Keith's Interview Discussing Collaborative Divorce on WGCU Radio
Transcript of Interview
From WGCU, this is Gulf Coast Live. I'm Julie Glenn. This Valentine's Day we're trying to help find the little shred of love in the midst of divorce. There has been divorce mediation, but now collaborative divorce is an increasingly popular new way to save time, money, and emotions by having a team of trained professionals working on behalf of both parties will talk with a financial analyst and an attorney both trained in collaboration about how this new way of ending marriage can bring about solutions in which both sides walk away. Happy plus looking for law has become high tech with dating apps and websites for every niche demographic, but for many southwest Floridians, there's no replacement for the personal touch of a real life. Matchmaker will talk with a woman who has been making matches for years from Sarasota to Naples about who her clientele is, what they're looking for, and a few tips for people about to make the swan dive into the dating pool so they don't do a belly flop. But first the news.
This is Gulf Coast Live. I'm Julie Glenn. It may seem odd to talk about divorce on Valentine's Day, but there is room for a little love what a marriage is ending, if not for your soon to be ex for your own peace of mind, your pocket book and your time. That's where collaborative divorce comes in. It's a new approach to divorce that takes mediation to a whole new level with an entire team. Working on behalf of both parties here to explain a little more about that. His attorney Keith Grossman, who specializes in conflict management and is a member of the collaborative professionals of southwest Florida. Thanks for being here. Thank you for having me. Also in the studio with us as Trish Gerber who is founder and president of anchor business valuations and financial services. She's also a member of the collaborative professionals of southwest Florida and in a collaborative divorce, deals with the financial side.
Thank you for being here today. Thank you, Julie. We're talking about collaborative divorce in southwest Florida. It's a new approach to try and save money, time, and emotions in what is one of the most draining experiences of many people's lives. We invite you to become part of the conversation by calling us at eight, seven, seven, four, two, eight, eight, two, five, five. That's eight, seven, seven. WGCU. Talk on facebook. We're a WGCU. You public media and on twitter. We're at WGCU using the Hashtag gcl. Keith Grossman. How long have you been practicing law for? Over 25 years and then family law with divorce.
I've been doing family law almost exclusively since 1997.
So how have you seen it evolve since 1997?
The evolution has been in terms of what we're discussing today to move away more from the court system, the judges and the court system as a whole and the attorneys, other professionals have been working over the years and finding ways to assist the families that are going through divorce outside of the court system, which is really a a bad place for them to be in terms of the longterm effects of going through divorce in an adversarial system.
And one of the drawbacks of going into litigation during a divorce is that the of the settlement is taken out of the hands of both of the married people.
Well, if you ultimately wind up in front of the judge, it certainly is taken out of the hands. And what I have found is that a lot of the decisions that the judge makes will either be things that the parties can't commit to, won't commit to so it won't work and there are certain things that the judges can even consider doing. But even if they resolve the case after going through litigation for a period of time without actually having to have a trial, the experience of going through the court can be both financially and emotionally taxing and really break up the family. So they may settle the case somewhere along the way. But at great cost.
And you're saying, you told me earlier that mediation is pretty much required before you even get to go in front of the judge these days.
Yeah. The success rate of mediation has been so high that the judge is basically see it as a opportunity to give the parties a another chance to settle the case before they'll actually give them a trial date, so that's what's happening locally in southwest Florida is that it's a requirement before they'll give you a trial date and from talking with my colleagues around the state and around the country. It sounds like that's pretty universal now with the judges.
You're trying to go to mediation first, but now what we're talking about today is collaborative divorce. Can you tell me what the difference is between mediation and collaborate?
Well, mediation doesn't require the parties to have attorneys for one thing and the mediator is a neutral third party who's going to help understand what are the differences between what the two parties would like to see happen ultimately and also brainstorm solutions on how to do that and find something that would be mutually acceptable for both of them. In the collaborative divorce process, there are similarities, but you don't necessarily have a mediator or working in a collaborative case. You start off with a team approach where you do have attorneys that are specifically trained in collaborative divorce. They're each representing one of the parties and then there's different models that have been utilized, but the one that seems to be the most successful and most widely used at this point is a model that includes having a therapist or a psychologist, that type of background, therapeutic background, working as a facilitator and a communications coach in the process, and you may also bring in other professionals that the cost of the professional is shared by both parties and the professional is working for both of them as opposed to being a hired gun in a litigation setting and just representing the interest of one of the parties.
