Collaborative Family Mediation

Florida alimony changes: new options

2010-06-09T07:53:00.001-07:00

Florida divorce law has been given a big change with the passing of a recent bill. Florida judges now have a new option in awarding alimony. known as durational alimony. The law is designed to address situations where permanent alimony is not the best option, but is the only option available. Florida law has prevuously recognized gray area marriages- those of more than a dozen or so years- as situations where permanent alimony may not be appropriate. Now, in those situations, a Florida judge can award durational alimony. An award of durational alimony is for a period of years and can be modified or terminated.

It is too soon to know whether the law will effect cases already pending or divorce already filed or how often durational alimony will be used. When it comes to alimony, entitlement and number of years for alimony are always decided on a case by case basis. Those who have specific questions about their Florida alimony case should contact a Florida family law lawyer for advice.

Florida Courts experience backlog with child support cases

2010-03-04T08:11:00.000-08:00

With job and income losses, more and more people are filing for modification of child support. And many can't afford lawyer. It appears that the Court system cannot handle the backlog of cases and people are waiting up to six months for their day in court.

http://www.miamiherald.com/2010/03/03/1509258/child-support-cases-tie-up-courts.html?story_link=email_msg

No really, you keep it: The one asset that neither party wants

2010-01-27T05:40:00.000-08:00

In this time of recession and falling home prices, neither party wants to keep the house anymore. As this article illustrates, there are options to break the We Can't Afford the House deadlock. Word to the wise: simply quit claiming the house to your spouse does not get you off the hook for the mortgage. Make sure you are protected credit wise and against a possible foreclosure in the future.

Read the article

Lousy spouse? There's a website for that

2009-10-29T09:02:00.000-07:00

In a previous post, I discussed why posting details about your divorce on Facebook is not a good thing. For those of you who just can't get away from blogging, there is a website where you can do so and attempt to remain anonymous. I say attempt because there is no way to keep information anonymous when you post it on the internet. For those of you in the middle of a divorce, keep in mind that anything you post can and, if located by your spouse or his/her lawyer, will be used against you in Court.

Legal disclaimers aside, the website is lousyspouse.com. Its mission statement is to provide support to anyone going through the divorce process. And this includes a forum for venting about everything divorce-related- including your attorney.

Divorce Court: understanding what a Judge can and cannot do

2009-08-04T10:26:00.000-07:00

Much of the angst associated with divorce results from a misunderstanding of the court's role in the process. Many times I've heard, as a mediator and as an attorney, "I'll just take it to court", meaning the Judge will make all of this fair for me.

While the courts do strive for fairness, there are limits on what a judge can or cannot do, especially in the current challenging economic times where job losses and foreclosures are on the rise. No matter what the economic situation of a couple is, a judge cannot make a situation fair from an emotional standpoint.

One of the most important things a person can do to avoid a costly divorce is to avoid unrealistic expectations. No one will walk away "with everything" and no judge will decide if your spouse was a good partner to you. In addition to emotional expectations, a person's economic expectations need to be held in check as well.

The information below was excerpted from a divorce magazine article featuring Judge Toler, of Divorce Court fame:

The judiciary is required to provide both fairness and resolution, a difficult thing to do in a divorce. What could be more complicated than untangling lives that have been intertwined on every level for years? How can the law address all of the nuances of everyday life and the entire range of human behavior?

The answer is, it can't. Unfortunately, in order to achieve resolution, sometimes the law must make generalizations with respect to what is fair. So your court's answer to "how do we end this" may seem somewhat arbitrary. Sometimes the law simply has to say: "This is the way we are going to do things."

What the divorce courts say

Canada and many U.S. states, including Florida, have adopted child support guidelines, a mathematical formula in which you plug in the numbers (income and the like) and do the math, and out comes the support amount.

In a community property state, the court looks to divide marital property 50/50, no matter who made what during the course of the marriage.

In an "all property" state, the law may not distinguish between marital and separate property at all.

Canada and most U.S. states (with the notable exception of New York, where fault is an issue in contested divorces) provide no-fault divorces. That means the court will not consider either spouse's misconduct during the marriage in determining support or property division, except in cases where a spouse's misconduct has depleted assets.

These generalizations notwithstanding, it doesn't mean that a judge has no ability to make equitable determinations based on individual circumstances. Judges almost always have some judicial discretion. That's the leeway the law gives to judges in implementing those general rules. Sometimes, the law will give the judge the ability to consider not only the factors outlined by the statute but also any other factors that will promote a just and fair outcome. In some no-fault jurisdictions, a judge can consider a party's misconduct if that party's actions are sufficiently outrageous or depleted the marital assets. Even when the law requires judges to follow mathematical support guidelines, a judge may deviate from them in certain situations, although they are typically required to provide written support for their decision.

In sum, the Court tries to strike a balance between applying the law and being fair. But, in the end, the court gives you the most important thing of all: resolution.

Saving marriages during a recession

2009-07-31T08:03:00.001-07:00

One New Jersey family therapist took to heart President Obama's national service provision. Its a little known portion of the economic recovery plan which calls for a national service plan similar to the Civilian Conservation Corps, which was created in response to the eerily similar Great Depression. But Dr. Alan Singer is doing more to answer the call than the President requested.

In response to a blog posting criticizing the plan, Singer submitted the following:

"I want to take it one step further during these stressful times of increasing unemployment and home foreclosures. I believe it is time to think about giving one day a month to help others by using our profession skills, especially to help those who recently lost their job or their house."

Singer volunteers his services on the weekends, meeting with couples who have been hard hit by the recession and whose marriages are struggling as a result. He spends his "free" time, free in two senses of the word, helping middle aged couples address the loss of the savings and helping younger couples struggle with the decision to begin or expand a family in these tough economic times.

Singer has seen the "nightmarish" stress that unemployment and foreclosure can impose on a marriage. He said there's an overwhelming lack of hope among these victims of the recession, for whom each new day brings only a new bill to pay or resume to submit.

If Singer had his way, these marriages would all survive. His efforts will certainly help some. But, even if divorce is inevitable, Singer's efforts will help these couples deal with the reality of divorce without the negative emotions that cause people to engage in battles over property (even when there is no property to fight over) and children.

Florida’s relocation statute and proposed changes

2009-07-21T11:01:00.001-07:00

A couple of years ago, Florida lawmakers modified the relocation statute to include a rather strict set of requirements for a primary residential parent seeking to leave the state, or the geographical area, with the minor children. Currently, only the primary parent needs to take these steps prior to relocating. But, if a non-residential parent leaves the state, or moves more than 50 miles away, chances are good that the time sharing schedule with the children will change. This is often the subject of much after the fact litigation as the non residential parent moves and then seeks to modify or enforce visits with the children. A proposed change in the law may affect the non residential parent who doesn’t take steps to address the timesharing schedule before moving.

The proposed new law will require the non-residential parent to file a Notice of Relocation similar to the one a primary parent is now required to file. The notice will have to include a proposed time sharing schedule. If the parents cannot reach an agreement, the Court will hold a hearing and set a time sharing schedule which takes into account the travel distance between the child or children and the relocating non-residential parent. The Court may also address the issue of who will be responsible for travel expenses and whether the non-residential parent should receive an offset against child support for these expenses.

There is also a provision addressing the situation where the parent who moves away spends less time with the children. In such cases, child support may be modified upward to take into account the increased expenses borne by the residential parent.

It is too soon to say what provisions will be included, or whether the law will change at all. However, given the new timesharing statute and the trend towards more parents spending equal time with their children, it is clear that the state lawmakers need to set rules in place for situations where either parent moves away, especially since there is no longer a primary residential parent designation.

Recession is the right time to divorce: family law attorneys weigh in on the subject

2009-07-19T06:17:00.001-07:00

It is no secret that divorce filings have decreased in recent months. Many people believe they are in a situation where they "can't afford to divorce". However, two divorce lawyers believe differently.

According to a St. Louis attorney who describes himself as representing men in divorce, the current recession is the ideal time to divorce. If divorce is going to happen, he reasons, its far better to divorce at a time when assets and income are at their lowest.

A Tampa based divorce attorney who represents women agrees, but for different reasons.
The recession can be used to his client's advantage as well, especially in what were two income families. If a woman has been laid off from her job, it stands to reason that she will have a need for increased child support and alimony.

Its hard to say whether many people agree with the reasoning of either lawyer. One thing is clear: divorce rates in south florida have declined. In Miami-Dade County, divorces dropped from 3,239 for the first three months of 2008 to 3,196 during the same period in 2009. In Broward, the number dropped from 2,148 for the first quarter of 2008 to 1,543 for the same period in 2009.

No one can say which gender will fare better by divorcing in a recession. But the one encouraging thing I see, as a collaborative attorney and a mediator, is that many couples are not buying into this "seize the opportunity to divorce now and pay less to your spouse" mentality. They seem to recognize that their spouse may not go quietly with less money and will probably launch a counter attack, i.e. a highly contested divorce. A highly contested divorce = lots of money spent in lawyer fees. Forget dividing what is left of the 401k- it will be liquidated and divided between your two attorneys.

If this happens, the economic gain advertised by these lawyers, i.e., less assets to give to your spouse, less alimony/child support, etc., will be offset by the high cost of contested divorce litigation. As the saying goes, only the lawyers will win. It appears that many recognize this, preferring to wait to divide their union in less economically distressed times and, perhaps ironically, have decided that, at least for the present, that they are in this together.

