Quasi-Contested Cases & Mediation

I have been out of town attending to an ill family member, and apologize for the delay in bringing this topic to you.

Many clients who consult with me about an impending divorce inform me that they believe their matter can be handled in an uncontested manner. I always suggest that handling an emotionally charged matter such as a divorce in this way is recommended, but I caution that it must be done carefully and thoughtfully. If minor children are involved it may be more complicated, but it is well worth exploring.

The first thing that is required is for both parties to complete a Family Law Financial Affidavit which is executed under oath. The parties then share this information. These documents are carefully reviewed, and if any information is questioned, an informal request for supporting documentation is sent to the other party or their counsel. By requiring each party to file this affidavit, the other party is protected in the event that misinformation is contained therein. Consequently, if a party discovers after the entry of a Final Judgment dissolving the marriage that the other party misstated facts, the case may be reopened and the Court will be able to redistribute the distribution of assets and debts as well as support awards and fee awards. By filing the affidavit under oath, the party doing so is also subject to sanctions for perjury.

Once all vital information is gathered, a Marital Settlement Agreement is drafted and then sent to the other party or their counsel for review. Many times the terms contained in the agreement are renegotiated. It does not take long to determine whether or not a truly uncontested case is viable.

If the parties are unable to agree after counter-offers are presented, the case will be considered a contested one to the extent that additional discovery is required and mediation is set with a certified mediator. Parties have the option to use County Mediation or to agree on a private mediator. Although private mediators cost substantially more than the County process, it is my experience that private mediators are more likely to obtain results.

If the parties are able to reach an agreement at mediation, (mediation may be continued and a second mediation held if the parties are making progress,) then the case is essentially over. The Mediated Agreement is incorporated into a Final Judgment and a Final Hearing is held when the Court dissolves the marriage. However, if mediation results in an impasse, the case is noticed for trial, which is an expensive and time-consuming process. The good news is that, in Florida, approximately 85% of cases taken to mediation are resolved at that point in the process.

The next blog will address the various forms of discovery available to litigants, and later I will discuss the use of expert witnesses in the process, including experts who limit their analysis to a proper parenting plan for minor children.