Articles Posted in Divorce

Mediation is available for you at different stages of the process of your pursuing your Florida divorce or other family law case. For a Broward County Divorce and for most other family law cases in Broward, Dade or Palm Beach county, you will be required to attend mediation before you can go to trial and finish your case, if you have not been able to settle the case on your own with the other side. You can also use mediation as a way to try to resolve you divorce, before filing suit in court – i.e. you and the other party to the case go to mediation and try to settle rather than litigating the case in court. Whatever route to mediation you take, there are some things you can do before the mediation to prepare – to help the mediation be as successful as possible and to help be sure the time in mediation is well spent, and used efficiently.

One approach would actually be to not prepare at all – go to the mediation without necessarily having thought a lot about the issues you want to settle, and without having checked on the value of assets, balances in different accounts, etc.; and use the mediator and the first one or two hour mediation session as a way to organize the issues and the financial information you will need to put together. Many times though you can get a lot of work done during one mediation session, and doing some preparation before the session can help make that possible.

You can get together a list of all of the assets and debts, and the “fair market value” of each asset and balance owing for each debt. Fair market value is basically what you can sell the item for now, whether it’s furniture, jewelry, or a used car. You’ll want to include on your list all of the assets acquired and debts incurred during the marriage, because the determining factor under Florida law in deciding whether an asset/debt is “marital”, is not whose name an asset or debt is in, but when it was acquired. It’s helpful to bring the most recent statement available with you to the session, for each bank account, credit card, retirement account, etc. You can obtain a credit report for yourself and the other spouse/parent or have an asset search done regarding the other party. Bring your most recent pay stub, and pay stubs for the past few months, if you are employed, or other documentation of your income if you are not an employee. Child support and alimony will be based on your net income, computed under the rules described in the Florida family law statutes. Having the pay stubs will help allow each parent/spouse confirm the other’s income. Also, often the parties, when they do the calculations themselves, compute their net income incorrectly, or at least in a way that is not consistent with the Florida family law rules/law. Your mediator can help both sides arrive at the income amounts to use.

I wanted to return in this post to a topic I have discussed before — the benefits of mediation for a divorce or other Florida family law case. It has been about a year since my last post about mediation, and in that time I’ve continued to become more and more convinced that mediation works, as a way of resolving family law cases.

As an example, a case of a couple who came in for mediation to attempt to settle the divorce action they wanted to file. Neither spouse had filed for divorce yet. In many respects this was a case in which a positive result in mediation was likely – the spouses were getting along well enough to be able to discuss the issues they needed to settle, and both wanted to settle the case without litigation. There were issues to address however. No agreement was reached after an initial two hour mediation session, but the parties left the session, ended up arriving at agreements between themselves, and came back for a final mediation session to address the last remaining issues and prepare a Settlement Agreement. I’ve also had cases where I am the attorney for one party and didn’t believe the parties were going to be able to arrive at an agreement during mediation, but they do.

One or two anecdotes are not a guarantee of positive results in other situations, but one factor that helps parties arrive at an agreement through mediation is that as part of a mediation, each party receives new information to consider, from each other and also the mediator. Although a mediator is not permitted to give legal advice to either party, the mediator can provide general information about Florida law and related issues. You can follow this link regarding Florida Divorce Mediation for more of a discussion regarding the differences between the types of information or guidance attorneys and mediators can provide. In addition, there is an old adage (that I believe came out of research and writing at the Mental Research Institute in Palo Alto, California years ago) – that you cannot not communicate. So even for a mediator who attempts to remain as much of a blank screen as possible and simply serve as a facilitator or intermediary between the parties, the parties will still pick up information from the mediator. It is important I believe for a mediator to recognize that mediation can be a quick process, the potential influence they can have on the parties, and that for all people, including mediators, first impressions and judgments are not always the same as what you arrive at after thinking through an issue more thoroughly. For some issues, although it is helpful for a mediator to think of options or paths to settlement for the parties, it is important for the mediator to not engage in the thought process of beginning to make a value or other judgment about how an issue should be resolved. In any event, the parties receive during mediation and walk away with new information, and my experience is that people take in this information, think about it and what it means for how their case might turn out and how it should be settled, and that this a factor that leads to issues being settled.

