High Conflict Divorce and the Toxic Ex Spouse

There are some people who end up in court and litigation with there ex spouse for the length of time that their children are minors. Usually this involves both people arguing over everything. In some cases there is one person who wishes for peace, and the other parent who thrives on conflict. These high conflict people fight you over haircuts, pick up times, extracurricular activities, holidays, exchange of uniforms, discipline measures, school photos, and every other day to day activity that is involved with being a parent. It seems as if there are some people that will stop at nothing to make your life stressful and unbearable. There is an old adage for family lawyers that states that in divorce its important to love your kids more than you hate your ex spouse. The people that are able to do that have no problem acquiescing on certain issues and sitting with their ex in a parent/teacher meeting. The other folks end up with adult children who choose not to invite either parent to their Thanksgiving tables because its not worth the hassle of choosing between the two parents or the risk of a fight if they invite both. I recently came across an article that addresses what you should and shouldn't do when you have a friend in this situation. I think that it offers some good advice and insight especially as it relates to the lasting impact that relationships like these have on divorced children. I don't have any advice for those folks who are dealing with this situation, what I have advice for are those folks about to get married or deciding to have children. If someone is controlling, confrontational or difficult to communicate with, that person will be 10 times worse if you were to get a divorce. Take that into consideration before you get married and have children. I often hear that "this is not the person that I married". That's because when we get married we are blinded by love. When we get married, its about romance, flowers and poetry and we often don't think about those things that have the biggest impact on the success of a marriage. (i.e., common interests, similar life goals, ability to hash out conflict without hurt feelings, similar morals and values, etc.) The article can be found at the following link: http://www.huffingtonpost.com/pauline-gaines/5-things-never-to-say-to-_b_1653823.html?icid=maing-grid7%7Caim%7Cdl28%7Csec1_lnk2%26pLid%3D180665

A Bird In Hand.....Getting Alimony Upfront

We are in an era here as family law practitioners where a good portion of our practice consists of the modification of existing child support and alimony awards. People are losing jobs, losing homes, taking pay cuts, losing bonuses and other compensation that was previously used to determine a child support or alimony obligation. This is a big problem in cases where someone has received an alimony award and relies on those monthly payments to meet their basic living expenses. Regardless of whether or not an alimony award is non-modifiable, if the person responsible for making alimony payments loses a job and doesn't have any assets, your chances of being able to hold someone in contempt for non-payment of alimony is difficult. Furthermore, if someone retires, gets injured, loses their job or is otherwise unable to make alimony payments, if your alimony is not designated as "non-modifiable" you may very well receive a discounted alimony payment on an ongoing basis or it may be eliminated all together. With that being said, I feel that in the economy that we are currently stuck with, most people who are entitled to any form of alimony really need to consider the idea of "lump sum" upfront payments so that they can avoid the issue of an alimony award being terminated or reduced in the future based upon some unfortunate circumstance. If there are assets, especially cash assets, available during the initial divorce proceeding you should see how much of those assets can have distributed to you in a settlement in exchange for a reduced alimony payment. You never know what the future holds and if there is any way to "get your money up front" you should do it even if that means lowering your monthly alimony payments. If you are savvy with your lump sum payments and meet with a financial planner in order to manage your money properly, it may be a better deal for you in the long run. This is especially true if your husband/wife is in poor health, close to retirement or has a history of jumping from job to job. The old adage, "a bird in hand is worth two in the bush" is without question true when it comes to divorce settlements.

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.