Wednesday, October 18, 2017

Modification of Parenting Plans, is there enough smoke to convince a judge that there is fire?

One of the biggest dilemmas that I deal with in family law cases is when someone comes to me with their desire to modify the terms of the original parenting plan or time-sharing judgment. The Florida Statute governing this particular request is Fl. Stat. Sec. 61.13 which basically states that upon showing a substantial, permanent and unanticipated change of circumstances, a parenting plan can be modified based upon the best interest of the children. Therefore, if you want to modify time-sharing, it doesn't necessarily matter that the time-sharing schedule that is currently in place is not in the children's best interest. You must first show the substantial, permanent and unanticipated change of circumstances. Its a gigantic hurdle and one that is not easily jumped in some counties. Often times, I hear clients or potential clients talk about various things that are going on in their particular life and I have to tell them, that it doesn't satisfy the statutory burden of substantial and permanent change of circumstances. The question is often how much smoke does there need to be before there is "fire" and the answer is a lot. I often remind people before they sign a parenting plan in an initial divorce that they are going to be stuck with a particular schedule indefinitely and that they should be sure they are okay with a schedule before they sign their parenting plan. In a nutshell, it is very hard to change a parenting plan unless you can prove that there is harm going on to your children that is caused by a change in your ex-spouse's life that was not anticipated at the time of the entry of the initial divorce decree. So, before you start spending a great deal of money on attorneys' fees to modify a parenting plan, make sure you have what you will need to prove your case.

Monday, September 18, 2017

Parenting Plans, Hurricanes and the Unknown

Parenting Plans are required to be filed in Florida if you have kids. In a nutshell the Parenting Plan is supposed to be your road map when it comes to all kid related issues when you are divorced. Most parenting plans have basic information like regular schedules, holiday schedules, division of extracurricular activity costs, and other basic parenting essentials. What most parenting plans don't have are things like........what to do when there is a hurricane. For most of my clients when Hurricane Irma hit it wasn't an issue and the parents were able to work out amongst themselves their contingency plan. For my higher conflict cases, there were issues and there wasn't a way to amicably decide what was going to be done since some exchanges were supposed to occur either in the midst of the hurricane or while there was still a curfew in place. For the past five years, we have put more and more things in the plans in order to account for any situation which might come along with kids. Clearly you cannot plan for everything, however, for those of you that are creating parenting plans right now, its not a bad idea to put in a hurricane plan so that when a disaster comes along, there are no questions as to where the kids are going to be. You want your Parenting Plans to be as complete as possible and to plan for as many contingencies as you can to help insure that there are no problems in the future. While you cannot plan for everything that comes along when you have children, you can try to tie up as many loose ends as possible.

Wednesday, October 12, 2016

Financial Disclosure the Good, the Bad and the Necessary

Lately I have found myself and my staff spending an extraordinary time dealing with financial disclosure issues. It is such an annoying thing to deal with because no matter how many documents are turned over in a case, only a handful are ever actually admitted into evidence or needed in a divorce, paternity or custody trial.

When a family matter is filed in Florida, Florida Rule of Family Procedure 12.285 immediately comes into play and certain items of financial documentation are required to be turned over to the opposing side. This includes three (3) months of bank records, three (3) months of pay records, three (3) years of tax returns, etc. Often times a party is also served with a Request to Produce certain items of financial documentation which can be voluminous, expensive and tedious.

The most common comments that I get from clients about a Request to Produce and Mandatory Financial Disclosure are the following:

1. Why do they need it and can't you object?
2. We should file our own Request to Produce and ask for the same things.
3. I don't want to turn this stuff over, its none of their business and I'm not going to do it.
4. Why do I need to provide documentation that is completely not relevant to the issues that we are dealing with?

Generally speaking financial disclosure is busy work and very rarely leads to any documentation that helps prove someone's case in a family matter. Its time consuming and definitely feels like an invasion of your personal privacy. However, the reality of the way that the family law statutes and rules are currently written is that it doesn't matter that the information won't lead to anything that is relevant in a court of law. If someone asks for something, they are most likely going to get it. Failure to turn over documentation leads to delays in a court proceeding, attorneys' fees and sometimes sanctions that lead the Court to believe that you are hiding something. Turning documentation over and taking all the necessary steps to comply with discovery requests is a necessary evil in a family law matter. That's the bad news. The good news is that most of it will never be admitted into evidence, if you have nothing to hide, no amount of paperwork is going to help your opposing side prove their case and by cooperating it speeds up the process and insures that you have clean hands when you go into a court room. So Turn It Over Folks!

