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What is Mediation in a Florida Divorce?

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In the realm of family law, where emotions often run high and tensions can escalate rapidly, finding amicable solutions to disputes is paramount.  One of the primary methods to resolve a family law dispute is mediation.

Understanding Mediation

Mediation is a voluntary but required process wherein disputing parties engage in facilitated discussions to reach a resolution.  How can something be both required and voluntary?  Well, in Florida parties in a divorce are generally required to attend mediation before they can go to court to have a judge decide things in a trial.  However, you cannot be compelled to settle or resolve a dispute through mediation, only attend mediation.  Thus, whether and how you will resolve a divorce at mediation (the terms to which you agree) is voluntary.

Additionally, mediation may not be required in cases involving domestic violence, child abuse, or other sensitive issues that may make mediation inappropriate.  In those instances, the judge will decide if mediation should still be required or if the parties may dispense with that requirement.

Unlike litigation, which can be adversarial and time-consuming, mediation fosters open communication and encourages compromise.  It provides a platform for parties to express their concerns, interests, and priorities in a non-confrontational environment.  Contrary to popular belief, the vast majority of divorces find resolution at or by mediation, obviating the need for a trial.

The Mediation Process

Engaging with Mediation

The mediation process typically commences with both parties agreeing to participate.  If both parties will not agree to participate, the court will often issue an order requiring them to participate.  In many counties, you are not typically permitted to bring a matter before the court (such as temporary relief) until the parties have attempted mediation.  This underscores the judiciary’s recognition of mediation’s potential to expedite case resolution and alleviate court congestion.

Duration

The duration of mediation sessions can vary significantly depending on various factors, including the complexity of the issues and the willingness of parties to negotiate.  While some disputes can be resolved within a single session lasting two to four hours, others may necessitate extended negotiations spanning multiple sessions over several days.  In recent times, virtual mediation has gained prominence, offering flexibility and accessibility to parties, especially amidst the challenges posed by the COVID-19 pandemic (although it should be noted that Rule 12.740(b) of the Florida Family Law Rules of Procedure makes it clear that unless the court orders the parties to conduct mediation virtually or the parties agree to conduct mediation virtually, mediation is required to be in person still–the standard practice, however, is for both sides to agree to virtual mediation at this point).

Cost

The parties will need to pay the mediator’s hourly rate and each client will be responsible for paying for their respective attorney’s hourly rate, as attorneys will appear at mediation with their clients.  The longer a mediation goes, the more expensive it gets overall.  However, mediations typically need time to warm up and make progress.

While mediation is not cheap, unlike court proceedings where fees are often unpredictable and substantial, mediation offers greater cost transparency.  Parties are responsible for paying the mediator’s fees, typically on an hourly basis.  These fees can vary depending on the mediator’s experience, credentials, and geographic location. However, compared to protracted litigation, mediation is generally more cost-effective and expeditious.

How Soon Can I Attend Mediation For My Divorce?

In order for mediation to be successful, the parties need to have all of the information necessary to feel comfortable weighing options and making decisions.   This means that the parties must have completed the financial disclosure process known as “mandatory disclosure.”  In a divorce, mandatory disclosure means both parties provide an extensive list of financial documents to each other through their attorneys and certify their compliance with the court.  This includes the filing of financial affidavits as well.

The Role of the Mediator

Central to the mediation process is the mediator, an impartial facilitator trained in conflict resolution techniques. While many mediators are attorneys, some may possess backgrounds in psychology or forensic accounting or other fields. The mediator’s primary role is to foster constructive dialogue, facilitate communication, and assist parties in generating viable solutions.  The mediator is not a judge or judicial officer and does not make decisions for either party or resolve disputes for them.  

The Advantages of Mediation

Confidentiality

Mediation offers a level of confidentiality that is often lacking in traditional court proceedings. Discussions held during mediation are confidential and cannot be disclosed in subsequent court proceedings.  This confidentiality fosters an environment where parties feel more comfortable expressing their concerns and exploring potential solutions without fear of public scrutiny or having it thrown back in their face in court.

Empowerment

Mediation empowers parties to take control of the resolution process and actively participate in shaping the outcome.  Unlike litigation, where decisions are imposed by a judge, mediation allows parties to collaborate and find solutions that meet their unique needs and priorities. This sense of empowerment can lead to more durable and satisfactory agreements.

