To Collaborative divorce or not? That is the question:

To Collaborate or not to Collaborate,

that is the question.

Many have heard about the new collaborative divorce process available in Florida and other states. The claims from attorneys who advocate for this type of law believe that the new process is cheaper, avoids the uncertainty of a court’s decision and avoids the nastiness which comes with a contested proceeding.

Cheaper?

I must debunk the notion that collaborative divorce is cheaper than a regular divorce. The filing fee for a collaborative divorce and a regular contested divorce cost the same. Each spouse hires an attorney. Each spouse has to pay the attorney. Sometimes both spouses and both attorneys meet together. It still costs each attorneys’ hourly rate to do so.  It is true that in a collaborative, you try to agree on an expert rather than hiring two, such as a CPA. You still have to pay the CPA though.   In a collaborative divorce, the emphasis is on settlement rather than litigation. That ideal certainly benefits the spouses and their children, if they have any.  Collaborative should reduce the animosity the parties experience in a contested divorce. However, a contested divorce, the parties will still attend a mediation before a trial is scheduled. Collaborative divorces also attend mediation and yes, it costs the same.

Avoids uncertainty:

Any time two spouses settle their divorce, they avoid the uncertainty of a Judge’s decision. Again, in a regular contested divorce, the parties attend mediation where settlement can occur. It all depends on the parties.

Avoids nastiness:

When two people are divorcing, clearly they have problems with each other. Requiring them to meet often in the same room with therapists, attorneys and experts, may just throw gasoline on the fire. If two married people can be civil during their divorce, there is no reason why they cannot direct their attorney to try settlement.

Bottom line:

The ultimate downside to collaborative divorces: If you fail to reach a settlement- You cannot use your attorney or experts you hired. You have wasted all that money and time. You literally start over. You and your spouse have to hire new attorneys. My goal is for the best outcome, via settlement or trial.In the 18 years of practicing law, I’ve had hundreds of divorce cases. Only 3, were truly uncontested. Those 3 couples literally agreed to each issue. The rest fell somewhere between settling or trial. The majority of the cases will settle. I don’t recommend Collaborative Divorce because ultimately it can cost you twice what a regular case costs and you have wasted the time. Divorce should be like a bandaid.  Rip it off, don’t slowly pull one hair at a time.

I swear, she said she was 18!

In Pensacola, Spring Break brings tourists for miles. College students and high school students are a large part of them.  They meet new people and sometimes engage in sexual relations. In Florida, the age of consent is 18 years of age. For minors ages 16-17, Florida statutes provide an age-gap provision that allow a 16 or 17 year-old to legally consent to sexual conduct with a person 16-23 years of age. If a person is over the age of 23 and has sexual relations with someone ages 16-17, it is a Second Degree Felony which can require the defendant to file as a sexual offender. In Florida, a Second Degree Felony is punishable by up to 15 years in jail. The statute is gender neutral. Women as well as men can be charged.

The most important part about this post: The defender cannot shield him/her from the charge even if they did not know the age of the victim or the victim portrayed themselves to be older. Florida Statute 794.021. Don’t rely on their ID either. Our firm has defended gentlemen who saw an id, later known to be fake, stating the age to be 18.  Be careful, but if you need find yourself in this predicament, call our firm at 850-469-8118 for a free consult.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0794/Sections/0794.05.html

Is it safe to confide in my parent or best friend during my divorce?

During your divorce or custody action, everything you say to your best friend, parent or boy/girl friend can be disclosed. You don’t have the luxury we did growing up of being able to ask your friend to keep your secrets. Your best friend can be subpoenaed to court and compelled to recount your conversations.

Who can you talk to during your divorce? There are people you can talk to and not have the conversations replayed.  Your attorney cannot disclose anything you say without your permission. If you have a therapist, he/she cannot be compelled to disclose information about you. Your priest/minister/rabbi cannot be compelled to tell your secrets. Even your accountant can hold your secrets. To read more in depth on who you can talk to, see http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0090/Sections/0090.501.html

Unless your confidant falls into one of the exceptions, he or she can be called as a witness. They can be required to provide documents.  I point these hidden dangers because friendships change. Families choose sides in a family law matter. Your current spouse, if you aren’t divorcing,  cannot be required to divulge your secrets.

