After COVID-19, spouses under stress should consider using the Collaborative Process to resolve their marital disputes.

by:  Robert J. Merlin, Esq.

The Law Office of Robert J. Merlin, Esq., rmerlin@merlinlaw.com

The COVID-19 pandemic has forced people to live in close quarters under stressful circumstances. Sometimes, that will lead people to decide to get divorced. If you are thinking about ending your marriage, here are some things you should know.

Getting divorced should be the last resort. The first place to start is to talk with your spouse about what is bothering you about your relationship. That could be a difficult conversation many people are not willing to have, but it is the fastest and least expensive choice. If that does not work, there are therapists who can help you and your spouse to discuss the problems you are having. The investment of that time and money can possibly save your marriage.

If you still want to end your marriage, you should know your choices for handling your divorce. Most people only know about fighting in court, but there are other ways to address the problems in your marriage.

Sometimes, simply entering into a Postnuptial Agreement is enough to calm things down. This type of agreement enables the couple to agree how to handle things if the marriage ends, such as how to divide assets, how much alimony and child support will be paid and how the family members will live together. This choice is not for everyone, but it may be an inexpensive way to resolve your differences with your spouse.

You can negotiate a settlement with your spouse. If you have minor children, you will need to agree how to make decisions about their education, medical care, religious upbringing and extra-curricular activities. You will need to decide how to share time with the children. You can agree to any timesharing system that you and your spouse feel is in your children’s best interest. You will also need to decide how to divide your assets and liabilities and you will need to decide whether one of you will pay alimony to the other. You need to decide how much alimony will be paid and for how long. Once you and your spouse sign a written settlement agreement, one of you must file a petition in court to ask a judge to approve your agreement and to dissolve your marriage.

If you cannot negotiate a settlement with your spouse, you can use a mediator to help you settle everything. A mediator is a neutral person who will help you and your spouse negotiate a settlement. The mediator cannot give you or your spouse any legal advice but can suggest ways to settle your differences. Using a mediator can be relatively inexpensive and can minimize the arguments you have with your spouse, but unless you have an attorney during the mediation, you may not know what the law is and what choices you have to resolve your differences with your spouse.

You can file a divorce action in court with or without an attorney. Once you file in court, children, family, friends, co-workers and competitors can see the details of your divorce. When you file in court, you empower a judge to make decisions for your family. The judge does not necessarily have the education, training or experience to know how to resolve differences in the best interest of your family. A judge must make decisions based upon laws, rules and appellate decisions, so the judge does not have the flexibility to be creative in resolving contested. Typically, litigating in court is the most expensive way to get divorced. Sometimes, the attorneys fight each other, and some attorneys have been known to cause more problems than they resolve. It is difficult to get hearings before a judge, especially now. Some courts in Florida are closed, but you may be able to get hearings that will be handled by phone or Zoom.

Perhaps the best way to resolve differences with your spouse is to use the Collaborative Process. The Collaborative Process is a private way for couples to negotiate everything related to their divorce with the help of a team of experts. Everything done in the Collaborative Process is private, so no outsiders should know what is happening until simple papers are filed in court. Instead of family attorneys fighting each other, Collaborative professionals work together to help the couple determine their future and the future of their children. This makes sense because you and your spouse should be in the best position to determine what is in your family’s best interest, as opposed to a judge making decisions for you.

            The distinguishing characteristics of the Collaborative Process are:

• You have the freedom to create a settlement that meets your family’s needs, rather than a judge dictating that to you.
• There is a constant focus on the best interest of the children. We use a neutral mental health professional as a facilitator or child specialist. The Collaborative Process is the only process where such an expert is part of the team to help your family. The facilitator helps the couple focus on resolving their differences, rather than battling each other.
• Each party has their own attorney, who is specially trained in the Collaborative Process. The attorneys do not work against each other, as in litigation. They work together to help you and your spouse settle everything.
• When appropriate, a neutral financial professional is used. This is important when there are significant assets and income or complicated financial issues. In litigation, each party’s attorney usually retains their own forensic accountant, thereby doubling the cost of a financial professional.
• The Collaborative Process is confidential and privileged, so no one should discuss what happens during the process with anyone else. Information and documents are voluntarily exchanged, and the couple commits to transparency. There is no need to go to court to ask a judge to order someone to produce a document or to provide information.
• The couple and professionals meet together. As a result, the Collaborative Process should take much less time than litigation.
• The Collaborative Process is voluntary, so either party can terminate it at any time, but if they do, the attorneys cannot represent them in contested litigation against each other.  The termination of a Collaborative matter is rare, with approximately 90% of Collaborative matters in Florida resulting in a settlement.
• Few people who have used the Collaborative Process ever return to court after obtaining their final judgment. In litigation, it is very common for one of the parties to return to court, thereby causing more conflict between the couple.
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The goal of every couple getting divorced should be to resolve their differences as quickly as possible, always focusing on the family’s particular needs. Florida Statutes Section 61.55 states:

“It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.” (Emphasis added)

Attorneys have an ethical duty to ensure that their client makes an informed decision about their matter. This includes explaining the options for handling their divorce and the advantages and disadvantages of each option. Most family attorneys only talk about litigating and possibly mediation. Very few discuss the Collaborative Process. Before meeting with an attorney, you should ask if they use the Collaborative Process. If the attorney does not use the Collaborative Process, you should consider consulting with an attorney who can provide the Collaborative Process to help you resolve your differences in a peaceful, respectful and private way.