So you're getting the benefit of an overall team approach and not just the benefit of the mediator.
Okay. So each. Each party has an attorney that has been trained in collaborative and then there's also a therapist and when needed. There's also a financial analyst. It's another independent third party. That's correct.
Then there may be other professionals that we may recognize a need to bring in and they don't have to be at every collaborative session. They may play a small role and offer either just a written or come to a session or two to answer questions and provide information, but we can tap into their expertise as needed because it's this cooperative team approach.
And Trisch Gerber. You're a business valuation specialists, so when. What is your role when it comes to a collaborative divorce? I predominantly do the business valuations that are needed for assets that need to be valued and divided equitably and that would mean the operating businesses that might be owned by one of the spouses. I also do financial forensics, so if there is some questionable assets left on the table that need to be traced or in some way are lacking or need to be quantified than I would be brought in to do the financial forensics for a marital dissolution as well. So that's a term I hadn't heard before. Financial forensics. When I think of forensics, I'm thinking of Csi Miami or something like that. Exciting. I don't even know if even real forensics is it exciting is prime time tv, but what is financial forensic? I mean that's like doing kind of like an investigation. Exactly. So a lot of times because of the contention between the spouses, there will be a belief that there are monies that may go missing or might be dissipated is what it's referred to and I'm brought in to basically say that that has taken place or it has not taken place. So someone would accuse someone, oh you spent $30,000 last year, but you hit it and then you've got to try to do that actually. Exactly. Or your brother is holding it or. Yeah. So you transferred it to your family members. Okay. Exactly.
Well and in a collaborative approach, she's working for both of the client, so it's not really an accusatory type of situation. It's one party typically doesn't have all the information and although we're working the collaborative approach, there are still a little bit of the trust issue going on. So having a neutral person who can identify it and have the expertise to be able to do that. And present the information is incredibly helpful and can cut through a lot of the red tape and the costs associated.
There could be an instance when both parties are guilty of doing the same thing. You know, how someone thinks when they're doing that, when you've kind of done it yourself all the time, right? Or not always, but anyway. Um, I wanted to ask also a little bit about businesses. When one party owns a business, how does that business become something that is entered into a divorce situation? When one spouse owns the business, how does the other spouse ended up having any kind of interest in that? So if the business was started during the term of the marriage than it is a marital asset. And so once the marriage is dissolved, then that asset would be equitably distributed. So that's why evaluation of that asset we need to take place so that value can be assigned so that it could be divided between the parties or if a spouse would enter a marriage and already have a pre marital asset in place. Meaning a premarital business in place, they started prior to the marriage. The appreciation of that asset throughout the duration of the marriage would also be equitable, a divisible is there any that people set up businesses
that make it completely apart from their marriage as an asset kind of free floating that they have majority interest in or whatever, but is there a way that people have found to make that untouchable in a divorce situation, so I'm thinking of, um, say a securities investment account or something along those lines and in which case they would have a premarital non-marital asset that they would have in their own name that would not be commingled with their spouse if it existed prior to the marriage and that existed prior to the marriage. Exactly. And that's another forensics potential forensics opportunity to come in if the other spouse is saying, but there is commingling going on, and I do. I do have a right to a part of that asset, but that's, that's one asset that I could think of that would potentially be non-marital not divisible if it was not commingled. The string gets so complicated that I think that, you know, when you're going through an emotional rollercoaster such as divorce, thinking about these kinds of concrete things, it's just kinda hard to even wrap your head around when you're in the relationship. So having a third party that's not on either side that can look at it with more clear eyes, Scott, to be beneficial.
Well, absolutely. There's two aspects that that kind of goes on here. One is that you're dealing specifically with financial stuff. You're dealing a lot of times with topics that at least one of the spouses is not comfortable with to begin with and then now they're in a very tough situation, one of the worst situations in their lives and they have to understand these topics that don't interest them, that they don't understand and they have to make decisions that are very, have a lot of longterm impact. So having the professional bring the clarity and also the neutrality to identifying and analyzing those things is very helpful. We also are always in divorce dealing with emotions hijacking the situation and so anytime we can bring it back to a benchmark or something that can be established in a neutral way or, or established with a certainty that we can then build off of and say, okay, we understand the emotional side, but we have to come back to what the factual reality is. It's a tool to be able to keep the process on track.
