Divorce is a legal procedure of terminating the marriage. Regardless of the reasons for ending the matrimony, divorce always comes with strong emotions, such as stress, anxiety, and resentment. When children are involved, divorce-related challenges multiply. Seeing parents go their separate ways is a painful experience that often leaves deep psychological scars.
In addition to emotional crises, spouses and other family members experience financial and legal challenges. Going through an arduous, time-consuming court process causes financial and mental exhaustion for everyone involved.
To help you understand why out of court divorce settlement in Florida is a better option, below is a brief explanation of both traditional and alternative methods for dissolving the marriage.
Is Florida a No-Fault State?
Florida has been a no-fault state since 1971. Before that, spouses had to prove their partner committed adultery or other marital misconduct. In a no-fault system, the only legal ground for divorce is an irretrievable breakdown, meaning that spouses who do not wish to live together for any reason can file for divorce at any time. In addition to an irretrievably broken marriage, a spouse can seek divorce if their partner has a mental illness.
Ending a marriage in court adds more stress to (an already) heated atmosphere surrounding your divorce. Litigation is a vindictive, time-consuming, and costly process incapable of resolving the underlying issues that led to a divorce. Parties in litigation typically hire attorneys who enroll in an adversarial process, trying to defeat their opponent. In doing so, they often disregard the feelings of the spouses, children, and other family members. The process is public, meaning everyone can access the court records and learn about information parties shared during the sessions. As mentioned, the children have no choice but to witness the humiliating quarrel between their parents, which leaves them with deep emotional wounds. Litigating divorce poses an additional financial burden on the whole family due to hefty attorney and court filing fees. Unfortunately, ending the court process does not mean things will go smoothly from then on. A vindictive court battle ruins relationships and prevents spouses from maintaining positive post-divorce communication, while children often have to deal with post-traumatic stress disorder.
How To Settle Your Divorce Out of Court?
Instead of going through a draining, unpredictable, and ineffective court process, you can save time, money, and energy by choosing out-of-court divorce methods. Mediation and collaborative divorce are two paths leading you to the same destination: a successfully resolved marriage dispute with a positive future outlook.
Mediation is an out-of-court process allowing the spouse to resolve their dispute with the help of a neutral third party called the mediator.
The mediator holds private and joint sessions, facilitating negotiations between the spouses. The mediator (retired judge, an attorney, or other professional) possesses subject matter knowledge and sophisticated negotiation skills. Unlike state-appointed judges, mediators do not have decision-making authority, nor can they propose solutions or offer legal advice (like collaborative attorneys). Neutrality and impartiality are their central characteristic.
Mediators are responsible for maintaining a neutral and friendly environment that will allow spouses to open up about contested issues. The free flow of information is crucial in mediation efforts. Without it, no settlement is possible.
Mediation typically consists of four stages:
- Introduction. The mediator introduces themselves, giving their credentials and explaining the procedural rules;
- Opening statements. The parties can give opening remarks about the dispute and their point of view;
- Private sessions (caucuses). During one-on-one talks, each party goes to a separate session room while the mediator goes back and forth between them, assessing their arguments and the possibility of settling;
- Joint session. The joint session is an opportunity to negotiate, bringing offers and counteroffers. The mediator fosters the negotiations while staying neutral.
Types of Mediation Agreements
Depending on children and property, Florida law provides three types of mediation agreements settling your divorce:
- Marital Settlement Agreement for Simplified Dissolution of Marriage;
- Marital Settlement Agreement for Dissolution of Marriage with Property but No Dependent or Minor Children;
- Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Children,
If the spouses settle the dispute during litigation, the mediator submits the so-called consent order to the court. Conversely, the settlement before initiating the court process is called pre-suit judgment.
Is Mediation in Divorce Disputes Mandatory in Florida?
There is no simple answer to that question. Under Florida law (FL Statutes § 44.102), the court has the authority to refer any civil action to mediation. That means the court may refer spouses to mediation depending on the specific circumstances of their case. In an uncontested divorce (the divorcing couple agrees on custody, parenting time, alimony, and marital property division), the court will proceed with the hearing. Conversely, in a contested divorce, the court may order mediation before proceeding with the process.
Collaborative divorce is a legal process in which each spouse retains an attorney, but unlike litigation, they work together toward settling the marital-related dispute out of court.
The collaborative law process involves spouses acting in good faith to resolve the dispute. Behaving the opposite of that principle (not disclosing material information or false representation of facts) causes their attorneys to resign from the case. Similarly, if collaborative divorce does not lead to settlement, the attorneys cannot represent the same clients in the future (that applies to potential litigation as well).
The key to collaborative divorce is transparency, mutual trust, and a free flow of information. The process revolves around four-way conferences in which spouses discuss disputed matters with their attorneys.
Unlike litigation, there is no complex discovery procedure in collaborative divorce – attorneys exchange information during casual meetings without unnecessary formalities. They can even develop friendships while helping the divorcing couple to settle. Instead of distrusting their attorneys, the parties should view such efforts as a sign of successful collaboration.
In Florida, spouses can settle custody, child support, alimony, and marital property division using a collaborative divorce.
Why Should I Divorce Out of Court?`
In contrast with litigation, mediation and collaborative divorce offer the divorcing couple countless benefits. Settling out of court proved to be the most effective way to resolve the marital dispute and preserve a positive future relationship. The most significant advantages of out-of-court settling are confidentiality, reconciliation, control over the process, and the use of joint expert teams.
- Confidentiality. Both mediation and collaborative divorce are confidential, meaning the information parties share during sessions remains secret. No one can reveal information during the mediation and collaborative process. The same applies to potential litigation in the future. The parties cannot use confidential information during the discovery procedure.
- Reconciliation. One of the benefits of out-of-court methods that litigation lacks is reconciliation. There is no adversarial battle between the parties in mediation and collaborative divorce. Contrarily, spouses share information (and emotions) in good faith, trying to resolve emotional and financial issues. The mediators and collaborative attorneys facilitate these efforts.
- Control over the process. Parties involved in out-of-court divorce control both the process and the outcome. In mediation and collaborative divorce, spouses are in the driver’s seat, directing the procedure and deciding the outcome.
Joint expert teams. Unlike litigation, where each party hires experts who testify before the court separately, collaborative divorce and mediation use joint expert teams. Spouses hire experts from various branches (financial experts, child psychologists, coaches, etc.) to work together in rendering an accurate and neutral expert opinion. Both parties then use such findings as a factual basis for the negotiations.