Weekly Conversation: Attorney Ben Older pushes for more amicable divorce proceedings

He heads one of the largest marital and family law practices in Tampa Bay, but that doesn’t mean he thrives on contentious splits.
Ben Older is a marital and family law attorney in Tampa Bay.
Ben Older is a marital and family law attorney in Tampa Bay. [ JEREMY SCOTT | Jeremy Scott ]
Published Sept. 4, 2019

Ben Older is the founder and partner of Older, Lundy & Alvarez, one of the largest marital and family law practices in Tampa Bay, and he’s no stranger to walking into a courtroom and fighting for clients during a contentious divorce.

He says sometimes taking the case before a judge cannot be avoided.

But more and more, he’s advising clients to take an amicable approach. A husband and wife can work towards a dissolution without turning it into the War of the Roses. Along with an amicable approach, a relatively new Florida law allows couples to engage in a “collaborative divorce,” avoiding a lot of heartache and hate with the help of psychiatrist and an accountant, professionals the collaborative law refers to as “mental health neutrals” and “financial neutrals.”

Older recently spoke to Tampa Bay Times columnist Ernest Hooper about his approach to family and marital law, why he wants to spread the word about the value of amicable and collaborative divorces, and the nomadic journeys he took in his 20s.

Essentially, you’ve been a marital and family attorney since 2004, and you’ve dealt with a lot of divorce cases. Explain to me why you prefer cases that are amicable.

There are a few reasons, but the No. 1 reason is that without an amicable scenario between two people, there’s pain, and there doesn’t have to be. Many of the cases that we have that are in divorce court have minor children involved. And it doesn’t matter what the parents are fighting about — even if they’re fighting just about money and they’re not even fighting in front of the kids — the kids know that the parents are in strife and they will suffer, and I can’t stand it. If two grownups want to beat each other over the head about their money, they’re adults. They’ve made those choices. But when you have a child, you are charged with the responsibility of protecting that child, giving that child some place safe, giving them the opportunity to grow up healthy. A lot of lawyers do family law for years and then say I am done dealing with “custody” cases.

Because it hurts?

It hurts. Don’t tell anybody, but lawyers are people too. And you get to a point where you just can’t, but I’m not there. I still think I can help.

Given that, are you willing to take a hard line with your clients?

Especially with my own clients, because those are the only people that I control. I can’t control the other lawyer. I can’t control the other litigant. I certainly can’t control the judge, but I have some significant influence on my clients, and I feel like I can be a catalyst for change. So does everybody else in our firm. We all share the same philosophy.

Is this amicable situation pie-in-the-sky, or is it really possible?

It happens all the time. Anecdotally speaking, the parties that start off the case amicably usually end up resolving that case 80-90 percent of the time. Other people do all this fighting, all this work, spend hundreds of thousands of dollars, millions of dollars in some cases in legal fees, to settle something that could have been settled in the first month without all that money being spent.

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You and your partner Michael Lundy went to Texas long ago to learn about the collaborative divorce process. Now we have a collaborative divorce law in Florida. How much does it help people with divorces?

It helps tremendously. When people engage in the collaborative process, it works almost 100 percent of the time. The difference between the 80-90 percent I referred to before and this higher percentage is that in the collaborative process, from the go, you are focused on resolution. This is the greatest thing about collaborative and I think a lot of lawyers should get the training because it’s a newer process. I grew up as a lawyer litigating, fighting. First, you’re trained to fight and then you start to learn how to settle. So, most of the lawyers that are in the field for any significant period of time, they’re trained warriors. Now you’re entering a process when you are told your swords have to be left outside of the front door. “No swords in here.”

So you like amicable? You like this collaborative process?

Love it.

But if it goes south, the guy who was trained to be a warrior still resides here. Correct?

In my heart and in my head, yes, 100 percent. But for clarity, if it’s a true collaborative case and it it fails before a complete settlement, I get fired. The lawyers must get fired and new lawyers get hired to litigate because it’s mandated in the collaborative contract you sign when you start the process. So what you’re talking about is when we’re attempting to be amicable in a non-collaborative divorce and it just can’t happen because one party or both parties can’t see things clearly or somebody is doing something they shouldn’t be doing. Then, when it’s time to go to court, you do flip the switch and it’s go time. I enjoy court. I enjoy the research. I enjoy the process. I enjoy the strategy. I enjoy the competition.

Have you told the judge I don’t want to be here but I have to be here?

I have said that to judges many, many times in my opening statement and my closing statement, I do not want to do what is coming down the pike today, but if I don’t do it, I’m not representing my client appropriately.

In your early 20s, you were in a rock band, you traveled through Europe and Central America and then the switch flipped, and you went back to law school and earned your law degree. And here you are. Do you ever miss that carefree life that, that life of traveling around, as you said, seeing the world?

I don’t think I would be a tenth of the person that I am today if I didn’t have that experience. So, I don’t regret a minute of it. But I have an 11-year-old daughter and a wonderful ex-wife (he pauses and fights back emotion) which I would not trade for anything. So, if I were to vagabond it again, I wouldn’t be able to experience those things and have the life that I have here and the friends that I have here. So, I don’t miss it, but I intend to return to a version of it later on in my life. I would like to go and spend, you know, a month living in different countries at a time. I want to go and learn to speak the rest of the romance languages. I want to experience the other cultures. I find the best experience is to live there. To me traveling the world is experiencing the human beings and the food.

Traveling the world alone, but never being alone.

I traveled alone for three years and I was never alone for a minute. Never. Because when you travel alone, you invite people to surround you and you learn. How else can you learn? When I lived in Argentina, if I saw an English speaker, whether it’s American or Australian or Kiwi, if I saw them coming, I went the other way. Not because I don’t love those people, but because I wanted to be surrounded by the people of Argentina. I wanted to only speak Spanish. I wanted only to learn Spanish. I wanted to only eat food that’s cooked by the lady at the corner store. I wanted to be in it. That experience is life changing.

So we weren’t going to find you at the Chili’s in Costa Rica?

No, you weren’t going to find me at the Chili’s in Costa Rica. And I’m pretty sure that I only went to the McDonald’s in Argentina because when you go to different McDonald’s in different countries, they have local fare and I just had to figure out their version of local fare.

Let’s close on this. Tell me about being in a rock band and how, if things had developed differently, you might’ve been in a group that rose to fame.

So, after I graduated from college, I got a phone call from one of my best friends from Tampa who had gone to Jesuit and we’ve been friends since sixth grade, and he said, “Hey, I’ve got this band out of Gainesville, Waterdog. Our lead singer left, and we tried a new lead singer and he’s not going to work out and we need a lead singer. Would you come here?” So, I packed up my truck and I moved to Gainesville, learned all the songs and we started touring for a year. The guitar player for that band and the original lead singer that had left after Waterdog stopped playing joined Ken and Andrew, and they formed Sister Hazel. And to this day, they’ve had a 20 or 30-year career.

I’ve seen Sister Hazel four or five times myself right here in Tampa.

They’re a great band and they’re great musicians and they’re still great friends and, and it’s wonderful to see people make a living with music, but I know how hard they work on the road and I don’t think I’d want to do that anymore. But I’m lucky, because I’ve had a band (Mo Family) here for 15 years and we still play on a regular basis. Starting in November, we’re going to be playing the first Saturday of every month across the street from my office at Hooch and Hive. We rehearse downstairs in one of my offices. So, I get the love of music, I get to go home to my own bed at night and I get to see my daughter. I’ve got everything I want.

Weekly Conversation is edited for brevity and clarity. Contact Ernest Hooper at Follow @hoop4you.