Mediation in Florida Divorce and Family Cases

Mediation is an informal and non-adversarial process in which the goal is to help disputing parties reach a mutually acceptable agreement regarding the issues in dispute. The parties make the decisions in the mediation process, not the mediator or a judge. The mediator’s role includes helping the parties identify issues, facilitating the discussion, encouraging joint problem-solving, and exploring various settlement alternatives. The mediator is neutral and impartial in the mediation process. “Family mediation” usually refers to the mediation of disputes between married or unmarried persons involving dissolution of marriage, shared or sole parental responsibility of children, time sharing, child support, alimony, or property division.

Mediation differs from litigation in many essential aspects. Unlike litigation, mediation is not an adversarial process in the traditional sense of the term. In an adversarial proceeding, each party presents evidence and arguments to a neutral person, usually a judge, who decides the case. In mediation, the parties share responsible for making decisions, sometimes with the help of their attorneys.

Usually, a wider range of possible resolutions can be considered in the mediation process, as compared to court proceedings, where the legal options are usually more limited.

Another important difference between mediation and litigation concerns the confidentiality of the proceedings. Unlike the information disclosed in court proceedings, communications made during mediation are confidential, and are inadmissible as evidence in any legal proceeding.

Perhaps the most important difference between mediation and litigation is that the parties can maintain control over deciding important issues for themselves and their children, rather than leaving these decisions to “a stranger in a black robe.”

Marital Property in a Florida Divorce

In a divorce case, when the court adjudicates the Husband’s and Wife’s respective claims regarding their property, the Court should first determine which assets and liabilities are non-marital.

Florida’s equitable distribution statute (Fla.Stat. Sec. 61.075) creates a presumption that “marital assets and liabilities” include the following:

1. Assets acquired and liabilities incurred during the marriage. Such assets and liabilities are presumed to be marital, regardless of whether they were acquired or incurred by one spouse alone or by both spouses together.
2. The enhancement in value and the appreciation of non-marital assets that results from either the efforts of either party during the marriage or the expenditure of marital funds or other marital assets. However, an increase in value of a non-marital asset, due to “passive” forces such as market conditions or inflation, does not result in a portion of the non-marital asset becoming a marital asset.
3. Gifts given by one spouse to the other during the marriage.
4. All vested and non-vested benefits, rights, and funds that accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
5. All real property that is held by the parties as tenants by the entireties, regardless of whether it was acquired prior to, or during the marriage.

Also, there are ways by which non-marital assets may become martial assets, particularly due to the co-mingling of marital funds in an account with non-marital funds. In this circumstance, all of the funds in an account that were non-marital, may be deemed marital funds by the divorce court.

Divorce and Property—Marital or Nonmarital?

In a Florida divorce case, before the court determines an equitable distribution of marital assets and liabilities, the court must first set apart to each spouse his or her nonmarital assets and liabilities.

According to Fla.Stat. 61.075, nonmarital assets and liabilities include:

1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.
2. Assets acquired separately by either party by noninterspousal gift, or inheritance, and assets acquired in exchange for such assets.
3. All income derived from nonmarital assets during the marriage, unless the income was treated, used, or relied upon by the parties as a marital asset.
4. Assets and liabilities excluded from marital assets and liabilities by a valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse.

On a cautionary note, it is usually essential to maintain nonmarital accounts separately from marital assets, so that a divorce court will conclude that such assets are, in fact, nonmarital. If there is co-mingling of marital funds with nonmarital funds, the court in a divorce case may rule that all of the funds in such an account are now marital.

Divorce and the Equitable Distribution of Assets and Debts in Florida

Since 1993, Florida’s equitable distribution statute (Fla. Stat. 61.075), has required a trial court in a divorce case to divide the marital assets and liabilities equally between the parties, unless the court rules that an unequal distribution is justified. In this event, the court must make written findings justifying an unequal division of assets. The statute lists the factors that a court must consider in a divorce case when determining an equitable distribution. Because an equal division of marital assets and liabilities is the initial presumption in any equitable distribution plan, these factors are applied to determine whether an unequal division of property is justified. Some of the statutory factors that the court must consider in a divorce case, are:
1) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as a homemaker.
2) The economic circumstances of the parties.
3) The duration of the marriage.
4) The desirability of retaining any assets, including an interest in a business, corporation, or a professional practice, intact and free from any claim or interference by the other party.
5) The contribution of each spouse to the acquisition, enhancement, and production of income, to the improvement of both the marital and non-marital assets of the parties, or to the incurrence of liabilities, with regard to both the marital and non-marital assets of the parties.
6) The intentional dissipation, waste, depletion, or destruction of marital assets after the petition was filed or within two years before the petition was filed.

The Issue of Custody in Florida Divorce Cases

Before 1982, when the Shared Parental Responsibility Act became law, Florida courts in a divorce (or dissolution of marriage) case, usually awarded custody of the minor children of the marriage to one parent. “Custody” has been defined as the care and keeping of anything, including a person.

In the past, the effect of a custody award was to give the custodial parent physical possession of the child, and the right to make all decisions concerning the child, including medical care, education, religious training, and all other aspects of the child’s life.

Under the present statutory law, parents are to have shared parental responsibility (sometimes called legal custody) for the care, custody, and control of their children unless the court determines that shared parental responsibility would be detrimental to the children.

In 2008, the Florida legislature enacted amendments under which the terms “custody” and “visitation” are eliminated and replaced with the term “timesharing.” Also, written “parenting plans” must be established in cases involving minor children.

The issue of “custody” can also be adjudicated by the court in other cases besides divorce, including paternity cases.

Divorce in Florida

Prior to 1971, a divorce, or dissolution of marriage in Florida, could only be granted on a showing of fault (for example, adultery, extreme cruelty, intemperance or drug addiction). On July 1, 1971, the Marriage Dissolution Act took effect, which provided two legal grounds for a divorce: that the marriage is irretrievably broken; or, that one of the parties is mentally incapacitated.

A marriage that is irretrievably broken has been defined as one in which the marriage relationship is for all intents and purposes ended, no longer viable, a hollow sham beyond hope of reconciliation or repair. In reality, if a person alleges that his or her marriage is irretrievably broken, it usually is, and will be the basis for the granting of the divorce.

Although fault, misconduct, or wrongdoing on the part of either or both parties may no longer be considered by the court as the sole basis for granting a divorce, sometimes misconduct may be relevant to other issues in a divorce case, such as custody, alimony, or equitable distribution of assets.

Divorce - Sarasota Florida

Divorce should not be a long, drawn-out process. You should focus on finding solutions that meet your family's needs as quickly and efficiently as possible. Be sure to protect your interests in a way that keeps you and your family looking and thinking forwards.

At the office of H. Stephen Hillebrand, Attorney at Law, we have over 25 years of Florida family law experience. Divorce is a tough situation, and my firm is here to help you come out of divorce in the best possible position.

Contact me to schedule a free consulation:

H. Stephen Hillebrand
Attorney at Law

46 North Washington Blvd, Ste 20
Sarasota, FL 34236

Phone: 941-365-5900
Toll Free: 888-801-5703

For more information please go to my website: http://www.stephenhillebrand.com/Divorce.shtml