Alimony Reform?

Happy New Year! With the new year comes the annual discussion of whether or not there is a need to reform our Florida alimony laws. There is legislation currently pending that is trying to radically reform our current alimony laws. A link to the pending legislation can be found by clicking on the "Alimony Reform?" title above.

All of us in the family law community have been discussing whether or not this particular bill has a chance of being passed and the general consensus is that it doesn't. These are the major points that are contained in the bill that would have the greatest effect on our current alimony laws:

1. Limitations on Awards of Attorneys' Fees- May not exceed the greater of $7,000.00 or the reasonable value of the representation of the party paying the fee.

2. Termination of Permanent Alimony and Creation of Long Term Alimony- This would be for marriages lasting more than 20 years in most cases and an obligor reaching the normal age of retirement is considered a substantial and permanent change of circumstances. There would be a rebuttal presumption that alimony terminates upon retirement of the obligor.

3. Requirement to Look at the Earning Capacity of Obligee Spouse- This would require an obligee to maximize their earning capacity and allows the court to impute all income to the obligee that could be reasonably earned after achieving maximum rehabilitation.

4. Supportive Relationship- This would require a refund of alimony paid and an award of costs and fees if the recipient of alimony denies the existence of a supportive relationship that is later found to be true and would prohibit the Court from reserving jurisdiction to reinstate alimony if the supportive relationship terminates.

5. Determination of Income- This would state that that the income and assets of the obligor's spouse or person with whom the obligor resides may not be considered in modification of alimony. Additionally, in initial proceedings, when determining the financial resources of each party, it would only include the marital assets and liabilities distributed to each.

6. Standard of Living of Parties- There would be a rebuttal presumption that both parties will necessarily have a lower standard of living after the dissolution of marriage than the standard of living they enjoyed during the marriage. Additionally, an award of alimony may not leave the payor with less net income or with a lower standard of living than the recipient.

7. Life Insurance- If the court awards life insurance, the cost of the life insurance or a bond would be deducted from an alimony award.

8. Long Term Marriage- Would be defined as a marriage lasting 20 or more years.

While many of the things that are stated above, I do believe the Judges take into consideration when determining an award of alimony, if this legislation were to pass, the courts would be REQUIRED to follow these rules. Its already quite difficult for someone to receive a permanent alimony award, and its even more difficult to obtain awards of lengthy alimony if the recipient spouse is educated and capable of being self-supporting. It will be interesting to see whether this legislation passes. Please let me know your opinion on this issue by posting your comments here.

Is Collaborative Divorce Right For You?

Recently, I have had a lot of people come into my office to discuss whether or not a collaborative divorce is right for them. Most people do not even understand what collaborative divorce is, and before you can decide that it's right for you, you have to understand what it is.

Defining it in its simplest terms, Collaborative divorce is a process driven by the parties that provides them with a dispute resolution alternative that allows them to put aside their own agendas and work for the collective whole of the family. All parties sign a participation agreement and in the event the collaborative process fails, the parties are required to discharge their respective attorneys' as well as the mental health and financial experts that they have engaged as part of their team. The reason that this type of divorce works is because of the commitment that both the Husband and the Wife make to one another that they are not going to go to court. This is not for everyone and its important to do all of your research regarding the collaborative process before you commit. However, here are five (5) key questions to ask yourself that should determine whether or not collaborative divorce is right for you.

1. COST- Do you currently have $25,000.00 to $50,000.00 that you are willing to pay up front for your divorce? Collaborative divorce requires the employment of two (2) attorneys, and usually a mental health and financial expert as part of the "team". While this may seem extraordinary, the average divorce can cost well over $50,000.00 if litigation is required. While it is hard for most people to shell out this amount of money up front, generally speaking, a collaborative divorce ends up saving you money in the long run.

2. EMOTION- Are you able to set aside your emotions in order to make logical informed decisions that require you to forget about the fact that you are hurt by your spouse? Emotions run high in any divorce, but in the collaborative process, you are required to sit across the table from your spouse and make decisions. If your hurt and anger will not allow you to make decisions, the collaborative divorce would be very difficult.