Talk to your attorney about your case. Attorneys are counselors at law and are accustomed to listening.  The best person to discuss your case is with your attorney and I am a good listener.

What happens if I violate my probation?

If you violate your probation you can be facing jail or prison time.  The outcome depends on what you were on probation for, the nature of the violation and other factors considered by the Judge.  Often times people on probation violate because they are arrested on a new charge.  If this is the only violation, I typically recommend resolving the new case before the violation of probation is heard.  The outcome of the new charge determines what happens on the violation of probation.  If the prosecutor dismisses the new charge, 9 times out of 10, the prosecutor will not proceed on the violation.  In that case, the probation is often restored.  If convicted of the new law violation, you face some period of incarceration.  If you violated due to a “technical” reason, such as having not paid costs/fines or completing court ordered classes, the Judge may give you an opportunity to complete these by a control date.
The Constitution of the United States guarantees you a hearing.  The burden is on the state to prove the violation.  However, the burden of proof on a violation is less than in a regular criminal case.  This makes it easier for the state to prove.
A good attorney will explore the multiple factors and moving parts/options for resolution of a violation of probation.  No attorney can tell you what the outcome of your case will be until the Judge decides. Every case is different, from the prosecutor to the Judge. It is important to have an experienced Attorney evaluate your case and provide you with all of the information necessary to make an informed decision to best resolve your case.  Please feel free to contact me, Chris Ferry, if you have any questions related to a violation of probation you or a family member/friend might have and need assistance with.
http://www.ferryandferry.com/practice-areas/criminal-defense/
http://www.ferryandferry.com/2018/02/716/

What happens after I have been arrested?

What happens after I have been arrested?
Often times people are unsure of the procedure or how the court process works after they have been arrested.  Assuming that you are given some type of bond and post it after your arrest, the jail will provide you with your first court date, which is your arraignment.  If you plan on hiring private counsel, it is wise to consult with them prior to your arraignment so that they can file a notice of appearance on your behalf and waive your arraignment, which means you would not have to attend that court date.  If you have not retained counsel prior to your arraignment, you MUST attend or the court will issue a failure to appear and will likely revoke your bond. If you go to your arraignment, having not hired private counsel, the court will inquire as to whether your wish to use the services of the Public Defender.  If you qualify financially, the court will appoint a Public Defender on your case. Procedurally, the arraignment date is when the State formally charges you with what law(s) they believe you have broken based upon your initial arrest.  At the arraignment the court will also announce your next court date which in county court (for misdemeanor charges) is called your plea day and it is typically a month or so out from your arraignment date.  In circuit court (for felony charges) the next court date is called docket day and it is typically a couple of months out from your arraignment.  In between your arraignment and your docket day, your attorney conducts discovery, takes depositions, negotiates plea offers and files any legal motions that might be available on your behalf.  Assuming the case is not resolved via dismissal prior to plea/docket day, it is your decision at that point based upon discussion with your attorney/advice from your attorney, whether or not you would like to accept a negotiated plea offer or take your case to trial.  If you have any further questions about the court process or other matters involving a crime you have been accused of, please contact me at Ferry & Ferry and I will gladly provide information based upon my 18 years of experience practicing criminal defense.
Chris Ferry, Attorney at Law
http://www.ferryandferry.com/practice-areas/criminal-defense/

Do step-parents have any rights?

In Florida statutes, only the biological parents have parental rights unless there is a court order detailing otherwise. For instance, two gay men can adopt a child, thus terminating the biological parents’ parental rights. The Department of Vital Statistics will change the child’s birth certificate listing both men as the child’s parents. If a child is born before the marriage of two parties, unless the step-parent adopts the child, the step-parent not only has no rights for parenting time after a divorce, but also has no obligation to support the child financially.  If the step-parent adopts the child, he or she is now entitled to parental rights regarding that child as if he/she was the biological parent.  See our blog for other issues. http://www.ferryandferry.com/practice-areas/family-law/The below statute gives a little guidance on who can adopt and the definition of parent.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0063/0063.html

What is 10-20-life in Florida?

