You and/or your spouse have come to the cross-roads of marriage. Things are not as wonderful as they once were, the good times have faded and you are not getting along to the point that it is hard to continue with the marriage. With over 50% of marriages terminating in divorce, you are not alone.
What should be done in the beginning of this realization? Assuming there is no physical risk or other consequences in waiting to proceed forward with the divorce, most often it would be a good idea to speak with your spouse and perhaps get into marriage counseling to determine if things can be repaired before pulling the trigger by jumping into a divorce process.
If that is not a possibility or it does not resolve the issues that brought you into counseling, research should be done on the different processes available to obtain your divorce. The information one can obtain doing on-line research is beyond our imagination. As a head start on this research, permit me to provide some ideas for choice of process beginning with the least amount of conflict and least expensive to what I consider the worst choice and possibly the highest conflict and most expensive.
The simplest and least expensive is the kitchen table negotiation to reach a resolution which would then need to be put in writing and signed by the couple before filing a simple Petition for Dissolution of Marriage. An attorney is recommended to properly draft the agreements.
Next up may be pre-suit mediation with a mediator who will assist in the kitchen table discussions on arriving at a suitable resolution. There are a myriad of mediators available to assist in this process, but care should be taken in selecting the right mediator. You should do research on potential choices of a mediator. An attorney is recommended to properly draft the agreements.
Filing for a Dissolution of Marriage on your own with neither spouse being represented by an attorney may be inexpensive financially, but the consequences of not having legal counsel to properly advise you on the law and rights and responsibilities can be costly. Further if the agreements reached between you and your spouse are not documented with properly drafted agreements, you could find yourself in additional litigation to either amend or enforce the final judgment. Divorce is a traumatic event in anyone’s life. By going it alone, you simply add to the emotional stress of the moment.
The Collaborative Law Process provides an out-of-court resolution process that has been documented as being 80% effective at resolving the issues of a divorce with a signed agreement to be used before the court at an uncontested final hearing. It requires each party to employ separate attorneys and the signing of a Participation Agreement providing for the terms of how the Process will go forward. It is a process by which a team approach is used in helping the clients work through the issues in an open and respectful setting most often with the assistance of a facilitator, who is usually a mental health professional, who helps resolve children issues; and one financial professional, who is in charge of collecting the financial information relating to division of assets and liabilities and support. I will provide a lengthier description in a further blog titled: What is the Collaborative Law Process?. In the meantime, information on this is available on-line or through the Florida Academy of Collaborative Professionals (FACP) website for Florida residents.
The next choice of processes is where you and your spouse hire litigation counsel, who can file suit and represent you in the divorce from negotiations for settlement to trial before a judge. You will likely have the least amount of control with litigation and it could easily become the costliest for you. The attorney you interview can tell you that they prefer to settle out-of-court, but unless both parties are on board with that and both parties have sufficient control over their attorneys, that may not happen. And you should understand that “cooperative divorce” is simply another form of litigation. It is not collaborative divorce which is part of the Laws of the State of Florida and the Rules of the Supreme Court.
There are significant differences in each of these methods to obtain your divorce. And when you consult with a family lawyer to represent you, it is their ethical obligation to set forth the options and point out the benefits and drawbacks of each. An automatic assumption that suit will be filed is the wrong approach in selecting the Process that will work best for you.
Let me leave you with one fact that should not be looked at negatively in relation to the collaborative law process. There is a disqualification provision in all Participation Agreements which prevents the attorneys and team members from continuing to represent you or participate in litigation if the collaborative law process does not conclude with a final resolution. Through proper training and education, I view the disqualification provision as a positive not a negative.
This is the first in a series of blogs under the heading, Collaborative Family Law FAQS. I have starts with the beginning of a divorce as the initial blog in the series. Future blogs will respond to the many questions surrounding the matters only touched upon in this blog as well as other Collaborative Family Law FAQS.
Jeff Wasserman
#AskABoutCollaborative