DO IT YOURSELF DIVORCE PART FOUR: PREPARING A SETTLEMENT AGREEMENT

2009-07-02T11:49:00.000-07:00

In the last do it yourself divorce article, I discussed how reaching an agreement is only a step in the process. A parenting plan and marital settlement agreement must be prepared and filed with the Court. This is another area where do it yourself divorce participants can run into trouble. Since most do it yourself divorce participants do not have experience in drafting divorce agreements, its not uncommon to miss important details and end up with an incomplete agreement.

One of the most common omissions is a detailed parenting plan. Many people believe they will simply work matters out as they arise and do not create detailed schedules for timesharing, holidays or vacation time. Do it yourself divorce participants may also forget to discuss extracurricular activities or college expenses. If a dispute arises later, some of these items may be waived because they are not included in a settlement agreement. It is important to take the time to address each and every issue before a problem arises. A divorce attorney or family law mediator may be of assistance in helping a do it yourself divorcing couple identify and reach agreement on all children-related issues.

A do it yourself divorce agreement may also lack time parameters or specifics for the sale or transfer of property. For example, if one person is going to keep a house or other property and needs to refinance to remove the other person’s name, the do it yourself divorce agreement may fail to state when the refinance will take place. Or, if a property is to be sold, the do it yourself divorce agreement may have no language about selecting a realtor, agreeing on a sales price or what to do about repairs and expenses before the home or property is sold.

The above are only a few examples of details that may be overlooked in a do it yourself divorce agreement. It is important to be as specific as possible in order to avoid problems and disputes down the road. Anyone who has specific questions about a do it yourself divorce agreement should consult a divorce attorney.

In the next post, I will discuss the last stage of the divorce process- the final hearing- as well as the matters that come up after a divorce becomes final.

Do it yourself Divorce Part Three: Timesharing, Parenting Plans and Child Support

2009-07-02T11:11:00.000-07:00

In a do it yourself divorce, the devil is often in the details. Many potential clients tell me that their divorce will be “uncontested” and that they and their spouse “agree on everything”. More often than not, people believe this to be the case only because they have discussed the big picture and not the details. Once two people begin discussing how much money one will pay the other for child support and who will spend this Christmas with the children, a seemingly uncontested divorce suddenly becomes anything but and the desire to remain amicable is replaced with threats about going to court.

As a Florida family law mediator, I find that the biggest disputes arise over child support, alimony or time sharing. In a do it yourself divorce, even the most amicable divorcing couples can find themselves taking different sides when it comes to matters involving parenting plans, support issues, i.e., child support or alimony and children. It is common to disagree on these aspects, because, after all, you are getting divorced. Do it yourself divorcing parties often reach a stalemate on these issues. Caught between the desire to handle the divorce themselves and the mounting frustration of not being able to reach agreement, many abandon the do it yourself divorce at this point and decide to simply battle it out in court.

In part two of this do it yourself divorce series, I urged anyone with questions about finances to consult with a divorce attorney and possibly a financial professional as well. Assuming there are no questions about income, the do it yourself divorce may be able to proceed with a little assistance. Using the services of a mediator may be very helpful in resolving a disagreement and getting both sides to reach a compromise. While a mediator cannot give you legal advice (and, as discussed previously, if you have questions about your child support or alimony rights or obligations, you should consult with a divorce attorney) he/she can help you work towards a settlement that you can both live with. Using the services of a family law mediator may cost more than a do it yourself divorce, but it may save you money in the long run if you are able to come to terms with your spouse. A family law mediator can also put your agreement and your parenting plan into writing so that you have a settlement agreement to file with the court.

A disagreement about time sharing, or a parenting plan, or even how to prepare a parenting plan are all issues that can cause parties to abandon the do it yourself divorce concept. Before “taking this to Court”, as many people indicate they wish to do when a disagreement arises, both parties need to keep in mind their reasons for choosing the do it yourself divorce process. Generally, the well being of the children is the main reason for trying to avoid court in the first place. When it comes to your children, you and your spouse are in the best position to decide what is in their best interest in terms of time sharing and making decisions about their health education or well being. While you may disagree on these issues, it is rare that anyone- parents and children included- will be happy with a Court Ordered schedule. This is another situation where it might be helpful to use the services of a divorce mediator to help you reach an agreement or to prepare your parenting plan.

Keep in mind that “agreeing on everything” is not the end of the process. A settlement agreement must be prepared and filed with the Court. In the next article, I’ll discuss the preparation of a settlement agreement and how to avoid the do it yourself divorce pitfalls.

DO IT YOURSELF DIVORCE PART TWO: GATHERING THE ESSENTIAL FINANCIALS

2009-06-28T09:34:00.000-07:00

In the first article about do it yourself divorce, I discussed what to do before getting started. The next step in the do it yourself divorce process is very important in deciding whether this is right for you.

Florida divorce law requires that parties getting divorce file financial affidavits and list all of their assets and liabilities. In order to draft a complete Marital Settlement Agreement, you need to know everything you own and everything you owe. This would include all bank accounts, credit card statements and retirement accounts. It is highly recommended in do it yourself divorce situations that you obtain current statements for each and every account that you and your spouse have, whether the account is in one or both names. In a do it yourself divorce situation, you and your spouse should be on good enough terms that you share this information with one another. All of this information must be listed on a financial affidavit and both parties must sign under oath that they have provided full disclosure to one another of all assets and liabilities and that the information provided is truthful and accurate. You will need this information to decide how you are going to divide your assets and liabilities.

Once you have a Florida financial affidavit and all information about your assets and liabilities, questions may arise. Is an asset or liability marital or nonmarital? How do you split credit card debt? What happens with a retirement account that began before the marriage? What about pensions and profit sharing? A divorce lawyer can advise you about whether an asset or liability is marital or non marital. This is one of the things that should be addressed in your initial divorce consultation. Credit card debt can be a tricky issue if both parties names are on a specific credit card and the debt is to be split. In a do it yourself divorce situation, you need to think about how you are going to divide this debt and how you will protect yourself and your credit if your spouse does not pay his or her share. When it comes to retirement accounts and pensions, you may want to consider hiring a financial professional to perform a valuation of the account, pension or profit sharing. You should also speak with your divorce lawyer about your obligation to divide these assets or your rights to a portion of these assets.

The Florida financial affidavit also requires that both parties list their incomes. What happens if you do not know your monthly income? This is a common question for business owners or those who are paid by commissions. In those situations, it is important to speak with a financial professional, such as an accountant, to get advise regarding how to calculate your monthly income. If you have questions about how much your spouse earns, you should address these questions with a divorce lawyer or an accountant.

These are just a few examples of questions and issues that may arise during the do it yourself divorce process. The financial portion of a divorce may be the most challenging aspect in the do it yourself divorce process. The important thing to keep in mind is that many decisions you make in this part of the process may be binding and non-modifiable so it is crucial that all of your questions are answered before you proceed. If you have questions or concerns about these or other financial aspects of your divorce, speak with your divorce lawyer or accountant before making any decisions about dividing property, assets and liabilities.

Do it yourself Divorce Part One: Know Before You Begin

2009-06-28T08:40:00.001-07:00

Do-it-yourself divorce is becoming more popular these days, especially among those who feel that they can’t afford to divorce. Many divorcing couples also fear that hiring divorce lawyers will lead to emotional and costly battles over children, property and finances, so they are opting for the do it yourself divorce. There are a wide range of options for DIY divorce, including using an online divorce service, obtaining a large pile of divorce forms from the Clerk’s office, mediation or hiring a divorce lawyer to draft or review a Marital Settlement Agreement. The DIY divorce may not work for many, but it also may be the only financially feasible option for those who cannot afford to divorce. No article can take the place of legal advice- but this five part series will give some tips for the do-it-yourself divorce process.

Before embarking on a do-it-yourself divorce, it is important to know what the issues are and what you can and should expect in terms of timesharing, support (child support and alimony, if it applies) and dividing property and liabilities. It is highly encouraged that the first step should be to consult with a divorce attorney. While this is the step that most do it yourself divorce seekers want to avoid, it is crucial to have an understanding of divorce law and your rights. Too many times people in do it yourself divorce situations enter into a settlement agreement and forget to include things only to find out later that either they have waived their rights or that they will now have to spend even more money clarifying their Marital Settlement Agreement. A free divorce consultation may sound tempting, but will likely be a brief meeting with little information provided about how to go forward with the divorce process. It is recommended that you have a thorough initial consultation with a divorce attorney to discuss your children, proposed timesharing, your income, assets and liabilities. During this initial divorce consultation, a divorce lawyer can give you suggestions on how to divide property, calculate child support and divide assets. A divorce lawyer can also discuss with you the information you need to gather in order to make decisions as well as the potential problems that may arise. The cost of an initial divorce consultation may be a small price to pay considering what is at stake.

During an initial divorce consultation, there are several items that must be addressed. If you have children, your divorce lawyer should explain to you the changes in Florida law regarding parenting plans and time sharing. Florida law now requires a parenting plan in all divorce cases, so your do it yourself divorce plan should take this into consideration. You can also discuss with your divorce attorney whether or not to include extras such as college tuition and extracurricular activities. During the initial divorce consultation, your divorce attorney can also review the particulars of your financial situation, especially the big concern for most do it yourself divorce seekers, which is the residence. Your divorce lawyer can discuss with you whether you should keep your house or sell it, who will live in the house until it is is sold and how you will pay not only the monthly bills but any expenses and repairs that arise. In order to have a complete Marital Settlement Agreement, you need to be aware of these concerns.

These are just a few of the concerns you need to discuss with a divorce lawyer. There may be more depending on your specific situation. In the next article, I will discuss how to become familiar with your financial situation and how to deal with questions about assets, liabilities and income.

The information included in this article has been prepared by Lori Barkus, Esq. for information purposes only and is not intended to be a substitute for legal advise from your own legal counsel. Transmission of such information is not intended to create, and receipt does not constitute, an attorney-client relationship between Lori Barkus, Esq. and the receiver. No information in this article should be acted upon any person, entity or firm without first obtaining proper legal advise. Please feel free to contact us for a free case evaluation. However, be advised that the act of sending electronic mail or any telephone communication with Lori Barkus, Esq. or Lori Barkus P.A. does not in and of itself create an attorney-client relationship.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements or articles written by the attorney. Before you decide, ask us to send you free written information about our qualifications and experience.

Facebook and divorce: How to Twitter, post and status update your way into family law peril

2009-06-16T08:22:00.000-07:00

A recent article in Time Magazine about Facebook and divorce reported some not too surprising findings about how a divorcing party’s facebook posts lead to further legal troubles. (http://www.time.com/time/magazine/article/0,9171,1904147,00.html?cnn=yes)
It is a common practice to post details of one’s life on a website such as Facebook or Myspace along with personal information such as relationship status, photos and, apparently, comments about divorce proceedings. What divorcing posters (and postees- those who are being posted about, that is) need to keep in mind is that this public information may find its way in front of the judge who will decide how you share time with your children, how support will be paid and what assets and liabilities need to be divided.

During the high emotion throes of a divorce, it may be tempting to update your facebook status with a rant about what a bad person your soon to be ex is or to send a post into Twitter cyberspace notifying all interested and non-interested persons of this information. But, before doing so, keep in mind that, if it can be seen by the public, it can be printed by your spouses attorney. For those of you thinking, so what, bear in mind that the Judge deciding who will promote the relationship between the children and the other parent is likely not to see this as harmless venting. This is especially true where there are children who are old enough to access a computer and savvy enough (as more and more young children are these days) to search and find such posts. Venting and losing your cool during an emotionally stressful situation are understandable; posting your thoughts on a medium where they will be around for eternity and accessible to your children are not, at least not from the point of view of the person who may be called upon to preside over this aspect of your life.

What about the rest of the picture? It might be harder to convince a judge that you cannot pay that large amount of support when you are “tagged” in photos from a recent vacation or that there are no assets to divide when you inform the cyber-world of your recent purchase of a boat, motorcycle or car or that you didn’t commit marital waste (spend marital funds on another person or relationship) when there are photos of you and a significant other at a restaurant, out on the town or on that vacation mentioned above.

The bottom line is that what’s posted on the internet does not always stay on the internet. And, even if none of this surfaces in a divorce proceeding, your children may find it.

The myth of 50/50 timesharing

2009-05-29T08:12:00.000-07:00

Since the passing of the new parenting bill, many have believed that Florida is now a 50/50 time sharing state. While the words "custodial" and/or "primary residential" parent are no longer used, this does not mean that children will spend equal time with each parent in each and every case.

First, Nothing in the Florida law says that there is to be equal time with each parent. Instead, the law makes it clear that timesharing is to be determined based upon the unique circumstances of each and every family. There are several factors which judges need to review in order to make this decision, including, the amount of time each parent spends with the children and the amount of involvement in specific parenting tasks. The simple statement by a parent that he or she wants 50/50 timesharing simply is not enough.

Second, as most of us recognize, there simply cannot be a "one size fits all" approach to parenting. What works for one family may not work for another. It is also important to keep in mind that the standard is what is in the best interest of the child. Although this would seem to be on everyone's mind, those that fight to divide their children's time to be exactly equal may be ignoring the wants and needs of the particular child or children. How much time a child spends with either parent depends on the age of the child, the activities of the child and other factors. This does not mean, and judge would appear to agree, that it is always in the children's best interest to spend only alternating weekends with one parent either. The bottom line is that any parenting plan and timesharing schedule needs to be tailored to the particular family, with special consideration to the needs of the children involved

The pitfalls of paternity

2009-05-14T11:28:00.000-07:00

Unmarried couples having children has become more common. While parents have many of the same rights they would have if they were married, enforcing these rights is more difficult, especially if paternity has not been established. The following are a few examples of things that mom and dad should take into consideration:

1. Establishing paternity: If dad's name is on the birth certificate, there is a presumption of paternity. However, for visitation and child support purposes, additional steps need to be taken before support is awarded or visitation is established.

2. Moving away: This is one of the most common reasons why people contact my office. Mom and dad are no longer together and the person with whom the child lives wishes to move away, or, in some cases, simply packs up and leaves. Without a court order on paternity, the parent seeking to prevent the move may face even greater obstacles.

3. Child support: Many moms and dads tend to forget that a child support obligation begins at the child's birth (although, in certain situations, dad can be held responsible for some of mom's medical expenses while pregnant). This means that, if there is an action brought for child support when the child is, say, 6 years old, retroactive support will be awarded for the prior 6 year period, with credits allowed for payments to the parent seeking support that can be proven.

The above are just a few examples of the pitfalls of paternity. Anyone- whether mom or dad- who has a child with an unmarried partner and who has questions about their rights and responsibilities, is encouraged to contact an attorney to find out more information.

Florida divorce filing fees to increase- up to $2,000

2009-04-28T10:47:00.000-07:00

In July, 2008, the legislature approved an increase in filing fees in family law matters. The cost of filing for divorce went up to $409. But, much like the airlines, add on fees applied. There is now a $10 fee for a summons to serve the other party and a fee of $295 to file a counterpetition. But the proposed bill will increase these fees above what many might be able to afford.

The proposed legislation calls for an increase in filing fees based on the "contested value" of a case, including family matters. In a divorce, the "contested value" presumably means the couples assets, such as the house, the retirement accounts, etc. In cases where the "contested value" is $250,000 and up, the filing fee would increase to $2,000. For those with assets of $50,000 but less than $250,000, the filing fee will increase to $1,000. This might give those whose homes have declined in value a reason to celebrate.

The legislature is clearly aware that many people, in these economically strapped times, have decided to postpone getting a divorce. If this little publicized piece of legislation were to go into effect, those who are waiting to do the inevitable may face quite a surprise at the time of filing.

Yours, Mine and Ours

2009-03-11T07:42:00.001-07:00

One of the most popular misconceptions I hear is about separate accounts. Many people seem to believe that by simply placing an account in their own name, it is non-marital property. I also hear the same rationale for debts, especially credit card debts. Many people seem to believe that, if a credit card is in the name of one spouse only, that debt belongs to that spouse. This is not always the case.

Under Florida law, a marital asset is anything acquired or enhanced during the marriage regardless of how it is titled. Basically, every dollar earned during a marriage belongs equally to both parties. If one spouse has a separate account and deposits his/her paycheck that was earned while the parties are married into that account, the account now has marital funds. Even if the account was opened prior to the marriage and was, at one time, a non marital asset, there is now an issue with commingling of the funds in that account. The same may be true for retirement accounts.

When it comes to credit card debt, just as money earned during the marriage belongs to both parties equally, debts that were acquired during the marriage are the equal burden of the parties. At least, this is the starting presumption. There are several factors that can affect whether the debt is marital and how it should be divided, and paid for, especially when it is in the name of one party and not both. And it is also important to keep in mind that, even if a Court Order or settlement agreement states that a party is responsible for a debt, this will not stop a creditor or collection agency from collecting from the party whose name is attached to the debt. If the debt cannot be transferred to the party who will be responsible for it, there must be some safeguard in place to protect the party holding the debt in case the other party does not pay.

The above is intended for general information purposes only and should not be considered legal advice. It is highly recommended to consult with an attorney before making any decisions or signing any settlement regarding the division of assets or liabilities.

Should I stay or should I go?

2009-02-02T07:47:00.000-08:00

At times, divorce attorneys are asked by clients whether the client should end his/her marriage. Although I will discuss the legal and financial consequences of either decision. I do not believe this is a question an attorney should answer. Instead, I tell clients that this is an extremely personal decision that only they or their spouse can make. I also suggest speaking to a mental health professional.

The following is an article written by such a professional, reprinted with permission by Divorce magazine.

Knowing If You Should Stay or Go
by Susan Pease Gadoua, LCSW

While there are no quick, easy answers and no "one size fits all" reasons to offer, I will give you parameters within which to gauge whether or not you should remain married to your spouse or leave. I can't give you your answer. I can only guide you to find your truth for this moment. Your part will be to follow along and read with honest introspection so you can identify your answer.

When I meet for the first time with a client who is considering divorce, I can often get a sense of whether the scales are tipped toward staying or leaving from the reason he or she gives for wanting to stay married.

If the desire to stay married is based on moving toward a goal, the person is more likely to stay married; for example, "I want to raise my children in one house with two parents" or "I want to work on my anger issues and get on the other side of them."

On the other hand, when people explain that they are staying in the marriage to avoid pain or fear, this indicates that the marriage hasn't much glue, and such marriages aren't as likely to endure; for instance, "I'm staying because I'm afraid of not seeing my children every day," "I don't know how I'd make ends meet without my spouse," or "No one will ever love me like this again."

Once I hear the reasoning for staying in the marriage, I ask why the client might want to get a divorce. The same rule applies: those who are contemplating leaving to move toward a goal are more likely to actually leave than those who are averting pain or potential consequences. Examples of going toward a goal or away from a fear are "I want more out of life than staying in an unhappy marriage" or "I need to get away from this abuse."

Even though all of these reasons have merit and sound powerful, you may wonder how I know that the person who is moving toward a goal will more likely take action than the one who is running away from or trying to avoid pain. The answer is simple: fear.