And uh, another professional that's in the collaborative divorce who probably helps with any of the emotional hijacking as the therapist. So how does the therapist help things?
Well, one of the collaborative models that's very popular and it's where we've basically found ourselves going more and more to here in southwest Florida, is using a therapist as a facilitator of the process. And so they play a role of leading the meetings and they also can meet with the parties outside of the process for purposes of making sure that their voice is being heard and acting as a communication coach, softening things that are being said by anybody. It could be the parties, could be the professionals, but helping to understand and reframe what somebody said that may have upset this spouse the therapist is working with, so they play a couple of different roles, a lot of it related to improving communications, making sure there's clarity in the communications and then also facilitating the process to make sure that everybody's voice is being heard at the table, wants, needs and interests are being discussed and are given respect and people are cooperating to work with each other to fulfill those wants, needs and interests.
Trisch, have you ever seen a situation where a therapist in a collaborative divorce is able to defuse a potentially explosive situation between two parties? Have you ever seen that in action?
Yes, definitely. We work with a mental health professional. I'm frequently that is, she's just invaluable to the process because as Keith mentioned, it's emotions that really impedes the process and install styles. Things from moving forward and without her assistance, I don't think many situations would take place in, in the in the productive way that they have with her being the mediator. Basically the facilitator saying, okay, we need to take a break from this and we need to revisit it if whatever the emotions are high and the mental health professional. I feel like even though finances seems to be the one area that has argued about the most in traditional divorce settings, I feel like with collaborative law, since we're all physically together in certain meetings, that the mental health professional in particular is the is the key is the key professional. Well the real war is
probably an emotional war and then the financial stuff is something that's concrete. You can throw it people
cool. Well sometimes really the fighting is about things outside of the finances and a lot of times it's the children, but it manifests itself in the discussions about the finances because there's kind of more ability to to cause problems or to throw that at somebody and they're quantifiable. Absolutely. Absolutely. But in regards to the question about the therapist, the therapist does a really good job or the mental health professional does a really good job of kind of as an outsider recognizing that there are some things that are being said that other people are not identifying as being hot buttons and can step in and really take control over that situation. That's part of the facilitation role and I've seen the mental health professional do that with attorneys. Also. The attorney say something in that what they say needs to be clarified or softened in the mental health professional can play that role. Yeah.
We're talking about collaborative divorce with attorney Keith Grossman and financial professional. Trisch Gerber. Do you have a question or a comment you can become part of this conversation by giving us a call at one eight, seven, seven, four, two, eight, eight, two, five, five. That's eight, seven, seven. WGCU Talk or you can find us on facebook at WGCU public media and on twitter. We're at WGCU using the Hashtag gcl. So you mentioned a minute ago, children and I don't know, in in collaborative divorce, is there space at the table for kids or is that something where the therapist or mental health professional is able to kind of be a representative? I have not
personally experienced having children at the table, so to speak, the mental health professional as part of their role. Typically we'll have discussions with the family members and if there's a child that's old enough to share some thoughts and concerns and those sorts of things, the mental health professional can include that in the work that they're doing and sharing with the rest of the professionals and including the child's voice at the table in that way.
And I wanted to ask you, I mean we always. Everybody always talks about money and divorces I don't think ever cheap, but I wanted to ask you to break down if you could. The difference between a litigated a mediated in a collaborative divorce is one more expensive than the other?
It is hard to answer that question totally. I would say that the litigated case certainly has the potential of being the most expensive and typically will be the collaborative case could wind up costing almost as much as a litigated case in some situations. Rarely does that happen, but the possibility is there. I talk about collaborative more as an investment because rather than going through this whole process and letting the judge make these decisions for you, you're working with a team of experts that are really looking at what is best for your specific situation in a approach that is intended to reduce the conflict. So you're creating a better longterm strategy. So I look at, at as, as an investment mediation, uh, typically will wind up, in my opinion, be the least expensive way to go, but you're also sacrificing things in mediation because you don't have the full team. A lot of people go to mediation without attorney, so they're not even getting the full legal advice. The mediator can't give them legal advice, so they may be comfortable with that, but there are positives and negatives with that approach as well.