Preservation of Relationships

Family disputes can strain relationships and create lasting rifts between parties. Mediation offers a less adversarial approach, focusing on finding common ground and preserving relationships whenever possible. By fostering open communication and mutual respect, mediation can help parties navigate difficult issues while maintaining a level of civility and cooperation.

Flexibility

Mediation is inherently flexible, allowing parties to tailor the process to their specific needs and preferences. Whether it’s scheduling sessions at convenient times, choosing a mediator with relevant expertise, or exploring creative solutions to complex issues, mediation offers a level of flexibility that is often lacking in traditional litigation.  Further, mediation is not a zero-sum game.  If you reach a point in mediation where you have resolved some issues but remain stuck on other issues, you may agree to sign a partial agreement that memorializes and binds you to the terms you could find agreement over and leave the remaining issues to be negotiated at a later time or decided by the judge.  Even this can greatly reduce the cost of litigation by focusing the parties’ and their attorneys’ efforts on just the specific issues that are left unresolved.

Conclusion

In conclusion, mediation stands as a cornerstone of family law dispute resolution, offering a constructive alternative to traditional litigation.  Its collaborative nature, flexibility, and cost-effectiveness make it an attractive option for parties seeking timely and amicable resolutions.  By embracing mediation, individuals can navigate the complexities of divorce and other family law matters with dignity, respect, and mutual understanding.  With its emphasis on communication, collaboration, and empowerment, mediation offers a path towards resolution that is both effective and sustainable.

When you are ready to discuss your options for resolving a family law dispute, including mediation, please schedule a consultation with our office today.

Answering Some of the Most Common Divorce Questions

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Today we are taking the opportunity to address some of the questions we hear most frequently about divorce.  As a divorce involves every area of your life, it is only natural for there to be all kinds of questions about it.  We anticipate this being an ongoing series as there are plenty of questions to answer.  If you don’t find the answer to your specific question here, please click here to schedule a consultation with us today so that we can help.

Are divorce papers public?

Answer:  Usually yes.  While this can vary from state to state, Florida has a broad public records policy.  A divorce is a legal action which goes through the court system, which means anything filed in a divorce is public record unless some portion of a document is redacted (because it contains sensitive information) or if the matter is sealed by the court at its conclusion.  One of the many benefits of a collaborative divorce is the minimal number of legal filings required to obtain a divorce—typically even the settlement agreement is excluded from the court record.  If privacy is your primary concern, consider a collaborative divorce.

How long will a divorce take?

Answer:  This depends on many different factors.  A litigated divorce typically takes the longest because the adversarial process adds many steps to a divorce.  In a litigated divorce, communications often go through both attorneys, which can substantially increase the time it takes to resolve any issue.  For example, if Client A is having trouble with an issue related to soccer camp, he brings it up to his attorney, who then contacts Client B’s attorney to address the issue.  Client B’s attorney then contacts Client B to discuss it directly, before then reaching back out to Client A’s attorney to relay the gist of the conversation.  Client A’s attorney then contacts Client A to let them know the results of the communication attempts.  Between scheduling issues, missed phone calls, email delays, etc., it can take weeks to resolve an issue that would take Client A and Client B ten minutes to fix if they discussed it themselves.  As you can imagine, it is common for litigation divorces to have lots of random issues like this come up, all of which act to slow down the process.

Additionally, any time the court becomes involved in resolving a dispute, everyone is bound to that judge’s schedule.  If the judge doesn’t have time for a hearing for two months, which is not uncommon at all depending on the judge and the jurisdiction, then everything is slowed down and delayed.

All of this is to say that litigation divorces, depending on things like the number and complexity of issues, the attorneys involved, the court’s calendar, etc., can easily take well over a year to obtain a final judgment, so it is important that you plan accordingly, both financially and mentally.

A collaborative divorce, however, tends to move much faster than a litigated divorce.  Communications tend to be more efficient as everyone works toward a common goal, even if they are not always in agreement about how to get to that goal.  The Collaborative team meetings are agenda-driven and very focused.  As such, more can be accomplished with less time.  Finally, the faster clients are in obtaining the various financial documents needed to understand the family’s picture and build options, the faster the matter can be resolved.  When all is said and done, the vast majority of collaborative divorces resolve within a year of beginning, with many resolving in under six months.  If the time it takes to divorce is your top priority, then consider a collaborative divorce.

Can a divorce settlement be reopened?

Answer:  With a few exceptions, probably not.  Most divorces resolve with a Marital Settlement Agreement (“MSA”), not a trial.  The Agreement may be reached before attorneys are involved, at or after mediation, or even the night before a trial.  But the fact is most divorces end with an MSA that the couple agrees to, often reluctantly.  A settlement agreement is supposed to provide a family with finality and understanding when it comes to the terms of their divorce.