Those who are motivated primarily by avoiding pain are usually fear-based people. These people see the world through the eyes of whatever problems and negative repercussions might arise from their actions. They are often imprisoned by their fears, not only as they pertain to deciding whether to stay in or leave their marriages, but in all areas of their lives. These people will more likely stay small, unhappy, and unfulfilled with the thought that they will remain safe.

Action-based people have the opposite view of the world. When they set their sights on a goal, they see what opportunities and benefits might come from moving forward. These people are more willing to take risks and go for what they want. They will also less likely settle for less than what they believe they deserve.

Of course, you can be partially both fear- and action-based, but whichever mode is dominant will usually win the arguments in your mind about whether to stay or go. The good news is that these aspects are not necessarily set in stone. If you are primarily a fear-based person but would rather be action-based, you can push through your fears and accomplish your goals. Most people need some training or support to make these changes, but it is an alteration that anyone can make.

In addition to examining fear-avoidant versus goal-oriented behaviors in the decision-making process, I look at whose needs are driving the decision. In a decision as big as whether or not to stay married, it is imperative that you consider the possible ramifications your leaving may have on others, but you must also balance that with your own needs. Where I see people go wrong in such a decision is when they forgo their own needs and focus primarily on meeting the needs of their spouses or children, or, on the contrary, they consider only their own needs and ignore the potential impact on their children and spouses.

I've had countless clients tell me that they don't want to divorce because they are afraid of losing the co-parenting relationship or their spouse's income, only eventually to realize that they alone already carry the load of responsibilities. The spouse doesn't contribute to the marriage but, rather, takes from it.

On awakening to this fact and confirming that they had done everything possible to improve their relationships, most of these clients immediately filed the divorce paperwork. And for almost all of these folks, letting go of the unhealthy relationship was the best decision they'd ever made. Rather than becoming harder, life actually got much easier, because they no longer had the added burden of taking care of the people who were supposed to be their partners or dealing with the many negative emotions their spouses elicited from them. What they had feared prior to taking action never manifested. They realized that they had postponed their own fulfillment and happiness for months, sometimes years.

The Workability Factors
There are certain factors that suggest a relationship is workable and salvageable. There are other factors in marriages that, if present, indicate a low probability that the relationship will ever be healthy or fulfilling. I call these the workability factors.

If both parties are willing to put in the work that the marriage requires, the chances of the problems and issues being resolved increase dramatically. However, even when both spouses want the marriage to last, there are some situations that lack enough of the necessary ingredients to keep it afloat.

The marital hierarchy of needs consists of five levels of needs: survival, safety, love, esteem, and actualization. The workability factors are really only pertinent to the three middle-level needs -- safety, love, and esteem needs -- because if a marriage has descended to survival mode, it is, by definition, not a workable situation. On the other hand, if a marriage operates at the actualization level, it is a highly functioning marriage, whose lower-level needs are met.

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Susan Pease Gadoua, LCSW is founder and executive director of the Transition Institute of Marin, an agency that provides coaching, therapy, and workshops to people who are at some stage of marital dissolution, in the greater San Francisco Bay Area. This article has been edited and excerpted with permission from Contemplating Divorce: A Step-by-Step Guide to Deciding Whether to Stay or Go (New Harbinger Publications, 2008).

Divorcing when times are tough

2009-01-18T06:18:00.000-08:00

Its no secret that money is one of the biggest stressors and topic of frequent arguments. In the present economy, most people are concerned about, if not completely frightened over, their financial situation. Concern leads to fighting and, in unions which were already rocky, the present economic woes are enough to bring things to an end. But, with layoffs happening or looming, houses not selling and their values decreasing more and more each month, many people are becoming stuck between wanting to end their marriages and not being financially able to do so. More and more couples find themselves in this situation. And the frequently asked question is: what do you do when you can't afford to divorce?

The first step is to figure out where you are financially. I advise clients to write out their monthly financial expenses and figure out their present monthly need. Once you have that information, you are in a much better place to make decisions. The next step is to separate the fixed expenses such as monthly mortgage and taxes from the discretionary ones such as cable and cleaning service and figure out which can be reduced and which can be eliminated altogether. This gets you to the actual bottom line amount needed on a monthly basis.

For many people these days, it would be difficult or impossible to pay the monthly household expenses on one income, even with reducing or eliminating those expenses. If one person moves out, he or she now has to pay rent and utilities elsewhere, meaning that there is not enough money to go around. If this is the case, then asking or forcing your spouse to move out of the house immediately simply will not work.

In a previous post, I offered some suggestions for those who need to continue living together during and after divorce. In this post, I'll address more of the practicalities such as bill paying and separating finances. While it is easier to maintain a joint account, deposit all funds into that account and pay bills jointly, this situation may not work for some. It leads to disagreements about the discretionary spending of each party. Once a couple has separated, neither party wants their earnings to pay for the other parties meals out, shopping or other forms of entertainment. If a couple is going to be living together for an indefinite period of time, such as, until the house sells, a preferred course of action may be to split accounts rather than maintain completely joint funds. Both parties can pay the joint living expenses such as the mortgage and utilities and agreed upon children's expenses and can do so from a joint account. But personal charges and spending should be kept separate and paid from separate funds.

Another suggested course of action is to separate credit cards. Hopefully, each party has at least one credit card in their own name or enough credit history to open one. Removing each other as a signer from the credit cards in the name of the other may also be recommended. A joint credit card can be used to pay agreed joint expenses and separate cards can be used for each party's personal expenses.

Equity lines, if you still have one these days, should only be used by agreement and for joint expenses. Keep in mind that, if you file for divorce later on, or have already filed, you will have to account to your spouse, and vice versa, for any funds removed from an equity line. Withdrawing funds from an equity line without telling your spouse and/or using them to pay your separate debt and expenses will cost both of you in the long run. This will only create confusion, anger and more attorneys fees spent in determining how the funds were spent.

If you have a car with a high monthly payment, look into selling or trading it in, if possible. This may not be an option if you owe more than your car is worth. But if there is some equity, even a minimal amount, you may be able to lower this payment and reduce your monthly expenses.

If you own a house that neither of you can or want to maintain, consider your options carefully. Find out the present value of your home and the likelihood of it being sold. Ask a realtor for a list of recent sales of comparable homes and the selling prices. If you owe more than your home is worth, talk to a bank representative or other professional about your options.

Keep in mind that the above are only suggestions and not legal advice. Every situation is different and what works for one couple may not work for another. Before taking any steps to separate finances or reach an agreement with your spouse about how to pay bills and how much should be paid by either party, it is extremely important to seek the advice of a financial or legal professional.

What Florida’s parenting bill will and will not do

2008-10-07T12:42:00.000-07:00

I received numerous comments on the last blog entry, most equal in their convictions either for or against the new law. Based on the comments I read, there appears to be confusion as to what the new law actually does.
First, the law does not automatically provide for joint and rotating custody. This is the most important misunderstanding that needs to be correct. The law rewrites the entire statute, eliminating phrases such as “primary” and “secondary” parent as well as the words “visitation” and “custody”. These concepts were viewed as insulting to parents and often caused parties to litigate over who would receive which label. The “new” concept, really not new at all, is that both parents have the right to parent their children and share time with them. This only means that children are not viewed as possessions and parents as having a rank in terms of importance. We begin with the premise that both parents are equal in their children’s lives.
When it comes to the timesharing arrangements and the parenting plan, the court will still, as it has always tried to do, take into account the best interests of the children. The new law left out language about joint and rotating custody and, instead, gave judges a checklist of factors, some old and some new, to evaluate in determining time sharing between the two parents, including the history of involvement by both parents. This, of course, assumes that the judge has to make that decision and I’ve never met a judge who wanted to do that. There is no aspect of a divorce that parties are more strongly encourage to work out on their own than the time they spend with their children. And the new law has given them yet another way to encourage parties to do that.
In all Florida divorce cases where there are minor children, the parents are required to submit a detailed parenting plan. The plan specifies who will do what and the where’s and when’s of the parents interaction with their children. This portion is still being fine tuned by the legislative portion of the Florida Bar, but the goal is to eliminate conflict over who drives to soccer practice, whether the children contact mom or dad on their cell phones and a multitude of other issues which would previously have to be addressed in front of a judge, at a cost of two lawyers and a good deal of wait time.
Last, but not least, the new law provides a form of recourse when either parent does not abide by the time sharing schedule. This is designed to eliminate a situation where one parent seeks additional time with the children to avoid paying the full amount of child support which would otherwise be required.
It is too early to say how the judges will apply the new law. That information will come in time. But the hope is that the new law will eliminate many of the bitter contested battles that have plagued family courts, families, and, most importantly, children.

Changes in Florida's custody law: No more primary residential parent and more

2008-06-30T14:48:00.000-07:00

There are big changes coming just around the bend for those who are getting divorced. Under current Florida law, one parent is designated the “primary residential parent”. The primary residence is where the child will live most of the time. The other parent spends time with the children also pays child support according to Florida guidelines. As of October 1, this will change drastically. A new law will go into effect doing away with both the concept of custody as well as the primary parent designation.

What does this mean for parents and children? For the latter, it means more time with each parent. The “standard time sharing”, defined as every other weekend and one night per week with the non-residential parent, is not longer standard or automatic.
While the new law does not expressly create a presumption for joint and rotating custody and does not state that joint custody will be awarded in every situation, it makes it easier, and more likely, for judges to award equal time to each parent. Although this law will not take effect until October 1, judges are already beginning to look at custody, or time sharing, differently.

