabilities of each party; the tax treatment and consequences of the alimony award; and all sources of income available to each party.

Five:  Parental Responsibility and Timesharing
Florida no longer has primary and secondary parental custody of minor children.  Divorcing parents with a minor child(ren) will enter into a parenting plan which addresses parental responsibilities and timesharing.  If you and your spouse are unable to come to an agreement on these issues, the court will make a decision based on the “best interests” of the child.  Generally, the parties will maintain shared parental responsibility for the major decisions parents must make on behalf of a child, such as education, health and religion. The “timesharing” schedule is established after a careful consideration of numerous factors including, but not limited to, a parent’s ability to provide and care for the child, school and community record of the child, and each parent’s willingness to facilitate the child’s relationship with the other parent.  There is no presumption for or against the father or mother in establishing a parenting plan.  Working with a licensed mental health professional may be helpful in the process of establishing a parenting plan.

Six:  Child Support
Florida uses child support guidelines to determine the necessary financial support for each child and/or dependent.  The guidelines consider each parent’s income, the timesharing schedule and any health and employment related daycare costs.  Child support obligations typically end when a minor child turns eighteen. 

Seven:  Documents You Will Need
Copies of tax returns, bank statements, mortgage documents and any other financial information are necessary to evaluate your case.    A list of major household and family possessions and a detailed household budget is also helpful.

Eight:  Taxes
Property transfers, taxability of alimony payments and dependency deductions for children may all affect your taxes.  Working with an accountant along with your lawyers will help you avoid making mistakes you may not be able to fix after the divorce.

Mark T. Flaherty, Esquire

It is important to remember that along with the legal and financial elements of divorce there are immediate and long-term emotional elements as well. In many ways these are the more complex matters, harder to view, and more difficult to resolve. Whether it is your decision to seek the divorce or your need to accept the divorce, this is a most difficult process. While this should be another personal, private aspect of your divorce, so many others with their own experiences and interests will offer opinions and add their views while you seek your own resolution. This keeps the emotions in a state of flux. It takes a considerable amount of time to stabilize, to heal, and to move on.

A divorce brings tremendous upheaval to the entire family.  Routines are disrupted, securities are threatened, and emotions run high.  For the adults, logic and reasoning may be replaced by anxiety and anger.  There are many unknowns.  There is significant loss and need to recalibrate.  And while parents are searching to find their own balance, the children may be left to find their own way….with limited understanding, reasoning skills, and life experience.  This is the time the children need their parents more than ever. They seek reassurance but parents may be busily absorbed with their own adjustments to the legal, financial, and emotional process at hand. 

Regardless of their age children need to be told something.  This should be based on their age and level of understanding.   To say nothing, leaves them to bring out their own worst fears.  Children should hear clearly and directly the divorce is between the parents.  A divorce between parents does not mean you may subsequently divorce a child or ask them to make a choice.  Do not place blame.  Do not allow them to feel they are responsible for this rupture nor responsible put the family back together by adjusting their behaviors. 

Their concerns are often concrete.  They need to know you are planning for them.  Let them know realistically how this change will affect them in regard to their home, their school, and their time with each parent.  Allow them to ask questions in their own time and in their own way.  It is somewhat difficult to predict how your children will react, and each child in your family will respond in a different way.  You may notice the following feelings coming to the surface.

• Sadness and loneliness: Children may be teary or isolating.  They miss the daily contact with each parent which had been so predictable. A parent may be absent for periods of time.
  
• Depression and despair: Children may show signs of restlessness, sleeplessness, difficulty concentrating.  This may be evident at school as well as in the households.
  
• Worry and anxiety:  Children may be fearful and clingy. They may regress to earlier behaviors and patterns. They are preoccupied by the parents’ emotional health and well-being. 
  
• Avoidance and denial:  Children may seek to pretend the divorce is not happening and stifle all emotional reactions, at least on the surface.  They will appear disinterested.
  
• Angry and reactive:  Children’s behavior often reflects the increased tension and fury that this is happening to them.  This may be directed specifically at either parent or both parents.
  
• Neglected and less important:  Children will note each parent’s pre-occupation with the process.  Time and availability may be lessened.  Financial standards may change and experiences or customary routines may be limited or lost.
  
• Responsible and on guard:  Children worry about the parents’ emotional well being and may take on the task of caretaker.  They become watchful; they listen to calls, and observe facial expressions.
  