Friday, April 15, 2016

Governer Scott Vetoes Alimony and Child Timesharing Bill

Its been a while that I had reason to blog here and it seems that the latest reason is the same as the last reason. In the State of Florida there has been many attempts over the past few years to change and reform alimony. The latest version of the alimony reform bill that landed on Rick Scott's desk has been vetoed. The Bill contained a presumption that 50/50 timesharing is in a child's best interest. Scott gave his reasons for vetoing the bill and it revolved around the notion that the "one size fits all" approach to children in a divorce was not in the best interest of children and families. I have long since believed that in order to truly have alimony reform in the State of Florida that a bill would have to stand on its on and not be lumped in with reform of any other family law issue. The way that our alimony statute is written right now does allow for different results from county to county and judge to judge; however, the statute still outlines the factors the courts must take into consideration when making decisions related to alimony. I have tried quite a few alimony cases and for the most part the judges get it right. The future of alimony reform is still unclear, but hopefully our legislature understands that true reform will have to stand on its own.

Tuesday, April 21, 2015

Long Term Marriage and Alimony Reform

If you are paying alimony, about to be paying alimony, or receiving alimony, I am sure that you have read all the latest on alimony reform in Florida. Everyone is talking about these wonderful calculations that will help put surety into the alimony system so that we can give clients floors and ceilings when determining an alimony amount. I am happy that we have floors and ceilings because as lawyers it helps us better predict what will happen in a court room. I have concern that we are moving towards someone’s actual need NOT being the basis for an alimony award. While there will be end dates for alimony which is nice, if you are married for over 20 years and are a high income spouse, your alimony is going to be quite high and could be up to 55% of your net income.
Here is an Example of the floors and ceilings for a 20 year marriage where one spouse earns $30,000.00 and the other spouse earns $200,000.00 would be as follows:

Low End- Alimony for 5 years at a rate of $3,500.00 per month (21% of payor's income)
High End- Alimony for 15 years at a rate of $5,600.00 per month (33.4% of payor's income)

Every year these amounts go up. Under the same scenario the floor and ceiling in a 21 year marriage is $3,700.00 and $5,900.00 per month. Basically, every year that you are married you can expect to be paying an additional 9.5% than divorcing a year earlier. That does not happen with the current alimony statute. The current alimony statute is strictly based upon need versus ability to pay. While I agree with most that that the current statute provides great discretion with judges, it also does not create a situation where a person is entitled to an extraordinary amount of alimony strictly based on their years of marriage. So, the moral of the story is if you are contemplating divorce and you have any alimony exposure, it does not help you to wait to file for divorce. Run do not walk to your nearest attorney’s office to file.

Wednesday, January 7, 2015

Same Sex Marriage In Florida!!!

Florida on Monday became the thirty-sixth state to allow same-sex marriages, as a state court judge in Miami ordered a Dade County clerk to start issuing licenses to same-sex couples. This is something that Floridians have been waiting a long time for and it has become a reality. While there are still a great deal of people who are opposed to the idea of same sex couples being allowed to marry, the vast majority of Floridians were in favor of lifting the ban on gay marriage. Licenses are expected to be issued by other clerks across the state Tuesday morning, under an order by a federal trial judge. Orange County has started issuing licenses and a Circuit Court Judge has already started conducting ceremonies. Gay couples are now allowed to marry in civil ceremonies and those marriages will be recognized by the State of Florida. With marriage......comes divorce and it is just a matter of time before the Court hears the first "gay divorce". While the reasons for divorce are vast, many people get married too quickly and without really thinking it through and that seems to be a common theme in marriages that are less than 5 years. So..... my gay and lesbian friends I will give you the same advice I have been giving heterosexual couples for years............Think Before You Marry!!

Tuesday, September 2, 2014

Florida Most Expensive State to File Divorce

I read online recently that Florida is the most expensive State to File for Divorce in. Here are the top ten:

10. Tennessee, $302

9. Utah, $310

8. Pennsylvania, $317

7. Arizona, $321

6. Louisiana, $324

5. New York, $335

4. Illinois, $337

3. California, $395

2. Minnesota, $402

1. Florida, $409

The price is actually higher than that because everything is electronically filed now and if you pay with a credit card, there is a built in "convenience fee". If it is a contested divorce, you are also charged $10.00 for the Court to issue a summons, which means that a contested divorce in Florida actually costs $430.00 to file. Meanwhile, Judges' dockets are more full, clerk's offices are staffed less and attorneys' are charging more per hour for their services. Divorce is definitely expensive, and when you tack on more and more clerk's fees and filing costs, even without a lawyer, a divorce can cost you $1,000.00 or more. I don't think that the cost of the filing of a divorce will stop people from doing it, but its definitely good to know what the costs are before you decide to move forward with a divorce. When consulting with an attorney and they quote you a price for a retainer, make sure that you ask whether the filing fee is included.