sample / draft only
PARTICIPATION AGREEMENT
The wife, ________, and her attorney, ________, and the husband,
________, and his attorney, ________ have chosen to use the principles
of collaborative law to settle the issues arising from the dissolution
of their marriage. The primary goal of collaborative law is to settle in
a non-adversarial manner the issues of the parties' separation, dissolution
of their marriage or other family law related matter. The parties are aware
and acknowledge that the success of the collaborative law approach to dispute
resolution requires a sincere commitment by the participants, but, even
then, there are no assurances that collaborative law will work in their
particular case. In furtherance of that commitment, the parties and their
attorneys agree to the following:
COMMUNICATION
The parties shall effectively comunicate with each other to efficiently
and economically settle the dissolution of their marriage. Written (including
email) and verbal communications will be respectful and constructive and
will not make accusations or claims not based in fact.
Communication during settlement meetings will be focused on the
economic and parenting issues in the dissolution and the constructive resolution
of these issues. The parties and their lawyers understand that the costs
for settlement meetings are substantial and require everyone's cooperation
to make the best possible use of available resources. To achieve this goal,
the parties agree not to engage in unnecessary discussions of past events.
To maintain an objective and constructive settlement process the
parties agree to discuss settlement of their family law issues only in
the settlement conference setting, unless agreed to otherwise by the parties
and their lawyers. Discussions of settlement issues will not be initiated
at unannounced or inappropriate times by telephone calls or appearances
at the other party's residence.
If there are minor children the parties acknowledge that communications
directly with them or in their presence about the family law issues can
be harmful to them. Communication with the children regarding these issues
will occur only if it is appropriate and done by mutual agreement or with
the advice of a child specialist.
The parties specifically agree that their chidlren will not be included
in any discussion regarding the dissolution (or other family law matter)
except as described in this Agreement or otherwise mutually agreed upon,
preferably in writing, by the parties and their attorneys.
EXPERTS
When appropriate and needed, the parties will use neutral experts
for purposes of custody and visitation issues, employment evaluation, valuation
of property, cash flow and standard of living analysis, and any other issue
which calls for expert advice and/or recommendations. The parties will
agree in advance as to how the costs of any expert will be paid.
INFORMATION
The parties and their lawyers agree to deal with each other in good
faith to promptly provide all necessary and reasonable information requested.
No formal discovery will be used unless specifically agreed to in advance
by the parties. However, the parties and their attorneys acknowledge that
the issuance of subpoenas may be required to obtain certain documentation
outside of their possession, custody or control from outside entities such
as banks and stock brokerage companies.
The parties acknowledge that by using informal discovery, they are
giving up certain investigative procedures and methods that would be available
to them in the litigation process. They give up these measures with the
specific understanding that each of them will make full and fair disclosure
of all assets, income, debts, and other information necessary for a fair
settlement. Participation in the collaborative law process, and any settlement
reached, is based upon the assumption that both parties have acted in good
faith and have provided complete and accurate information to the best of
their ability. The parties may be required to sign a sworn statement making
full and fair disclosure of their income, assets and debts.
ENFORCEABILITY OF AGREEMENTS
This Agreement shall be subject to disclosure to a court of competent
jurisdiction. In the event that either party requests a temporary agreement
for any purpose, the issue will be discussed and upon consensus, put into
writing and signed by the parties and their lawyers. If either party withdraws
from the collaborative process, any written agreements may be presented
to the court as a basis for an order, which the court may make retroactive
to the date of the written agreement. Similarly, once a final agreement
is signed, the final agreement may be presented to the court to be incorporated
into a Final Judgement of Dissolution of Marriage or other final order,
and may be presented in any subsequent action.
LEGAL PROCESS
Court Proceedings: Unless otherwise agreed or filed by either
party prior to entering into this Agreement, no Summons and Petition (or
Supplemental Petition) will be served or filed, nor will any other motion
or document be prepared or filed with the court which would initiate court
intervention. As part of a final agreement, a procedure for obtaining a
legal dissolution of the marriage or final disposition of other types of
family law matters will be discussed and agreed upon. Neither party nor
their lawyer will use the court during the collaborative law process unless
set forth in this Agreement of subsequently agreed upon to facilitate this
collaborative process.
Valuation Date: In recognition of the fact that the parties
are by agreement delaying the date of filing of a Petition for Dissolution
of Marriage (or Supplemental Petition in modification matters), the parties
acknowledge and agree with the intent to bind themselves and their attorneys
now and in the future, that _________, 200__, shall be used by them, their
attorneys, and the court in lieu of the actual date of the filing of the
Petition for determination of retroactive support, marital assets and liabilities,
or any other purpose set forth in Florida Statutes Chapter 61, other relevant
statutes and the case law interpreting same.
Withdrawal from Collaborative Law Process: Should either
party decide to withdraw from the collaborative law process, or should
the collaborative law process fail for any reason, prompt written notice
will be given to the other party through his or her attorney and:
(1) Neither party nor any members of his or her attorney's firm
can continue to represent either of the parties, and the attorneys for
the parties thereupon shall withdraw except for providing such transitional
assistance (including a summary of the case) as may be required by the
parties to obtain another attorney. It is further agreed there will be
a thirty (30) day waiting period (unless there is an emergency) before
any court hearing, to permit each party to retain an attorney and to make
an orderly transition. All temporary agreements will remain in full force
and effect during this period. The intent of this provision is to avoid
surprise and prejudice to the rights of either party. It is therefore mutually
agreed that either party may bring this provision to the attention of the
court in requesting a postponement of a hearing.
(2) Except as specifically noted herein all oral, computer-based,
and written communications between each party and his or her attorney,
shall be privileged and confidential and not subject to disclosure in any
subsequent litigation except for purposes of the determination and award
of fees and costs at the conclusion of any subsequent litigation.
RIGHTS AND OBLIGATIONS PENDING SETTLEMENT
Although the parties have agreed to work outside the judicial system,
and consistent with Florida law, the parties agree that:
(1) Neither party will dispose of any assets or obligate the
other to any additional debt except (i) for the necessities of life
or for the necessary generation of income or preservation of assets, (ii)
by an agreement in writing, or (iii) to retain counsel to carry on or to
contest this proceeding;
(2) Neither party will harass the other party;
(3) Neither party shall move the primary residence of the minor
children;
(4) All currently available insurance coverage must be maintained
and continued without change in coverage or beneficiary designation; and
(5) Violation of any of these provisions or failure to proceed in
good faith in accordance with the terms of this Agreement may result in
sanctions by the court to include an award of attorney's fees and costs.
ACKNOWLEDGEMENT
Both parties and their lawyers acknowledge that they have read this
Agreement, understand its terms and conditions, and agree to abide by them.
The parties understand that by agreeing to this alternative method of resolving
their family law issues, they are giving up certain rights, including the
right to formal discovery, formal court hearings, and other procedures
and options provided in an adversarial proceeding by the legal system.
The parties have chosen the collaborative law process to reduce emotional
and financial costs, and to generate a final agreement that addresses their
concerns. They agree to work in good faith to achieve these goals.
Dated this ____ day of ________, 200___.
[Signatures
of husband, wife, husband's lawyer, and wife's lawyer]
