Many people, thankfully, are looking for a less emotionally charged way to divorce. I say thankfully because a long drawn out court battle leaves everyone drained, financially and emotionally, and is always harmful to children. So I commend anyone who seeks an alternative to a messy court battle, even in cases where emotions run high and there are many financial and child related issues to be resolved. However, in their desire to keep things low cost and low emotion, couples and individuals may cut too many corners and not seek necessary legal or financial advice. Since a divorce settlement, in most cases, impacts the rest of their lives, the results can be disasterous.
Many people, even those who strive for an amicable resolution, still believe divorce is an "all or nothing" concept. The parties either hire lawyers or they do it themselves. There are a host of online websites and companies offering "do it yourself" divorces for a small fee. The people utilizing these services are not just those with little income. In many cases, individuals and couples in higher income brackets are so frightened by the potential cost of divorce that they opt for these seemingly cost effective solutions, not realizing the high cost that may result later on due to an incomplete or unfair settlement.
Those facing divorce need to be aware that there are other options. While parties may be able to do their divorce themselves, through mediation or, in some cases, by filling out the paperwork themselves, there are many reasons to consult with a lawyer beforehand, or, at the very least, before signing any agreement.
For couples using the "pro se" mediation process, where a neutral mediator helps the parties reach an agreement, consulting with a lawyer and/or a financial advisor may be a crucial first step to help the party determine what his/her legal rights are and what the financial picture would look like. Many times in mediation, one person has a greater understanding of the parties finances. The other person may not even work at all and may have no idea of what their expenses will be. If this person were to enter into an agreement providing for little or no support, he or she may be left in a compromised financial situation. As a mediator, I encourage parties to do this both before mediation and before signing an agreement.
Many people are concerned that, by "involving lawyers", they will end up in court, paying a great deal in fees. But this does not have to be the case. Each party can consult with a lawyer, as many or as few times as needed, and pay for the lawyer's services on a per-visit basis. Some lawyers will not do this, but there are many that will. For those who opt for the "pro se" route, it is important to seek out the legal advice they feel they need. It is also important to get information about the lawyer before going to an intial meeting, such as, how much time the lawyer will spend evaluating the case and going over options, and, if so, what the fee will be.
Divorce, like many aspects of life, does not have to be an all or nothing proposition. In too many instances, the all or nothing approach can leave a party with little or nothing or less than a fair share. While do it yourself may work for home improvement, it may not be the best course of action for dissolution. Before deciding to "go it alone", anyone facing a divorce should make sure he or she has enough knowledge and information to make the important decisions that will impact the rest of their lives.
Monday, October 29, 2007
Thursday, October 25, 2007
Miami-Dade County Family Court Approves Collaborative Practice
In an Administrative Order signed October 19, 2007, Chief Judge Joseph Farina signed an Administrative Order authorizing the collaborative process dispute resolution model in all dissolution and other family related matters.
The Order follows on the footsteps of a Brevard County Judge who recently signed a similar order. Although the Miami Dade County Court differs somewhat from the Brevard Court in that Miami-Dade does not have allow any Court intervention in a collaborative matter and has not, as other Courts have done, allow parties in a collaborative matter for either file a proceeding with the Court or resolve any temporary issues which may arise. Other courts have followed the lead of San Diego in establishing a collaborative court to resolve disputes which may arise during the collaborative process. Miami Dade has opted to keep the court completely out of the process, until such time as the parties either reach agreement or the process breaks down. The Administrative Order does provide that any temporary agreements reached by the parties will be ratified by the Court if the process breaks down and the parties proceed to litigation.
The Order also authorizes withdrawal of the parties attorneys in the event the process breaks down. This aspect of collaborative practice has been criticized by many Collaborative Law skeptics and ruled unethical by the Colorado Bar. The Miami Dade Order appears to endorse this aspect of Collaborative Law by requiring withdrawal of the parties attorneys in the event the process breaks down.
The Order also provides some guidelines for the financial and mental health professionals who are sometimes retained as part of the collaborative process.
Although the Florida Bar has yet to fully endorse or pass any collaborative law statute to date, it appears that the Florida Courts are clearly in favor of a collaborative alternative to the traditional model of divorce, which has been sharply criticized by these Courts in cases where excessive and expensive litigation has resulted.
The Administrative Order comes as a surprise and a tremendous positive gain for Collaborative practitioners, who have struggled with gaining judicial recognition for Collaborative Practice. It remains to be seen whether Broward County will follow suit, so to speak, with a similar Order and whether the Orders of the Courts will gain the attention and recognition of the Florida Bar, allowing this much needed alternative to gain legal recognition and, most importantly, regulation.
The Order follows on the footsteps of a Brevard County Judge who recently signed a similar order. Although the Miami Dade County Court differs somewhat from the Brevard Court in that Miami-Dade does not have allow any Court intervention in a collaborative matter and has not, as other Courts have done, allow parties in a collaborative matter for either file a proceeding with the Court or resolve any temporary issues which may arise. Other courts have followed the lead of San Diego in establishing a collaborative court to resolve disputes which may arise during the collaborative process. Miami Dade has opted to keep the court completely out of the process, until such time as the parties either reach agreement or the process breaks down. The Administrative Order does provide that any temporary agreements reached by the parties will be ratified by the Court if the process breaks down and the parties proceed to litigation.
The Order also authorizes withdrawal of the parties attorneys in the event the process breaks down. This aspect of collaborative practice has been criticized by many Collaborative Law skeptics and ruled unethical by the Colorado Bar. The Miami Dade Order appears to endorse this aspect of Collaborative Law by requiring withdrawal of the parties attorneys in the event the process breaks down.
The Order also provides some guidelines for the financial and mental health professionals who are sometimes retained as part of the collaborative process.
Although the Florida Bar has yet to fully endorse or pass any collaborative law statute to date, it appears that the Florida Courts are clearly in favor of a collaborative alternative to the traditional model of divorce, which has been sharply criticized by these Courts in cases where excessive and expensive litigation has resulted.
The Administrative Order comes as a surprise and a tremendous positive gain for Collaborative practitioners, who have struggled with gaining judicial recognition for Collaborative Practice. It remains to be seen whether Broward County will follow suit, so to speak, with a similar Order and whether the Orders of the Courts will gain the attention and recognition of the Florida Bar, allowing this much needed alternative to gain legal recognition and, most importantly, regulation.
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