Googling Through Your Divorce

Yesterday someone sent me a picture of a mug that said, “Don’t confuse your Google search with my law degree.”  It is funny, but there is some truth in the statement.  This mug got me thinking about the role of Google searches in divorces.  When I first started practicing law there were no Google searches because there was no Google:  I have been practicing law for a very long time.  Clients were forced to rely upon their attorneys for all of their legal information and advice (notice I separated these concepts).   Now, any time an issue comes up in a divorce it seems the client or the client’s family member or friend has “Googled” the issue in an effort to find an “answer.”

I am all for Google searches.  I want my clients to have all the information they need to make a well-reasoned decision on each issue that arises in their divorce.  However, some of the information on the internet is either untrue, misleading or is fact specific.    I encourage every person going through a divorce to educate themselves on the law:  if alimony is an issue you should know the factors for alimony; if child support is an issue, you should know how it is calculated; if timesharing is an issue you should have reviewed a parenting plan as it will be required.

Below I have listed some of the relevant statutes (laws promulgated by the legislature) and how to find them.    I encourage every person going through a divorce or contemplating a divorce to read the statutes applicable to the issues that may occur in their divorce.  However, I also encourage every person going through a divorce or contemplating a divorce to seek the advice of a seasoned family law attorney so they can get advice as to how the statutes apply to their unique circumstances, advice on an appropriate strategy for using the statutes to their best advantage, and advice on how previous courts have interpreted the statutes or  advice as to whether there is additional “case law” which may be relevant to your circumstances (case law is defined as law established by the outcome of former cases).

RELEVANT STATUTES:

http://www.leg.state.fl.us/statutes/ :

DIVORCE ISSUES:

Title VI:  Civil Practice

Chapter 61: Dissolution of Marriage, Support and Timesharing

Statutes which may be of interest:

61.07:  Temporary alimony

61.075:  Equitable Distribution

61.08:  Alimony

61.13: Support of children, Parenting Plan, Timesharing and Parental Responsibility

61.13001:  Parental Relocation

61.14: Enforcement & Modification

61.16:  Attorney’s fees

61.30:  Child support guidelines

PATERNITY ISSUES: Title XLIII: DOMESTIC RELATIONS; Chapter 742: Determination of Parentage

SUPPORT PAST  18 YEARS OLD:  Statute 743.07(2): This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

All relevant forms:  www.flcourts.org/Go to Family Law Forms:  Don’t  pay for these forms when you can download them for free.

 

Collaborative Law: A Different Perspective

On July 1, 2017 the Collaborative Law Act goes into effect in Florida.  Collaborative law is touted all over the internet as the best thing since sliced bread.  I think the jury is still out on collaborative law and from my perspective mediation is still the best option for a peaceful, non-adversarial, cost-effective resolution of disputes.

Both mediation and the collaborative process provide for confidentiality and there is a mediation privilege as well as a collaborative privilege.  The goal of both mediation and the collaborative process is the settlement of issues through a negotiated settlement in an effort to preserve the relationship between the clients.  In one article, the writer opined that collaborative was superior to mediation because the parties were in the same room, rather than in a caucus situation (in a caucus the parties are in different rooms and the mediator goes between the rooms).  Mediation does not preclude the parties from being in the same room and if the parties are willing, an open discussion/negotiation with all parties and their attorneys present is preferred since mediation has at its heart self-actualization.

The cost of mediation is similar if not less than collaboration: Collaboration involves multiple meetings, as well as discussions with only the professionals (more money) and discussions regarding the upcoming agenda and also involves time spent preparing for the multiple meetings.  Typically there is only one mediation (although there could be several continuations of said mediation) and the mediator essentially sets the agenda for the structure of the negotiation (generally, issues easily settled go first to keep the mediation moving and build confidence in the process).

Professionals are also welcomed into the mediation process, and oftentimes the parties will agree to use one professional during their divorce case and in mediation to save money.  However, there are times when a client is more comfortable with their own financial advocate and one financial professional may not always be productive; the key is to find two professionals who are fair and work well together.  Often times the professionals will work together to come to  fair resolutions which the clients accept because they trust their professional has their back.

