Weston Florida Collaborative Divorce Attorney

THE COLLABORATIVE PROCESS “IT IS THE POLICY OF THIS STATE TO ENCOURAGE THE PEACEFUL RESOLUTION OF DISPUTES AND THE EARLY RESOLUTION OF PENDING LITIGATION THROUGH A VOLUNTARY SETTLEMENT PROCESS” The above quote is from the Florida Collaborative Law Process Act. It is probably somewhat contrary to what many of you or friends or family have experienced while going through a divorce. Everyone has heard the “horror stories” of endless litigation and exorbitant fees. There is in fact a way to possibly avoid those issues, by using the collaborative process. It is defined as “a unique non adversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation”. There are some definite rules that must be followed and not every case is suited for the collaborative process.“As part of this non adversarial and voluntary resolution of disputes, lawyers who engage in the collaborative law process in a family law matter, and any other lawyers in that lawyer’s firm,may not afterwards represent any party in any related proceeding except to request that a court approve the settlement reached during the collaborative law process or in specified emergency situations in accordance with family law court rules.” As stated above, if for some reason the collaborative process “breaks down” and litigation becomes the only alternative, the collaborative attorney must withdraw from representing his/her client. Therefore, if the process is not successful, either a new attorney must be retained, or the client can represent his/herself. One attorney cannot represent both parties. In addition, both parties must agree to use the collaborative process. The goal of the...

The Reality Of Equal Time Sharing

As the law stands today, equal time sharing is not presumed to be in the best interests of the children in all situations. I will however state that it is becoming the norm, rather than the exception. It is believed that frequent contact with both parents will result in better adjusted child. Of course, every case is different and as such, it is difficult to have a set rule for all cases. Parent’s work schedules, travel schedules and locations should be considered. A parent who must leave for work prior to a minor child having to wake up for school, could present a problem. A parent who does not have a set schedule such as pilots or firefighters also require some planning. Parents who choose to live a distance apart can also complicate the situation. Of course, the other factor which is always considered is child support and how equal time sharing affects the monthly amount to be paid. Child Support in Florida is based upon several factors, one of which is the number of overnights a minor child spends with each parent. An equal time-sharing schedule will result in a reduced amount of support, since it is presumed that each parent will have significant “out of pocket” expenses if each has an equal amount of time with the child. This concept of equal time sharing has existed for several years now. I have recently met with prospective clients who seem to share the same issue. A parent has equal time sharing pursuant to their Parenting Plan, but in reality, the parent is not actually exercising his/her 50%. The...

Florida Alimony Reform 2016

Until approximately one week ago I was expecting to write this month’s article on the changes in Family Law that would be taking effect as of October 1, 2016. For the second time in four years the Florida Legislature had passed a bill which would have modified the current alimony laws in this state; and for the second time in four years Governor Scott has vetoed the bill. The result is that everything remains the same and the proposed laws that were passed by the legislature are forgotten, at least until 2017; when they reconvene. The reason the Governor gave for vetoing the alimony reform bill four years ago was due to the fact that it contained a retroactive clause. This would have allowed individuals, who were either ordered to pay or agreed to pay permanent alimony to go back into court and seek either a termination or reduction based upon the change in the law. The Governor indicated that if in fact that provision was removed in the future he would in fact pass an alimony reform bill. This year the retroactive provision was in fact removed but the legislature added a time sharing provision, which would have resulted in an equal time sharing presumption when there are minor children involved. Currently, there is no such presumption, although it is very common that Mothers and Fathers do have equal time sharing with minor children. In spite of what many individuals believe because of their independent research on the internet, there is no such equal time sharing presumption in Florida today. Each case is considered independently and the Court...

How To Define Income During Dissolution Of Marriage

How To Define Income During Dissolution Of Marriage In a Dissolution of Marriage the couple’s finances are usually the main issue in the case.  Finances are considered in determining the division of assets and liabilities (equitable distribution), child support and alimony.  In most instances determining a spouse’s income is not very difficult.  Tax returns, w-2’s and pay stubs can assist in determining a person’s yearly income.  However, not everyone is a salaried employee who gets paid on either a yearly salary or standard 40 hour work week. There are many people who work on commission or have a large part of their income paid in either quarterly or yearly bonuses.  So are these bonuses income? How do we determine income when a bonus is not guaranteed or a commissioned sales person cannot predict how his year will be?  In determining child support each parent’s income must be considered to calculate the monthly support. It cannot be recalculated each month depending on an individual’s income which may vary based on sales totals or bonuses. Income is actually defined by Florida Statutes as follows: 1. Salary or wages. 2. Bonuses, commissions, allowances, overtime, tips, and other similar payments. 3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income. 4. Disability benefits. 5. All workers’ compensation benefits and settlements. 6. Reemployment assistance or unemployment compensation. 7. Pension, retirement, or annuity payments. 8. Social security benefits. 9. Spousal support received from a previous marriage or court ordered in the marriage before the court. 10. Interest...

What You May Not Know About Common Law Marriages

What You May Not Know About Common Law Marriages The majority of my Family law practice is devoted to divorce (dissolution of marriage) cases. That however is not the only area of family law that I am involved in. There those cases which do not involve a marriage at all. Here is an example of what I am referring to. Let’s say a couple decides to live together and not get married. During their relationship they have a child, perhaps two. They stay together for several years even after the children are born, but they never get married. After a number of years they grow apart and decide to move on with their lives and separate. The question becomes, what issues might need to be addressed in this relationship. Many of us have heard the term, “Common Law Marriage”. In states that recognize Common Law Marriage, a couple who are together for a number of years are in essence presumed to be married and therefore certain issues would need to be addressed based upon their “break up”. Florida however does not recognize Common Law Marriages. If a couple has not entered into a state sanctioned marriage, whether it be in Florida or any other jurisdiction, they are not considered to be married in Florida. That can be significant in some cases.  Assets or debts will not be addressed in the family court. There will be no provision for spousal support. This is true no matter how many years the parties may have been together. If there are disputed property rights it will be determined in civil court by the...