• Caught and confused:  Children may get caught in a “loyalty bind” and try to maneuver a way to be close to each parent while not wishing to betray the other.  They may seek to play sides particularly if blame has been introduced in to the process.

Your children’s adjustment is complicated by their place in the family.  They are not in control but they are asked to accommodate to your plans and decisions.  Children do best if you can          

• Reassure the child the break up is an adult matter and adult decision. 
  
• Maintain your adult and parental roles
  
• Allow the child to express negative feelings about the situation in a non-destructive way.
  
• Provide as much stability and continuity in routine as possible
  
• Keep the extended family and friends involved
  
• Offer reassurance of safety, love, and availability
  
• Structure and support contact and communication with your child’s other parent.

Increased conflict and discord heightens their difficulties and lengthens their inability to adapt.  Children will have a less positive adjustment if you add to their own emotional struggles.  Do NOT

• Offer hopes of reconciliation.
  
• Put the child in the middle of the conflicts or ask the child to take on the adult tasks
  
• Make more changes than necessary
  
• Include the child in adult discussions either as a participant or listener.
  
• Use the child as your confidant or emotional caretaker
  
• Make negative comments about your child’s other parent and their choices.
  
• Ask the children to pick a side….their is no right and wrong parent.

Divorce is difficult.  It is difficult for you, for the extended family, and for the children who seek your support and guidance.  You created this family in a joint and collaborative manner.  Make efforts to create this new family in a similar manner.  More conflict leads to more chaos and distress for all involved.  Only through mature cooperation can this be managed and limited.

A parenting plan will be based on your specific family.  This plan will focus on the contact between family members, how decisions are made, how communication is structured, and how changes can be made, and how conflicts will be resolved.   The plan will serve as a template for your moving forward to continue raising your children.

The mental health professional, who serves as a member of your Collaborative Team, will provide you with a variety of resources as you begin to identify what will be appropriate for you.  It is suggested further you refer to the information provided on www.12JudicialCircuit.com parenting plans.  Review the Instructions and Assessments as this will outline important considerations in looking at your family and your children.

As to the Developmental Needs for the children…..hold on to this….parenting continues for years.

Roxanne Permesly, LMHC

A growing number of couples -- and lawyers -- are deciding to do divorce differently
Julie Beun-Chown, The Ottawa Citizen
Published: Saturday, February 16, 2008
IACP (www.collaborativepractice.com)

For years before his 1987 divorce, Mike Brown was a drinker -- a bad drinker who could flip from popular jokester to angry bully in less time than it takes to down a beer.

Even so, his wife Megan loved him, his big heart, his friendship and his wacky sense of humour. But after a few years, even those lovable traits weren't enough. Megan, who had a daughter with Mike and another from her first marriage, asked for a divorce.

"When you're trying to have a career, raise your children and deal with all that," the 53-year-old Halifax woman recalls, "you get to a point where you think, 'I can't do this anymore.'"

By anyone's reckoning, their split should have ended in a painful, brawling divorce.

Incredibly -- no, miraculously -- it didn't. Each of them had experienced painful divorces before their own, so Megan and Mike were determined that this relationship would not ruin their family. The couple threw societal expectations out the window and did their divorce differently: They lived together as roommates in a three-bedroom townhouse in Calgary, so together they could raise their daughter Bethan. What's more, the parenting partners -- for lack of a better term -- weathered stranger waters still when Megan fell in love with and married Mike's brother Bill 12 years later.

Throughout it all, the former couple maintained just one focus.

"Mike and I were totally committed to our child. It was our number one priority," says Megan."We'd both been through bad divorces. From those experiences, we learned what we didn't want. And we didn't want our daughter to suffer."

Noble sentiments indeed, but the Megan and Mike Brown story is far from isolated. According to Reconcilable Differences (Second Story Press), a new book by Cate Cochran, a producer on CBC Radio's Sunday Edition, more and more of the 38 per cent of Canadians who go their separate ways are fighting the urge to fight it out to the bitter end. Instead they're choosing to craft their own -- and often unconventional -- arrangements. Other times they work through Collaborative Family Law, a rapidly expanding program in family law practice introduced to Ottawa in 2002 that neither bleeds couples financially nor leaves children caught like deer in traffic.

"The marriage, the romance may end, but the family doesn't," says the 52-year-old Cochran, a veteran of her own remarkable divorced-but-cohabiting arrangement. "It's incumbent on us to build a strong family even if it's shaped differently."