In 1999, led by then Gov. Jeb Bush, the 10-20-Life statute was passed. It established bright line minimum mandatory sentences for defendants who used a firearm while committing a crime. Between July 1, 1999 and July 1, 2016, if you had a firearm on your person during a felony, you received 10 years; if you fired it, you received 20 years. If someone died during the commission of a felony and a firearm was used, the defendant automatically received a life sentence. Minimum mandatory sentences remove any discretion that a Judge usually has when a defendant is sentenced. In 2016, Gov. Rick Scott removed from the minimum mandatory sentence from the crime of aggravated assault. The previous statute included defendants who fired warning shots, or those that were not intended to cause any harm but to scare away a possible attacker.

  • As it stands today, if you carry a firearm on your person in the commission of the listed felonies, you automatically receive at least 10 years in jail:
a.     Murder;
b. Sexual battery;
c. Robbery;
d. Burglary;
e. Arson;
f. Aggravated battery;
g. Kidnapping;
h. Escape;
i. Aircraft piracy;
j. Aggravated child abuse;
k. Aggravated abuse of an elderly person or disabled adult;
l. Unlawful throwing, placing, or discharging of a destructive device or bomb;
m. Carjacking;
n. Home-invasion robbery;
o. Aggravated stalking;
p. Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of s. 893.135(1); or
q. Possession of a firearm by a felon (Only 3 years if a first possession, 10 years if more)
(If burglary of a conveyance, 3 years minimum if a firearm is possessed.)
  • If you caused great bodily harm or killed someone while committing one of the crimes above, you will serve no less than 25 years.
  • The number of years is increased if a semi-automatic firearm is used. If a defendant possesses a semi-automatic firearm, it is an automatic minimum of 15 years. If one is fired, 20 years. If one kills a person, 25 years minimum.
https://www.flsenate.gov/Session/Bill/2016/0228/?Tab=BillText
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.087.html

Where can I find divorce support groups?

 

In the Pensacola area there are at least two different churches who host Divorce recovery groups.

Marcus Pointe Baptist Church 6205 North “W” Street Pensacola, FL on Tuesdays, 6:00 pm – 8:00 pm; 
Feb. 6 – May 1, 2018

Olive Baptist Church 836 E. Olive Rd. Pensacola, FL
850-475-1147 or divorce@olivebaptist.org

Led by Stephen and Michelle Shelby
Wednesdays | 6:00p-8:00p | Room 4103.

What is the difference between an annulment and a divorce?

If you try to open a Florida statute volume, you will not find a provision for annulments. However, you can still obtain one. Judges over time have created different causes of action via case law. Florida Courts have recognized reasons why a couple can get an annulment. They are: one participant is less than 18 years of age at the time of the marriage, if one is incapable of having sexual relations, related too closely (brother, sister, aunt, uncle), or mental impairment.  The downside to filing an annulment is that you can spend the money to hire an attorney but the judge can still say no. Annulments are unlike a divorce proceeding. When you file for divorce, you may not know the specific details when you begin, but you are for sure certain that you will be single! A judge, even if your spouse doesn’t want a divorce, will grant it.

Annulments tend to be an exit route for celebrities who failed to get a pre-nup before getting hitched, i.e., Britney Spears’ 55 hour marriage. There are certain benefits. Annulments have previously been a route to avoid the declaration that one was “divorced”  There is  no stigma associated with divorce in our day and age. The advantage to obtaining an annulment however, can be huge if granted. For instance if one spouse has extensive assets and income, an annulment would necessarily disallow alimony claims. You have to have been married in Florida to claim alimony.

If you are considering an exit from your marriage, contact our firm for options.

http://abcnews.go.com/Entertainment/britney-spears-jason-alexander-reflects-55-hour-marriage/story?id=15506535

 

What’s mine is mine and what’s yours is mine?

In Florida, assets that you bring into the marriage are yours. The status of the asset can change however. If you for instance, had a house prior to your marriage, but added your husband to the deed, he is now entitled to it just as much as you. If you at the time of your marriage have a retirement account and continue to contribute to it, the portion and growth from the date of your marriage is 1/2 your spouse’s. Your salary is a marital asset. If during your marriage you put your salary into a banking account, whatever the name, it is a marital asset.
If you are contemplating marriage and have assets, you should contact an attorney to determine whether you would benefit from a prenuptial agreement. A prenup can streamline your assets if you ever divorce and give you peace of mind for your future, no matter if the marriage is successful. Hopefully, it is successful.