As in collaboration, sharing of documents is encouraged prior to mediation or in mediation.  Again, if parties desire to save money they will cooperate whether or not they are in a formal collaborative setting.

Another advantage touted for the collaborative process is that there is no time pressure in collaboration.  This can be an advantage or a disadvantage as some clients may need some type of pressure to settle and the longer the case goes on, in collaborative or otherwise, the more money is spent on fees.  Finally, if both parties agree and the court is informed the parties are working toward settlement, often times a stay can be procured to relieve the time pressure of a looming hearing or trial. The courts also prefer settlement.

The major pitfall with collaborative, in my opinion, is that if the process fails or one party decides they are no longer in a collaborative mood then both attorneys must withdraw.  The client is now without their trusted advisor, a new attorney must be retained (read money), the new attorney must spend time learning the case and all of the nuances of the case relayed to the attorney by the client during the course of the former representation (read more money), the work of the professional may or may not be used by agreement and a new professional will most likely be retained and will do their own independent review (read even more money), and all of the money previously spent was essentially wasted.  On the other hand, in a mediation, if the process fails the attorney continues to represent the client and litigation proceeds with the same professionals in place that have been advocating for the client all along.

 

The Steps of the Florida Divorce Process

It is natural to be afraid of the unknown.  The divorce process is scary because people without legal training really have no idea what is going to happen during their divorce.  In fact, one of the first questions I am asked in an initial consultation is, “what is going to happen to me?”

Although each individual’s circumstances are unique, the general procedure is almost always the same and many clients take comfort in knowing what is going to come next, procedurally.  Therefore, I have compiled a general outline of the steps in the divorce process, from the standpoint of the person filing for divorce.  I will discuss each step in more detail in upcoming blogs.  If you have a topic or question you want me to blog about, please contact me at ddesmond@bakerzimmerman.com

STEP ONE:  DRAFTING THE PETITION FOR DISSOLUTION OF MARRIAGE AND RELATED DOCUMENTS

The first step in the divorce process is to draft the Petition for Dissolution of Marriage, which basically sets out in general terms what you are asking for in the divorce (alimony, shared parental responsibility).  In addition, there are several other documents that are required to file the divorce if you are hiring a lawyer the lawyer will draft these documents for you.  If you filing pro se (on your own), you can find the relevant forms at flcourts.org.  The initial documents to be drafted usually include:  The Petition for Dissolution of Marriage, a Summons, Notice of Social Security Disclosure, UCCJEA, Notice of E-mail Designation, Notice of Related Case, and a Civil Cover Sheet.   Additional documents may also be drafted at this time so they can be served with the Petition.  These may include a Request to Produce, Interrogatories and/or a Motion for Temporary Relief.

STEP TWO:  FILING THE DIVORCE WITH THE CLERK OF COURT

After the documents are drafted, they must be filed with the clerk of the court in the appropriate venue.  The clerk currently charges approximately $420.00 to file the divorce and issue the summons.   Your attorney has normally collected the filing fee at the time they are retained and will e-file the documents necessary to begin the divorce process with the Clerk.

STEP THREE:  SERVING THE DIVORCE ON YOUR SPOUSE

Service means that a sheriff or process server will go to your spouse’s home or work (or any other place you designate) and serve them–give the divorce documents to them (or leave them in certain situations).  The summons will explain to your spouse the timeframe for them to “Answer”  the allegations in your petition (20 days) and other pertinent information regarding their Answer.  The Sheriff or the process server does charge a fee to serve the other party (usually a minimum of $40).  After filing the divorce, you have 120 days in which to serve your spouse.  If your spouse is willing, they can sign a document accepting service and setting forth the date the 20 days will start to run.

STEP FOUR:  YOUR SPOUSE WILL ANSWER THE DIVORCE AND POTENTIALLY COUNTER-PETITION

Within 20 days from the date they are served, your spouse should file an “Answer” to the allegations contained in your Petition for Dissolution of Marriage, and they will either: admit, deny or claim they are without knowledge with regard to each allegation in your Petition.  In addition they can also file affirmative defenses.