A contested, high-net worth divorce in Florida involves an interesting combination of a transaction or case that in many ways resembles any complicated business matter, but in the context of a divorce, where emotions run strong, and where the the legal standard for deciding the property and alimony issues, are basically – what’s “fair” or equitable. The business or property issues in your divorce will be decided in family court, usually in the Judge’s Chambers where family law cases are typically heard, and most likely during the same hearing or trial where children’s issues are decided also. So, the litigation factors of adequately presenting your case to your Judge, and explaining why the positions you are taking on business or money issues are fair or equitable, are important.

A second important component of a contested, high-net worth divorce, is doing the ground work to be prepared and take the guess work and uncertainty out of the case, as much as that is possible. If the value of a business is disputed, and the business seems to have a significant value, retain a highly qualified valuation expert to value the business and give you something you can rely on in negotiations, and if you end up at trial. An expert’s opinion is of great worth also in analyzing and responding to issues that come up as the parties and attorneys negotiate, and attempt to settle a case. For example, the other side may raise an issue, and your expert assists in providing the clear and certain response, e.g. regarding technical pension valuation analysis. This type of back and forth in negotiations can decide an issue, and if your position is correct, convince your spouse that there is significant risk at trial if they move forward with litigating the issue.

Other examples of important areas for utilizing qualified experts, in addition to business valuation, are regarding tax issues that arise in the case, valuing a pension plan benefit, a vocational expert if a party’s income earning capacity is at issue, or the services of a forensic accountant when issues arise regarding the accuracy of amounts on the books for a company, or regarding a party’s income. If a case goes to a trial, the issue will be decided almost certainly based on the testimony presented at the trial. A qualified, trusted expert, presenting testimony solidly and fairly based on the facts in the case, helps a lot.

Most Broward County Child Support attorneys, as well as mediators and Judges at the courthouse, use family law financial software to calculate child support, and there are some child support calculators on-line. If you’re attempting to determine child support though for yourself, it’s going to be a good idea for you to make the calculations by hand, using Florida’s Child Support Guidelines Worksheet – to be sure you get the figures right, including any adjustment for the number of “overnights” each parent spends with the child(ren) (more below on this), and to be sure you’ll understand the issues and items that go into determining child support under Florida law.

The first step is to determine each parent’s net-income. The income and deductions that are considered in determining net income for child support are set forth in detail in Florida’s child support statute, but the easiest way to arrive at the amount is to complete the Florida Family Law Financial Affidavit. There is a separate form if you make under $50,000 per year gross income and one for over $50,000. The financial affidavits, child support worksheet as well as other family law forms can be found at Florida Family Law Forms. As you can see on the child support worksheet, you need each parent’s net income to calculate child support. If you know the other parent’s monthly gross income and their monthly health insurance costs, figuring their net income may not be difficult for you. There are paycheck calculators on-line that will assist you in determining monthly income tax, and social security and medicare taxes. The amounts you list for monthly taxes on the financial affidavit will not necessarily be the amounts deducted each month from a paycheck – some people, based on the number of exemptions they list on their W-4, have more or less than the actual amount of the taxes they’ll owe at the end of the year deducted from their paycheck. In cases where you don’t know the other parent’s income, there is a part of litigation called “discovery” through which you are entitled to receive financial information and records from the other parent, including their financial affidavit and copies of bank account and other statements. If you believe the other party is hiding income, there are more extensive discovery methods available, and some litigated cases will involve using a “forensic accountant” as an expert witness in establishing the other party’s income.

Once you have the net income for each parent, you can proceed with filling out the blanks in the Child Support Guidelines Worksheet. The Worksheet tells you step-by-step what amounts to add or subtract from what, and the other parts of the calculations. The concept is basically that you add together the parents’ net incomes to arrive at an amount for combined net income, then use the child support chart included in the instructions for the Worksheet to come up with the “Basic Monthly Obligation”. If you look on the child support chart, you’ll see income amounts on the left side, and the number of children across the top, and the Basic Monthly Obligation for your situation, as shown on the chart, is the amount the Florida Legislature has determined is the amount that should be used as the basic child support amount (before health and daycare costs) for parents with a certain combined net income and number of children. The Worksheet will then take you through determining your share of the basic monthly obligation, which is based on your percentage share of the parents’ combined net-income. For example if the parents’ combined net income is $3,000/month and your monthly net-income is $2,000, the calculation starts off with your being responsible for 2/3 of the basic monthly obligation. Each parent’s percentage share of daycare and health insurance costs for the child are then added in.

Florida’s alimony statute, F.S. § 61.08, has gone through some significant changes over the past two years. There are rules now which help spell out what are “long-term”, “short-term” and “moderate-term” marriages – see F.S. 61.08(4). The Florida legislature defined a new kind of alimony – “durational alimony”, which is something in between permanent and “bridge-the-gap” alimony, and can have a duration up to the length of the marriage – e.g. a maximum term for durational alimony of 10 years, following a 10 year marriage.

One of the most significant changes in the statute is an addition to the permanent alimony section, F.S. 61.08(8): “In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” Before the changes to the alimony statute, and before the recent change adding this sentence, a conventional wisdom was that for a long-term marriage that was at least some degree of a presumption in favor of an award of permanent alimony. This new sentence in section 61.08(8), I believe, pretty clearly changes that calculation.

Spouses will still have at their disposal all of the reasons and arguments that have supported requests for permanent alimony in the past, and presumably Judges in the past didn’t award permanent alimony if they believed there was no need for it, because other forms of alimony could adequately provide for the recipient spouse. Attorneys and spouses requesting permanent alimony in the past have argued that it was needed because other forms of alimony were not adequate; and attorneys or spouses advocating against permanent alimony could always argue that It was not appropriate because some other award was fair and reasonable. Similarly, many people argue, with plenty of good reasons, that presumptions don’t decide cases, i.e. a Judge will look at a case and attempt to do what is fair – that is, make a decision, rather than decide a case based on a presumption. But presumptions or burdens of proof do decide some cases. In a close case, a bit of a presumption can change the thinking in the courtroom or Judges Chambers (where family law cases in most counties are heard).

Parts I and II of this post went over some of the rules for parenting coordination, in particular some of the points of contention raised in the brief Sotero opinion, and that come up frequently in cases in Broward and Palm Beach counties also. Now the issue is how important are the rules, or rather how important is it if for the focus to not be on the legal rules once parenting coordination sessions start. I don’t think there is much disagreement with the idea that it is good to make the ground rules for parenting coordination clear at the beginning, in a Court order if there is one, and in a Parenting Coordination agreement between the parents and the parenting coordinator, so that everyone is clear regarding confidentiality, how the process works, fees, the goals, etc.

However, instead of or perhaps in between the worries and concerns regarding the rules, or legalities or what’s fair to one parent or the other, there have to be moments when there’s a focus on finding some small steps one or both parents can take to bring about even minor improvements or decreases in conflict, or increases in the period of time between difficulties. The small step might be something that has worked in the past, or a small adjustment that brings about a change in the way things unfold. This may sound far fetched as a way to improve a highly conflictual situation, but if you’re in a situation where it seems the conflict goes on and on, and nothing has worked, it might be worth going along and giving something else a try.

One of the hallmarks of a parenting coordination approach, I believe, is that it’s not really an “insight” oriented process. It’s not psychoanalysis where you’ll focus on your childhood, your “psyche”, etc., but one issue worth considering is whether one or both parents is holding onto the conflict between them, because there is some alternative that is worse. It can also be important in parenting coordination when progress seems stalled, for all of the participants to remember that the primary focus is on what’s good for the children, even though a solution or compromise, or taking a few days to think about an alternative, might not feel good for one or both parents at that moment.

The primary issues raised by the Sotero case – the confidentiality of parenting coordination, and the authority the court can give to the parenting coordinator, are two issue often relevent to a Broward County divorce attorney or client, when they evaluate the possible use of a parenting coordinator in a contested divorce or other family law case. Even in contested cases, I believe parents in parenting coordination make efforts to address children’s issues for the sake of their children, but the parenting coordination happens within the context of an adversarial case, where the parents are often also going be concerned about how the parenting coordination may affect their case. So, issues parents may be concerned about are what information the parenting coordinator can bring back to the Judge regarding communications in the sessions or the parenting coordinator’s recommendations, and also the authority of the parenting coordinator.

There are some significant exceptions to the confidentiality rule for Parenting Coordination. Communications in parenting coordination are not confidential if:

  • The information is necessary to verify a written agreement between the parents during parenting coordination;

A Florida appellate court, for the appeals district covering Miami-Dade County, recently entered a decision dealing with the authority of Parenting Coordinators in family law cases, and the confidentiality of communications in Parenting Coordination — Sotero v. Sullivan. In this case, the Mother appealed the decision of the trial court based on the trial court without the consent of the Mother:

  • giving the parenting coordinator the authority to make binding decisions regarding the minor child in the case;
  • giving the parenting coordinator the authority to impose monetary sanctions upon the parents; and

In Part I of this post, I discussed some tech developments that may end up making video-calling with children a more common form of communication during Florida time-sharing, and some potential disadvantages. If the issue is the best interests of the child – what is best for children here? Is it better for children to have more contact and connection with the other parent and a sense of their relationship with their other parent being very much present during time-sharing, or better for time-sharing with each parent to be more separate time, and for the child to experience it as separate time with more of a boundary, for lack of a better term? There’s been a focus recently on “empirically based” parenting plans – i.e. making time-sharing decisions based on what psychologists and research indicate is best for children. This is probably an area where input from experts will help, when parents have a difficult time agreeing about what’s best for their child. One area where research has had an impact is in the move to frequent contact, without long breaks, for younger children, based on attachment theory – i.e. basically that it’s better for young children to not go a long time, e.g. a full week, between visits with each parent. Research and expert opinion may end up helping us with the issue of video chatting as well. One situation where webcam communication is already regarded as something good, is where the parents live far from each other, limiting contact with one parent, for example after a relocation.

One issue with video-calls may be that it’s still a relatively new technology, in the sense that most of our telephone calls these days are audio only, not through video phones. I think there was probably some resistance to touch-tone phones when they first came out as a new technology. Video-phones may one day be a common-place form of communication.

Another important issue for parents which this topic raises, in my opinion, is that if parents don’t want research or experts or the court deciding what’s good for them and their children, then parents can reach agreements themselves regarding how they want to raise their children. Parents’ rights to their children and to make decisions regarding their children, within some limits, are actually constitutionally protected rights. I think most parents probably put a lot of thought into how they want their children to grow up, and the values or way of life they want to pass on to their kids. There’s always plenty that each of us can learn from therapists, experts or research, but each child growing up with the influences from their own family is probably a lot of what makes each of us unique – which, for the most part, is not a bad thing. So, if parents want to preserve their right to raise their children in the way they want, they can try to put aside their differences and try to reach agreements regarding children’s issues. There are legitimately times when that is not possible, where there are fundamental differences of opinion and a “compromise” is not possible, but trying to agree where possible or even when it doesn’t seem possible – is something to keep in mind.

There were some tech announcements recently that I think eventually may lead to changes in parents’ contact with their children during time-sharing time with the other parent. 44704-best_video_phone (1).jpg

You may have heard that Google announced it’s new service, Google+. One of the key features is easy to use webcam conferencing built into Google. Not to long after Google’s announcement, Facebook announced that it had purchased Skype and was offering video conferencing as well. There is an interesting “podcast” here about Google+ with some of the Google developers on the show, via a Google+ video conference to illustrate the technology.

Video-calls aren’t anything new. Parents have already been using video to stay in touch with children during time-sharing, and it’s not a new topic in family law commentary, blogs etc. Also, references to parents communicating with their children via video/webcams are already in Florida time-sharing statutes (e.g. F.S. § 61.046(5) and F.S. 61.13001(9)(a)).

Member Of:
Broward County Bar Association
Florida Academy of Collaborative Professionals
Collaborative Family Law Institute
Collaborative Family Law Professionals of South Florida
The Florida Bar