How different is different? Plenty. One couple Cochran interviewed decided to stay in the family home; the husband just shifted to the attached granny flat. He supported them financially and, after the children moved out, the pair sold the house and went their separate ways.

An Ottawa man who came out as gay to his wife after nearly a decade of marriage simply moved into a downstairs bedroom. Although the wife was initially devastated, they now celebrate the anniversary of their divorce every year.

Shortly after Cochran's marriage ended, she and her ex bought a four-plex in Toronto, rented out two units and moved into the other two. Their children ranged freely from one unit to the other while Cochran and her ex spoke daily, often sitting on the stairs between their apartments to discuss school projects, parenting and meal schedules.

Given the emotional maelstrom that accompanies failed relationships -- hurt, guilt, grief, vindictiveness, remorse and anger -- divorces that move beyond amicable into happily-ever-after seem impossibly rare. Not so, says Cochran. With a shared agenda of maintaining financial stability and emotional integrity for the children, the "divorce dissenters" are stepping up to the challenge. "It's the same rules as any good marriage. You have to be respectful of each other," says Cochran. "You have to make compromises."

Such notions are also at the heart of Collaborative Family Law. First developed by a group of lawyers in Minnesota, CFL lawyers are specially trained to tackle separation and divorce from a compassionate and co-operative angle.

They meet with separated spouses to define and negotiate issues in a respectful, controlled environment.

"Every CFL case starts with an agreement," says Anne Moxley, a CFL lawyer in rural Ottawa who limited her practice to out-of-court, negotiated settlements more than a decade ago after witnessing the devastation caused by standard divorce procedures. "It sets out the rules of the game, and that means civility as well as procedure. The lawyers agree they won't take it to court later, disclosure of assets doesn't become a digging expedition. Basically, we're trying to keep things on the rails, moving forward and building up rather than tearing down."

Along with the agreement, lawyers can bring in social workers, psychologists and financial planners to help coach the divorcing couple on everything from their RRSPs to the children's psychological well-being.

"When you split up, it can be hard to see where things are going," says Moxley. "If you have a financial specialist come in with a spreadsheet and explain where you are going to be in 20 years, it takes the fear out of it. It's not a dissolution of a family, it's a restructuring of it."

So far, it's working. According to Heidi Ruppert, a CFL specialist at the Ottawa law firm MDR Associates, the focus on negotiation and communication has turned potentially acrimonious divorces into speaking-terms arrangements.

"I had one client support the spouse through rehab, not pulling any moves, so they could work toward 50-50 parenting," she says. "Some clients live in the same neighbourhood so the kids are close. Many couples initially have a bird's nest arrangement (in which parents, not children, move in and out during access weeks). The key ingredient? People have to really get a grip on their pain. They have to have the patience, too, to understand that the party being left needs some time to catch up emotionally."

For Megan, Mike and others forging their own path, lawyers are not always necessary. Although the couple briefly consulted a paralegal, "we did everything ourselves," she recalls. "It was a dream divorce, if such a thing is possible. We put the issues we had between us to one side."

One motivation was avoiding the kind of messy split Mike experienced with his first wife; the Browns say they spent $25,000 attempting to gain access to Mike's young son. "But his divorce is the norm," Megan says. "So I'm a little jaded with the whole court system."

The one thing she isn't cynical about is her own split. After the couple decided to end their relationship, Mike left Calgary for Nova Scotia to help him recover emotionally from the split. But when Megan found a good job 18 months later that involved travel, she made him an offer

"I knew how much he missed our daughter," Megan recalls. "So I said, 'Have you thought about returning?' He moved back within three weeks."

Although his presence in Megan's spare room was theoretically temporary, the former couple quickly fell into a routine that even involved Mike moving with the family when Megan took a job in Saskatoon. Strangely enough, although his drinking and depression were still an issue, Mike respected the new dynamic and would stay at a friend's house if he had been drinking or was depressed.

"Your expectations change along with the circumstances of your relationship," Megan says. "I had a more realistic view of what he was capable of and he felt the same way about me. I had no expectation that he would look after my needs; that wasn't his job anymore. But I did have expectations of him as a roommate that he met and exceeded."

Years later, when Mike's brother Bill showed up one night after driving straight from Halifax to escape his own difficult divorce, the family expanded. Megan would stay up late listening to Bill's problems and discussing life. Eventually, they fell in love, married in 1999 and now live in Halifax.

