The posts in this blog focus on Florida family law issues including divorce , child custody/time-sharing, child support, mediation, domestic violence, parenting coordination, parenting rights of same-sex couples, and other family law topics. The posts discuss these topics under Florida law, and also focus on the family law local rules in Broward, Dade and Palm Beach Counties.

I hope the information here is helpful for you.

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.

Continued from Part I. The Court ruled in T.M.H. v. D.M.T, that Florida’s statute prohibiting gay or lesbian prospective parents from adopting a child, does not operate to take away the maternal rights of a biological or birth mother. That seems like a common sense ruling, like the ruling that TMH was clearly not a “donor”, but both were major issues in the case. There was a dissenting Judge in the case who wrote an opinion stating that under Florida law, TMH — the biological mother, had lost her rights as a parent.

Another important issue in the case was whether TMH had waived her rights as a parent, by signing a waiver form at the reproductive clinic — the form basically provided that TMH waived any rights she might have as a parent regarding any child resulting from her donation of her ova. The court ruled that this waiver form did not have the effect of waiving TMH’s maternal rights, because it was clear that that was not the intention or agreement of the parties, and that TMH was not a donor nor simply donating her eggs. The court relied on and cited cases from other states that had reached the same conclusions when dealing with similar waiver forms. So, this is Florida law regarding the waiver form, at least in this Circuit currently. It is always possible that a different decision will be reached by this court or another parallel or higher court in the future. There is also always a chance Florida’s legislature will attempt to craft a statute that will make these form waivers in a reproductive clinic binding and effective against parents like TMH, in a way that perhaps would successively survive a court challenge to the constitutionality of the statute.

The point here, is that there is reason to be cautious about signing these kinds of waivers, and to read carefully other kinds of forms that are presented to you in a doctor’s office, hospital or other location. Many if not most times, when you sign a document, it is binding. There are some forms a doctor’s office or hospital might require you to sign as a condition to providing treatment, but there are some forms you may have the option of not signing, or where you can negotiate regarding what’s included or added to the form. I fully believe that the staff at medical offices and hospitals have the patients’ welfare and best interests as their first priority, and that is true of the institutions as well, but at the same time I’m also fairly sure, at least from my own experiences with medical situations with family, that some of the forms (written by attorneys) are designed with the institution’s best interests in mind. In a situation like TMH and DMT’s, where the doctor is helping the couple conceive a child, perhaps the office would go along with the prospective parents writing on the form that the biological parent is not waiving her rights and that the couple intend to raise the child together, or simply not require the waiver.

The Fifth District Court of Appeals in Florida – the appeals court covering the north/central part of the State, recently decided T.M.H. v. D.M.T, 79 So. 3d 787 (Fla. 5th D.C.A., December 23, 2011), a case dealing with the parental rights of lesbian partners. In this case the partners decided to have a child together – one partner, TMH’s egg was fertilized and implanted by in-vitro fertilization in DMT. The child was born in 2004; the parties lived together for approximately 2 ½ years and raised their child together, and separated in 2006, but continued co-parenting for another 1 ½ years. The parents’ relationship deteriorated, and DMT moved out of the country and cut off TMH’s contact with the child. The Court described the case as a case of “first impression”, i.e. an issue that had not been decided yet by Florida’s appellate courts, and ruled that both parents – both the birth mother and biological mother, had constitutionally protected rights as parents.

The key issue in the TMH case involved the rights of the “biological” mother — TMH, who was not the birth mother, because the embryo was implanted in DMT who gave birth to the child. DMT, through her attorney, argued that a Florida Statute (F.S. 742.14) that provides for an egg or sperm donor losing or waiving their maternal or paternal rights, applied to TMH and meant that as an egg “donor” she had waived and lost her rights as a parent. The Court decided that TMH was not a “donor” — that it was not a situation where TMH had given away her ova so that another mother or couple could have and raise a child. The Court found that the intention of TMH and DMT, their agreement, was to have and raise a child together, and that that is what they had done for many years before they had a falling out.

The Court went on to make several significant rulings in the case, as part of its decision. First, that the right to procreate and parent your child is a fundamental, constitutionally protected right. The court applied this right to decide the case, thus holding that lesbian parents’ rights are constitutionally protected, and specifically stated that applying F.S. 742.14 to deny TMH’s maternal rights would violate her constitutional rights, including her right to equal protection under the law. There are some technical constitutional law issues that make up the constitutional law ruling, but this the bottom line of the Court’s decision.

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.

