Thursday, May 15, 2014

Same Sex Divorce Not Granted in Tampa, Florida

In March I blogged about a case in Tampa, Florida wherein a gay couple was wishing to have a divorce granted by a Judge. The couple was married in Massachusetts and had a valid marriage in Massachusetts. They moved to Florida and are now residents of the State of Florida. They came to settlement terms and simply requested that the Judge ratify their agreement and grant them their divorce. The Tampa Judge declined to grant them a divorce based upon the premise that Florida does not recognize their marriage, therefore, a divorce is an impossibility. Therefore, because of different state residency laws as it relates to obtaining a divorce, unless the parties were to establish residency in a State that recognizes their marriage, they will still be married. The decision of the trial court will, of course, be appealed. I will continue to follow this case and provide my readers with updates about the case, but I presume that if at some point the appellate court, or the State Supreme Court overturn the ruling of the trial court, this will open many doors for gay couples in Florida to dissolve their marriages if they so choose. There is no question that laws are different from state to state, and what may good law in one state, may not be good law in another. How is this particular issue resolved when under most circumstances, you most be a resident of the State in which you are seeking a divorce to be granted a divorce? I'm sure this couple is not the only couple within the United States to have this issue and I'm interesting to know how other states have handled it. I guess we'll stay tuned. The reality is that if the appellate process overturns the result of the trial court there will be precedence that Florida recognizes same sex marriages that were solemnized in a state that allows same sex unions.

Thursday, March 27, 2014

Same Sex Marriage and Divorce in Florida?



Every now and then I come across an article that I think is interesting to the masses and not only to those people who believe that a divorce or separation is imminent. Today in Hillsborough County a same sex couple is attempting to dissolve their union that was solemnized in Massachusetts a few years ago. They have come to an agreement and are seeking an uncontested dissolution of their marriage. This is difficult and ground breaking because Florida does not recognize same sex marriages.

There is a real problem in this country when some states allow same sex marriages or unions and the couple then relocates to another state that does not recognize their union. They would not be able to get divorced in the State in which they were married because they are no longer residents of that state and they will not be allowed to divorce in their new state because the new state doesn't recognize their marriage. This is a very real logistical problem that Florida and other states that do not recognize same sex marriage are going to be faced with if they haven't faced this issue already. It'll be interesting to see what happens in Hillsborough County and whether or not this issue gets all the way to the Supreme Court of Florida. While there is a ban on same sex unions, there is a question about recognizing those unions that were created in other states. We live in a very transient society and as people move around, this issue is going to come up more and more and sooner rather than later the legislature and the courts are going to have to figure out what to do.

Wednesday, November 27, 2013

5 things that will drive divorcees nuts



I Recently came across an article about the things that drive divorce people crazy. I find that the five things that his writer finds to be annoying about their own divorce to be truly universal with most of the people and cases that I deal with on a daily basis. I am constantly telling my clients to take the high road, to not get bogged down in the little stuff and that they should in all circumstances try to shield their children from their divorce and never start an argument in front of them. This is easy to do if you have an ex spouse who is willing to do the same thing. This becomes difficult when the other parent/ex spouse is never seems to do the right thing and is constantly creating issues and problems. When dealing with your ex, its important to remember that hatred and resentment do not help you move on. I'm interested to hear from my readers what drives them crazy about their own divorces.

Wednesday, August 14, 2013

Designation for other Legal Purposes v. School Designation

Florida is a progressive state in that it does not recognize a primary parent or even a majority parent. We have time-sharing of children and in most cases, except those very unique cases, the parties also share parental responsibility. Because Florida is a progressive state, and because other State and Federal Laws have not caught up to the laws here in Florida, there is a requirement that parenting plans have a parent named as the legal custodian for other legal purposes. The language usually stated in parenting plans is as follows:


"Designation for other legal purposes. The children named in this agreement are scheduled to reside the majority of the time with the father. This majority designation is solely for purposes of all other state & federal laws which require such a designation. This designation does not affect either parents rights & responsibilities under this agreement."

I used to believe that this was a benign provision that was only needed for purposes of Federal laws and other State Laws that require a designation. What I am finding is that there are many people, including attorneys and county schools, who read this provision in a not so benign fashion. They read it to mean that the person who is named for legal purposes is allowed to make decisions related to where a child is to go to school and whose address will be used for school designation purposes regardless of whether there is a provision in the parenting plan regarding school. This is not such a big when there truly is a person who has the majority of the time with the children and is doing the majority of the school-related heavy lifting. This becomes an issue when there is 50/50 or 60/40 time-sharing and someone chooses to move less than 50 miles away rendering a time-sharing schedule virtually impossible because someone believes that their address is what should be used for school designation purposes because they are named as the Legal Custodian in this provision of a parenting plan.