"This whole thing has made me a better person," Megan says of her friendship with Mike, who still lives out West. "I'm really proud of the relationship I have with him, and how we took something so cruel and did things differently."

But is society ready for dream divorces?

It depends on whom you ask.

"Definitely, there is exponential expansion in this area," says Moxley. "Clients are looking for it.

People are looking for a better way to move on." On the other hand, divorcing co-operatively puzzled many of Cochran's friends. "People think you're either foolish or naïve," she says. "There were skeptics who assumed that one of us was being fooled. Or they'd be perplexed. We didn't have the answers, there was no model, so we didn't know what we were facing. It was literally feeling our way along the walls of a dark room."

Cochran says the concept of a happy divorce troubled some, but many more were confused by how she and her ex developed a more honest, communicative and co-operative relationship than when they were together.

"People have asked us why we didn't just stay married, even though it wasn't working on other levels," Cochran admits. "It was unorthodox, but it made sense to us."

Whether or not such queries are the result of our Noah's Ark society that only understands relationships in pairs, Cochran says the key was to trust her instincts. "You conferred and trusted each other, and you adapted as you went along. We had friends who had an incredible food fight of a divorce and we knew that's not what we wanted for ourselves."

Recently, Cochran's 19-year-old son left home for the first time. "I asked him about his childhood, five years of which was with this arrangement. He just said to me, 'Mom, it was a really happy childhood.' If we can give our children just that," she says, "then it's worth every moment of struggle."

Julie Beun-Chown is a national magazine writer living in Ottawa.

HOW TO HAVE A DREAM DIVORCE

1. "Sit at the kitchen table and talk about what matters most, which for most people is the happiness and stability of the new family structure," says Cate Cochran, author of the new book Reconcilable Differences. "Talk about what you can and can't do. Craft an arrangement that you can live with and never mind what the rest of the world thinks about it."
2. Get good advice on financial issues, which can be very complicated depending on your circumstances.
3. Show some respect. "You can't belittle or degrade the other person," Cochran says. "Don't fight in front of the kids or drag them into disagreements. We all slip and let our anger take hold, but you have to learn to apologize and start over."
4. Create an equitable schedule and division of financial responsibilities. "You have to figure out who's going to pay for things like skating lessons. It's pretty basic stuff. Draw up a list and keep talking to each other. Negotiate. The same goes for a work schedule and time off. We both had long-distance relationships, so we needed weekends off and we had to work around that."

© The Ottawa Citizen 2008

Divorce or dissolutions of relationships and issues arising with these family changes, are sensitive, personal matters. Among the variety of approaches available to resolve these matters involving financial and non-financial issues, whether before or after dissolution of the relationship, is the Collaborative Process.

The Collaborative Process, including Collaborative Law and interdisciplinary Collaborative Divorce, is a relatively new way for persons to resolve disputes respectfully — without going to court — working with trained professionals who understand the complexity of the issues in all areas of the couple's or parents' lives.

If the following values are important to a person engaged in a family law dispute, Collaborative Practice may be a workable option:

• I want us both to maintain a tone of respect, even when we disagree.
• I want us to give priority to the needs of our children.
• My needs and those of my spouse or former spouse, partner or former partner, should have equal consideration, and I will listen objectively.
• I believe that working creatively and cooperatively helps in resolving issues.
• It is important to reach beyond today's frustration and pain to plan for the future.
• I can and will behave ethically toward my spouse or former spouse, partner or former partner.
• I choose to maintain control of our disagreement and not relegate it to the courts.

The heart of Collaborative Practice is to offer to both spouses or former spouses, partners or former partners, or parents, the support, protection and guidance of their own lawyers without going to court. Additionally, the Collaborative Process provides the couple with the benefits of working with child and financial specialists, divorce coaches and other professionals, all working together on the team. This team approach intertwines the strengths of the disciplines essential to meeting the emotional and financial needs of the family in that divorce, custodial disagreements, and post-divorce matters are much more than just legal matters; there are communications, emotional and relationship consequences for the parties, as well as impacts on the educational, psychological and familial development of the children of the spouses or former spouses, partners or former partners.

In Collaborative Practice, core elements form the contractual commitments, which include negotiation of a mutually acceptable settlement without having courts decide issues; maintaining open communication and information sharing; and creating shared solutions acknowledging the highest priorities of all parties.