HCBA Lawyer Magazine Vol. 28, No. 5 | Page 24

coLLaBorative Divorce – an estate pLanning attorneY’s perspective
Collaborative law Section
Chairs: Tina Tenret - ProVise Management Group & Ellie Probasco - Probasco Law
W
hen I got the call,
I was stunned.
My clients, who
had been married
for forty years, were getting
divorced. While I had worked with
them for many years to plan for
death and possible incapacity, quite
frankly, divorce was not something
I anticipated in their case.
The estate planning structure
we put in place years ago included
an irrevocable life insurance trust
to serve as owner and beneficiary
of life insurance on the husband’s
life. He was the breadwinner. The
trust was designed to shelter the
death benefits from estate tax,
providing for the wife for the rest
of her life and then passing on for
the benefit of their adult children
and grandchildren.
Fortunately, each of my clients
hired top notch attorneys to help
them through the divorce process.
I came to understand that these
attorneys were trained and
experienced in collaborative law
and that the clients had agreed
to participate in a collaborative
divorce. Though I certainly had
heard the term before, I wasn’t
exactly sure what a “collaborative
divorce” was and how it worked —
but I was about to find out. Their
attorneys asked me if I would
financial issues
serve as an
in the case.
“independent”
After
in the process.
seventeen years
The other
of marriage,
neutrals on the
I found myself
team would
facing my
include a
own divorce.
mental health
Understanding
professional
how the
and a financial
collaborative
advisor. My
divorce worked,
role would be
there was no
to counsel the
doubt in my
clients and the
mind that the
collaborative
process would
team on
while divorce is never easy,
help my family.
estate planning
i found that the
While divorce
issues, and,
is never easy,
in particular,
collaborative approach
I found that the
what to do
helped
us
tackle
tough
collaborative
with the
approach
irrevocable
issues in a
helped us
life insurance
constructive
manner.
tackle tough
trust. I would
issues in a
not advocate
constructive
for either side,
manner. The
but rather help
mental health professional helped
navigate the clients and their team
us craft a parenting plan for our
through the estate planning issues,
children and gave us great advice
advising of tax considerations
that we still use today. As a result,
and trust law and bringing my
my ex-husband and I sit next to
background knowledge of the estate
each other at volleyball tournaments
plan to the collaborative table.
and cheer our daughter on together!
The trust agreement included a
I am grateful to our attorneys and
boilerplate provision that eliminated
all of you who are dedicated to
the spouse as beneficiary in the
the collaborative movement. You
event of divorce. During the
are making a
collaborative process, the clients
difference in the
actually concluded that this was
lives of families
not the result they wanted. We
every day.
were able to petition the court for
a judicial modification under the
Florida Trust Code to keep the
plan intact as part of the marital
Author:
settlement agreement. The trust
Linda D. Hartley
turned out to be a valuable tool
– Hill Ward
in helping resolve some of the
Henderson
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