Disclaimer: The content of this web page is not intended to be and should not be relied upon or used as legal advice or as a substitute for a personal consultation with a licensed attorney.
Many of my clients start with this question as they recognize that they are completely uninformed of the legal process and the law. Often they ask a friend, who will offer an opinion, typically favorable, as to how the case should turn out. But the friend, in being supportive, is giving an opinion based on feelings rather than knowledge or experience.
There are certain undeniable truths to divorce litigation in Florida. The following should help you understand the process and how to avoid pitfalls.
Undeniable Truth #1
A Settlement is Almost Always Better Than a Trial
A trial of your dissolution of marriage action should be a last resort. Many litigants believe that the judge will “teach the other party a lesson” and vindicate him or her. This is a fantasy. The Court typically has little interest in declaring winners and losers for the simple reason that picking winners encourage more litigation between the parties.
A properly drafted settlement agreement, negotiated after full and fair financial disclosure, will protect you and meet the unique needs of your situation. If you go to trial, you place the case in the hands of a judge who may craft a Final Judgment of Dissolution of Marriage that is designed purely to meet the requirements of law rather than the level of detail that the parties need. Most judges will be the first to tell the parties that they should take charge of their case instead of having a third party, the judge, decide it for them.
Undeniable Truth #2
A Properly Prepared Settlement Agreement Will Prevent Further Litigation and Save You Money
Those uninitiated in getting divorced do not realize that the entry of a Final Judgment of Dissolution of Marriage, especially with a poorly written agreement or judgment, is often just the kickoff for more post-judgment motions for contempt or enforcement. A proper Marital Settlement Agreement will typically save thousands of dollars in future litigation; not to mention the mental anguish of two former spouses arguing over an agreement that does not give them adequate direction.
You need a lawyer that is qualified to prepare your Marital Settlement Agreement. Under no circumstances should you attempt to prepare your own settlement agreement nor use the services of a paralegal (who is prohibited from giving legal advice). The time to be educated on signing an agreement is before you sign.
Undeniable Truth #3
Choosing the Right Attorney is Important
Choosing the correct attorney is essential to avoid problems. You should look at the following factors in selecting an attorney:
You should be comfortable with this person. The lawyer should be able to speak with you directly and not in a condescending manner.
The lawyer should be able to identify the issues in your case and give you a roadmap on how to resolve your case. The lawyer should be able to give you an action plan on how best to move and resolve your case including whether to engage in pre-filing settlement negotiations, whether to file immediately and help in identifying the types of information needed to get your case in a position to settle or try.
The lawyer should quote a reasonable retainer rather than one that appears to be unnecessary to manage your litigation for the next few months or to bring it to a prompt conclusion if the parties cooperate.
The lawyer should be experienced and comfortable with dissolution of marriage cases.
The lawyer should be able to explain the strengths and weaknesses in your case as compared with your goals.
During the very first meeting, your lawyer should not be afraid to be honest with you about the weaknesses in your case. In addition, the lawyer should be able to explain why aspects of your case are weak or strong.
Be careful if the lawyer is encouraging litigation that may not be necessary. Always look at the risks and rewards of further litigation versus settlement.
Undeniable Truth #4
You Should Try to Settle, but Don’t Sell Yourself Short
All too often I hear stories of litigants that are so obsessed with settling that they strike a terrible deal. Typically, that person wants to avoid the expense or stress of litigation, but the end result is a financial or child custody settlement that is devastating and can’t be undone.
Undeniable Truth #5
Your Settlement Agreement Will Not Be Changed
Property settlements are not modifiable after the official divorce. While alimony, child support, and your Parenting Plan may be modified later, even then the burden of proof in order to prove a substantial, material, unanticipated, involuntary change of circumstances is significant and difficult in most cases to overcome. Theses circumstances may or may not ever occur, so your settlement needs to be entered into with this understanding.
Undeniable Truth #6
Knowledge is Power
You need to assist your lawyer in obtaining all of the correct records to get you the best result possible. Your attention to detail in providing documents or information is critical to your success.
Undeniable Truth #7
Listen to Your Lawyer Regarding the Law
You should avoid any preconceived notions about what assets or liabilities are marital or non-marital. Laws vary from state to state regarding the distribution of assets and child custody issues, so internet advice is often misleading. Your lawyer should be able to explain to you the legal basis for his or her opinion.
Undeniable Truth #8
Your Child is Not a Football
Keeping your children from the other party is not only morally wrong, but it will hurt you in court. Judges frown on parents engaging in self-help regarding the children. Rarely is there actual good cause for such actions. If you believe you have such a good cause, you should speak with a qualified lawyer before taking such actions.
Undeniable Truth #9
Keep Your Children Out of Your Divorce
You and your spouse need to understand the importance of keeping your children out of the divorce process. Children do not have a say and they should never be put in a position to believe that they do. Children should not be used as messengers between parents even including delivering a sealed envelope. Children should not be interrogated about time spent with the other parent. In short, do not attempt to make any child an ally in your conflict with your spouse.