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.

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

Does it matter who files for divorce first?

Often, clients will ask, “Does it matter who files for divorce first?” Technically, no, it doesn’t matter. However, strategically it can.  The person who files first, named the Petitioner, will set the tone. If adultery  or misuse of money is alleged, then we know the divorce is going to be contested and perhaps hostile.

It is actually about $100 cheaper to file second. However, I find that if you are the Respondent, you are behind the 8 ball. When a divorce is filed, there are certain time deadlines that can cause stress. Within 45 days from the date of service of process, parties must give a lengthy amount of documents to the other side. Honestly, just compiling all of the documents can be stressful. If you are first to file, then in theory, you have already gotten those items together. At our firm, we do not generally file a Dissolution (divorce) unless the client has obtained all of the Mandatory Disclosure documents. (http://www.ferryandferry.com/for-clients-2/mandatory-disclosure-checklist/)

Filing first also gives you more time to plan your future, rather than being blindsided. Women are 2/3 more likely to file first. White women  are at the top of that number. This is most likely attributable to increased wages that women are now capable of earning.

If divorce is certainly on your horizon, contact us to see the light at the end of the tunnel.

http://www.forbes.com/sites/jefflanders/2013/06/20/not-your-mothers-divorce-three-21st-century-trends/#ff722dd54292

 

What can entitle a parent to sole custody?

Well if you believe Angelina Jolie, it is when the other parent yells at the children.  Sole custody or sole parental responsibility as Florida calls it, is normally reserved for those parents who are bad parents. I don’t mean just a parent who doesn’t come to every ball game or recital, but a parent who is violent or completely absent, as in one who does not have either the desire or ability to make decisions about their children. The saga that is unraveling between the Pitt’s is one that is all too common. One parent alleges abuse and the Department of Children and Families steps in to investigate. While I have seen abuse cases, I have also seen bogus attempts by a parent to use the system to their advantage unnecessarily.

The standard in Florida, at least, allows shared parental responsibility for most parents. It provides the ability for each parent to be informed about major issues in the child’s life, and to have input into the major decisions affect them. One myth, shared parental responsibility has no bearing on timesharing. One parent can have timesharing every every other weekend, but still have shared parental responsibility.

Can a parent put a tracker on their child’s car?

 

 

tracker

Trackerks are notorious for being used, I think, to follow the alleged unfaithful spouse. It is legal to do that if the car is marital property, until one of the parties either files a Domestic Violence Injunction (restraining order) or a Petition for divorce. Once either of those two happen, a spouse’s assumed consent is revoked. It is also very tempting to put a tracker on a wayward teenager’s car,  but you can only do so legally in certain situations. If the child’s name is not on the car and only the parents, then there is no question you can put a tracker on it. If the car is in the minor child’s name, you can still place the tracker but with certain limitations. Those limitations are as follows:

1.     The parents or legal guardians are lawfully married to each other and are not separated or otherwise living apart, and either parent or legal guardian consents to the installation of the tracking device or tracking application;
2. The parent or legal guardian is the sole surviving parent or legal guardian of the minor child;
3. The parent or legal guardian has sole custody of the minor child; or
4. The parents or legal guardians are divorced, separated, or otherwise living apart and both consent to the installation of the tracking device or tracking application.
Violation of this statute is a second degree misdemeanor in the state of Florida, punishable by either 60 days in the county jail or 6 months probation.

Governor Scott vetoes alimony bill . . . again

For the second time in 3 years, Florida’s governor, Rick Scott vetoed the proposed bill that would have ended permanent alimony as we know it and dictated equal time sharing for both parents. Alimony as it stands today comes in many shapes, from temporary, bridge the gap, lump sum, permanent, durational, and rehabilitative. The big issue in this bill would have established a definite length of time alimony, if the entitlement can be proven, would last. The current law has no bright line for termination of a permanent alimony payment, but it can always end if a substantial change in either party’s income is proven (absent an agreement otherwise).  It seems as if everyone wants alimony reform, but by tying it to equal time sharing, it will fail just.

http://www.tampabay.com/news/politics/stateroundup/gov-rick-scott-vetoes-controversial-alimony-bill/2273409

The ANTI- Sherman v. Daly Amendment

From 2011 until May 12, 2014, when parents exercised an informal parenting plan (specifically if a judge had not ordered a detailed parenting plan), the paying parent was not given credit in the child support calculation for their time sharing. Child support is based on how many overnights each parent has monthly, hence the more overnights the paying parent exercises, the lower his child support. Prior to the ruling in Sherman v. Daly, courts, more specifically the Department of Revenue child support courts, would consider the informal parenting arrangements when the parties agreed it was exercised. AFter Daly, the hearing officers and Judges no longer had that discretion. I am happy to report that the legislature has corrected the problem by amending the statute to allow child support to be based on a time sharing arrangement as exercised by the parents.

After being divorced for 3 years, my ex-wife gave me a Quitclaim Deed to sign, should i do it or what happens if i don’t sign?

If the house has always been in her name, (specifically the deed), she doesn’t really need you to sign the quit claim deed; however, many financial institutions (banks) require a Quit claim deed even if your final judgment of dissolution of marriage awards the house to her for instance if she were trying to sell or refinance that residence. Look at your final Order or call the attorney who handled your divorce.

Am I required to obtain my ex-husband’s permission before I enroll our daughter in ballet?

It would depend on whether your parenting plan established shared or sole parental responsibility. If you have Shared, then yes. You would need to at least consult with him on the issue. If he doesn’t agree, you can enroll the child, but try not to have it on occur on his parenting time with your daughter. He isn’t required to take the child tot he class or pay for it unless he agreed to her enrollment. Most parenting plans require that if the parent agreed to the enrollment, he/she must take the child to the activity. If you have sole parental responsibility, you can enroll the child without discussing the matter with the other parent.