Which option is the best choice for you?
In South Florida, five out of ten first-time marriages end in divorce. This rate increases for second marriages to six out of ten. In most cases, property must be divided and support must be negotiated and in many cases, the issues of child support and timesharing must also be resolved. Many people make decisions about dissolving their marriage without ever really understanding their options. At The Law Offices of Robert J. Merlin, P.A., we are committed to helping people understand their alternatives, so they can make the choice that allows them to achieve their best results. The following information outlines the options available to divorcing and separating clients, including:
Collaborative Family Law
An out-of-court alternative based upon mutual respect
Going through a divorce does not automatically mean having to endure the turmoil that is often associated with it. You now have another choice, Collaborative Law. Developed as an alternative to the stereotypical litigated divorce, Collaborative Law is a relatively new option for divorcing or separating couples to resolve disputes respectfully without going to court. It offers couples a humane, solution-based approach to ending a marriage while maintaining a healthy relationship when that is appropriate, such as when the parties have children.
Collaborative Law differs from the traditional litigation process because it promotes mutual respect and gives control of the process to the parties, not a judge. Clients agree not to go to court, so the process is more open and less adversarial. The goal is to enhance communications throughout the process and to lay the foundation for a healthier relationship during and after the divorce or separation. Through the Collaborative Process, relationships are preserved rather than destroyed.
Collaborative Law is based upon three principles:
How the Collaborative Process works
- The parties pledge in writing not to go to court
- Both parties engage in an honest and full exchange of information
- Each solution takes into account the highest priorities of both spouses or partners and their children
Once the Collaborative approach has been chosen by the couple, each spouse or partner selects a lawyer experienced and specially trained in the Collaborative Family Law Process to assist them throughout the process. Both parties and their attorneys sign an agreement not to go to court. The Collaborative Process is unique in that the spouses and their lawyers meet together for face-to-face discussions and negotiations without going into court.
In an atmosphere of openness and honesty, information about all sources of income and assets and liabilities are disclosed, needs are communicated and potential solutions are explored. When children are involved, their interests are given foremost priority. We involve a specially trained neutral mental health professional from the inception of the process to help the parties stay focused on their priorities and to improve their communication skills. In some cases, another neutral Collaborative professional, such as a forensic accountant, financial planner or child specialist, may also be involved.
The end result of the Collaborative Process is a settlement agreement that has been achieved through mutual problem solving using interest based negotiations. The divorcing or separation parties, along with their lawyers, take control of shaping the final agreement rather than having a resolution imposed upon them by a judge.
Benefits of Collaborative Family Law
Designed as an alternative to conventional divorce litigation, the Collaborative Process offers many distinct advantages:
It is our opinion that the Collaborative Process can be used in a majority of family matters to successfully resolve all of our client's issues. We believe that it is the wave of the future and that more and more clients are going to insist that the dissolution of their family relationships be handled Collaboratively.
- Client remains in control. Decision making is directly in the hands of the spouses involved in the divorce or the partners involved in the separation rather than in the hands of a judge. This means that the client is not bound by a “one size fits all” resolution. Settlement terms are only limited by the creativity of the clients and the Collaborative professionals involved in the process.
- Parties enjoy confidentiality. Problems and assets are kept private and are not a part of the public record. Nothing becomes public until simple and brief papers are filed to obtain a Final Judgment that ratifies the couple's settlement agreement. The Collaborative Process is ideal for people who are public figures or who do not want to publically disclose information about their net worth.
- Solutions are mutually beneficial. The Collaborative Process recognizes and understands each client's needs, interests, concerns and goals, while allowing both parties to be heard throughout the process.
- Respect is key. Collaboration changes the notion of divorce from adversarial and win/lose to a problem-solving constructive experience in which everyone is involved in a positive, win-win situation.
- Couples can expedite the process. The time of the process can be reduced if couples adhere to the principles and guidelines of Collaborative Family Law. The Collaborative Process can be much faster than litigation.
- Process may be less expensive. The parties frequently spend less money on attorneys and other professionals in the Collaborative Process. If it is necessary to hire an expert, the parties agree to hire one neutral expert for a particular issue, thereby saving money that is usually spent in litigation on battling "hired guns" for both parties.
- Kids count. Children are given a voice in the process through a Mental Health Professional and/or a child specialist, alleviating potential trauma to the children that sometimes lasts for years.
- Higher level of professionalism. The Collaborative attorneys work with each other and the clients with the common goal to help the clients resolve their case, rather than fight against each other.
Who should choose the Collaborative Process
Although the Collaborative Process has primarily been used to resolve dissolution of marriage actions, it is also an ideal method to resolve other disputes, such as:
- Same-sex dissolutions: In Florida, same-sex marriages are not legally recognized. Therefore, the judicial system is usually not an effective method to resolve issues when a same-sex couple dissolves their relationship. Through the Collaborative Process, we are able to help same-sex couples resolve all of the issues involved in the dissolution of their relationship, such as resolving property rights and claims, support issues and parental responsibility and timesharing issues when the couple has children. All of that is done in the privacy of confidential, personal negotiations.
- Pre- and Post-nuptial Agreements: By handling negotiations Collaboratively, the specially trained Collaborative attorneys are able to help the couple come to a mutually acceptable pre- or post-nuptial negotiated settlement while minimizing the risk of damaging the couple's relationship.