In addition to filing an “Answer,” your spouse may also file a counter-petition for dissolution of marriage, setting out in general terms what they are asking for in the divorce. The Clerk does charge a fee for filing a Counter-Petition.   If a Counter-Petition is filed, then you will have 20 days to file your “Answer” and any affirmative defenses.  If an Answer is not timely filed, the party required to Answer is in default and a motion for default must be filed with the clerk seeking to have all allegations in the Petition or Counter-Petition deemed admitted.

 

STEP FIVE:  MANDATORY DISCLOSURE, INCLUDING A FINANCIAL AFFIDAVIT MUST BE FILED

Both parties have 45 days from the date of service of the Petition for Dissolution of Marriage to file their financial affidavit (FA) and Notice of Compliance with Mandatory Disclosure.  The financial affidavit sets forth each party’s income, expenses and lists all assets and debts.   If you cannot complete the FA and/or gather all the documents required for mandatory disclosure, you can ask the court to extend the time to file.  Other discovery may also be requested by either side in their discretion.  The financial affidavit and mandatory disclosure are required, although there are certain situations in which they can be waived.

STEP SIX:  TEMPORARY RELIEF, MEDIATION AND POTENTIALLY A HEARING ON TEMPORARY RELIEF

Because the divorce process is not always a quick process, the courts permit either party to request temporary relief.  This means that pending a final hearing, upon the request of a party, the court will order temporary child support to be paid, will put in place a temporary timesharing schedule, may order temporary alimony and may order temporary attorney’s fees if one party can’t afford to pay their attorney and the other person has the ability to pay.

If either party has requested temporary relief of any kind, a mediation will normally take place in an effort to resolve these temporary issues.  Depositions may also be taken for the purposes of temporary relief and either party can request additional documents to assist with proving their case.

If all temporary issues are not resolved, the matter is set for hearing and the judge will decide the issue.  These hearings are normally very short as the Court usually allots only 30 minutes for temporary issues.

STEP SEVEN:  PREPARE FOR TRIAL AND TELL THE COURT YOU ARE READY FOR TRIAL

Prior to and after temporary relief your attorney is most likely preparing for trial.  This involves collecting evidence to prove the allegations in your Petition for Dissolution or to refute the allegations in the Counter-Petition.  For example, if you asked for alimony you will need to present evidence on the various alimony factors, including your need for alimony and the other party’s ability to pay alimony.  Preparing for trial may involve depositions, issuing subpoenas, inspecting property, and hiring appropriate experts.

Any time after the case is “at issue” (there has been a petition and answer filed), either party can move the court to set the case for trial.  Each court’s docket is different and frequently trials are set several months after a party moves the case for trial.  Your attorney will take into consideration many different factors to determine the right time move the court to set the case for trial.

STEP EIGHT:  SETTLEMENT DISCUSSIONS AND MEDIATION PRIOR TO TRIAL

Prior to going to trial, both parties are required to attend mediation to attempt to settle all or some of the issues slated to be tried.  If mediation is successful, an agreement will be drafted and presented to the court for ratification.

However, a mediation is not necessary to settle your case.  A good attorney will be attempting to settle your case, or certain issues in your case, throughout the divorce process in an effort to save you time, money and heartache.

STEP NINE:  WITNESS LIST, EXHIBIT LIST AND JOINT PRETRIAL STIPULATION

Prior to trial, the Court will require both sides to disclose to the other side the witnesses they intend to call at trial (lay and expert witnesses), and disclose the exhibits (evidence) they intend to use at trial.  The Court also will require both attorneys to jointly prepare a statement setting forth the issues to be tried and any undisputed facts, and other information the judge will need to render a judgment.

STEP TEN:  BENCH TRIAL (THERE ARE NO JURY TRIALS IN FLORIDA)

If at the end of this process there are still unresolved issues, both parties will present evidence to the judge as to why the judge should grant the relief they are requesting.  Often times both parties will testify at the trial.  Children are not permitted to testify at trial absent court permission.   The judge will also hear argument from each attorney on the issues and may permit the parties to file memoranda of law.  After considering all of the evidence and arguments presented, the court will decide each issue and will either announce its decision from the bench and require one of the attorneys to draft a final judgment for their review or take the matter under advisement and later render a written decision.