The new law will also affect child support. Currently, Florida law provides guidelines for the amount of child support to be paid by the non-residential parent. However, when both parents spend an equal amount of overnights with the children, or the paying parent spends at least 40% of the overnights with the children, child support is substantially decreased. In some cases, where parents earn similar incomes, child support can be minimal or nothing.

The new law will also require parents to prepare a detailed parenting plan to be approved and enforced by the court. A parenting plan is a written agreement which spells out time sharing, decision making and communication between parents. This law is designed to provide parents with a written document which sets out the details of their spending time with and handling decision making concerning their children. The goal is to eliminate spending time and money on the numerous child-related issues which arise during divorce. Parenting plans can also resolve by agreement even the relatively minor (from the court’s standpoint) issues such as who will pick up children from soccer practice and who will pay for camp clothing and piano lessons.

It is hard to say with certainty what impact the new law will have on parents and divorce. But it is important to be aware of these changes as they will affect current and future divorces. Anyone currently going through a divorce, or who believes it is a possibility in the future, should seek advice as to this new law and how it will affect the most important aspect of their lives- their relationship with their children.

An interesting article on collaborative law

2008-06-11T11:11:00.001-07:00

Collaborative family law has been in the news recently, with Robin Williams and his wife publicly stating that they are committed to the process. Another article from NJ is reproduced below.

McGreeveys: A model of how not to break up
Posted by djcohen June 11, 2008 07:08AM
Can this divorce be saved?

As the court battle between former governor Jim McGreevey and his wife, Dina Matos, is putting the "ugh" in ugly, other couples may wonder how to recuperate after a similarly brutal split.

Yet it is possible for divorcing parents to rebuild a functioning relationship -- even if the divorce itself has piled on the hurt, divorce experts say.

The highly publicized McGreevey dispute has even served as a wake-up call for at least a few couples who have realized this is a road they don't want to go down.

"They see that on TV and they say, 'We don't want to be like that. We know we can't be like that,'" said Linda Piff, a Wall Township attorney who specializes in "collaborative divorce." She reports an uptick in calls from clients who cite the McGreeveys.

In a collaborative divorce, both sides agree to avoid formal litigation as a means of deciding custody and support issues. Instead, a negotiating team includes one accountant instead of his-and-her dueling accountants, one child expert instead of two.

Its goal is a divorce that is quicker, cheaper and less destructive to the parties and their children.

In a litigated divorce, nearly anything about the relationship can be turned into a weapon. Collaborative divorce lawyer Christine Heer, of Bridgewater, cites the example of one parent who rarely puts the kids to bed. That arrangement may have been fine during the marriage.

"Now, in the divorce, it's a huge flaw and makes someone not qualified to have overnight parent visitations," she noted.

But even couples who stick with a traditional divorce can take steps to keep bitterness and rage from calling the shots:

Think of the future. Spouses should envision the day they become grandparents, advises Carolyn Ellis, author of "The 7 Pitfalls of Single Parenting: What to Avoid so Your Children Thrive After Divorce."

How do they want that day to go? What kind of relationships do they want to have? Working their way backwards, what steps should they take now to get on a path towards that goal?

Look at your own role in the failed relationship, says Ellis. Most people resist this step, but it is an essential one. "The common denominator in all our relationships is ourselves," she says. "You can get lessons out of this relationship -- or you can get them out of the next one."

Grieve, said Mary McCarthy, a Manasquan social worker who serves as a "divorce coach" in collaborative divorces. "You have to first acknowledge that divorce is a grief process. You're losing a role -- the role of a wife or husband. You're losing a lifestyle. Perhaps you're losing hands-on parenting time," she said. "When people are shown how to recognize that, they don't get so crazy."

Know that the courts can't make you emotionally whole. "It becomes all about winning and losing. People get caught up and they think, 'This is the only way I'll get justice,'" said Heer. "But the courts can only do so much."

Heer, who is also a licensed therapist, helps run a workshop called "Divorce and New Beginnings" at Bunker Hill Consultation Center in Princeton. It is designed to help people put divorce behind them. (There are cases in which one spouse keeps returning to court after the divorce, constantly seeking adjustments to the settlement. "Sometimes they do what I call 'litigation-stalk' the other person," Heer said.)

Realize that a protracted court battle merely continues to give the other person power over you. "Some people have that old habit of looking to that one person to give them something they may not be able to provide," said Ellis. Trying to extract an apology or get someone to admit they were wrong is a waste of energy.

Lower your standards on the small stuff. For example, McCarthy said she often finds that mothers resist weeknight visitations at Dad's. The moms complain homework doesn't get checked, or hair doesn't get shampooed. "I tell them, 'You have to look at 'good enough.'"

A mother who bites her tongue over trivial complaints will eventually be rewarded for her discipline. "In the long term, she won't become someone who's always running negative propaganda against her ex," McCarthy said.

By contrast, going to the mat over every issue, no matter how petty, is a surefire map to becoming stressed, exhausted and physically ill, said Ellis.

Know the intense feelings triggered by the divorce case will pass eventually. "Divorce has its tempo, and until that gavel comes down, you're in the fight for your life," McCarthy said. "But once that gavel does come down, you get a little more clear-headed."

We can’t afford the house and a divorce- the impact of the housing crisis on separation

2008-04-25T09:02:00.000-07:00

Its becoming a sadly familiar scenario. A couple can barely pay the mortgage and expenses every month with their joint incomes. Divorce is on the horizon. The parties want to separate but cannot afford to live apart. What is there to do?

Unfortunately, there is no magic solution. Neither judges nor lawyers can make a house sell or create more money than that which exists. We can only deal with what is there. Mortgages and expenses must be paid. And, if there isn’t enough money to go around, those who desire to separate may have to continue living together. Needless to say, this is far easier said than done. The stresses which may have caused the parties to split up are now keeping them under the same roof. The tension, which has already escalated reaches an all time high and there is no immediate out.

But this doesn’t mean that the situation must escalate into a scene from “War of the Roses”. Here are a couple of ground rules which can, and should be followed in these situations:

1. Sell, even if it means selling out: If it simply isn’t financially feasible to maintain the house, it needs to be sold. Yes, the housing market is a dreary place for sellers these days, but there are situations where parties must simply cut their losses. Engage the services of a trusted realtor, accept their suggestions as to listing and selling prices and be willing to lower the price even further. The goal in these situations is to get the house sold as soon as possible, not to realize maximum profit on the investment. Sell at whatever price a buyer is willing to buy (and cross your fingers that the buyer can obtain financing).
2. Separate as much as possible: You still need to live with your spouse during this time, but it is crucial that both of you create as much personal space as possible and respect each other’s boundaries. One of you remains in possession of the master bedroom and the other takes over a spare room. Each of you is permitted to lock the door on your new “residence” and neither enters the space of the other. While this may be painfully reminiscent of your college dorm room days, keep in mind the situation is temporary and it’s the best you can do under the circumstances.
3. Communicate, as little as possible: Keep your communications limited to matters concerning children, if you have any and/or bills and expenses that need to be paid. Avoid any other topics- divorce and the reasons behind it, what your lawyer said to you today, what your friends/family think of your spouse, etc. If a discussion becomes heated, you both (or one of you if the other is unwilling) need to each go to your own rooms. If communication becomes impossible without strain or shouting, limit your communication to email only.
4. Respect your neighbor: If you were living with a roommate, you would be courteous and not play music too loud, be unnecessarily noisy in the early morning or late evening hours or question the activities of your roommate. The same rules apply to the present situation. Do not use this situation as an opportunity to goad your spouse into an argument or you will only make the situation worse.

The above is clearly not a good situation, but one that is becoming more common in the current housing market. In pending divorce cases, I have incorporated the above groundrules into agreed orders which was signed by a judge, which forces the parties to comply under penalty of sanctions. Sometimes it even works, although no one is particularly happy about it. It has, in some instances, encouraged parties to aggressively market their homes for sale.

Shhhh... your children are listening

2008-03-24T15:55:00.000-07:00

Many couples go to great lengths to hide an imminent separation and pending divorce from their children. For emotional and financial reasons, spouses continue to live in the same house, while struggling over how, where and when to break the difficult news. Couples who have not yet decided to divorce face the most difficult dilemma of all. It is seemingly impossible to talk to your children about divorce where no decision has been made. This is a common concern faced by many who are contemplating separation or divorce.

What many couples do not realize is that, no matter how hard they struggle for civility in front of their children, the secret is already out. Children are extremely adept at sensing the tension between their parents. More so than parents, especially those struggling with their own emotional pain, often realize.

Children do not have to hear their parents argue to sense that something is amiss. Often, it is the silence, the forced civility and the air of tension at mealtimes or when their parents are in the same room that serve as clues. Small children may not be able to understand what is happening, but they can sense when their parents ties, which represent their sense of security, are threatened. Teenagers, seemingly self involved in their world of friends, electronics and text messenging, have an even better understanding of the dynamics and often receive the news as confirmation of what they already suspect.

I have spoken to several therapists about the difficult issue of how and what to tell the kids. The consensus appears to be that children should be told only the basics and only to the extent that their parents know their decision. Spouses who decide to separate need to tell their children they will be living apart but be upfront about the fact that there has been no decision to divorce. The children’s primary concerns, in cases of separation or divorce, are whether they will continue to see the parent who is leaving the house and whether their surroundings and activities will change. Parents should answer these questions honestly and stress that, even if living situations will change, the children will still have contact with the parent who is moving out and that, as much as possible, the parents will try to keep things such as home and school the same for their children.

There is no good time, place or manner for discussing divorce with children. Being upfront, age appropriate and creating an open line of communication are extremely important. And don’t be surprised if your children are not surprised to hear the news. Your kids see and hear everything, even the unspoken words.

