There is a better way to go through the divorce proces. And that better way is outlined below.
It is our process at Denmon & Denmon that is designed so that we can:
Too often, lawyers focus only on the traditional litigation divorce process. They might explain the process as beginning when a lawsuit is filed and ending when the Judge brings down his gavel.
And while this process is a part of what will happen, it is only a piece of a bigger whole. And in many successful divorces the litigation process will take backstage and be delegated to the role of formality.
After all, social science is clear that the most important factor when it comes to raising successful children after a seperation is the amount of conflict and adversity between the parties.
That means if you really want your children to do well, we need to minimize the conflict in your situation. And we have to use a process that does so in spite of the fact that the traditional model promotes conflict.
Index for Quick Jump
It helps to look at the Big Picture before diving down into the specific divorce processes for divorce.
You might also call this the Framework for how our firm takes all clients through divorce.
Inside of this framework we might utilizes one or more processes o get us through the divorce, but the framework is always the same.
So in every case, we need to Meet. Education. Discovery. Negotiate.
If we can’t settle, then we need to use Targed Courtroom Litigation and Renogotiate.
If we still can’t settle, then we use Additional Discovery and if we still, still can’t settle, then we have a Trial.
Notice within this framework there is room for multiple divorce procedures to get the job done.
So for example, in the settlement phase there is room for tools like mediation or collaboration, or lawyer led negotiation. But the beauty of this mode is we can choose which divorce proccesses are appropriate for your particular case.
There is no way around it.
If you are going through a divorce, you will need to spend time learning divorce so that you can successfully come out of the divorce process and transition your family to the next stage in life.
This happens everywhere.
In other words, you need to do this right the first time. And the only way to do it right is to get involved and learn.
Education is not just limited to you, however.
Your spouse will learn too (hpefully). We want your spouse to learn enough to enable him or her to negotiate sensibly later.
Will your spouse be looking for alimony? If so, do you think she will overestimate or underestimate the amount of money she needs to run her new household after the divorce? What about the amount of money that you will have available after you run your household that is available for alimony?
In the vast majority of cases the needy spouse overestimates these numbers. And as you can imagine, this inflates the alimony request later on in negotiations. Education is the first step in the process for everyone.
Where are you going to be in six months? Where are you going to be in six years?
What type of child will you have raised by then? What do you want your child to say about growing up with separated parents if you were to ask your child in the future when he or she is an adult
We call this very important process goal planning.
In custody cases, it’s easy to say you “50/50” custody or “every other weekend with dad”, but social science tells us this sort of positional thinking is actually detrimental to us getting a resolution. After all, why dig your heels into the ground (your position) before explaining why such a position matters. So consider:
Likewise in Financial cases,you could come out and take a position that you want XX amount of alimony for YY years. Or that you want to keep the house. Period. But again, taking these positions at the onset are problematic, and a better plan is to identify:
By engaging in the goal planning process from the beginning, we increase the chances of developing an effective settlement agreement that is aligned with the future you wish to have.
Another unique thing happens as well: We sometimes find that both you and your spouse ultimately have goals that are aligned, which can help us reach mutually agreeable settlements.
The first step in our framework is to identify what issues or topics we need to resolve in the divorce process.
A 15-year marriage with kids in high school, a husband in the workforce, and a wife who took care of the kids will likely have all of these issues.
A short-term marriage with two younger people with no children, who are both working, may only have one of the issues above.
For the issue of dividing assets, it might be a home that has to be sold or a retirement account that we have to determine how to divide.
Perhaps we have a small business that needs to be valued. Or perhaps it’s an inheritance that the husband received while the parties were married and also mingled with his earned income. Or maybe we have a coin collection and other personal property that we have to figure out what to do with.
For the issue of parental responsibility, we are working towards a parenting plan that solves the legal issues of where the child spends overnights, which parent makes decisions for the children, holiday planning, child care, and more.
Perhaps we have a parent who has an unusual work schedule that we need to try to accommodate.
Or maybe we have two parents that have differing opinions on education or how to make healthcare decisions.