Does a married couple’s fighting style predict divorce?

Couples argue for many reasons and in many different ways. Some individuals shout, some throw things, some analyze and some completely shut down when confronted by his or her spouse. But is one of these fighting styles more toxic to a relationship than the other? Does fighting earlier on in marriage indicate that a couple is doomed for divorce? A study recently published by the University of Michigan offers some answers to these questions.

Researchers at the University of Michigan conducted a 16-year study of 373 couples. Each couple was entered into the study during their first year of marriage. Researchers wanted to know if certain fighting styles and the amount of fighting between each couple would affect their chances of divorcing later on in life.

According to the study, 46 percent of couples who reported no fights during the first year of marriage ended up divorcing within 16 years. This may contradict the beliefs of many who think that fighting during the early years of marriage signifies a couple’s inability to resolve issues with each other. However, the couple who fights may be better off because they are learning to communicate their frustrations and worries.

Researchers also analyzed fighting styles of couples and determined that the most destructive response to an argument was for one spouse to withdraw from the conflict while the other analyzed the situation internally. When both spouses are quiet, nothing gets resolved and the problem lingers. Spouses may worry that the other’s lack of response signifies indifference or a lack of interest in the relationship.

The University of Michigan acknowledges that there is still a lot to learn about marriage and divorce, but the study’s results do offer some interesting insights. The study also offers some insight on how family law attorneys approach clients who are thinking about divorce. Divorce gets a bad reputation for causing long and expensive legal battles between individuals who cannot come to an agreement with each other. However, just as effective communication in marriage can keep a couple together, effective communication during divorce can prevent individuals from enduring a painful legal battle.

Family law attorneys understand how difficult a divorce can be on any individual, regardless if a marriage ends amicably or not. Lawyers in Illinois realize that each divorce case is unique, and there are different ways to assist clients with reaching agreements and settlements. Family law attorneys offer couples an alternative to the standard divorce process. Individuals who are focused on communication and collaborating with each other throughout the divorce process may find it beneficial to participate in divorce mediation. Mediation tends to be a less expensive and less stressful alternative to traditional litigation.

Couples interested in mediation can still resolve their legal conflicts regarding divorce, child custody, child support and division of marital property without going to trial. Although family law attorneys acknowledge that mediation may not be for every couple, they identify individuals that would be good candidates for the process and inform divorcing couples about the benefits of mediation as opposed to traditional divorce.

Child Support Payments Took a Hit Due to U.S. Economy

In Illinois, many parents rely on child support in order to provide for their children. Child support payments allow custodial parents to allocate funds towards food, clothing, daycare, tuition and other expenses. All of these expenses add up quickly, and for any parent it can become overwhelming when trying to keep up with all of the other payments such as housing, insurance and a car loan.

In Illinois, a custodial parent may receive child support up until the child turns 18 or graduates from high school. There are some cases when a parent would qualify for child support beyond that. Overall, many parents are entitled to receive funds in order to pay for the expenses of taking care of a child. However, this economy is proving to be difficult to pay and receive child support.

According to the Department of Health and Human Service’s Office of Child Support Enforcement, child support payments fell in the U.S. in 2009. This is the first decrease in payments for more than three decades. It is believed that more custodial parents are receiving less in child support because of the horrible mess our economy is in. Reports show that in Illinois, 88% of child support cases were delinquent at some point in the fiscal year of 2009.

The amount of personal bankruptcies has risen, unemployment and underemployment levels are high and debt continues to increase. People are struggling to make ends meet, and in some cases individuals may choose not to make a full child support payment. Parents on both sides are struggling. One parent can’t make the payment and the other doesn’t get the money to support the child. The director for California Child Support Services Department explained, “For many of our families, [child support payments are] the difference between being in poverty and rising out of it.”

Family law attorneys can help custodial and noncustodial parents work out child support agreements that are manageable and accurately based. Family law attorneys can also speed up the process so that parents can possibly collect payments that are delinquent and still owing. Many can become frustrated with the legal process, but family law attorneys work to ensure that payments are correctly calculated and enforced in a timely manner.