The Seven Deadly Sins of Divorcing Men

2008-02-08T09:03:00.000-08:00

Seven Deadly Sins of Divorcing Men

In the last article, I listed the seven common mistakes women make in the midst of a divorce. Men are also prone to errors that can have a lasting impact on their divorce settlements or lives beyond the final judgment. Below is a list of the seven deadly sins of men, or Dad’s, or Ex-Husband’s, whichever the case or appropriate label may be.

1. Fighting for principle: “I will go to court at all costs” and “it is the principle of the thing” are two statements I hear from male clients in negotiations gone south or cases headed to trial. While I never have and never would tell anyone to go against their principles, I caution divorcing clients about the price tag attached to their principles and whether the value gained is worth what is lost as a result. Anyone who finds themselves fighting for “the principle of the thing” should ask themselves what they are really fighting for and if the “at all cost” is worth it.

2. Underestimating child support expenses: Florida’s child support guidelines are supposed to be the anticipated amount each parent should contribute towards the support of their children. But I have seen few, if any Moms or Dads who feel the child support number is “just right” or even right at all. On Dad’s side, there is a common misconception that child support payments are used to fund the now extravagant lifestyle of Mom, rather than benefit the children. In the average household, this is simply not the case. In many instances, child support covers food, clothing, housing and all those little extras that come along, such as school field trips, projects, lunch money, etc. As all parents know, those expenses really do add up. Unless Dad is a professional athlete or celebrity, the guideline amount, while not exactly right in either party’s mind, will not allow Mom to purchase diamonds and firs.

3. The joint custody battle: Websites are devoted to this topic and it’s a popular question in my office as well. When Dad comes in and states that he wants joint custody, I always ask what that means to him. I then ask if he’s comfortable committing to living within a short distance from mom and the kids until they reach 18. In a good number of cases, rotating custody works quite well. But there are those who do not understand the concept or who think they are limited to either “joint” custody or being the “weekend dad”. Unless there are extraordinary circumstances to justify sole custody, Dad remains a decision maker, stays in frequent contact with the kids and continues to coach soccer, softball or any other activities he enjoyed with the kids, with or without “joint custody”. There are many alternatives in between the seemingly all or nothing positions and it is important that Dad know about and consider these options before taking a stance or declaring a “custody battle”.

4. Taking control: While more and more marriages involve equal income earners, or Mom’s outearning Dad’s, this is a popular mistake made by divorcing Dads in what are usually labeled “traditional marriages.” Dad is the breadwinner and decision maker. This Dad may not want to give Mom her share of assets or child support or alimony, whatever the case may be, as Dad believes Mom will not be financially responsible. This Dad forgets the Declaration of Independence portion of divorce- the concept that both parties live separate and free. Mom is responsible for herself, and the kids if the kids live with her. Courts do not allow Dad to monitor Mom’s spending and do not require Mom to account to Dad for this spending. The judge will impose this requirement and fighting for it is a sure way to lose.

5. The alimony dilemma: There are many alimony jokes for a reason. No one likes to pay it. This includes men and women, who are paying alimony more and more these days. But, in that “traditional” model again, its Dad paying alimony to Mom, or, in cases where there are no children, Ex-Husband paying Ex-Wife. Florida law provides guidelines for whether alimony will be paid. In some facts and circumstances, alimony is a given, and, in some of these instances, permanent alimony is guaranteed. I’ve had clients who would do anything to “buy out” this alimony obligation and some that just had to accept it as reality. In some financial circumstances, it is possible to make a lump sum buy out of alimony. The question is whether it is in the parties best interest. This, of course, depends on the facts and circumstances. The no alimony at all costs Dad/Ex-Husband should seek the advice of a trusted attorney to and, in many instances, an accountant, to find out the options or whether there are options in the alimony dilemma.

6. Separated and not equal: This, again, addresses the “traditional” situation of Dad as breadwinner. Dad worked and brought home the paycheck. Mom may have stayed home and raised the kids. Or maybe someone else raised the kids. Or maybe there were no kids and Mom, or, rather, Ex Wife, just stayed home. This Dad/ Ex Husband thinks that since he earned more than Mom/ Ex Wife that he gets a greater share of the assets. In the majority of cases in Florida, what was earned by the marriage, by Dad, Mom, Ex Husband, Ex Wife, interest, appreciation or otherwise, is marital and what is marital is divided equally. If Mom worked less than Dad, or Ex Wife did not work at all, spouses are equal partners in the marriage. Dad may hate it, Ex-Husband may hate it even more, but this is the likely outcome.

7. Not giving an inch to avoid the extra mile: This mistake is similar to the principle argument that can derail settlement or prolong a case beyond what may be necessary. There are often issues which are minor in the big picture but which become emotional sticking points. When clients negotiate, they are asked to give up certain things and make concessions in order to reach an agreement. What can happen is that Mom/Ex Wife is “sweating the small stuff” as discussed in the previous article and asking for one seemingly little extra that Dad/Ex Husband doesn’t want to give, if for no other reason than that Dad/Ex Husband feels he has already given too much. A fine example of a disagreement that isn’t worth the time spent arguing it is the division of frequent flier miles, which have minimal cash value. But when this one last request for ½ of the hard earned miles comes in at the end of a long negotiation, it may often turn into a sticking point and cause both sides to spend more money discussing the item than what its really worth. In some instances, there is greater value saved by giving in than the value that is lost by continuing to disagree.

Divorce is undoubtedly emotional and men and women, generally speaking, react differently in the face of the emotional crisis. While the reaction is understandable, the financial and prolonged emotional consequence can be avoided in some instances. The key to avoiding these mistakes lies in knowing when to advocate for something and knowing when to give in.

The Seven Deadly Sins of Divorcing Women

2008-02-05T18:30:00.000-08:00

The Seven Deadly Sins of Divorcing Women
We have all heard of the seven deadly sins, and most of us can name at least a few. When it comes to women and divorce, the transgressions are not gluttony, envy or pride, but they can be quite damaging. Below is a list of what I call the seven deadly sins, or biggest mistakes commonly committed by divorcing women.

1. Asking for too little: Women often feel guilty about divorce and responsible for their spouse. As a result, women often shortchange themselves in divorce settlements, accepting less than they deserve or, in some cases, less than what they need to live. I strongly encourage my clients to work towards settlement, but also stress that settlement must be fair. Under Florida law, both parties are equal partners to a marriage and there is no fault in ending it. The main goal of settlement is not just to close the marriage chapter but to make sure both parties have enough resources to go forward. Settling for less than an equal share and not enough for the wife and children to live on is simply not fair.

2. Asking too much: On the opposite side of the spectrum, some women have unrealistic expectations about what to expect from a divorce settlement. Rather than listening to their lawyers, many seek the advice of friends, relatives and others who divulge the details of their divorce settlements as though they are the norm, rather than the outcome of their specific set of circumstances. Many couples spend tens or hundreds of thousands of dollars litigating their divorce because one party believes they are entitled to more than the law will allow. Much like the deadly sin of greed, unrealistic expectations can be emotionally and financially costly.

3. Avoiding confrontation: By nature and nurture, women are taught to be non-confrontational while men are taught to be assertive. Men tend to have less trouble taking a strong stand while negotiating or litigating. Many women tend to want to keep the peace and, even in the midst of a divorce, will back off from asserting a reasonable position or pursuing something to which they are entitled. While most divorces can, and should, be settled, there are instances where it is necessary to go forward. In a highly emotional state, it is difficult, if not impossible to know the difference. But not taking a stand can be as costly an error as taking an unreasonable one.

4. Sweating the small stuff: Divorce is emotional for both parties, but men and women handle it differently. Men tend to hide their emotions by fighting or withdrawing while women allow their feelings greater reign. While this is an important part of the healing process, it leads many women to focus on details which, while important, are not legally relevant. This, in turn, leads to a lack of focus on the important aspects and increased costs as a result of fighting over things that are not worth the money spent to litigate them.

5. Paying too high a price: One of the first questions my female clients ask is whether they can keep the home. One of the first questions I ask them is whether they should. Many women will sacrifice everything to remain in the marital home. While it is the right decision if financial circumstances allow for it, maintaining a large mortgage and household expenses can leave a woman with an overwhelming financial burden. Deciding to stay in the home, either by buying out your spouse or taking the home in place of alimony, is not a decision that should be made for emotional reasons, but for sound financial ones.

6. Forgetting that knowledge is power: More and more women are wage earners, but a significant percentage still have no knowledge of joint assets and finances. One party, in many cases, the husband, makes all financial decisions. At the outset of divorce, women in this situation spend considerable time and money investigating the financial picture and, in worst case situations, trying to locate hidden assets. Those who are equal partners in financial decisions or, at least, have knowledge of money expenses, accounts and assets, are in a far better bargaining postion.

7. Waiting too long: Many people, men and women alike, take a long time to reach the difficult decision to end a marriage. Trying everything to make it work, a step I highly support, is one thing; but there are those who, when faced with the knowledge that their partner is depleting assets or even planning for divorce, take the hiding-their-head-in-the-sand approach and do nothing for a period of time. It is understandable that it takes a great deal of strength to reach the decision to divorce, but, in these circumstances, waiting too long can prove disastrous. By the time these women file for divorce, debts may have become too large to handle without liquidating assets and money may have disappeared without a trace.

Finding the right lawyer at the right time can help avoid these costly mistakes. A knowledgeable and neutral advocate can provide much needed advice at this difficult time. Even if the woman has engaged in any of this costly behavior, a divorce attorney can help reverse the damage before an agreement is reached and the case is closed, preventing a costly mistake from having a permanent outcome.