The More Things Change The More They Stay The Same

Last month I wrote an article about the anticipated changes in the alimony laws in Florida. This is a movement that has been in progress for several years. In 2013 both the State House and State Senate overwhelmingly passed an Alimony Reform bill, which was vetoed by Governor Scott just before the end of the legislative session. Since 2014 was an election year, the issue was not addressed. This year however it was everyone’s expectations that a reform bill would in fact finally be passed. The State House passed their version of the bill, which would have ended Permanent Alimony in this state. In addition, there were other changes in the law including certain guidelines that could be followed in computing the amount of alimony that could be awarded. The State Senate however had their own version of alimony reform, the main difference being a provision which was included that would have changed the time sharing law to a presumptive 50-50 division of time. This was not adopted by the House and before a compromise could be reached, the State House of Representatives ended their session early in protest over a totally unrelated issue. This action by the House was never seen before and ultimately was ruled to be unconstitutional by the Florida Supreme Court. The ruling however did not change the outcome, since the session had already ended. The result being that once again an Alimony Reform bill, which was overwhelmingly approved, did not become law. It is anticipated that this issue will be back before the legislature in 2016. In the meantime I thought it might be...

The Concept Of Divorce Planning

Over The past year or so it has come to my attention that many couples who are considering a dissolution of marriage from their spouse are attempting to initiate the process in a more civilized manner. Instead of retaining an attorney and filing for the dissolution they first seek to try and resolve it by reaching an agreement. This process obviously has many possible advantages. It is obviously less costly, since the costs of litigation can be expensive and it usually leaves the couple on much friendlier terms after it is finalized. Most importantly the couple is able to decide what is best for them and what is best for their children. I am not suggesting that this process can work in all cases, but there certainly seems to be a movement towards this manner of resolution. A couple who wishes to resolve their marriage by negotiation should deal with each other in good faith. If there are hidden assets or attempts to gain an advantage in the negotiation, a fair and equitable resolution will not be reached. In some relationships one party may be the person in charge of finances and as such may have greater knowledge of the financial position of the parties. It is important to understand that once an agreement is signed it is binding on both parties and very difficult to set aside. A settlement without all the information and without proper advice can often lead to inequitable results. I suggest that even if it is the intention of both parties to settle their dissolution without litigation it is still beneficial to retain an...

Holiday Cheer

Most people think of the holiday season with gleeful anticipation of time with family. For couples who have been through a divorce, the holiday season can often be a very stressful time. This stress can also be felt by the children of a divorced couple.

Do you need a Divorce Attorney?

DO YOU NEED A DIVORCE ATTORNEY? These days many individuals going through a divorce try to handle the matter without the assistance of an attorney.  They feel that it is better to try and settle the matter without spending large sums of money on legal representation.  In all honesty, simple divorces can easily be handled by the parties. Simple divorces are cases in which there are no minor children and no real assets or liabilities to divide.  There is a great deal of assistance through the courthouse or the internet to “walk you through” the process.   HOWEVER, sometimes people can be as they say “penny-wise and pound foolish”.  In an effort to save money on attorneys’ fees they may wind up giving up too much or perhaps not receiving his/her share.  An individual who represents him/herself is held to the same standards as a licensed attorney. A judge will not give an individual the benefit of the doubt, just because an attorney is not sitting by his/her side in court. This can often present a problem in a more complicated case. I have often reviewed Marital Settlement Agreements which were entered into without the assistance of counsel. Often these individuals come to see me after the fact, to request assistance in attempting to “get them out” of the Agreement.  Unfortunately it is extremely difficult to undo what has already been done.  A Marital Settlement Agreement or a Mediation Agreement has the same validity as any binding contract.  In addition, as I previously stated, individuals are expected to know the law and it is not an excuse to later say...

DISSOLUTION and FINANCIAL DISCLOSURE

DISSOLUTION and FINANCIAL DISCLOSURE Clients who are going through a Dissolution of Marriage are often surprised to learn how much personal financial information they must reveal.  The laws of this state require complete financial disclosure. Most people get overwhelmed with this requirement, since it can be very time consuming.    Since Florida is a “No Fault” State, the primary area of dispute between a husband and wife is usually financial.  The following is a list of the financial information required pursuant to Florida law. All parties MUST complete a Financial Affidavit.  This Affidavit list a party’s income, expenses, assets and liabilities.  It is a sworn document, signed under oath by the client, swearing to its truthfulness.  A financial affidavit must be filed in all dissolution proceedings, even in the most simplified uncontested matter. In addition to the financial affidavit, certain documentation must also be exchanged between the parties within approximately six weeks from the date of filing. If it is a simplified divorce this requirement can be waived by both parties. The Financial Affidavits must be produced however.  The documents that are required include: 1. Income tax returns 2. Pay stubs for the past three months 3. Statement of income 4. Loan applications and financial statements prepared during the preceding 12 months 5. Deeds, leases and promissory notes executed during the past 12 months 6. Checking account statements for the past three months 7. Bank statements (other than checking) for the past 12 months 8. Brokerage account statements for the last 12 months 9. The most recent statements showing value of retirement accounts, profit sharing or deferred compensation accounts. 10....