Man Faces Criminal Charges for Snooping through Wife’s E-Mails

An interesting story drew a lot of attention from family law attorneys and American’s across the nation last week. A Michigan state law used against internet hackers intending to steal trade secrets and identities is now being used against a man who went through his estranged wife’s e-mails. The man now faces felony charges for computer misuse. But is this statute applicable to the man’s case?

Divorce can be a difficult time for many, causing added stress and worries. The 33-year-old man from Michigan and his wife were in the process of a divorce, and he suspected that his wife was having an affair with a former husband. His suspicions were concerning because he believed his wife was seeing her second husband who had been arrested before for beating the woman in front of her young son. The man feared for the safety of his step-son and his own child.

He explained, “I was doing what I had to do.” The man logged into his wife’s e-mail account using a shared computer in their home that they were both living in. He claims that his wife kept her passwords next to the computer, and he has no choice but to read through her e-mails. His suspicions were confirmed.

After finding evidence in the e-mails that the woman was having an affair with her second ex-husband, the man gave the e-mails to the woman’s first ex-husband. The woman’s first ex-husband was the father of the child who witnessed the beating. The man immediately filed an emergency motion to obtain custody of the child.

When the woman learned that her third husband accessed her e-mails without her permission last March, she filed charges against him. The couple’s divorce was later finalized in December.

Although many are questioning the validity of the Internet law being applied in this case, charges have not been dropped against the man. Prosecutors claim that the man broke state privacy laws.

If the Michigan man is convicted of hacking into his former wife’s e-mail account, he could be sentenced up to five years in prison. Divorce attorneys across the nation will be interested in the outcome of the Feb. 7 trial. According to an electronic privacy expert, about 45 percent of divorce cases involve spouses snooping through each other’s e-mails, Facebook and other online accounts. If the man is convicted of the crime, the court system could be opening a floodgate for similar cases.

Woman flees Illinois with child, violating visitation agreement

Child custody cases are complex, and the battle for rights over a child in Illinois may not always be between a mother and a father. In some cases when a parent is not present, is deceased or is disabled, the grandparents of a child may request visitation rights in order to maintain a bond with their grandchild. In these instances, a judge will determine if the grandparents should be awarded visitation rights and a schedule will be agreed upon that each party must lawfully follow.

Failing to adhere to a visitation schedule or a child custody agreement is a serious matter and one could face prison time for violating visitation and custody agreements. A woman who recently fled Illinois with her child has now been jailed and faces nine counts of unlawful child visitation interference for her actions.

In 2008, the woman was in the process of divorcing her husband. The two were fighting for custody of their baby daughter, but everything changed when the woman’s husband was shot and killed. The woman then had custody of her child, but the murdered husband’s parents requested to have grandparent visitation rights.

In September 2010, an Illinois judge finally granted grandparent visitation rights to the murdered husband’s parents. However, in November 2010, the mother of the child stopped adhering to the order and left Illinois with her 3-year-old daughter.

On March 1, an Illinois judge issued a warrant for the woman’s arrest after she failed to show up at a hearing regarding the visitation order she had violated. The woman was arrested in Florida and will be brought back to Illinois where the child visitation case will resume once the woman is released from jail.

Divorced couple argues religious differences in custody battle

The Chicago couple divorced in 2007 with a joint parenting agreement. Both parents had agreed to raise their son to be Jewish since the mother had recently converted and was a devout Hasidic Jew herself. The family never observed Jewish traditions or beliefs while the couple was married, but since the father only attended Roman Catholic services on Thanksgiving and Christmas, he agreed to allow his son to be raised under the Jewish faith. However, the divorced couple was back in the Cook County Circuit Court this week to discuss their ongoing child custody battle.

Religion is at the center of the couple’s disagreement over their current joint parenting agreement. The mother, who is in her late 30s, claims that her ex-husband has been disrupting their 8-year-old son’s religious upbringing. The father has been accused of purposely feeding his son bacon and non-kosher foods. The mother says that her ex-husband has also refused to make sure that the boy wears his yarmulke to school. In the courtroom on Wednesday, the woman said that she wants the former custody agreement revoked and is fighting for sole custody of her son.