Continued from Part I. Some of the terms used in this post are described in Part I, and it will probably be easier to read Part I first. One of the advantages of having payments go through the State Disbursement Unit (SDU) or depository, is that it limits interaction with the other parent which some parties very much want. Also if payments are made through the SDU or local depository, it’s more “official” in the sense that the depository keeps track of what is paid and owed, so there is a government agency tracking that. If the child support is going through the SDU or depository and the payee doesn’t make the payments, the depository will take steps to generate a delinquency judgement against him or her – i.e. a court order that says the payee is delinquent and owes you the amount of the delinquency as “arrears”. Also, when payments go through the SDU or the depository, and the payee becomes delinquent, you can contact the depository and ask them to begin the process of cancelling the payee’s driver’s license if they don’t pay. Each of the enforcement tools described above is available whether you have payments go through the SDU or the local depository (but the local depository is the office that actually initiates these enforcement actions — the SDU is basically a State agency that handles receiving and disbursing child support funds). There are additional methods available to enforce child support either on your own, through a private attorney, or you can apply for services through Department of Revenue, Child Support Enforcement, to have the Department of Revenue enforce the order for you.

The first step if you want child support payments to go through the SDU or the local depository, or if there is an Income Deduction Order, is to set up you Child Support Account. You have to do that through the local Clerk of Court’s child support depository. You can find the contact information for the depository on the website for the clerk of court in your county. The following link will take you to the website for the Broward County Child Support depository. There is a link on this website to a page with the application form to set up your account and to set-up direct deposit, and other information and “FAQs”.

Unless you request otherwise and explain to the Judge why you believe it is in the child’s bests interest for payments to be made directly by one parent to another, rather than via an Income Deduction Order, the Judge will order payments through the SDU and enter an Income Deduction Order. If you and other parent, however, request “direct” payment, and give at least some reason why you want that and believe it is best, the Judge will most likely go along with want you want, so long as there isn’t something in the case that makes the Judge think that isn’t going to be a good idea. Even when the Court approves direct payment, Florida Statutes require the Judge to enter an order providing for Income Deduction, but the order can provide that Income Deduction is delayed and will not start or take effect, until until the payee is delinquent in his or her payments.

This post and Part II will focus on some of the nuts and bolts of setting up a child support account with the State once you have your child support order, and some of the different ways or options for receiving the payments. One issue to consider when you get your Broward County Child Support order, or order in another county in Florida, is the method you want to use for receiving the payments. You can receive the payments directly from the other parent, or have the other parent pay the support through the “State Disbursement Unit” (SDU) in Tallahassee or your local Clerk of Court Child Support Depository. Another decision is whether you want an “Income Deduction Order”.

First to explain some of the terms: The State Disbursement Unit (“SDU”) is an office/agency in Tallahassee which handles receiving and then disbursing child support payments, and the County Depository is an office in the county Clerk of Court that can perform that function also. Basically, the payee pays the child support to the SDU/Depository, and the SDU or local Depository then pays the support to you. If your case is a “Title IV D” case, i.e. if the Florida Department of Revenue is handling your case for you, then the proper “depository” is the SDU. The Department of Revenue, Child Support Enforcement Division can handle filing the court papers to get the initial child support order for you, and can represent you to enforce the order later on if the payee does not make the required payments. I’ll include further information in Part II of this post about applying for services through the Department of Revenue.

If the Department of Revenue is not handling your case, then you can set things up for the person paying to pay either through the SDU or the local Clerk of Court Depository. It’s a little confusing, but just part of the way the payment system has evolved over the years. One advantage of the payment going through the SDU for you if you are receiving the child support, is that you can set up direct deposit of child support you receive through the SDU, but not the local depository. One last term – an Income Deduction Order is a special type of court order which requires the payee’s employer to deduct the child support payments from the payee’s paycheck, and send the funds to the SDU.

As a Broward County Domestic Violence attorney, one issue that arises in some cases and that is good for you be informed about ahead of time, is how to enforce a Domestic Violence Injunction. Although an Injunction is more than just a piece of paper because it does carry with it some important enforcement powers, in another respect it is just a piece of paper. If you are confronted by a violent spouse or significant other and no law enforcement or other source of safety is around, the Injunction is not going to provide protection, other than whatever concern the perpetrator may have regarding the consequences of violating the order. There are links here to domestic violence programs which can help with guidance, and also a domestic violence shelter when needed.

Law enforcement can arrest and take someone into custody for violating a Domestic Violence Restraining Order. If someone subject to an Injunction comes to your home, contacts you, comes within 100 feet of your car, damages your property or takes other action constituting a violation, you can contact law enforcement for assistance. Once arrested the person must be held in custody, and not released until they are brought in front of the Court for a bail hearing.

The other avenue for enforcement is to go the Domestic Violence Unit at the Courthouse, where the staff will assist you with filling out a Petition and Affidavit laying out the details of the violation, and requesting a hearing to determine if the perpetrator should be held in Contempt of Court for violating the Injunction. The Judge can impose fines or place a person in jail for violating the Injunction. The Florida Statute governing enforcement of Domestic Violence Injunctions provides that the Domestic Violence Unit at the court should also send the Affidavit to the State Attorney’s Office, and you can provide a copy of the Affidavit to the State Attorney’s Office yourself. Violating a Domestic Violence Restraining Order is a crime, and the Domestic Violence Unit can forward the Affidavit to law enforcement as well. There are links here for the Domestic Violence Units at the courthouses in Broward, Dade and Palm Beach counties, and you can find a copy of the Affidavit here.

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).

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