3. PROCESS- Are you able to look at the means rather than the ends? If you already have an exact idea on what you are looking to get out of your divorce in terms of property distribution, alimony and child issues, again a collaborative divorce would be difficult. Collaborative divorces are process driven, meaning that its not about where you would end up in court. Its about whether getting to a point where the outcome is equally palatable for both you, your spouse and your children.

4. GOALS- Do you and your spouse have common goals? In order for a collaborative divorce to work, you and your spouse not only have to have the common major goals, the sub goals need to be similar if not the same. Without common goals, collaborative divorce cannot work.

5. COLLECTIVE WHOLE- Are you concerned about your spouse and how the divorce will affect them? If you want your spouse to be okay after the divorce and for you to have a good working relationship with them, really the only way to achieve that goal is by putting the needs of your spouse at the same level you put your own. The normal divorce process encourages lobbying for position and thinking about your best possible outcome. This is the most difficult part about the collaborative divorce process because it requires you to put your spouse's needs not necessarily before your own, but on the same level.

If you answered yes to all of the questions above, then ask your attorney about collaborative divorce. If you answered yes to a few, but not all the questions, you should research this a bit more to determine whether its the right thing for you.

Divorce, Depression and Suicide

In my efforts to find a topic to blog about today, at least three stories popped up when I searched Google regarding divorce related to suicides and murders. There is a saying in the family law community that family lawyers get to see good people at their worst and criminal attorneys get to see bad people at their best. I see people in all states, from irrationally angry to severely depressed. When going through a divorce or family legal crisis, it is imperative that you lean upon close friends/family and seek professional help if the stress of the situation is too much for you to bear. Get into a support group, stay away from drugs and alcohol and make sure not to act on emotion. Remember that things do get better and be proactive about finding realistic solutions to problems instead of burying them or trying to ignore them. There is no question that divorce is stressful and that after divorce your life will not look the same. Embrace the change in a positive way and try to fix only those things that you have the power to fix. If you have a controlling ex-spouse, know that this will not change and find new ways to deal with them. If you have a tremendous amount of debt, know that this won't change without a plan. If you and your spouse have tremendous difficulty communicating about your children, know that this won't change without you giving in now and then on what you want, and even then, it might not change. If you are going through a divorce and are finding your situation to be hopeless, please call a friend, contact a therapist or a crisis center so that you can avoid any unnecessary tradegies.

Issues with Gay Marriage?

New York recently became the 6th state to allow gay couples to legally wed. That leaves 44 states that still do not recognize the union between two people of the same sex. This fact raises astronomical legal issues when it comes to divorce. I've fielded dozens of phone calls and had consultations with several gay men and women who were married in another state and now live in Florida. The sad truth is that there really isn't anything that I can do for that person unless they own property together. Otherwise, there are no alimony laws, equitable distribution statutes or even child custody laws that protect you in states where gay marriage is not recognized. While no one goes into a marriage thinking that they will get a divorce, the reality is that there will be times when a gay couple will no longer want to be married and in 44 of the 50 states, there are no laws to protect either party. While it is true that you can possibly get divorced in the state in which you were married, you have to satisfy that state's jurisdictional requirements in order to file for divorce. Even worse, to my knowledge, there are only two states that acknowledge same sex marriages that were performed in other states. Therefore, under most circumstances, if you are gay, you can only get a divorce and be protected under your state's divorce laws if you live in the state in which you were married. This is the same fundamental problem that people have with respect to common law marriages. Florida does not recognize common law marriage either, therefore, in the State of Florida, the only way that you can protect yourself is to legally marry someone. All of this is tremendously overwhelming to think about and I can only hope that our legislators on a National and local level are smarter than I am to create laws to solve the complex problems that arise when gay marriage is not "legal" on a National level.

The Curse of the Semi-Happy Marriage

As I was logging onto my yahoo account to get my dad's itinerary for his trip here in August, I came across an article about semi-happy marriages. I think the main point in the article is that marriages that are "comfortable" are responsible for a great deal of divorces. As a divorce attorney, I see a variety of different reasons for why marriages break up from adultery to massive financial problems. I do see some people who simply cannot articulate why their marriage is "irretrievably broken" when asked this question in Court. There have been a couple of occasions at a mediation or final hearing when I cannot really understand why the marriage is ending in divorce because the parties seem like great friends. With the recent fairytale wedding of Prince William and Kate Middleton splashed all over every media outlet, its easy to see that Americans love the "fairytale". Does that mean that a marriage doesn't work if it isn't a fairytale? I am going to be so bold as to say that most marriages are not fairytales 100% of the time. Does this mean that divorce makes sense? I find this article slightly concerning with the current rate of divorce being very high, I would hope that people determine whether they are the "marrying kind" before they say I Do.