What's In It For Free: Are Free Consultations Really Worth It?

2008-01-03T12:22:00.000-08:00

We are living in the land of the free in this day and age, more and more than ever. It seems that every provider of goods and services is giving something away for free. There are free samples, free estimates, even a free month’s rent when you sign an apartment lease. Many lawyers are following the consumer driven trend and offering free legal consultations.

Certain areas of the law, such as personal injury, where a lawyer receives a contingency fee (he/she only gets paid if money is recovered for the client), have always gone the way of the free consultation route. Traditionally, divorce lawyers have always charged for initial consultations. One of the main reasons is because, once a divorce attorney meets with one of the parties, the attorney client privilege applies and the attorney cannot represent the other party. Knowing this, some parties embark on a course of lawyer shopping- meeting with all of the top lawyers in the county to prevent their spouse from hiring these attorneys. The other reason is that divorce attorneys are paid by the hour and only for the hours that they work, unlike personal injury lawyers who get a percentage of the recovery in a case. Giving away a free hour of one’s time would not be an effective business practice since, as the saying goes, there are only so many hours in a day.

Despite the economic considerations, some divorce attorneys offer free consultations. But is a free consultation the same as getting free legal advice? Much like the saying “there’s no such thing as a free lunch” it is equally true that there is no such thing as a free consultation. Or, more correctly stated, there is no such thing as free legal advice. Most free consultations are merely attempts to sell the potential client on the particular attorney or law firm. The consultations are kept short, usually 30 minutes or less, because the lawyer is not being paid for his/her time. The client is usually provided with general information concerning divorce and vague promises concerning possible outcomes that may or may not happen. The whole purpose of the “free consultation”, from the lawyers perspective, is not to offer the potential client the free benefit of the lawyers training, experience or advice, but to get the potential client to sign a retainer letter and pay a fee. There is little, if any, advice being offered.

Divorces are complex, especially where finances and children are involved. In order to provide legal advice, a lawyer needs to know the entire picture and needs to help the client determine what is most important to him/her. In cases involving children, long term marriages and/or a significant amount of assets, it would be difficult, if not impossible, to do this in 30 minutes or less.

Divorce is one of the costliest changes in a person’s life. It is natural for someone beginning the process to be concerned about their financial resources. Because divorce is so personal and has a permanent impact on the future, many people prefer to interview at least a couple of attorneys to find out if they feel comfortable with the attorney and whether they feel that he/she will be able to handle their case. A free consultation seems to be a cost effective way to proceed. But, given what is at stake, it might be a more prudent decision to choose a divorce attorney after having the opportunity to discuss your situation and concerns in detail.

A too simple divorce: there may be such a thing

2007-10-29T14:46:00.001-07:00

Many people, thankfully, are looking for a less emotionally charged way to divorce. I say thankfully because a long drawn out court battle leaves everyone drained, financially and emotionally, and is always harmful to children. So I commend anyone who seeks an alternative to a messy court battle, even in cases where emotions run high and there are many financial and child related issues to be resolved. However, in their desire to keep things low cost and low emotion, couples and individuals may cut too many corners and not seek necessary legal or financial advice. Since a divorce settlement, in most cases, impacts the rest of their lives, the results can be disasterous.

Many people, even those who strive for an amicable resolution, still believe divorce is an "all or nothing" concept. The parties either hire lawyers or they do it themselves. There are a host of online websites and companies offering "do it yourself" divorces for a small fee. The people utilizing these services are not just those with little income. In many cases, individuals and couples in higher income brackets are so frightened by the potential cost of divorce that they opt for these seemingly cost effective solutions, not realizing the high cost that may result later on due to an incomplete or unfair settlement.

Those facing divorce need to be aware that there are other options. While parties may be able to do their divorce themselves, through mediation or, in some cases, by filling out the paperwork themselves, there are many reasons to consult with a lawyer beforehand, or, at the very least, before signing any agreement.

For couples using the "pro se" mediation process, where a neutral mediator helps the parties reach an agreement, consulting with a lawyer and/or a financial advisor may be a crucial first step to help the party determine what his/her legal rights are and what the financial picture would look like. Many times in mediation, one person has a greater understanding of the parties finances. The other person may not even work at all and may have no idea of what their expenses will be. If this person were to enter into an agreement providing for little or no support, he or she may be left in a compromised financial situation. As a mediator, I encourage parties to do this both before mediation and before signing an agreement.

Many people are concerned that, by "involving lawyers", they will end up in court, paying a great deal in fees. But this does not have to be the case. Each party can consult with a lawyer, as many or as few times as needed, and pay for the lawyer's services on a per-visit basis. Some lawyers will not do this, but there are many that will. For those who opt for the "pro se" route, it is important to seek out the legal advice they feel they need. It is also important to get information about the lawyer before going to an intial meeting, such as, how much time the lawyer will spend evaluating the case and going over options, and, if so, what the fee will be.

Divorce, like many aspects of life, does not have to be an all or nothing proposition. In too many instances, the all or nothing approach can leave a party with little or nothing or less than a fair share. While do it yourself may work for home improvement, it may not be the best course of action for dissolution. Before deciding to "go it alone", anyone facing a divorce should make sure he or she has enough knowledge and information to make the important decisions that will impact the rest of their lives.

Miami-Dade County Family Court Approves Collaborative Practice

2007-10-25T10:38:00.001-07:00

In an Administrative Order signed October 19, 2007, Chief Judge Joseph Farina signed an Administrative Order authorizing the collaborative process dispute resolution model in all dissolution and other family related matters.

The Order follows on the footsteps of a Brevard County Judge who recently signed a similar order. Although the Miami Dade County Court differs somewhat from the Brevard Court in that Miami-Dade does not have allow any Court intervention in a collaborative matter and has not, as other Courts have done, allow parties in a collaborative matter for either file a proceeding with the Court or resolve any temporary issues which may arise. Other courts have followed the lead of San Diego in establishing a collaborative court to resolve disputes which may arise during the collaborative process. Miami Dade has opted to keep the court completely out of the process, until such time as the parties either reach agreement or the process breaks down. The Administrative Order does provide that any temporary agreements reached by the parties will be ratified by the Court if the process breaks down and the parties proceed to litigation.

The Order also authorizes withdrawal of the parties attorneys in the event the process breaks down. This aspect of collaborative practice has been criticized by many Collaborative Law skeptics and ruled unethical by the Colorado Bar. The Miami Dade Order appears to endorse this aspect of Collaborative Law by requiring withdrawal of the parties attorneys in the event the process breaks down.

The Order also provides some guidelines for the financial and mental health professionals who are sometimes retained as part of the collaborative process.

Although the Florida Bar has yet to fully endorse or pass any collaborative law statute to date, it appears that the Florida Courts are clearly in favor of a collaborative alternative to the traditional model of divorce, which has been sharply criticized by these Courts in cases where excessive and expensive litigation has resulted.

The Administrative Order comes as a surprise and a tremendous positive gain for Collaborative practitioners, who have struggled with gaining judicial recognition for Collaborative Practice. It remains to be seen whether Broward County will follow suit, so to speak, with a similar Order and whether the Orders of the Courts will gain the attention and recognition of the Florida Bar, allowing this much needed alternative to gain legal recognition and, most importantly, regulation.

Florida is one step closer to recognizing Collaborative Law

2007-09-18T13:55:00.000-07:00

Brevard County Judge Issues Administrative Order Authorizing Collaborative Conflict Alternative Resolution Model

Following the lead of Judith S. Kaye, Chief Judge of the State of New York, Brevard Judge J. Dean Moxley recently wrote Administrative Order 07-20-B. The Order asserts the basic principle of collaborative law that the parties agree not to litigate any of their issues. By signing the Order,Brevard County not only recognizes and endorses the Collaborative Law Model as an alternative to traditional litigation, but also allows participants to abate existing Court proceedings and participate in the Collaborative process.

The highlights of the Administrative Order include the following:

1. A requirement for the candid exchange of information between the parties
2. The use of mental health and financial professionals to assist with the process
3. The Court will not set any hearings on a matter that has been filed yet designated a collaborative matter.
and
4. An acknowledgement of the confidentiality of the entire process.

The Administrative Order provides that, where a case has been filed, the parties are to provide status reports every 90 days. The Order differs from the traditional collaborative law model utilized by many Florida practitioners in that it allows parties to file a petition for dissolution. Most collaborative attorneys adhere to the rule that the agreement to keep the entire proceeding out of court means that neither party will file anything, including a petition, while the parties are in the process of negotiating.

Administrative Order 07-20-B also states the controversial yet crucial provision that collaborative attorneys are contractually required to withdraw from representation if the parties fail to reach an agreement. In February, 2007, the Colorado State Bar issued an ethics opinion stating that the agreement not to go to court is a violation of a lawyer's duty of representation to a client. The Brevard Judge sees it differently and feels, as do many collaborative proponents, that clients and their lawyers can enter into a valid contract that the lawyer will withdraw from representing the client if the case goes to court.

The Order is a strong endorsement for collaborative law in the state of Florida, which has been slow to give any legal recognition to the Collaborative process. To date, the Florida Bar has considered, although has not yet adopted, a Collaborative Law statute, and many judges have been wary of issuing opinions or orders endorsing the practice.

To read the text of the Adminstrative Order, visit www.flcourts18.org.

