Collaborative Divorce in Florida: How the Process Works and What You Give Up If It Fails

Most Florida divorces settle. The question is how they get there. In a conventional case, the lawyers file, exchange discovery, take positions, and negotiate in the shadow of a trial date. Collaborative divorce turns that around: the spouses and their lawyers sign an agreement at the outset committing to resolve the case without asking a judge to decide anything. If the process fails, the lawyers are out.

Florida put that process on a statutory footing in 2016 with the Collaborative Law Process Act, Part III of Chapter 61, sections 61.55 through 61.58. The Florida Family Law Rules of Procedure (Rule 12.745) and the Rules Regulating The Florida Bar (Rule 4-1.19) fill in the details.

The legislative purpose

Section 61.55 describes the collaborative law process as a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation. Whether it delivers depends on the spouses, the lawyers, and whether there is enough trust to make voluntary disclosure work.

The participation agreement

The process begins when the parties sign a collaborative law participation agreement, whether or not a case is already pending (section 61.57(1)). If a case is pending, Rule 12.745 requires the parties to file a notice of the agreement, which operates as an application to stay the proceeding.

Rule 4-1.19(b) prohibits a lawyer from representing a client in a collaborative family law matter unless all participating lawyers and clients sign a written agreement that includes, among other things:

• a statement of the clients' intent to resolve the matter through the collaborative law process;
• a description of the nature and scope of the matter;
• identification of the participating lawyers and whom they represent;
• a commitment to timely, full, candid, and informal disclosure of information without formal discovery, with prompt updates when information materially changes;
• an acknowledgment that participation is voluntary and either client may end the process for any reason;
• an acknowledgment that the process ends if either client goes to court on a related matter; and
• an acknowledgment that the lawyers may not represent the clients in a related court proceeding, except as court rules allow.

Before any of that, the lawyer must explain the process and obtain the client's informed consent, including its benefits and risks, the alternatives, and the fees the client can expect, including the fees of mental health and financial professionals (Rule 4-1.19(a)).

The disqualification rule

This is the provision that gives collaborative divorce its teeth. Under Rule 12.745(f), a collaborative lawyer is disqualified from appearing before a court to represent a party in a proceeding related to the collaborative matter. The disqualification extends to every lawyer in that lawyer's firm.

There are two narrow exceptions. The collaborative lawyer may ask a court to approve an agreement reached in the process, and may seek or defend an emergency order to protect the health, safety, welfare, or interest of a party or a family or household member, but only until a successor lawyer is in place or other reasonable protective measures are taken.

The consequence is deliberate. If the process breaks down, both spouses must hire new lawyers and bring them up to speed. That cost is the incentive to keep working at a settlement instead of walking out at the first hard moment. It is also a real risk, and anyone considering the process should price it in.

How the process ends

Section 61.57(6) lets a party terminate with or without cause. Under section 61.57(4) and Rule 12.745(b)(2), the process terminates when a party gives written notice that it is over, starts a related contested proceeding without the other party's agreement, files a pleading or motion or asks for a court conference in a pending case, asks to put the case on the active calendar, or discharges a collaborative lawyer (unless a successor signs on within 30 days and the parties reaffirm the agreement in writing). If a case is pending, the parties file a notice that the process has concluded, and the notice may not state the reason.

A court may not order a party to participate over that party's objection (section 61.57(2)).

Privilege and confidentiality

Under section 61.58(1), a collaborative law communication is privileged, is not subject to discovery, and is not admissible in evidence. A party may refuse to disclose, and may prevent others from disclosing, collaborative communications. A nonparty participant, such as a neutral financial professional, holds the same privilege for that participant's own communications.

The privilege has limits. Evidence that is otherwise admissible or discoverable does not become protected just because it was used in the process, so a bank statement shared at a collaborative meeting is still a bank statement. The privilege does not cover threats or plans to commit a crime, signed agreements, or communications offered in a claim of professional misconduct or in an abuse or neglect matter, and a court may order limited disclosure in narrow circumstances after an in camera hearing (section 61.58(3)).

The neutral professionals

Collaborative family cases commonly use a team. A neutral financial professional gathers the financial information, builds the marital balance sheet, and models support and distribution scenarios for both spouses. A neutral mental health professional, sometimes called a facilitator or coach, helps manage the emotional temperature of the meetings and helps the parents build a parenting plan that works for the children.

The statute and rules do not require a team, but Rule 4-1.19(a) expressly contemplates mental health and financial professionals in its description of costs. The theory is that one shared expert costs less than two dueling ones.

Domestic violence screening

Rule 4-1.19(c) requires the lawyer to ask whether the client has a history of a coercive or violent relationship with the other party, and to keep assessing that question throughout. If the lawyer reasonably believes such a history exists, the lawyer may proceed only if the client asks to and the lawyer reasonably believes the client's safety can be protected. Collaborative law depends on both spouses negotiating freely, and that is not possible where one is afraid of the other.

How it differs from mediation

Mediation and collaborative divorce are often confused, and they are not the same thing.

In mediation, a neutral mediator facilitates negotiation, usually in one or a few sessions, often after the case is filed and after discovery. The mediator represents no one. Each spouse's lawyer, if they have one, remains free to try the case if mediation fails. Family courts in the Fourth Circuit (Duval, Clay, and Nassau) and the Seventh Circuit (including St. Johns) commonly refer contested family matters to mediation under Rule 12.740.

In collaborative divorce, there is no neutral running the negotiation in the same way. Each spouse has an advocate, but advocates who have contracted away the right to litigate. The process typically runs through a series of meetings, with disclosure handled informally and neutral professionals doing work that discovery and retained experts would otherwise do.

The two are not mutually exclusive. Rule 12.745(d) expressly allows collaborative parties to use mediation or another permissible form of dispute resolution by mutual agreement.

Is it right for your case?

Collaborative divorce tends to work when both spouses want a negotiated result, are willing to disclose fully without being compelled, and can afford the front-loaded cost of a team. It tends to fail when one spouse is hiding assets, when there is a history of coercion, or when one side treats the process as free discovery before litigation. The disqualification rule makes the choice consequential, and it is worth a frank conversation before anyone signs.

Steven C. Fraser, Esq., Florida Bar No. 625825, Florida Supreme Court Certified Family Mediator No. 37256 CFR. Jacksonville, Florida. 877-862-7188.