Why is it Best to Settle My Same-Sex Divorce Case Outside of Court?

First off, I want to thank the same-sex and LGBT community as your hard-fought battle for equal marriage in Florida finally paid off in 2015, proving yet again that love wins.

But if the words “til death do us part” have devolved over time into “let us part without death,” there are important things you need to know about same-sex divorce in Florida.

Yes, you have a right to equal marriage in Florida now.  But do you have a right to an equal divorce?  Not exactly.  Not quite yet anyway.

Florida divorce law has a ways to go before bridging the gap between your legal realities as a same-sex spouse and what the legislation intends to protect – which presumably is the sanctity of committed relationships, and the rights and obligations which accrue from a legally recognized union. 

As it stands now, however, Florida divorce law as it is written on the books impacts you differently than if you were a heterosexual allowed to legally marry the first day you fell in love.

Because of the gravity given to the words “the date of the marriage” in Florida divorce statutes, you can expect your rights and obligations under the law to be colored by your not being allowed to be married in Florida until 2015.

If you were in a committed relationship with your same-sex spouse before you could marry in 2015, you can expect to find legal inequities in at least three major areas of divorce law:

(1) How your marital assets and debts are distributed

(2) Alimony

(3) If you have children, your time-sharing rights.

But first, let’s make the distinction between the two ways the terms of your divorce become permanent:

The court, which is the family law judge assigned to your case, will only make critical divorce decisions for you and your spouse if you and your spouse cannot reach them together.

There are amazing family law judges in Florida

The ones I know personally will be the first to tell you, though, that they do not want to be the ones making critical decisions for your family for two main reasons:

First, they know they do not understand the nuances involved in your finances and your family dynamics, as well as you do; and second, they know their hands are tied by the limited options given to them by the divorce laws that presently stand on the books.

In any divorce case, gay or straight, divorcing couples are well served to voluntarily enter into what is called a marital settlement agreement, on your own free will and on terms you co-create. 

But if you are a divorcing member of the LGBT community…

…the freedom to go outside of the strictures of Florida statutes becomes even more important. Especially where you were in a committed relationship with your now-spouse, long before you could be married in 2015.

There are three primary ways to finalize your divorce through a marital settlement agreement without having to step foot in a courtroom: through divorce mediation; through cooperative divorce; or through collaborative divorce.

Let’s start with divorce mediation

There are generally two ways to mediate your divorce: 

One is where there are no lawyers representing you or your spouse and you hire a neutral family law mediator to assist you in negotiating the terms of your divorce. This is called a pro se divorce mediation, and it is the least expensive way to end your marriage through an agreement with your spouse.

The second is when you and your spouse are both represented by your individual attorneys, and a neutral mediator is hired to over-come your sticking points and to give you options that ultimately result in a settlement.

A mediation can also include neutral experts in other fields, such as a mental health professional or a financial professional, besides the mediator. 

Depending on the major issues in your case, these professionals can prove invaluable to settle your divorce because they offer the insights and support to close the deal.

When you use a professional in another field, along with a family law mediator, the divorce process becomes a cooperative divorce.  This is a relatively new concept in divorce, for which you might not locate much information on-line.

Why can a mental health expert or a financial expert increase your chances of a full and final same-sex settlement?

Let’s say you are at odds with your spouse on major issues involving your children.  A neutral mental health expert who specializes in family counseling and therapy can do wonders helping you and your spouse decide difficult time-sharing and parenting issues that are in the best interests of your children.

Where the major issues are dividing complex or high value marital assets and debts, a neutral financial advisor would be critical in guiding you and your spouse on a fair property division or alimony plan with the best tax consequences.

As a family law mediator in Florida, I find the cooperative divorce process to be one of the most effective and cost-efficient ways to fairly and finally resolve your divorce case.

Now let’s talk about same-sex collaborative divorce:  How does it work?

As a rookie divorce lawyer, I was overwhelmed at times by the realization I was expected to be a financial planner and tax expert, and a psychotherapist, for my clients.  As it turned out, I was not alone in realizing a lawyer cannot effectively wear all three hats.

The Florida legislature has recently enacted the concept of collaborative divorce into a law called the Collaborative Law Process Act. Section 61.55 – 61.58, Florida Statutes.

Unlike most cut-and-dried statutes, the Collaborative Law Process Act is almost poetically written, and captures the spirit of this modern movement at long last gaining recognition in family law. Robert Merlin, The Collaborative Law Process Act: The Future is Now, Fla. B. J. April 2017).

The collaborative divorce process involves the creation of your very own divorce “team” made up of you and your spouse, each of your attorneys, a neutral mental health professional, and a neutral financial professional.  There can be other professionals involved, such as appraisers or vocational experts, as needed.

Your divorce comprises a series of team sessions with all six members of the team present.  The number of meetings depends on the complexity of your assets and debts, your family dynamics, or both.  There are typically at least three sessions.

If you are considering a collaborative divorce in or around Orlando, we have a central Florida based association called the Collaborative Family Law Group of Central Florida and a statewide association called the Florida Academy of Collaborative Professionals. 

These organizations comprise collaboratively trained lawyers, mental health professionals, and financial professionals.  There is a wealth of information about collaborative divorce on both of these websites.  You can also locate local collaboratively trained professionals from the directories on the websites. 

As a collaboratively trained attorney with both organizations, I can tell you first-hand I see the most creative and just outcomes from collaborative divorce, ones that support and preserve the financial and emotional well-being of my clients, their families, and their assets.