To avoid this, the best thing to do is to designate an address for school designation purposes and say that this is provided that the person remains living within 15 miles of their current residence. Further indicate that in the Legal Custodian Section that this does not apply to address designation for school purposes. I hate to believe that people always have ulterior motives when they are drafting and agreeing to certain provisions in parenting plans, but you have to protect yourself so that in the future, your kids don't automatically end up in a different school because of this supposedly "benign" provision. If you are not a majority time-sharing parent, it may be additionally smart to place a relocation restriction in your parenting plan to avoid your ex from moving far enough away from you to make your parenting plan difficult. Right now, the way that the current statute reads, there is only a restriction from moving more than a 50 mile radius. With the changes that have occurred in our state with time-sharing and moving more towards a situation where in most cases the parties enjoy 50/50 time-sharing, I suspect the geographical restriction will be smaller.

Tuesday, July 30, 2013

Monkey in the Middle



Hi folks and happy summer!! I have been painfully absent from this blog for months and apologize for those of you who have been avid readers and like to know "what's new" in Florida family law.

I'd like to take the opportunity to welcome, Josh Martell, Esquire, to our firm who will be assisting with our practice, and will also be providing his services in the area of criminal law. He will be starting his own criminal blog soon and we'll provide a link to that blog when its available.

There was a lot of drama in Florida earlier this spring/summer about possible legislation that if it had passed, would drastically change alimony laws and child time-sharing. The governor vetoed the bill at the last minute and the bill was not signed into legislation. Regardless of the attempts to effectuate change this summer, I feel that there is change on the horizon and everyone needs to be prepared for those changes when they occur. I will keep everyone updated as the changes make their way through our legislative system.

I came across the link above by accident, and I thought that the subject of the article was in line with a great deal of cases that I have had in the past. I always tell my clients that divorce is partly emotionally but mostly legal and that they should save their emotional questions and issues for their therapists, friends and family. While I am happy to be a sounding board, I am not a licensed mental health professional and often times I can't do anything productive in order to assist with the emotional aspects of a divorce. After reading the article linked above, I'm reminded that many times, people use their children as sounding boards as well when it comes to their divorce both during and after the case has been finalized. I think that this article gives good advice and is a helpful reminder to all parents out there that your kids should never be put in the middle of your divorce and should be free to have a good relationship with both you and your ex spouse regardless of your feelings about your ex. As the dust settles after a divorce, when it comes to your children, you owe it to them to always shelter them from the conflict that may exist between you and your ex spouse. Children grow up, move on, graduate, get married, and have children. The best gift you can give them is the knowledge that despite of what has happened in the past, you are able to be more than just civil, but friendly and cordial. While this is easier said than done, especially in situations where it can be argued that someone wasn't a very good parent after a divorce, but it is what is best for your children.

Friday, March 22, 2013

Presumptive Best Interest of Child and Equal Time-Sharing

There is no question that our family law statutes need to be reformed and that there is a great deal of "judicial discretion" in family law matters. Often times, the outcome of your case depends more on the judge that you have been assigned than the facts of your particular case. If you were to have your case in front of one judge, the outcome may be very different if you were to have your case in front of a different judge. The legislature is trying to change that, in particular when it comes to time-sharing with children. There are changes to alimony as well that I will address in a later blog, but I wanted my readers to be aware of the changes that are being proposed for time-sharing because it is substantial. If the Bill passes, there will now be a presumption that equal (50/50) time-sharing is in a child's best interest, with very limited exceptions. The exceptions would be in the nature of real harm to a child that a parent is incarcerated, a parent is unfit, or the parent's geographical distance would hinder the ability for a 50/50 time-sharing schedule to work. If this passes and is signed into law, most families would be automatically forced into a 50/50 timesharing arrangement if one party were to want that. I have had plenty of cases in the past and some cases right now where one parent does not want an equal time-sharing schedule for a variety of different reasons. Some reasons are valid; some reasons are not valid enough to take the issue before the Court. With this new law, if it is passed, every family will be forced into a 50/50 schedule provided that one parent is requesting it. We do a lot of 50/50 time-sharing arrangements and have had a Judge rule many times that 50/50 is what a couple is going to have, but there are many families who want to alter or adjust this schedule after the final hearing because the schedule is simply not working. Absent a substantial and permanent change of circumstances, couples are going to be stuck with these schedules, regardless of whether or not it’s "working". I agree with the idea that if we have a presumption that 50/50 is in the children's best interest, there will be less room for argument and people would have to acquiesce on this issue. Taking any argument off the table that 50/50 is not good because a parent simply doesn't want it will help insure that less litigation ensues over "best interest of the children". However, what I don't agree with is that we should take the approach of "one size fits all" when it comes to dealing with children. It'll be interesting to see how this develops and if you have issue with this potential law, I urge you to contact your representative.

Monday, February 18, 2013

Business Relationship With Ex Spouse

I think that one of the most difficult things for a couple to do after they have divorced is figure out how they are going to co-parent their children. Often times the fights, resentment and misunderstandings that happen post divorce are a result of a couple's failure to communicate differently after a divorce. Learning how to be in a business relationship with your ex spouse can be difficult and sometimes, down right impossible if you and your ex spouse are not on the same page. However, learning to effectively co-parent is essential if you have any hope of raising happy, healthy, well adjusted children. Here are some tips that may help you along that path.