Or you might not really be able to interpret the financial documents to when you don't have an attorney or somebody there helping you figure all that stuff out. There's a lot of paperwork there. Exactly.
And when I'm working as a mediator, I'm always encouraging the people that I'm working with, if they don't have attorneys to at least have consultations with other professionals to make sure that their questions are being answered and for them to understand what they don't know.
So I want to paraphrase, you said litigated can usually be fairly expensive and not all the time, but usually it's a little bit more expensive than collaborated. However, the risk with litigated is going back because the decisions were made by a judge and not by the two individuals in the, in the divorce.
Yeah. The longterm impact of the judge's decision can really be tenuous and so the, the rulings will not hold up. So when you go back to court it's expensive again. Oh, absolutely. And also the. So just to be clear, I mean litigation can be wildly more expensive. The potential definitely is there. Um, I just don't want to say that collaborative is like a cheap, but the thing about collaborative is that it can definitely be less expensive and it's a better investment getting a, an agreement that will actually be sustainable
and having some longterm peace of mind because if you sat at the table and made these agreements together, it's not somebody else telling you,
right, what, what they're just because you have ownership over the agreement.
Exactly. With regard to the collaborative process, there's a definable amount of hours and meetings that are put forth. So you know, the beginning, the end, the middle, do you know exactly the process and there's no, I'm a disillusion as to to how the ball's moving forward.
Let me also mention though, the Florida Academy of collaborative professionals, which is a statewide organization, is doing an analysis right now of the amount of hours that professionals are spending on collaborative cases and how that translates in terms of cost. So we're collecting data in order to determine what the true cost of a collaborative is, to compare it to other situations. So this is that new. It is a slowly moving process in terms of we're trying to the, the, the, the process itself started back in the nineties, but the education and knowledge of the general plug public is really just now I would say start ramp started to ramp up in the last couple of years.
I'm getting all the professionals to get onboard too. That's right. Because a lot of times if you're hiring one financial professional, obviously then there's a financial professional professional that is not having a job throughout that case. I mean, that's, you know, that's a downside of it. Now, how do the timelines differ in each of these instances between litigated and collaborated mediated?
The court system will, in, in Florida has a, um, actual stated goal of when divorces are supposed to be settled by, I think it's six months. I would say that that's usually not reality. My experience is the most divorces with any sort of, um, things being contested is usually closer to a year. Um, the collaborative process typically takes less time than that. And we're also more in control of the timeline that can be looked at as being positive or negative, but I look at it as positive because we can accommodate people's schedules and we can go at the pace that the parties are willing to move. That.
And Keith, you know better than most, that divorce is hard and people come, they become much more willing to fight harder than they ever have in any other aspect of their life. As soon as they find themselves feeling betrayed or attacked by a spouse, do you have people who sign up for a collaborative divorce but they just can't follow through on the collaborating part of it?
There's definitely challenges in the collaborative process and we as the professionals have to help work through that. So we have to be clear with our clients at the very beginning that this is not just a hold hands Kumbaya kind of situation. This is hard work and we have to be. We're willing to work through the challenges and we have to remind them of that when the challenges occur. But there are times where it gets to be to a point where somebody says, you know what, I want to withdraw from the collaborative process. Now my personal has been that more times than not, we work through the challenges and we do get to an agreement, but I have had a couple of cases that did not succeed through the collaborative process.
Now when people first sign up, do they sign an agreement saying, I'm down for this collaborative agreement and this is what I understand the premise and how it works.
Yeah. We actually have what's called a collaborative participation agreement and it's a very lengthy agreement and we spend typically the first session when all the professionals are together, we spend almost the whole meeting, if not the whole meeting, going through the agreement, making sure that the clients understand everything that they're obligating themselves to and everything. That the professionals are obligating themselves too, so that all of that clarity is right there on the table at the very beginning.