The Pros and Cons of Pro Se Mediation

2007-06-20T14:38:00.000-07:00

Given the high cost of contested divorce litigation and its emotional aftermath, many people are opting for the pro se route. In South Florida, approximately 60% of divorce cases contain at least one unrepresented party. There is a growing market of services available to pro se divorcees, including the, quite sadly unregulated, online services which advertise "Do It Yourself" Divorce and other services for a fee far less than what an attorney would charge. But, as some of my clients have learned by engaging these “services” and receiving less than adequate results, you often get what you pay for.

Pro Se Divorce Mediation has emerged as another popular choice and has become a one stop shopping alternative in the vast array of lawyerless divorce methods. Although many family law mediators are attorneys, they are prohibited from giving legal advice when acting as mediators. However, mediators can prepare the forms which must be filed in conjunction with a divorce, including a marital settlement agreement. Pro se divorce mediation has received some much deserved criticism and some grudging recognition. There is a Florida Bar approved course for mediators to learn the complete process of pro se divorce mediation. But many lawyers continue to believe that pro se mediation is merely an ethics complaint waiting to happen.

Opponents argue that it is impossible to mediate a complete divorce agreement without giving legal advice and that pro se mediation will create an ethical dilemma where a lawyer-mediator is either forced to give legal advice, which violates that Rules For Certified and Court Appointed Mediators or to bite his or her tongue and allow parties to create either an incomplete agreement or one that does not protect the rights of one or both parties, which also violates the Rules.

Proponents, and the pro se public, seem to believe that a cost effective way to divorce is mandated. Many people can't afford to spend thousands of dollars litigating over their property, children or both, and many others do not want to. In many of these instances, the issues are relatively simple, from a legal standpoint. For instance, the parties are both salaried employees, earning similar incomes, and issues such as child support are reduced to a formula that can be calculated. Assets and liabilities are known to both parties and it is just a matter of who gets to keep (and pay for) what.

In cases that are more complicated, where there are more assets to divide, questions involving alimony, pension and social security benefits, valuation issues and/or parties who don't have knowledge of the entire financial picture. These parties are opting for mediation as well and presenting a challenge, if not a dilemma, for a mediator.

It appears that a hybrid solution might be necessary. Mediation can be a useful tool in helping parties resolve certain issues. However, the necessity of obtaining legal advice cannot be ignored either. Some divorcing couples are taking advantage of the limited representation now allowed by the Florida Bar and consulting with lawyers before, after and even during mediation. This allows the parties to negotiate without costly litigation and still receive much needed legal guidance as to their rights and responsibilities.

It is impossible to give an answer as to whether pro se divorce mediation is right or wrong. That depends on the particular case. But it is certain that the public is seeking alternatives to the traditional lawyer driven and costly divorce and that attorneys and mediators are seeking to balance accommodation of the public’s desire with their ethical responsibilities.

Debunking Divorce Myths

2007-05-14T13:27:00.000-07:00

DEBUNKING DIVORCE MYTHS

There are numerous misconceptions when it comes to divorce. Often, situations which could be resolved fairly amicably become highly contested because one of the parties is operating under the mistaken belief that the myth is actually the reality. Below are three of the most common misconceptions.

UNLESS I HAVE CUSTODY, I WILL ONLY SEE MY CHILD ON THE WEEKENDS
I hear this often from clients, especially fathers who are involved in the lives of their children and fear becoming the “weekend dad”. For some reason, parties seem to think their right to spend time with their children is “all or nothing”.
Regardless of whether there is a primary residence for children, the parties, except under extraordinary circumstances, enjoy shared parental responsibility of their children. This means that both share equally not only in decisions affecting their children, but in their children’s lives. For instance, if dad is the son’s baseball coach, dad can continue to do so and can attend all baseball games regardless of where the son spends his evenings. By the same token, mom can continue to participate in extra curricular activities, even if it is dad’s weekend with the children.
Rather than focus on the percentage of time spent with children, parties should consider their children’s schedules and the amount of quality time to be spent with children. Once parties realize that neither will be excluded from their children’s lives, it is often easier to create a schedule that works for everyone, especially the children.

I AM ENTITLED TO EVERYTHING

This happens in many cases where a spouse feels severely wronged by the actions of the other and thinks that he/she will receive the house, children, bank accounts and anything else of value while the other spouse will be awarded nothing more than the shirt on his/her back and the debts. This is not the case as Florida is a no fault divorce state. Unless there is a financial component to the wrongdoing of a party or another reason not to divide assets and liabilities equally, a judge will make an equal, or nearly equal division of assets and liabilities. While there are many reasons to deviate from this, the wrongdoing of one party, i.e., simply being a bad spouse, is not one of them.

THE WIFE ALWAYS KEEPS THE HOUSE
While it is true that a court will try not to disrupt the lives of small children, it is not true that a judge will automatically award either party the marital home. If the home is the only significant asset, allowing one spouse to keep it would result in an unequal division of the parties assets and is an unlikely outcome. Also, in situations where it is not financially possible for either spouse to maintain the home, the judge will likely order the home to be sold. Sadly, this is the reality in many situations where the parties, while still together, are living beyond their means. If the parties cannot afford the home while together, it is impossible for either party to afford the home on his/her own.

In many divorce cases, these misconceptions often cause parties to expend large sums of money in litigation, only to realize, days later and many dollars shorter, that reality differs greatly from urban divorce legend.

JOINT AND ROTATING CUSTODY: FACTORS TO CONSIDER

2007-04-05T09:04:00.000-07:00

Florida courts are considering joint and rotating custody in more and more divorce cases and there is even talk about a presumption that children should spend 50% of their time with each parent. There are certainly arguments in favor of this position, and I am not one to argue against it. However, there are numerous factors which should be considered to determine whether it will be feasible. These factors include:

1. Two Households: Both Alike and in Proximity: In order to rotate time with children, both parents should, ideally, live in the same neighborhood, or, at least, in reasonable proximity to one another. This will avoid long commutes not just for the parties, but for the children. This may not be economically feasible for some parties.

2. No living out of a suitcase: Judge who consider and ultimately award joint and rotating wish to avoid a situation where the children must pack a bag every few days or at the end of each week. In order for the rotating schedule to work, children need to have two sets of everything- school textbooks, clothing, toiletries and medications, etc. There will be the occasional transport of items from one household to another, but, generally speaking, the children need to have a separate set of all essentials available at each household. Again, this may not be economically feasible for both parties.

3. Schedule permitting: Not only must each parent have the ability to coordinate their schedule around their children’s school schedule, each parent must be able to accommodate the
extracurricular activities that go along with the schedule. This is not an easy task and not always possible as many work schedules do not allow for this level of flexibility.

4. Living in harmony: While the parties do not have to be completely amicable, it would be difficult to convince a Judge that they could pull off this schedule if there is a high level of discord between them. Couples who are at odds and who have litigated numerous issues during their divorce often do not make suitable candidates for joint custody, which requires communication and cooperation between the two parties.

When representing a client who is insistent upon joint custody, I often ask about the client’s schedule and why this concept is so important. In many instances, the concern is about quality time with the children and not losing touch with them. However, there are other ways to accomplish this goal that do not require a rotating time sharing arrangement. Parties are often unaware that they are both entitled to attend after school and extracurricular events regardless of whose “day” it is. This is especially important to the parent who has been coaching little league or who attends boy/girl scouts with the child. Such activities can be included in a time sharing schedule and may be far more important than the number of overnights.

I’ve seen instances where joint and rotating custody works extremely well and other instances where it is not possible. The important thing to keep in mind is to focus on the parties need to share in the lives of their children and the children’s need for stability and equal participation, which may or may not equate to equal time, with both parents.

All's Fair in Love and War: Or is it?

2007-04-04T16:49:00.000-07:00

One of the oft heard phrases in divorce mediation is “I want what is fair”. It’s a paradox of sorts as it is hard to argue that one party should settle for something that is not fair while, at the same time, it is difficult to define what is, in fact, fair. The person who makes this statement has no trouble with it, as he or she is firmly convinced of what is fair. However, fair, much like beauty, is in the eye of the beholder.

In mediation, parties are often encouraged to generate solutions. This is particularly true in divorce, where issues such as time sharing with children, are better decided by the parties as opposed to a Judge who has never met their offspring. This is also true of dividing assets and liabilities as a Court’s approach to simply split everything may not work for the unique situation at hand. But what often happens is that, rather than discussing options, one or both parties become fixed on a particular position, based on the notion that it is the fair or right way to handle things. The party or parties who do this become what I refer to as “the arbiter(s) of fair.” Should the other party reject this proposal, then the conclusion is that he/she must be unfair.

Unlocking the gridlock is often a mediator’s challenge. In order to do so, one must look beyond the position taken by the parties and get to the heart of the matter. In essence, what are a parties motivations, or, more properly phrased, what are his/her interests?

Interest based negotiation is especially crucial in divorce mediation. Often, parties become stuck on a particular position, i.e, I must keep the house, I want to spend 50% of the time with the children, etc. The parties position is often based on what this particular asset or issue represents to that person. Keeping the house may represent security and insistence on joint custody may represent an underlying fear of not being involved in the children’s lives. However, there may be another solution that addresses the concern. For example, a party may be able to remain in the home for a period of time or may realize that there is greater security in reducing the expense associated with a home that has now become too large. The parties can also work out a schedule that allows for ample quality time between the children and both parents, without looking at percentages.

Divorce mediation is, quite possibly, the most stressful negotiation possible given the high level of emotion and fear. It is not a far journey from fear to insistence on what is fair. Rather than question the determination of fairness, a mediators role is to help the party uncover the interests that are at stake. By uncovering these interests, it is entirely possible to arrive at a solution that is fair to all concerned.