For the issue of alimony, perhaps we need to figure out the right amount of money that the stay-at-home spouse could be earning should she be working. Or perhaps the breadwinner husband, a salesperson, has seen his income drastically reduced in the months leading up to the divorce and the question is whether the reduction is voluntary or not. Perhaps it’s determining what amount of money the needy spouse requires to move forward. Or perhaps we will have an issue with what amount of alimony the breadwinner spouse should be able to pay. Perhaps it’s an issue of whether the alimony should be taxable or not, or if the alimony should be permanent or for a set period of time.
For child support issues, perhaps we are trying to decide the right amount of income for the parties. Or perhaps we have special needs children that may require additional income above and beyond their 18th birthday.
We also need to look and see what kind of practical problems we might have to deal with in the case.
For example, we want to see if our client or the other party is in an emotional state where they are unable to adequately grieve and become ready to settle their case in the near future.
Will there be a need for some counseling or other therapeutic help to get one of the parties to where they need to be emotionally?
We also must identify early on if we have any special problems in the case that might cause us to veer off of our normal framework into an intervention mode. Some problems require us to address them head-on and solve them before we move back into the normal course of events. These include:
Domestic Violence Issues: Sometimes our cases have domestic violence problems. Domestic violence, or physical abuse between the parties, can give rise to emergency court hearings like injunctions and restraining orders.
When we have domestic violence, we might have a party who shouldn’t necessarily have children unsupervised. It’s common in cases of domestic violence for the spouse who has committed domestic violence to have supervised time-sharing while working to try to rehabilitate themselves through counseling or classes.
Substance Abuse and Mental Health Issues: Sometimes our cases have substance abuse problems or mental health issues that require a supervised or safety-focused parenting plan. In these situations, we shift gears upfront into an intervention mode to get to the root of the problem and protect the children.
High-Conflict Parenting: It has been estimated that a quarter of all divorce cases have high-conflict parenting. High-conflict parents can often act so destructively and antagonistically that it can be detrimental to the children and hurt them in the future. A high-conflict parenting case left unresolved can drag both parents and their children in and out of courtrooms for years. Almost inevitably, these high-conflict parenting cases wreak havoc on the children as well as the parents.
Likewise, we want to isolate these cases at the outset and intervene to see if we can stem the tide and put the parties on a more traditional path.
If we have any of these situations that require us to intervene, we do that first and in effect delay the rest of the divorce process while we solve these issues. However, if we don’t have these problems we can move on to the next stage — educating the parties.
We talked about education and learning earlier. But we need to keep moving forward with learning and getting more informaton as we go through the process and head towards settlement talks.
When we get to the end of the case, we will ask our client to make informed decisions. As attorneys we do all the legwork, but ultimately it’s our job to help our client get a deal that they can live with.
But the reality is that you can’t tell whether you’re getting a good resolution or a bad resolution unless you’ve been educated and understand what you’re dealing with.
Remember, everything’s about to become very different. And we want to get our clients up to speed as quickly as possible.
From a negotiating point of view, our clients need to understand the law and the basic rules of the game. Understanding what assets are marital versus what assets are non-marital is very important when it comes to sitting down and negotiating a reasonable deal.
That educational process starts right away. In fact, quite a bit of the information on our website becomes required reading for our clients in the first days or weeks after we begin working together.
Of course, the educational component extends to the other side as well.
Now this is more problematic, because in a divorce case we often can’t talk to the other side once an attorney is representing them.
But we can use targeted communications, such as letters and emails, to help facilitate the learning curve of the other side. We will even sometimes set meetings with the other attorney and their client with the objective of trying to get everybody on the same page and up to speed with what they need to know going forward.
After we begin to identify the issues and educate our clients, we can usually isolate the best type of divorce process to use to get our clients and their family to the best end result.
Marriages are interesting. We like to think that two parties in a marriage know everything about each other, but the reality is that’s just not the case.
Often over the course of a marriage each party assumes certain roles. And over time they tend to understand the reality of their particular role without the other party truly understanding it.
For example, consider the case of a breadwinner spouse who makes the money and also controls the finances. The other spouse may be a homemaker who stays home and takes care of the kids, understands their needs, and knows their extracurricular activities.
The first spouse may know everything about the dollars and cents. The second spouse may know everything about the kids.
And they may not have the same information that the other spouse has about those respective issues.
In these cases, we have a lack of communication and transparency about what’s going on. Fueled by all sorts of emotions that people go through when entering a divorce, this lack of information can cause distrust between the parties in a way that is detrimental to getting a deal.