Yeah, but that's a good idea to let everybody know what their role is and then understand what their expectations should be so that they don't end up, but they can back out if they just, they're just not. Then they can't work with the same attorneys though. If they do, they back out of that process. Then they have to start the process over and a traditional divorce setting, if they choose to go that route with new attorneys
and, and we're going through the agreement paragraph by paragraph basically before they've signed anything. So at the end of that they could say, you know what? After hearing more and getting my questions answered, I've decided the collaborative process is not for me. My experience has been that every time we get to that point where we're all around the table going through the agreement, they've already decided that this is the process that they want. And they're not basically dissuaded by the actual reading of the agreement together.
And I think in a lot of these instances when you have legal documents and um, you know, I, I call it legal ease, which, which is your second language, I know, but when you have these kinds of things, it's just really easy for somebody receiving it when you don't have this kind of a team to be intimidated by it, not understand it and feel like, oh, almost everything is a complete attack. So this would be where the communication skills of a mental health professional or therapist is probably going to really help in these kinds of situations and help make sense of some things. Even the way the collaborative, um, the agreement is set up though I don't feel as though it's, it's hard to understand as a, as a typical legal agreement would be. I mean, would you agree?
Yeah, no, absolutely. I was going to say that. And also the, the tone in the room when we're going through the agreement, everybody is talking about working together and working cooperatively and the team approach. And so we're meeting in a conference room. We're not in a courtroom, we don't have to go to the courthouse and everybody is talking about working together and so the whole tone is completely different as well and you have to find neutral ground at which to meet to. Yeah, we'll usually wind up meeting in one of the attorneys offices, but we could meet in another professional's office and so sometimes it's just a matter of we're geographically and calendaring what works best for everybody.
And Trisch, when you first start working on a collaborative divorce with a couple, what is your very first step? What is the first thing you have to do? Well, they have to divulge certain pieces of financial and
fill out a financial affidavit document and so that information then a shared with with both of the spouses and that is put forth in the very beginning to disclose all the financial information and then hearing concerns from either side about something that might they think should be there. That's not there. Exactly. That's the time when, when frequently after the documents have been received, questions will start to arise and so during that meeting, the questions will come up and we'll address them one by one. Do you ever have people that are surprised when they see their list of assets that didn't know they had all that typically surprised more so about the lack of disclosure on one of the spouses sides. I mean, that's, that's more than, than not what takes place. There's questions about assets and Michael Missing or liabilities that are higher than, than what they perceive them to be, or potentially an asset or liability that is, that is not marital in nature.
One of the Nice things about the collaborative process on that point is that if you were to do that in court where there'd be a perception that something hasn't been disclosed, that is basically, you know, we're now going to get into a fight over it. Whereas in the collaborative process, there's an opportunity for explanation because maybe there's a legitimate reason why it wasn't disclosed. It was overlooked or, and also that they have an opportunity now to correct it. And um, and typically they do correct it
and in litigation, that would put your whole case back about how many months exactly. I mean, and now it costs a lot more money to move that forward to.
Yeah, it, it, it depends upon what the scope of the lack of disclosure is. So it could be, you know, a short period of time that it sets you back or it could be a very lengthy period of time and you get in trouble because it looks like you actually really purposefully lied. Exactly. If you're in a court situation, right?
What assets tend to cause the biggest fights when it comes to divorces? Is it businesses? Businesses? Definitely not. Houses, not tip. Now typically it's the business. That's where they perceive the most value it comes from. So that's typically the asset that is, that is most contentious in nature.
How's this can cause challenges? Because a lot of times you have one spouse who wants to remain in the house and then you have to deal with issues of how they're going to buy out the other person's interest and whether they can actually even afford to stay in the house. Typically there's a note promissory note and a mortgage with both of their names on it and now only one person is going to be in the house. So those caused challenges. Um, and sometimes those will lead to greater fights, but a lot of times it's more about just figuring out whether it's really doable even though were they emotionally want to stay in the house. Sometimes it's just not practical or feasible.