Don't Sign That!!!!!

Its been a while since I have blogged and I apologize for my absence from the Internet. I have a variety of different things that I would like to discuss here and I am going to make an effort over the next several months to have a new entry every Monday.

With that being said, if anyone has any topics they would like to discuss, please feel free to email me here or email my work address at www.bauerfamilylaw.com.

Over the past several months, I have had several people come in for a consultation with signed Marital Settlement Agreements and Parenting Plans. The usual question that is asked is whether or not there is anything that can be done to modify or set aside those contracts. When it comes to divorce proceedings, under most circumstances, especially within a few months after the ink is dry, the answer is going to be no. There are no rights to rescission, there is no setting aside an agreement because it is a bad deal. Once you sign an agreement you are going to be stuck with it absent a showing of a substantial change of circumstances or some fairly serious fraud or duress. Therefore, the best course of action is to have a family law attorney read through your agreement BEFORE you sign it to ensure that you are not signing something that you shouldn't. Most attorneys have a reasonable consultation fee and paying a nominal fee is worth it in the long run if you are unsure as to whether or not you should sign a Marital Settlement Agreement. Please, do not sign anything without first consulting with an attorney.

Divorce, Holidays and the Kids

The holiday season is upon us and many people are beginning the fight regarding who gets the kids, for how long and when. In Florida, if you have a court ordered holiday schedule, the holiday schedule will trump your regular schedule. Additionally, "holiday" contact is usually defined as the day the children are released from school until the day they return to school at the conclusion of the break from school. If you don't have an agreement at this time, here are some tips to help you through the holiday season with as little stress and fighting as possible:

1. Be Willing to Compromise. Its rare that you will get both Thanksgiving and Christmas. If you want Thanksgiving this year, understand that you are probably going to have to give up Christmas Day this year.
2. Make Plans for Yourself. If you don't have Thanksgiving this year, you will have it next year. That's the way that it works and is what is fair to the other parent. There is no time like the present to figure out what you are going to do on the holiday when you don't have the kids. Don't give your kids a guilt trip, they should be able to spend time with their father/mother without feeling guilty.
3. More than one celebration is not a bad thing. Kids never complain about having two (2) Christmases so if you don't get to see your children on Christmas this year, you can celebrate with them on the day/days that you do have them.
4. Don't agree in writing to share holidays. You never know what is going to happen in the future and your new wife/husband may not understand why they have to have your ex-wife/ex-husband at their Thanksgiving table. If you decide to share a holiday that's great, but if you put it in writing, you are stuck with that indefinitely.
5. Don't make assumptions. If you are travelling for a holiday and there is no agreement as to who gets the holiday this year, make sure you speak with your children's mother/father before booking flights or hotel rooms. Never assume that the holiday is yours. You will have much better success at getting a particular holiday if you speak with the other parent first and ask them whether you can have the kids rather than just making plans without consulting the other parent.
6. Plan ahead. The sooner you can come to an agreement about the holiday schedule, the smoother the season will go. With the crowding of courts, if you wait until the last minute there will be little chance that you will be able to get to see a judge before the holiday if an agreement can't be reached.
7. Don't take the holiday schedule too seriously. If you agree not to have a holiday this year, all that means is that you get that particular holiday next year. Fighting over holidays does not make sense and ultimately will have a negative effect on your children.
8. Create new traditions with your children to make the holiday season special. Life is not going to look the same once you and your spouse decide to split, but that doesn't mean you can't create new and meaningful traditions.
9. Focus on the Positive. Divorce is difficult on everyone and can be even more difficult if you are going through one during the holiday season. Focusing on the positive can help you get through the season.
10. Be Flexible- If your ex-spouse has a holiday this year, wants to travel and stay a day later which means that will cut into your time, if you don't have other plans, be okay with this, because you never know when you are going to need the same flexibility.