The two most common ways an MSA is reopened is to modify either child support, or alimony, or both.  Child support is always modifiable so long as the statutory requirements are met.  Alimony is modifiable under certain circumstances, so long as the right to modify it has not been waived in the MSA.

Otherwise, short of evidence of fraud, duress, or material misrepresentation of fact, reopening an MSA is going to be highly unlikely, if not impossible.  If you are unhappy with the terms of the MSA you signed, there is not much to be done about it.  This is why it is extremely important that you a) speak to an attorney before you sign an MSA, regardless of who drafted it; b) make sure you understand the specific terms and conditions of the MSA (if you have questions, the time to ask is before you sign it and your attorney should ensure that you understand what is being explained); and c) take the time to contemplate the MSA and make sure you are comfortable enough with it to sign it (don’t rush on anyone else’s behalf—this is your life and your future).

 

Divorces are full of nuances and complicated decisions.  This is why it is important that you speak to an attorney who will help you understand the law and your options, not someone who will simply quote a statute at you and expect you to fully understand something attorneys go to law school to be able to grasp.  At Artemis Family Law Group, we pride ourselves on making the law as accessible to clients as possible.  If you don’t understand something, then our job is not finished.  Please click here to schedule a consultation at your convenience.

Can I Keep My House After A Divorce? Part 2

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In Part 1 we discussed whether your house is considered marital property, various factors that influence the decision to try to keep the house after a divorce, and some of the more common options for doing so.  Now in Part 2, we will continue the conversation, in which we explore the legal process for valuing your house and some alternatives to keeping the house.

What Is My House Worth?

This is a key question if you are not going to be selling the house as a part of the divorce.  If you agree to sell the house and split the proceeds evenly, then the value of the house will simply be whatever amount for which the house is sold.  The market decides the value at the time of purchase and if you are splitting the proceeds evenly, it does not complicate equitable distribution.  In other words, if the home sells for more than expected, you and your spouse will receive the benefit of that equally and if it sells for less, you and your spouse will both bear the burden equally.

While that is the simplest route, from an equitable distribution perspective, it is very common for individuals to instead want to stay in the marital home after divorce.  That’s where it becomes important, and complicated, to ascertain the value of the home.  You have a few options, in increasing cost and complexity:

Agree to Value:

The simplest manner to determine the home’s value for equitable distribution purposes is to agree to a value.  This can be based on each of you doing your own research, online listing values (such as a Zillow estimate), or simply a strong belief you both hold as to the home’s monetary value.  After all, you know your home better than anyone else.  If you agree to a value, you can use that to determine what amount you will need to provide to your spouse, either in cash or in offsets from other marital assets, in order to buy out their share of the home so you can keep it.  The Pros of this method are the simplicity and cost-effectiveness of agreeing to a price.  The Cons of this method are the inaccuracy of the price as well as the difficulty some couples have in coming to any agreement during a divorce.

Comparative Market Analysis (CMA):

A CMA is somewhere between simply agreeing to a value and a full-blown appraisal.  A CMA is performed by a real estate agent and involves comparing similar homes in the area that have recently been sold.  Multiple factors go into a CMA, including but not limited to, location, lot size, and square footage, etc.  A CMA is a great option if you and your spouse are not too far off in your personal estimates of the home’s worth—it will help determine what number to use.  However, the bigger the difference in estimated values you and your spouse have, the less value a CMA will provide.  If the CMA comes in at or near Spouse 1’s estimated value, then Spouse 2 is likely to reject it.  If the CMA comes in at or near Spouse 2’s estimates value, then Spouse 1 is likely to reject it.  If the CMA lands somewhere in the middle of both spouse’s estimates, they both may reject it.  Ultimately, unless you both agree to be bound by the CMA, neither of you are required to agree to the price the CMA determines.  The Pros of a CMA are cost (they are usually free) and speed (they are usually performed in a matter of days).  The Cons of a CMA are that it is less accurate than an appraisal and require the parties to agree to a real estate agent to perform the CMA, which can be difficult in a high-conflict scenario.

