Valerie G

Although one of the first in the area to become board certified in the specialization of Marital and Family Law, Attorney Kanouse was not satisfied with the traditional methods of adversarial divorce litigation. She believed there were many, if not the majority of, clients who would be better served with alternative choices to the traditional divorce process. Keenly aware of the escalating costs in the adversarial process (both financially and emotionally) since her own divorce had traveled through the trial courts, appellate court and post divorce proceedings, Attorney Kanouse believed there was a better way. She was interested in helping her clients gain both information and control of their cases with a focus on resolving problems rather than polarizing the parties, which often happens in traditional litigation.

Divorced couples, especially those with children, need and have continued interaction even after the divorce is final, therefore the process should not be as alienating, aggressive and destructive as other civil litigation, where the parties may not know each other and need not see each other after court ruling. Studies have shown that the most destructive and harmful effects on children occurs when the parties divorce is hotly contested and adversarial. The following are creative models of divorce that couples may choose:

A. COLLABORATIVE LAW DIVORCE

Collaborative law (as described by its founder, Stu Webb in 1996) is a way of practicing law whereby the attorneys for both of the parties to a dispute agree to assist in resolving conflict using cooperative strategies rather than adversarial techniques and litigation. The commitment to working collaboratively is reflected in an agreement between both attorneys and their respective clients that, should settlement efforts break down, the attorneys will withdraw and not participate in actual court proceedings.

The focus of such a divorce is a concentration on informal discovery, negotiating and efforts to reach a marital settlement agreement before filing any petition or papers in the court. The parties each have their own individual attorney to advise them, but together they maintain more control in their case, minimizing the antagonism and controlling costs by reducing court expenses.

The model is not for everyone. It works for couples who, though they have differences, are willing to agree that the divorce should be amicable. Both parties must abide by certain ground rules including full disclosure and willingness to use neutral experts to resolve disputed values, as well as a willingness to deal with each other in good faith. Collaborative divorces would not be appropriate for cases involving domestic violence or where one party is secreting assets.

Either party has the right to withdraw from the collaborative law process and pursue their right to litigate, but both attorneys will have to withdraw and be replaced by trial attorneys. Fortunately, the vast majority of collaborative divorces are successful.

The spouses of the firm's clients will be given names of other area attorneys who would be likely to participate in the collaborative law model for divorce resolution.

B. COOPERATIVE DIVORCE

Cooperative divorce is a term coined by Attorney Kanouse for those divorces where couples choose, by desire or financial concern, to retain only one attorney. In this model, couples must be carefully informed that Attorney Kanouse can only represent one party and that the other party can and should, particularly before signing the negotiated agreement, seek an independent consultation with a separate attorney for review. Nevertheless, Attorney Kanouse can guide the process, advise her client and prepare the necessary documents and paperwork to process the divorce through the courts.

This Model works well for couples who are clear on the issues concerning their divorce and can work cooperatively and in good faith. No paperwork is submitted to the court unless and until the Marital Right Settlement Agreement is signed by the parties.

C. MEDIATION

Attorney Kanouse is a Florida Supreme Court Certified Family Mediator capable of mediating resolutions to family problems for couples whether or not they are represented by attorneys. The role of the mediator is simply to act as a neutral party assisting in facilitating an agreement. Therefore when Attorney Kanouse mediates she can not provide legal information nor participate in helping the couple go through the divorce process. She can help then try to resolve all the issues which need to be resolved relating to the divorce.

Important Notice:

As a Florida Supreme Court Family Mediator, Attorney Kanouse felt a particular affinity to mediating situations where couples had not retained attorneys, but felt confronted with two problems:

She could not provide legal information in such a setting since she was wearing her mediator hat not her lawyer hat; and
She could not get the couple divorced since the mediator is prohibited from processing the paperwork through the courts.

For these reasons she constructed her first alternative model called MARITAL AND DIVORCE INTERMEDIATION, where one attorney could offer neutral guidance to an amicably divorcing couple. Unfortunately, that model is not presently permitted by the Florida Bar and is under study since it would require changes to the present Florida Bar Professional Rules agencies. Presently the Florida Bar does not permit one lawyer to operate as a neutral party between the husband and wife regardless of whether or not the couple wishes to waive conflict of interest and seeks neutral guidance. If you would like to have more information on such a model and/or have comments please forward your comments to Attorney Kanouse's e-mail at fernrtucker@aol.com and she will see that it is properly forwarded to the appropriate Bar officers.