- Same-sex Partnership Agreements: The Collaborative Process is ideal for helping a same-sex couple to enter into a Partnership Agreement, thereby establishing rights, obligations and responsbilities for each other. Such agreements can provide peace of mind for a same-sex couple that is not otherwise available to them under Florida law.
- Non-married couple agreements: Couples who are not married to each other have very limited rights and obligations under Florida law. Through the Collaborative Process, a couple who is not married can voluntarily agree to have certain rights and obligations that would be recognized under Florida law.
For more information on Collaborative Law go to www.collaborativepractice.com; www.collaborativefamlaw.com or www.collaborativefamilylawfl.com
Reaching mutual agreements outside of the court system
Mediation is a voluntary process through which a client makes decisions together with his or her spouse or partner based upon an understanding of the client's views, the other party's views and the realities the parties face. A professional mediator facilitates the parties' discussions but does not give legal advice or make decisions for the parties. The mediator may, however, make suggestions of how the various issues in dispute can be resolved.
How Mediation works:
The parties, with or without attorneys, meet with the mediator to identify issues, complete the exchange of information if necesssary, and use non-coercive problem-solving techniques to come to a mutually acceptable agreement.
The parties can be supported in or out of the meeting room by consulting lawyers, financial and estate planners, accountants, insurance advisors, therapists and even family members.
Family-centered conflicts that can be resolved through mediation include:
- Dissolution of Marriage
- Parenting & timesharing
- Division of assets & liabilities
- Spousal & child support
- Paternity actions
- Pre-nuptial and post-nuptial issues
- Parent-teen conflicts
- Disputes between same-sex partners
- Disputes between a non-married couple
Benefits of Mediation
- The client sets the pace. The process can move as quickly or as slowly as the parties choose and the client is not restricted by the availability of a court calendar.
- The involvement of the court is minimized. Everyone agrees to reach an agreement outside of a courtroom.
- The parties create workable solutions. The process gives the client the freedom and opportunity to craft more creative solutions than are available through the court system.
- The parties remain in control. In a typical litigation scenario, the court imposes a solution it could also assign to thousands of other families. Through mediation, the parties hand craft a resolution that will work for both of the parties and their children.
- The parties save resources. Mediation is generally less costly and time-consuming than litigation.
- The parties enjoy confidentiality. Mediation proceedings remain private.
Robert Merlin is available as a Family Mediator certified by the Florida Supreme Court to mediate family disputes of all types, whether the parties come to him without attorneys or he is brought into the matter by the parties' attorneys.
A Traditional and More Aggressive Approach
The traditional approach to resolving disputes is through litigation which means having a judge resolve the disputes for the parties. The technique is not as common as it once was, as there are now alternative methods for resolving issues related to divorce and other family matters. More and more divorcing spouses are choosing not to litigate, but it still remains an available alternative.
How Litigation Works
With litigation, each individual has the right to hire a personal attorney to represent them in court regarding the matters in question or a party can represent him or herself in court. For divorces, these typically include child timesharing, child support, alimony, the equitable distribution of assets and liabilities, exclusive possession of the marital home and attorney's fees. Frequently, it is necessary to retain the services of various experts to assist in presenting evidence to the court.
Issues to consider in the litigation process:
- Litigation eliminates the client's control of the outcome and places the control with a judge
- Litigation is emotionally more difficult for families
- Litigation can be more expensive than other dispute resolution methods
- Litigation is more time consuming
- Litigation is usually more emotionally draining on the parties and their children
- It is frequently difficult to obtain hearings in litigation, especially in today's economic situation where the courts' budgets have been reduced
We have extensive experience in representing clients in contested Family Court matters. Our experience has taught us that litigation is an unhealthy alternative for the vast majority of divorcing couples. The costs of litigation, in terms of money, time and damaged relationships, has convinced us that we would prefer not to take our clients down the litigation road. There are other dispute resolution methods that are much more beneficial for our clients.
Although it may seem odd for a divorce attorney to talk about reconciliation, we have an ethical obligation to discuss all alternatives with our clients. Sometimes, a client thinks that they have no choice other than to dissolve their marriage when in reality, they may only need therapy or to learn better communication and listening skills. We always ask our clients if they have explored every avenue before pursuing a divorce. When appropriate, we will refer our client, the other spouse and even the children, to a qualified mental health professional. Of course, whether to pursue a reconciliation is our client's choice.
Guardian Ad Litem: A Guardian Ad Litem is an individual appointed by a judge or the parties to investigate and make recommendations to the judge and/or the parties about what the Guardian feels is in the best interest of the parties' children. Most often, the Guardian Ad Litem is paid for his or her services, usually on an hourly basis. A Guardian Ad Litem is typically appointed when the parents have disputes over how to raise their children that the parents cannot resolve themselves. Robert Merlin has many years of experience as a Guardian Ad Litem in Family Division cases. He received the 1998 Eleventh Judicial Circuit Court Ray H. Pearson Guardian Ad Litem Award. Bob enjoys acting as a Guardian Ad Litem because he can help children who are frequently the innocent victims in their parents' contested battles over them.
Expert Witness: Sometimes, an expert is needed in litigated Family cases to provide an opinion to the judge on a particular issue. Robert Merlin has testified as an expert in courts in Florida and California on various issues related to Family matters. He is available to testify as an expert on the Collaborative Process, the standards that should be followed by a Guardian Ad Litem, reasonable attorney's fees in family cases and the standards that should be followed by an attorney in family cases, such as dissolutions of marriage, paternity cases, domestic violence cases and in the preparation of pre- and post-nuptial agreements.