Appraisal:

An appraisal is a more formal process than a CMA and requires a licensed appraiser to perform an appraisal.  While a lot of the market comparison process is similar to a CMA, an appraiser will typically enter your home and physically inspect the condition of the house, noting any defects, outdated aspects, or flaws with the home.  As such, an appraisal is more thorough than a CMA.  An appraisal results in an appraisal report in which the detailed findings of the home are noted, with photographic evidence.  Appraisals also take much longer to perform, typically 30-60 days, to obtain the appraisal report.  They also carry a hefty price tag.  And similarly to a CMA, either one of you may end up rejecting the appraisal report’s value of the home if it does not come close to what you already believe it to be.  Neither of you are bound by an appraisal’s value unless you both agree to be.  Often when a matter ends up in court, you end up with “dueling appraisals” with different values.  The Pros of an appraisal is the accuracy and thoroughness it provides while the Cons are the price and length of time it can take to obtain.

 

Alternatives to Keeping the House

The primary alternatives to keeping the house are selling it or letting your spouse buy you out of your share of the equity in the home.  It is often the case that the home is burdened with extensive family memories, which can make it difficult to let go of.  However, divorces are typically difficult on your finances and maintaining a home with one income instead of two can be too difficult to realistically handle.  Combined with all of the other financial and lifestyle changes that come with a divorce, sometimes it is better to say goodbye to the house and give yourself a clean break.  It is very common for there to be a “resting” or “recovery” period after a divorce in which the parties live in simpler housing for a time while they adjust to the new normal and determine what they can afford and just as importantly what they actually want at this point in their lives.

Some people move in which family for a while after a divorce, which can help stabilize their finances and provide a steady place for them and their children.  Still others move into smaller rental options, like a smaller home or an apartment, to get by during the adjustment period.  It can be helpful to start out “smaller” with your options and then adjust upward if and when you think the time is right.  Otherwise, it can be very difficult, if not impossible, to maintain the same life you had before a divorce without building back up to it.  It can also be liberating to let go of an asset that is full of so many memories that are no longer a source of comfort; we have seen clients embrace a feeling of freedom when they let go of the struggle to keep the house and figure out how to maintain it. It is certainly not an easy decision to make, but it may be the best one for you and your family overall.

 

We welcome the opportunity to discuss your housing options with you.  Please click here to schedule a consultation at your convenience.

What is a Partition Action?

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Partition actions are a unique option of last resort in a dissolution matter. When property is jointly owned by more than one person, and a point comes where the co-owners cannot decide on what to do with the property together, one of the owners may file a partition action with the court. A partition action is available for all kinds of joint owners (siblings who have inherited joint interests in the same property, for example), not just spouses. However, the issue can come up in a dissolution of marriage when the parties may not be able to agree on what to do with a jointly owned property (often the marital home).

There can be many reasons for this problem to occur. Most commonly, one spouse may insist on selling the marital home, while the other spouse will likewise insist on staying in the marital home.

There are typically two outcomes to a partition action: First, the court may divide up the property according to each parties’ ownership interest (this is typically only feasible with large tracks of land, not a residence as residences are normally deemed indivisible and cannot be divided without prejudice to the parties); second and more commonly, the court will order the sale of the property. It is important to note that the court is empowered to order the sale the property at a public auction, but the parties can agree to a private sale. However, a public auction can be a very risky option as there is no guarantee the house will sell for a certain amount. It will only sell to the highest bidder, whatever that amount may be. And further, any liens or mortgages on the property will have to be satisfied from the proceeds of the sale before that money can be divided up between the co-owners. Thus, a private sale offers the maximum amount of control over the process. (See Chapter 64 of the Florida Statutes)

Therefore, a partition action should only be pursued as a last resort, if the parties truly cannot come to an agreement on what to do with a piece of real property. It is important to note, however, that a partition action must be specifically pled for in a petition for dissolution of marriage in order for the court to have jurisdiction to order the partition of jointly owned marital property. Failure to include this request for partition can leave the parties and the court in a difficult position later in the process. That is why it is worthwhile to include a request for partition in the petition for dissolution so that it is available as an option, even though the parties should still do everything possible to come to a decision together on what to do with a piece of jointly owned property. One may also include a request in the partition action that the parties be permitted the right to bid on the property should be reach public auction.

Additionally, all individuals or entities with an ownership interest in the property must be included in the action for the court to order a partition. In other words, if Stan and Jean own a house together along with their son David, then David must be included in the partition action or the court cannot order the sale of the house. This is why it is important to make sure your attorney has a full and complete understanding of the ownership interests held on various types of real property.

Finally, in a dissolution of marriage, if there are significant enough assets and/or liabilities, the court can address who gets certain property through equitable distribution.

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