Anyone who has gone through a divorce, paternity, or other family law proceeding in Hillsborough County or elsewhere in Florida may have wondered: What is the purpose of Florida Family Law?
Well, section 61.001(2) purports to have an answer:
Last week, Federal Judge Robert L. Hinkle clarified his ruling in Brenner v. Scott to state, definitively, that the U.S. Constitution requires Florida clerks of court to issue marriage licenses to same-sex couples. This has brought great jubilation that marriage equality is finally recognized in Florida. Clerks throughout the state (including in my own Hillsborough County) have begun issuing marriage licenses, and some even have officiated over marriages.
Hillsborough County Clerk of the Court Pat Frank Officiates Over a Mass Same-Sex Wedding
However, is same-sex marriage yet completely equal in Florida? Is it recognized for all purposes in Florida, including for purposes of dissolving that marriage?
In the latest Divorce Without Destruction, host Garin Vick speaks with Linda Peterman, a Licensed Mental Health Counselor and Certified Rehabilitation Counselor. Linda discusses her views on collaborative divorce as practiced in Carrollwood and the greater Tampa Bay area:
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I happen to know Linda, as she has served as a Neutral Collaborative Facilitator in a collaborative case involving a client of mine. She and I also serve on the Executive Board of Next Generation Divorce, Florida’s largest collaborative practice group.
As a Florida family law attorney, I tell clients all the time that – for the sake of their children, finances, and sanity – it is best if divorcing spouses are able to reach an agreement on their own, without leaving important decisions that will affect the rest of their lives up to a judge. I have found that interdisciplinary collaborative practice is the best way for families to reach a resolution, though other options (such as mediation and direct negotiations) are also almost always better than the court system.
Sue Cochrane, who served as a family law judge in Minnesota, also believes that the current family court system is broken. Below are excerpts of an article she penned for The Collaborative Review (Winter 2014 / Volume 15, Issue 1):
After eighteen years on the family bench I am sensitive to the needs of the thousands who still show up [to court] due to lack of funds or awareness of other options. Having Collaborative practitioners and others from diverse disciplines working side-by side with those of us from the courts was, in my opinion, a monumental advancement.
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The law is well-known for being logical and dispassionate. Courts are where intellect and linear, analytic thinking prevails. In the admirable pursuit of truth and justice, the courts can inadvertently deny the humanity of the people it is supposed to serve and even of the judges and staff who work there.
As Florida does not currently recognize same-sex marriages, some judges have interpreted the state’s ban as precluding them from granting same-sex divorces. I am involved in a case in which two women married in Massachusetts, moved to Florida, and separated. They utilized the interdisciplinary collaborative process to come to a full settlement agreement and filed a petition for dissolution of marriage in Tampa. The judge ultimately denied their petition, determining that she did not have jurisdiction to dissolve that which the state does not recognize.
And we appealed. This has become the first divorce matter in Florida to challenge Article I, Section 27 of the Florida Constitution banning recognition of same-sex marriage.
In the meantime, the gay marriage ban is still in effect. So is there anything that same-sex spouses can do to legally end their marriage in Florida?
Are you an attorney, mental health professional, financial professional, or mediator who wants to build a profitable and satisfying collaborative practice? Do you want more collaborative cases? Next Generation Divorce has a training geared to you:
Forrest “Woody” Mosten has an international reputation for high quality Mediation and Collaborative training from introductory courses to advanced supervision for highly experienced peacemakers. He maintains an intense focus on cutting edge issues in law and the craft of conflict resolution skill building, and enjoys helping other professionals build their own profitable practices.
Woody Mosten’s Training is an Approved Continuing Education Provider by the California State Bar CLE & Family Law Specialization, the California Psychological Association Accrediting Agency, and the California Board of Behavioral Sciences. Most courses are approved by the Association for Conflict Resolution and may qualify for credit by other agencies and organizations throughout the world.
I recently had the opportunity to sit down with Dr. Garin Vick in Tampa, Florida, where we recorded an interview for his podcast show, Divorce without Destruction. We discussed the similarities and differences between collaborative divorce and mediation.
We talked about how both are forms of private dispute resolution that are better than duking it out in court. We also discussed how the structure and the process of collaborative divorce and mediation differ, and what it means for families going through or considering divorce.
Many people come to my Tampa office because they heard collaborative divorce is private, respectful, conducive to co-parenting, and usually quicker than the traditional courtroom divorce. But they do not quite understand logistically how the collaborative process works.
The first thing to understand is that each party is represented by his or her own attorney whose sole purpose is to help the parties reach a settlement. The attorneys are contractually barred from engaging in costly, damaging contested court battles. If parties want to fight one another in the court system, they must choose different litigation attorneys.
A neutral facilitator, who usually is licensed in a mental health profession, is involved in most collaborative cases. The facilitator not only helps the parties (and attorneys) focus on the future rather than rehash the arguments of the past, but he or she also teaches the parties communication and dispute resolution techniques that will help them and their families long after the divorce is finalized.
A neutral financial professional is also oftentimes used to efficiently ensure financial transparency between the parties, to develop personally-tailored options for support and the division of assets and debts, and to help the clients budget to give them the best chance for financial security once their divorce is finalized.
Some folks are visual learners, and so my firm has created a flowchart that shows how a collaborative case might proceed. Please understand that, depending on the facts of your case and the needs of your family, your collaborative divorce process may be customized differently:
Prenuptial agreements have been around for quite some time in Florida. They are an agreement between people who are about to wed in which the parties set out their rights and responsibilities in a written document that is executed in front of a notary and two witnesses. Prenuptial agreements are oftentimes thought of as “divorce planning” so as to avoid a future nasty court battle, should the parties’ marriage not work out.
But who wants to plan a divorce, especially when you are not even done making the wedding plans?
There is an alternative. It is a new process known as Collaborative Marriage Planning.
Can two women who were married in Massachusetts but now are residents of Florida divorce in Florida? That is the question that my Tampa client and her wife were looking to have answered in the affirmative. The trial judge determined that she did not have the power to dissolve a marriage that the State of Florida did not recognize.
When we appealed, we asked a panel of judges to skip the normal appellate process and go straight to the Florida Supreme Court. Our argument was that this case involves issues of such public importance, and that determining whether married couples of the same sex can divorce affects the administration of justice throughout the state. Our request for the expedited process was denied.
And then we got word yesterday. The judges of the Second District Court of Appeals decided en banc (with the input of all of the judges of the Court, excluding a judge who had recused himself) that this case should go straight to the Florida Supreme Court.
Below are portions of the brand new ruling:
