Articles Posted in Divorce

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)).

Another process, which I don’t think is quite as well known at this point as mediation, is Collaborative Family Law. It’s basically a process where both sides and their attorneys agree and commit to resolving the case outside of court. Everyone signs an agreement that if the case ends up contested in court, neither of the attorneys who participated in the collaborative family process is permitted to represent a party in court.https://www.youtube.com/watch?v=6_1qOpk2GRACollaborative Family Law is usually thought of as a approach where everyone tries to get along, and usually happens as a series of meeting with all the parties, attorneys and any experts present, where the parties “collaborate” and try to resolve the case.

I believe it’s possible for it to work also in situations where there is high conflict, it the parties make some basic commitments, at least in their own minds. Even if the parties hate each other, and have no interest in sitting in the same room, it’s still possible for everyone to commit to resolving the case outside of court – i.e. deciding we’re not going to file a court case, we’re not going to go through all the court processes, hearings, “discovery” etc. and one way or another, we are going to resolve the case. In addition, instead of handling the collaborative family law case through meetings with everyone present, the case can proceed to resolution through more informal negotiation, e.g. between the attorneys. You’ll find that attorneys in a collaborative family law case often have a different approach or orientation, than even the same attorneys do when handling a litigated, adversarial case. In a litigated case, attorneys can be cordial, even friendly and get along, but the litigation process involves a potential eventual trial, and the case has to be prepared with that in mind – i.e. an adversary process, versus the approach or orientation in a collaborative family law case where the idea is to work together.

For these alternative dispute resolution approaches to work, either mediation or collaborative family law, both sides need to be reasonable – at least in terms of not relentlessly, without end, seeking a settlement that is simply not reasonable. Sometimes seeking an “unreasonable” settlement will work for you – e.g. try to go to mediation to get a settlement that there is no way you could get in court, but if the other party is represented by a competent attorney or is aware of what Florida law provides, it’s likely to result in no settlement. Although some mediators may not want to acknowledge this, there are almost certainly cases where one spouse or the other wants to get the case into “pro se” mediation, with the primary goal of getting a settlement that isn’t “fair” and won’t fly if their spouse gets legal counsel. Similarly, there are probably cases where one spouse or the other is interested in collaborative family law because they seek to drag out the process or get a resolution they couldn’t get in court. On the flip side, there are probably more cases where the parties could settle through mediation or collaborative family law, without the fight and with less expense than they get if they file suit and contest the case in court.

More and more clients and divorce attorneys in Broward, Dade and other parts of Florida are moving towards trying to resolve family law cases outside of court. It’s always been the case that most divorces and other family law cases are settled outside of court, before trial, but something that is become more popular these days, as people look for less adversarial and less expense ways to handle divorces, is something often referred to as “alternative dispute resolution”, including Mediation and Collaborative Family Law. Many people are pretty familiar with mediation, and there is an earlier post on the blog discussing mediation. You can find more information here about Collaborative Family Law.

The issue I wanted to address in this post is can these alternative, or potentially more friendly approaches work where the parties don’t like each other, or where there are still extremely strong feelings of anger or resentment? You don’t necessarily quickly get over being seriously wronged by another person – especially a spouse or other person who was close to you. So the question is, while mediation or a collaborative process can work when people basically get along and agree about how they want to settle things, can it work when that is not the case at all? I believe the answer to that question – for a few reasons, is yes.

First, you can hate someone – be incredibly angry at them, but still want to get your divorce or other case resolved, done, so you don’t have to live with it for a year or more, and spend large amounts of money on attorneys. There are cases of course, where one side or the other wants to litigate and make the other side suffer. Perhaps that is an appropriate course of action sometimes – I think that’s more a decision each person has to make for themselves or with a counselor they’re working with, etc. There are limits to what’s permitted in the legal system, however – parties aren’t permitted to take positions that are without any support, conflict between parents can have a negative effect on children, and there is the question of how much satisfaction a person can really get from fighting through the court system, or if that is a “curative” process.

The dissent in Hill v. Hill, 36 Fla. L. Weekly D 475 (Fla. 3rd DCA, March, 2, 2011) saw the case much differently than the majority. The dissenting Judge saw the majority’s opinion as overturning the trial court’s order from 1990, even though the time for appealing the decision had expired long ago, and the Husband had never appealed. The trial judge’s order in 1990 provided that the trial court was retaining jurisdiction to address alimony at a later date, in contemplation of the Husband’s income increasing when he began receiving his pension. From the dissent’s perspective, that decision became final thirty days after it was filed, and if the Husband had been dissatisfied with the order he should have appealed within the required time-frame.

The dissenting opinion also addressed several legal arguments regarding whether the Husband had “waived” any objection regarding jurisdiction to consider alimony, and whether the appeals court had the authority to decide the case based on a jurisdiction issue, when the Husband’s attorney hadn’t “raised” (made) this argument as part of his appeal. The dissent points out that the jurisdiction issue was first raised by the appeals court itself during the oral argument, neither attorney argued the jurisdiction issue in their legal briefs or addressed it during oral argument, and that the majority had not asked the attorneys to address the issue in supplemental briefs.

The dissent points out that if the Husband had appealed the reservation of jurisdiction over alimony in 1990, the appeals court would not have made a decision like it was doing now which takes alimony away from the Wife forever, but rather would have “remanded” the case back to the trial court to enter appropriate findings of fact. Remanded basically means to send the case back to the trial court, with instructions as to what the appeals court wants the lower (trial) court to do.

The Florida Court of Appeal for the 3rd District of Florida (the appeals District that covers Dade and Monroe Counties) recently filed a significant opinion dealing with what has to happen for a court to “reserve” jurisdiction to award alimony, Hill v. Hill, 36 Fla. L. Weekly D 475 (Fla. 3rd DCA, March, 2, 2011). The opinion isn’t final yet – one of the parties has filed a Motion for a Rehearing – i.e. a request for the appellate court to hear the case again and reconsider its opinion. I’ll include in a future post more about the different courts in Florida, and the appeals process.

Reserving jurisdiction regarding alimony means the court is not awarding alimony at the time of the divorce, but is saying it will consider awarding alimony in the future. This is allowed under Florida law, for example, when one spouse needs alimony at the time of the divorce, but the other spouse does not have the ability to pay. Reserving jurisdiction is important, because if the court doesn’t award alimony at the time of the divorce, and jurisdiction is not properly reserved or retained, alimony is gone forever, which is what has happened so far for the Wife in the Hill case.

In this case, the trial court’s final divorce judgment in 1990 reserved jurisdiction to determine alimony in the future, when it was expected that the Husband’s income would increase when he started to receive his retirement pension. The Wife returned to Court in 2006 after the Husband retired and began receiving his pension, received an award of alimony in 2008, and the Husband appealed. Basically, the appeals court ruled the trial court’s simply stating in it’s opinion that it was reserving jurisdiction was not sufficient.

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