Part 2: What are potential drawbacks of collaborative divorce?

We ended our last post, which introduced collaborative divorce, with a question. Many supporters say that it is often less costly than other divorce methods, especially contested divorce trials. For a couple with few issues to negotiate, who may have discussed privately how they would like to handle things before the process began, or who still have a civil relationship, the process could go quickly and cost relatively little.

The opposite may be true in other situations. For example, if the parties have a hard time negotiating at four-way meetings, legal fees accumulate for two lawyers each time, along with fees for any neutral professionals brought in.

Staying in collaboration when you should get out

The collaborative commitment to staying out of court along with the requirement that if the parties abandon collaboration, they must hire new attorneys, may keep parties in collaboration even if it is not working optimally. They may have too much money invested to start over with new counsel, so they stay in the collaborative process, even though the agreement eventually reached may be expensive and may not be optimal.

Spousal traits

Other than money, certain traits of a couple or a spouse may become problematic in the collaborative process. Specifically, if a party has a history of dishonesty, collaboration may not put enough pressure on him or her to disclose all relevant information.

Certainly, if a spouse has been abusive or manipulative, collaboration is probably unwise. Similarly, progress in collaboration is unlikely if the other party has is controlling or displays other difficult behaviors, including those stemming from mental illness. Sometimes, for whatever reason, being in the same room in dialog with someone you are divorcing is just too hard.

Conflicts of interest?

A recent article in Divorce Magazine explained another potential problem when a lawyer practices both traditional divorce and collaboration.

In that June 2018 article, Florida attorney Eddie Stephens talks about a problem he had in a contested, traditional custody proceeding in court. The court appointed a psychologist to act as a social investigator in the case to review the family and child situation to help the judge make decisions.

The other party objected to the particular expert’s appointment because the investigator was in the same collaborative practice group as Attorney Stephens and allegedly that association prevented impartiality. Collaborative practice groups like The Florida Academy of Collaborative Professionals, at issue in this dispute, maintain a directory of affiliated members, both attorneys and other professionals, who are available for the collaborative process.

While Attorney Stephens felt the relationship was tenuous enough not to present a conflict of interest or improper association for the psychologist to act as investigator in a traditional case, the psychologist resigned from the appointment to prevent any question of impartiality. Attorney Stephens then resigned from the collaborative group to “protect [his] present and future clients.”

Obviously, collaborative divorce may be great for some couples and not positive for others. The key is to have a comprehensive evaluation of family circumstances by a Florida lawyer who practices both processes so that the client can make an informed and smart choice.

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  • The Law Office of Daniel E. Forrest represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.
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