1. LOVE YOUR CHILDREN MORE THAN YOU HATE YOUR EX SPOUSE- No matter how much you dislike your ex spouse for what they did to you during your marriage, and your divorce, its important to always put your children first. Although it might feel good to agree with someone when they bash your ex, or you really need to know why your ex is now driving a brand new Lexus when they claimed they couldn't afford those basketball lessons for your son, always think about your children before you speak, act or fail to act. Loving your children more than you dislike your ex spouse will always be the right decision.

2. TAKE AN IN PERSON PARENTING CLASS RATHER THAN ONLINE CLASS- While it is surely easier, confidential and convenient to take your parenting class online, I'm a firm believer that you will get more out of the class if you actually go to an in person class. You are more likely to pay attention, listen to what you are being told and figure out what you have to learn about parenting after a divorce if you take the time to go in person. You will be happy that you did and most Judges will appreciate the extra effort.

3. NEVER PUT YOUR CHILDREN IN THE MIDDLE- No matter what the situation, never ask your children to relay anything to your ex spouse, never ask them to deliver funds to the other parent and never interrogate them about what goes on in the other parent's house. Your children should be as free from conflict as humanly possible and should never be the one to deliver information. If you are going to be late, owe the other parent money, wondering about a party you heard happened at their house, pick up the phone and communicate about the issue yourself.

4. TRY TO SAY SOMETHING POSITIVE ABOUT THE OTHER PARENT IN PRESENCE OF CHILDREN- This is easier said than done. After a divorce, negative thoughts, feelings and statements seem to flow much easier than the positive. If you consciously make the decision to say something positive about your ex, it will help you, especially when the negative tends to come to the lips more readily.

5. GIVE YOUR EX THE BENEFIT OF THE DOUBT- After divorce, its easy to immediately jump to the negative when there is a conflict, communication issue or problem. A lot of times there are two loving parents who just communicate, parent, listen and comprehend information differently. Not automatically jumping to the negative will help you get the benefit of the doubt yourself in the future when you need it. You will hear a lot of things from your children about what goes on in the other house, and you can assume that only about 1/2 of what you here is 100% accurate. Change the subject when things are offered up by your child, and if there is something that you are concerned about, don't take your kid's word for it, call the other parent and start with "I take this with a grain of salt because Joey offered it up, but Joey said you spanked him really hard the other day and sent him to bed without dinner. I'm just wondering what the real story is." Delivery is 1/2 the battle when you are trying to communicate with an ex after divorce. Accusing first gets you no where and not going to be met with any type of openness. I'm always amazed when I am sitting in a mediation, court hearing or settlement conference and listening to two (2) people tell the same story and have entirely different versions of what "really" happened.

6. DON'T SWEAT THE SMALL STUFF- After a divorce, you really need to pick your battles with your ex so when there is a major issue that comes up in the future, you will be taken seriously. There will be plenty of little things that happen along the way in a post-divorce parent relationship and letting go of things that are minor annoyances, rather than big issues will help you be taken more seriously when a major issue arises. Think about the little boy calling wolf and really ask yourself "is this such a big deal"? While its easy to be taken advantage of if you always let the little stuff go, know when you should just let it go.

7. LIMIT COMMUNICATION WITH YOU EX- Many people are co-dependent on their ex and divorce does not make that relationship any less co-dependent. Limit communication, especially in the early years, for those things that actually need a response or to forward information that only you would have. Too much communication can cause drama, unnecessary conflict and misunderstandings. While its okay to be friendly, try to remember boundaries and keeping things simple.

8. IF YOU HAVE SOMETHING IMPORTANT TO SAY, DO IT IN PERSON NOT EMAIL- I'm astounded by what people put in emails and am constantly telling my clients that things "get lost in email translation". When your ex reads an email, they are going to interpret that email in the manner that they believe it is being delivered. Often times, that is the basis for misunderstandings and hurt feelings. Many people have forgotten that a simple telephone call is the best way to accomplish the delivery of information.

9. CONSULT WITH THE OTHER PARENT BEFORE MAKING ANY MAJOR PARENTING DECISIONS AND TRY TO AVOID MAKING MAJOR DECISIONS OVER THE OTHER PARENT'S OBJECTION- You would never want to be the last to know when your child gets a tattoo, drops out of school, gets a cell phone, gets a car, or gets a job. Therefore, even if you know that the other parent is going to have a differing opinion on a certain subject, consulting the other parent is the right thing to do and what is required of you in the shared parenting statute. Most major decisions should not be made unless both parties are in agreement with that decision. Remember that kids only have to look to you for 18 years as to what they can and cannot do, after that, they are on their own. When a kids wants something, they are always going to ask the parent who is more likely to say yes. Don't say yes or no to something major unless the other parent is on board. While there are exceptions to this golden rule, in my mind, they are few and far between.

10. NEVER ALLOW YOUR CHILDREN TO USE YOU AGAINST YOUR EX SPOUSE TO GET WHAT THEY WANT- Kids are smart and often times will figure out how to play their parents in order to get what they want. If your daughter wants to go to mom's house on your day, and you are okay with it, communicate with your ex first before you say yes, just to make sure she isn't really planning on being at her boyfriend's house when his parents are away. If your kids know that you and your ex do not communicate well, they will use that fact to their advantage to get what they want. Don't let them!