And the value of the house is so much easier obtained as well. So you get the value of the house through a real estate appraisal versus the operations of a business. It's an art and a science. So the art part of the valuing of the business, this is the part that frequently gets attacked by one of the spouses. That's a question of the value that is ultimately derived. One sees the potential income of a business as being greater or lesser than the other. Exactly,
exactly. That's usually kind of a good guesstimate for most people, but as a professional, but that does business valuation mean exactly when you're working against another professional who does the same services and my job is objective and I am always have a neutral state of mind. Even though I might be hired by one of the sides if I'm working on a traditional divorce setting and that's why in particular I really love collaborative law because I'm working with both parties and it's full disclosure.
A lot of times what happens is that one of the spouses, the one that's not in the business, has a perception that the business has a greater value and puts off more income than it really does and it's sort of like there's a house of cards, a situation going on and they have no idea. They're clueless. So having somebody like Trish who's providing data in a neutral kind of presentation to explain that this is actually a misperception by that spouse can be really helpful because otherwise we could be spending lots of months in court arguing and fighting over a business that really is not what we think it is.
Yeah, that's true. I wanted to ask this collaborative divorce, do anything as far as parental rights and visitation and custody of children?
Well, we're handling all of those things and the nice thing is is that we can really take into account what the needs of this particular family are and what they are capable of fulfilling as far as the longterm plan. Florida requires us to create parenting plans and all divorces that have children and so being able to utilize the professionals working together, the attorneys as well as the mental health professional to craft a parenting plan that can be actually discussed over the course of time in numerous meetings as opposed to going to like a four hour or eight hour trial and the judge making all these decisions about what the parenting plan is going to say that the impact of of how successful it can be in a collaborative approaches is stunningly better than if you had to go to court and have the judge decide all of that, but we're definitely dealing with all of that in the collaborative approach, and we're probably talking less about it today simply because we don't have a mental health professional here today, but it is a huge piece of what we do in a lot of times it can be a driving force and actually getting the case settled in a reasonable way.
What have you seen from litigation as far as visitation? Do you find that what litigation or judges tend to hand down? Do you find that to be more disruptive to children's lives than what can be agreed upon in a collaborative setting? It's hard to fully say that, but absolutely the potential. Sometimes they have like a. A kid has to go to one parent one night and then go back to the other parent and then go back on the weekend and then every other weekend and that kind of thing. Is there a different kind of time split that is able to legally be done in a collaborative setting?
So the. So the Nice thing that improves the possibility of actually getting a schedule that works is that the parents know the history of their children. They know what the morning rituals in the bedtime rituals are and all those sorts of things. Plus you also have a mental health professional who can educate them on what the needs are at different developmental stages and ages for children. So all of that is part of the discussion. They don't get the full extent of giving all the family history to the judge if they were going to trial and the judge typically is not going to have a mental health professional who really is able to fully present that whole scope if they're involved at all and the judge doesn't have that kind of background, so the possibility of coming up with a better schedule certainly is improved, but at the end of the day, the agreement has to be done by the parties and they may emotionally feel that they want to handle it a certain way and it may turn out not to be the best for the child or the children, but at least in the process they can get all their questions answered about things that they don't really have personal knowledge about because they've got this whole team of professionals helping them understand that
and then having the therapist or a mental health professional that can speak on behalf of the children. Probably also developmental, psychological things that mean parents. We try pretty hard, but we may not know all that
well. You know, one of the things that happens in a divorce is that some of the times you don't intend to do this as the parent who's divorcing, but sometimes you're putting your kid in a situation where they feel like they're choosing one parent over the other and they don't want to say something that's going to hurt your feelings. So parents come in all the time and say, I know my child wants this, my child has told me this, but that doesn't mean that that's really the truth because the child is filtering what they are saying to the parent because they don't want to hurt their feelings. They don't want to pick one parent over the other. Those kinds of dynamics exist all the time. Yeah, and that's where that therapists really sure
orange, their earns their hourly. Uh, well, we're going to have to leave it there today in the interest of time, but I want to thank you guys so much for coming in today. Attorney Keith Grossman and financial analysts, Trisch Gerber, both with the collect a collaborative professionals of southwest Florida more information and links to their websites as well as the statewide collaborative academy's website or available on WGCUNews.Org. If you'd like to check that out or have any more questions about that coming up. While collaborative divorce looks for an amicable end to marriage, there are those just embarking on the quest to find love. And up next we will talk to a professional matchmaker about dating in southwest Florida.