The Merriam-Webster dictionary defines divorce as, “the ending of a marriage by a legal process”. I think that many people forget that marriage is a legal process by which two parties form a legal and financial union. That is why the government requires parties to apply for and receive a marriage license. The license is how the government recognizes this legal union. Therefore, when two parties no longer desire to be married, it is only through legal proceedings that their marriage can be dissolved. Divorce, or more formally dissolution of marriage proceedings, are nothing more than a legal process in which the parties provide mandatory paperwork and comply with the proper statutes, rules, and civil procedures.
It sounds simple enough. The difficulty arises most often because parties are unfamiliar with the process, they often fail to communicate with each other, and they immediately become paranoid or suspicious of the other party. That is why it is important for the parties to try and overlook their often raging emotions in order to keep at least some type of communication open with each other. If the parties are strong enough, they first together need to answer the following; “Ok, we both no longer want to be married, so we need to get a divorce, how do we do that?”
What many in society are lead to believe is that there is only one way to get divorced, through litigation, a court case/trial. However, this is a fallacy, perpetuated by the many divorcees of the past. Times have changed, and the way people resolve their disputes has vastly changed. Now, Marital and Family Law attorneys, judges, and other legal professionals and scholars recognize three (3) main ways to resolve individuals’ issues and conflicts. They are Litigation (court cases/trials), Mediation, and Collaborative law. Each are very different in how they go about helping parties to resolve their issues and conflicts. Therefore, it is important to discuss litigation, mediation, and collaborative law, individually, to highlight both their strengths and weaknesses, in relation to divorce proceedings. This three (3) part series will discuss each process generally, while providing helpful advice relating to each. First, we will discuss litigation.
Litigation is the process by which most divorces are decided. In a way, this is the “traditional” process. The parties work individually in an attempt to prepare for trial, and, along the way, attempt to reach an agreement. The focus is more on the trial, and is treated like any other court case. Both sides attempt to obtain as much information as possible from each other, this is known as the discovery period, and then they present the information to the Judge, who is both the decider of fact and law (in Florida we do not have divorce Jury trials, like in some states).
Generally, the litigation process moves on this timeline. First, a party initiates the case by filing a petition for dissolution of marriage. The petition is a written pleading stating all of the allegations related to the divorce and requesting the relief they would like the Court to award. Once the other party is served with the petition, that party will answer the petition and possibly file their own Counterpetition, which alleges their facts and requests the relief they seek. After the initial documents are filed with the Court, the parties enter into what is known as the discovery phase. In this phase, the parties exchange documents, depose one another, and, possibly, retain litigation support professionals (forensic psychologists, forensic accountants, real estate professionals, etc.). All of this is done in preparation for two things mediation, which is required before parties may set a Final Hearing (trial), and Final Hearing. The last step in the process is Final Hearing. Both sides present their cases by having witnesses testify before the Court. How long Final Hearing last depends on the complexity of the case and the amount of witnesses. Some Final Hearings last hours, some last weeks, it all depends. After Final Hearing, the Judge will either rule from the bench as to the litigated issues or they may wait and draft their ruling in a written order, again, it depends on the complexity of the case.
I want to take some time to dispel some myths about litigating. First, if two parties decide to litigate their divorce, it does not mean that they need to be mean, ruthless, or no longer communicate. There is an absolute correlation between the amount of open communication between the parties and how smooth litigating their divorce will be. Second, all attorneys are the same. This is an absolute myth. First, it is very common for attorneys and law firms to practice one area of the law (Criminal, Personal Injury, Marital and Family, etc). As a legal consumer/potential client, it is often advantageous to retain a lawyer/law firm who practices in a specific area. Clearly, attorneys who practice one area of the law often do so because they are passionate about that area, and, in turn, their passion drives them to learn as much as they can about that area of the law. Finally, it is a myth that if the parties hire attorneys then the parties’ divorce will be nasty. Practicing law is a service industry. The manner in which attorneys conduct themselves is often tied to the mindset and demands of their client. Essentially, attorneys are merely the tools of their clients. We conduct ourselves in the manner requested by our clients, and we try as best we can to do so, within the bounds of the rules of procedure and the law. Therefore, it is important that clients continue to monitor the actions of their attorneys to ensure that they are receiving the type of representation they desire.
Piece of Advice on Litigation: When I have clients that come to me wanting to litigate their issues. I make sure that we both understand what the client’s goals are and how our firm will work to help them achieve those goals. Often, I will tell clients that the award they want, the time-sharing schedule they think is best, or the alimony award they want is unlikely or unreasonable in the eyes of the Court. If the attorney you, as the client, have retained is agreeing to every word you say, or, if the attorney is not informing you of both the pros and cons of a particular course of action, I recommend you be very wary of that attorney. Great attorneys will tell their clients what they need to hear, not necessarily what they want to hear.
As a warning to the general public, there are family law attorneys, in all areas, who will stall or drag out cases to make more money. These attorneys stand to make more money because they bill on the number of hours they work a client’s case, which is a very standard fee arrangement. Therefore, it is important for legal consumers/clients to work with attorneys they trust, to look at each monthly billing statement for inaccuracies, and speak with their attorneys when inaccuracies occur, not at the end of the case (a blog will be posted in the future on the best practices for hiring an attorney).
Immortal Words on Litigation, from the Judge: “My goal isn’t to make either of you happy. More often than not, my goal is to make neither of you happy!”
To the readers, I hope this blog posting has been informative. Remember, just as there is more than one way to skin a cat, there is more than one way to get divorced. Each process has its inherent pros and cons. Therefore, it is important to speak with an experienced attorney who can represent you in the manner you wish to be represented. Finally, the attorneys here at the Eaton Family Law Firm, P.A., know that knowledgeable professional representation of clients in Family Law matters is very important which is why we are A FAMILY FIRM BECAUSE FAMILY MATTERS.
Cash A. Eaton, Esquire
This is Part 1 of my 2 part series on the process of getting divorced. In Part 2, I will discuss Mediation and the role Mediation plays in divorce cases.