However, the father claims that he is the parent who should have sole custody of the child. The 52-year-old man believes that the strict religious upbringing of his son may actually be alienating the 8-year-old. Attorneys representing both parents believe that either the mother or father should have sole custody because of the conflicting views over the child’s religious upbringing.

The father’s attorney said, “The question here is who is the better decision-maker.” The attorney said that he plans to bring up the couple’s past to illustrate how the mother has a history of making some “extreme” decisions. The couple met in 1995 at Chicago’s Admiral Theatre. The woman was an exotic dancer and the man was the manager of the adult club. After the couple married, they both changed careers. The father now works in real estate, and the mother has turned to Judaism.

Both attorneys have brought child psychiatrists into the case who will each testify that their client should have sole custody. Religion can complicate any child custody battle, especially when parents have differing views and beliefs. For couple’s in Illinois who are considering divorce, they may want to evaluate the benefits of family law mediation. This Chicago couple is clearly beyond being able to come to an agreement, but couple’s who are just beginning to consider divorce may be able to come to an agreement on more amicable terms. Divorce mediation is an alternative to traditional litigation and helps individuals find practical solutions to their divorce issues.

Recovering economy prompts boost in divorce filings

Earlier this year, our Lake County family law blog discussed how the recession had put a strain on many marriages in the U.S. A study had polled 1,200 married couples and nearly 30 percent reported that the recession had caused financial worries in marriages, leading more couples to consider divorce. However, 40 percent of the couples who reported that they considered divorce chose not to go through with the process because of the financial consequences.

Now that the economy appears to be on the path to recovery, divorce attorneys have reported a dramatic increase in divorce filings. The financial downturn may have prevented many couples from divorcing for several reasons. Investments tanked, creating fears that the each individual would not be able to afford living on their own income. Home values plummeted, making it difficult for couples to sell their homes. And individuals who owned businesses had to deal with another slew of financial issues. Overall, many couples decided that filing for a divorce would be too risky for one or both spouses.

The recent increase in divorce filings suggests that more couples are finally feeling less worried about their finances. However, choosing to end a marriage now may actually cost couples more. As individuals improve their financial stability, they also see an increase in the size of divorce settlements.

“There are a lot of things that you have to be really careful about in this kind of economy if you’re moving forward [with a divorce],” said the president of the American Academy of Matrimonial Lawyers. In any divorce case, couples should always be aware of the market and how that could affect the value of their assets. Each individual should have a good understanding of what assets may perform better than others in order to ensure that marital property is split fairly.

Individuals in Illinois who are considering a divorce can seek guidance from an experienced attorney who can help them understand what costs are associated with divorce and how to best negotiate the division of assets and debt.

Entrepreneurs may face higher risk for divorce

Entrepreneurs are known for pouring their hearts and souls into business ventures. They take great risks with the hopes of making their financial, physical and emotional investments pay off some day. They generally put in long hours and devote a significant amount of attention to fledgling businesses. With that kind of necessary dedication to a business venture, it is not surprising that a large percentage of entrepreneurs find their spouses feeling neglected.

Small business experts believe there is a strong connection between entrepreneurship and divorce. They claim they see the same pattern repeating over and over: those who are most successful at creating successful businesses are often the ones who struggle the most to hold their marriages together.

It is no secret that a number of factors may strain a relationship. These commonly include disagreements about finances, lack of communication, having widely different goals in life and feeling neglected. Over time, these resentments can build up and become unbearable. Eventually, they can even overpower a relationship.

Many spouses admit that it is difficult to compete with the intense passion their entrepreneur spouses have for their businesses. They sometimes tend to feel as though they are not as important as the business and feel neglected. To make things even more difficult, owning a business can bring out personality traits that the spouses have never seen before, such as bossiness, self-importance and impatience.

If spouses are not able to effectively communicate and identify ways to break down the resentment, they may find themselves searching for a divorce attorney.