In the example above, the homemaker may not trust the breadwinner spouse when it comes to the finances. She may think that the spouse is hiding money, hiding assets, or is not being honest about the money that he really makes.
It’s almost impossible in these cases to get a deal done without disarming both parties.
So in these cases, we would want the breadwinner spouse to gather up every possible financial document. Showing that there’s nothing to hide will not only help answer any questions that the other side has, but also help the other side begin to trust that the breadwinner spouse is truly coming to the table and trying to work out a deal.
Exchanging financial documents is an important way that we begin the process of transparency in a divorce case.
Equally important is the need to facilitate and increase communications between spouses. This is especially true when we have children involved.
In high-emotion and high-conflict cases, this can be a delicate issue. But when possible, the attorneys want to set up a structure for the two parties to communicate. In the normal case, this can simply be meetings over the kitchen table or even emails and texts. In a high-conflict case, this might need to be done through a parenting coordinator or other third party. Nonetheless, increasing communication and transparency is critical to getting the parties to effectively negotiate.
Now that information is flowing freely back and forth between the parties through their attorneys, we need to move to the next step — uncovering factual disagreements and trying to resolve them.
Note that we’re not ready to truly begin negotiating a settlement just yet. One of the worst things in a case is when one party opens up negotiations by making an offer without knowing all of the available facts. Later, the party may discover facts that change his or her position but by then the other side will not be as receptive to a change in the offer. This can increase stalemates and ultimately force the parties into litigation.
When we say we’re looking to uncover factual disagreements, we’re trying to see where the parties agree and where they don’t.
For example, in a divorce case, we are often dealing with homes.
When dealing with the home, we want to see if the parties agree or disagree on:
By answering these questions, we truly know where everybody stands and it enables us to isolate where the disagreements lie.
In the home example, it might be that both parties agree on the value of the home and the repairs that need to be done to the home. However, maybe the parties disagree on whether the home should be sold or not.
While this process should be done in the models above, it’s important to recognize that it takes communication between the lawyers of the parties to get this done. It takes two to tango; it’s not uncommon to run into cases where one of the parties or one of the lawyers just doesn’t communicate that well.
In our opinion this is the beauty of the collaborative model, in that it immediately establishes exactly when the parties are going to meet and what they’re going to talk about.
When we enter negotiation, we want to make sure that we are not haggling like two guys at the corner market but truly trying to understand the principles of each party’s requests.
If a wife is asking for alimony in the amount of $3,000 a month, we don’t want to just hear the number and run away. Rather, we want to ask the question of why she is asking for that amount.
By getting the other side to try to explain their position, only one of two things can happen. We can learn more about our position and perhaps have our opinion changed (which is a good thing if it’s the right thing), or we can uncover where the mistake is with the other side and help them understand and potentially change their opinion.
In a financial context, about the only thing that we don’t want to do is have one side come out asking for $10,000 of alimony and the other side offering $500. When that sort of scenario plays out, it’s a matter of lawyers doing their clients a disservice. This is your financial future, and entering negotiations where people are pulling numbers out of their ass is horrible. Yet, we’ve seen lawyers do this time and time again.
If a good agreement can be reached, then great! We are 99% of the way done. Put pen to paper with your agreement, have both parties execute it within the formalities required by law, and then your case goes from a contested case to an uncontested case. That means it’s simply a matter of setting a quick hearing in front of the judge to finalize the case so that you can move on to the next stage of your life.
Unfortunately, sometimes an agreement really can’t be reached. If everything is been done right, then it is because either there are issues such as domestic violence or substance abuse, or one of the parties is just for whatever reason unwilling to commit to a reasonable resolution.
Regardless, it will be time to go into litigation.
Nobody wants to go to Court. But the nice thing about Divorce in Florida is you can use the Courtroom to resolve targeted issues before going to trial that might make a settlement more possible in the future.
Here are a few examples:
Forcing Compliance From the Other-Side to Play Ball: Sometimes a deal can’t be reached because the other side won’t do what they are supposed to do. They won’t turn over documents. Or go to mediation. Or follow status-quo agreements. By getting the Court to force compliance, we might be able to reposture the case to get a deal done.
