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 Divorce
Options
What is Divorce?
How do these issues get decided?
Traditional / Litigation
Collaborative Divorce
Mediation
Pro Se Divorce
WHAT IS DIVORCE?
Divorce is a process to legally end a marriage. A final judgment of
divorce decides the issues of property division, maintenance
(financial support for a spouse), legal custody/placement, child
support and other related topics.
HOW DO THESE ISSUES GET DECIDED?
There are a number of procedural models, which may be used to reach
resolution of these issues. The methods vary in degree of attorney
and court involvement, conflict and cost. Each issue in a divorce
case may be resolved by: (a) the parties reaching an agreement that
must be approved by the court; or (b) having a contested hearing
after which a judge or court commissioner makes a decision. These
models include: (1) traditional negotiation/litigation, (2)
collaborative divorce, (3) mediation, and (4) pro se divorce.
TRADITIONAL/LITIGATION
Litigation is the traditional divorce process, whereby both parties
hire attorneys, who provide legal advice and represent the positions
of their client in negotiations and court hearings. This model is an
adversarial process in which each attorney advocates positions based
on the personal wants, needs and viewpoints of their client. The
parties communicate primarily through their attorneys, rather than
directly with one another, regarding their positions, proposals and
counterproposals on the issues in their divorce.
The process may involve the use of formal legal procedures, known as
“discovery” to secure financial and other relevant information.
Discovery may include the use of depositions (a formal taking of
testimony before a court reporter) and the subpoenaing of documents
or other material believed to be relevant to the issues. Further,
each party may hire experts to support their positions. These
experts may include psychologists, real estate and personal property
appraisers, business valuation specialists, accountants and others.
If the parties dispute the legal custody or physical placement
schedule of their children, the court will appoint a third attorney,
called a Guardian ad Litem, to participate in the case as an
advocate for the “best interests” of the children. Ultimately, if
agreements are not reached, parties and other witnesses testify
before a judge who makes a ruling on each disputed issue. Most
litigation divorces are eventually settled, but often after
substantial time, money and emotion has been spent in conflict.
Further, both parties often find that they are dissatisfied with the
outcome and are likely to return to court in the future to change
the outcome or resolve disputes.
COLLABORATIVE DIVORCE
Collaborative divorce is a dispute resolution method whereby each
party hires an attorney and all four work together in a cooperative,
non-adversarial process with a mutual goal of reaching a fair
settlement of all issues, while avoiding the emotional and financial
expense of traditional litigation. The parties and attorneys agree
to communicate and negotiate directly with one another in structured
four-way settlement meetings. A structured process for gathering
information and communicating at and between four-way meetings is
also established and followed. Binding commitments, pursuant to a
Stipulation and Order, are made by both parties and their respective
attorneys to voluntarily disclose all financial and other relevant
information, to proceed respectfully and in good faith in settlement
negotiations and to refrain from the threat or use of litigation.
The parties agree that they will not go to court to resolve issues.
Key to the process is the agreement that if either party chooses to
go to court, both collaborative attorneys must withdraw.
Collaborative attorneys are specifically trained as settlement
specialists, rather than potential litigators. When necessary,
experts are brought into the process as neutrals who are jointly
retained by the parties. The collaborative divorce process may
involve a team approach; including financial advisors and mental
health professionals as coaches and child specialists. The goal of
the experts is to educate the parties and explore settlement options
to meet the needs of both parties and their children.
This process encourages creative problem solving, win-win
negotiations, and resolutions that meet the needs of all members of
the family. International experience indicates that the
collaborative divorce process produces greater satisfaction of the
parties and better results for children, and parties who are less
likely to return to court to litigate issues in the future. Most
significantly, the parties are directly involved in the process and
retain control over their outcome.
For more information on the collaborative law process please contact
our office or see
www.collaborativefamlaw.com.
MEDIATION
In mediation, the parties hire a neutral third party to assist them
in reaching agreements concerning their divorce. The mediator can
provide information about the divorce process and guide a discussion
to help resolve issues. The mediator need not be a lawyer and does
not represent either party. Whether the mediator is a lawyer or not,
the mediator cannot provide legal advice. Mediation may occur with
parties who have hired attorneys or parties who are not represented.
The parties communicate with one another directly in the presence of
the mediator. The goal of mediation is to allow parties to reach
agreements that meet the needs of both parties and their children
without the financial and emotional cost of a court battle. If the
parties proceed in mediation without attorneys, they are responsible
for preparing all the required forms for the court, though a
mediator may help prepare forms for the parties. The parties must
also appear on the record at court for their final hearing to have
their agreement approved and the divorce judgment granted.
PRO SE divorce
In a Pro Se divorce, the parties represent themselves and do not
hire attorneys. They proceed on their own to draft and file the
necessary court documents including the summons and petition,
financial disclosure statements, any motions, the marital settlement
agreement, if any, and the final judgment of divorce. In some
counties, Pro Se form kits are available at the courthouse to assist
the parties. The divorcing husband and wife must either work out an
agreement together or present their legal disputes to the court. If
an issue is not agreed upon, the parties have to be prepared to act
as their own representatives, meaning they must call witnesses,
prepare exhibits, ask questions of the opposing party and tell the
court why their request for specific orders should be granted within
specific procedural requirements. Pro Se divorce generally works
well when the parties agree and the issues are simple, such as in
cases with little property and no children.
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Rosemarie
founded the
Collaborative Family Lawyers Institute
in Miami in 1999 and serves as the Institute’s first president.
Rosemarie has lectured on Collaborative Law for the Florida Bar, the
Association of Family and Conciliation Courts and for various other
professional associations.
►Contact
Information
Rosemarie S. Roth, Esq.
8525 S.W. 92nd Street Suite B-5 Miami, FL 33156
Phone (305) 596-7303 | Fax (305) 596-1198
e-mail:
rlsroth@aol.com
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