Published On: Fri, Dec 28th, 2012

CONSIDERING SETTLEMENT

By: Michael H. Gora

Q         My husband and I have been in divorce litigation for almost a year.  We have a mediation coming up next week, and my attorney has been discussing my options with me.  He has told me on several occasions that in mediation we can reach a settlement that is far different on many of the issues that separate us than a judge could do if we go to trial.

I have never quite understood the concept.  I thought that divorce law was pretty well defined under Florida law, and when we negotiate a settlement agreement, it has to be proper under the Florida law.

The issues we are going to try to settle include residential parenting, alimony, child support, and distribution, including the valuation of my husband’s business, and some real estate.  Please explain to me how we can settle the case, as my lawyer says, in ways that a judge cannot do.

A         There are many advantages which you and your husband can gain by settling your case, at mediation, without a trial.  The first two are obvious, it will save you a lot of money in attorney’s fees, and the case will be over, ending a very stressful time for you and your family.

The more subtle advantage that you talk about is the ability to come to decisions in a settlement contract that a judge cannot give you after a trial.  You and your husband will be negotiating a contract, just like two executives.  As long as the contract does not have an illegal purpose, and is entered into freely and voluntarily, with full knowledge it is enforceable.

Specifically, regarding the issues you mention:

(1) In reaching an agreement on residential parenting and child support you and your husband can agree that he can have the children for 40% or more of the overnights, but also agree that such a plan will not reduce your child support.

If you tried the case before a judge, a one-night difference per year, in over night visitation, changing your husband’s nights with the children from 39% to 40% would cost you several thousands of dollars a year in child support.

(2)  You and your husband can agree on any alimony package, or none, that the two of you think is fair, without being bound by the Florida statute on alimony.  You can make the permanent alimony non-modifiable, which the judge could not do after a trial.  You can agree to bridge the gap alimony, for a period longer than the judge is allowed to grant under the applicable statute and case law.

(3)   If you and your husband have hired valuation experts to value your husband’s business, and appraisers to appraise real estate or personal property the valuation experts may agree or disagree as to value.

If you go to trial, the judge has limited options.  He or she may accept the values of one expert, the other expert, or neither expert and ask you to come back with better evidence.  The judge cannot average the opinions of the valuation experts.

In mediation, you and your husband can agree to average the expert’s opinions of value in order to settle your case.  Many other options you have in mediation do not exist in court.  You should go to mediation prepared on all of the issues, with an open mind.

Michael H. Gora has been certified by the Board of Specialization and Education of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton.  Questions may be submitted to Mr. Gora at mhgora@sbwlawfirm.com.

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