Temporary Child Support or Alimony: Sometimes one side refused to complete these obligations on a temporary basis, usually from an unrealists idea of what will happen in Court. A temporary Order from a Judge to pay support can at least get everyone in the ballpark as to what a financial resolution might look like at trial.
Exclusive Use of the Home: Sometimes the emotions are too high when two parties are both in the home. Too make it worse, it can be impossible to negotiate deals that make sense for two single people in two homes when they both live in the same home. Getting the Judge to separate the parties can shake up the status quo.
Freeing Up Cash: Unfair cash positions can sometimes lead to one party in an position of power. This can lead to unfair bargaining power and make deals tough. Judges can fix these imbalances where appropriate.
Targeted litigation can solve disputes and lead to more productive settlement negotiations. We like to think of it as resolving some of the hangups from the initial settlement so we can go back into negotiations with more clarity.
Sometimes we still can’t settle the case because we find out we have more to learn.
Sometimes it is because two parties disagree on the value of a home. Or maybe they diagree on the non-marital portion of a 401(k). Maybe there needs to be testimony given in a deposition that leads to more transparency and answers.
Maybe an expert, like a forensic accoutnant or a vocational evaluator are needed to give us a professional opinion as to what a good result is. An accountant can help with alimony opinions. A vocational evaluator can help wus when we have an unemployed spouse and there is disagreement as to what that person should be making, and therefore, paying in child support or needing in alimony.
When we learn additional information, we can then try to settle the case again.
Of course if we still can’t settle the case with all the facts answered we truly have a disagreement that needs to be settled by a Judge. And that is when we go to Court for trial.
At this stage, we’re entering the litigation process, which simply means using court procedures so the judge can make a decision and bring everything to a conclusion.
You probably realize by now that we’re not overwhelming fans of litigation for most divorce cases. This might seem somewhat ironic because our firm makes a point of only hiring attorneys with substantial trial litigation experience. Because we know if you need litigation, it really is something you have to know how to do.
But just because we know how to do it, doesn’t mean it’s the right thing for most people.
In divorce cases and custody matters, we’re talking about families. We’re talking about a deal that you need to live with for the rest of your life. If you have children, you might need to live with the time-sharing plan for the next 18 years.
Judges do the best they can, but they can’t possibly know your circumstances and your family the way that you do. And time and time again we find that the agreements that we can reach for our clients substantially outweigh the results that judges give.
Not to mention the litigation process is the most expensive, because we have to use the court system to try to get each issue resolved.
But with all that said, in some cases it has to be done. And in those cases we take an aggressive approach to try to get litigation done expediently.
We record and track how long it takes for each case to get through litigation, as well as the average amount of time. That’s because we found that our clients are happier when the process takes less time and the total fees and costs tend to be lower.
Divorce is tough, and the more time that you’re in the process the more it’s going to hurt. Before long, you’re going to want it to be over with and ready to move to the next stage of your life. The best way that we can help our clients get there when we’re in the litigation process is to keep the wheels moving along.
Now that we understand the framework that will be used in your divorce case, it is time to discuss the divorce processes that we will use to get you to a negotiation.
The goal of any divorce is to legally separate the parties and get a binding document that spells out the rights and responsibilities for all the issues in the case.
But in that process, there are different types of strategies to use to get to that goal.
If a framework gives us a general guide of where we are and where were going, then process gives us a step-by-step guide within the framework of where we want to go.
Below are the six main types of processes that we use in divorce cases in Florida. Note that these processes are not necessarily exclusive of each other. A process can be combined with another process to get the best resolution. For example, if you file a divorce case tomorrow you are technically in a litigation phase or process, but the judge will very likely require you to complete a mediation process at the onset to encourage an early resolution.
Self-help divorce is a term we use when both the parties actively negotiate and settle the core issues in their case between themselves.
We notice that other lawyers interchangeably use the term uncontested divorce for a self-help divorce, but this is not entirely true. An uncontested divorce is simply a divorce for parties that have reached agreements on all of the issues and therefore don’t need to go to trial.
But the reality is that 95% of cases resolve themselves; it often just takes a long time to get to that point.
A self-help divorce has the positive outcome of getting things done while letting the client stay in control.
However, the danger lies when two parties make an agreement without understanding the law. Divorce laws can be somewhat complicated — making an agreement without the right legal advice or understanding the law can result in a person inadvertently giving up his or her rights.
For that reason we always recommend — even in self-help cases — for the client to sit down with an attorney and have their potential agreements reviewed.
Therefore in self-help cases, attorneys often merely analyze the deal, ensure everything is done correctly, and that the hearing in front of the judge goes off without a hitch.
The next type of divorce process is the collaborative process model.
If traditional divorce is filing a case and going in front of the judge, the collaborative model is the direct opposite.
In the collaborative model, the parties and their attorneys specifically sign an agreement where they agree not to go to court to resolve problems. In fact if the parties can’t reach an agreement at the end of the collaborative process, then each party must let go of their attorneys and find new attorneys to handle the case using the litigation model. This has the positive effect of truly encouraging both parties to put their best foot forward to try to get a deal.
The collaborative model leans heavily on the fundamentals of the Harvard Negotiation Project — specifically, utilizing principled negotiation to get to a win-win result.
In the collaborative model the parties not only hire attorneys to help facilitate the case, but also a neutral mental health professional and a neutral accountant.
That neutral mental health professional can guide the negotiations forward in a constructive matter and also is available if one or both of the parties is undergoing an emotional problem as they try to get through the process.
The neutral accountant can present an objective look at both parties’ finances and support issues.
This is different than the traditional model of each party hiring their own expert, who then presents an opinion that is always favorable to that party.
The collaborative model is built on meetings. There is often a first meeting where everybody gets together and sets ground rules for the process. This can include specific meeting times to try to get to a resolution, when the parties will exchange financials, how the parties will get the financials, and the like.
The cost of the collaborative process can often seem heavy to the parties at first, because they are not just hiring their own attorney but also expert witnesses. However, time and time again the collaborative model has been proven as much cheaper and much quicker in getting a resolution than the litigation process.
Mediation is a process for divorce where both you and your spouse will sit down with a third-party mediator.
A mediator can be a lawyer, a mental health professional, or anyone certified and qualified as a mediator in the state of Florida.
The mediator’s goal is simple — to get you and your spouse to a resolution. And that’s what they’re trained to do.
However, a mediator is not a lawyer and is not allowed to give you legal advice and/or counsel.
Therefore, you’ll go to the mediation with your attorney and your spouse should do the same with their attorney.
The mediator will go back and forth between the groups attempting to broker a deal.
Lawyer-led negotiation is the most common form of divorce process when there’s animosity between the spouses, making mediation or the collaborative process unproductive.
In the lawyer-led negotiation process, the lawyers are going back and forth trying to negotiate a deal for you and your spouse. The attorneys communicate via phone, letters, or sometimes in-person.
In this process, you can expect that your lawyer will share all written communications with you and call you promptly after any phone communications to fill you in on what’s happened.
The benefit of the lawyer-led negotiation model is that it is helpful when the parties are acrimonious and unable to communicate well themselves.
The negative is that communications are indeed between the lawyers, and you and your spouse have to rely on the filter of the attorneys. This can lead to ideas and concepts being lost in translation or being somewhat distorted.
It is common in a divorce for the lawyer-led negotiation model to begin the process of settlement, setting the groundwork for a successful deal, and then moving into a mediation process to finalize the divorce.
An extremely underutilized divorce process tool in Florida is that of arbitration. In arbitration, both parties can agree to have a third party be the fact-finder to resolve their disputes. In essence, the third party is acting like a judge but isn’t really a judge. The benefit of this is that you can often get to an agreement much more quickly, because you can simply book the arbitrator and get in front of them. Also, the arbitrator is not required to follow the rules of evidence that you might have in a traditional litigation model. So for example, if there a ton of documents that need to be presented to the court that might require your attorney to spend a lot of time filing the right rules of evidence, those steps are unnecessary in arbitration.
Arbitrators will charge for their time, but ultimately this process can be much quicker and more cost-effective than the traditional litigation model.
On the flipside, arbitration decisions cannot be appealed — they are final and binding. In the litigation model if the judge screws up and makes a mistake, you can always appeal that mistake to a higher court but you can’t do that in the arbitration divorce process.
Where arbitration can be extremely effective is in situations where the parties are able to reach agreements on most of the issues, but may have a strong disagreement on some small issues. Such issues can be submitted to an arbitrator to make a binding decision and ultimately everything else should fall into place.