Category: Divorce

New Parenting Law In Florida

Posted by Sharon O'Day on

In July 2023 a new parenting law went into effect in Florida for divorce and paternity cases.  The law changes several significant aspects of what is commonly referred to as custody of minor children in Florida.  The most significant change is that the law now provides that there is a rebuttable presumption that equal time-sharing of a minor child is in the best interest of the minor child.  To rebut this presumption, a parent must prove that equal timesharing is not in the best interest of the child.  Historically, there was no presumption in favor of any specific timesharing plan and each family was considered individually as to what plan would be best for the children.  Under this new law, the court will begin with a presumption that the children should spend equal time with each parent and develop a plan accordingly unless it is proven not to be in the child’s best interest.  How the equal timesharing plan is developed is still a consideration that must be resolved.  Some families choose a rotating-week schedule (e.g. exchanging the children each Friday) while other families may be better suited to a divided week schedule (e.g. Mom Monday and Tuesday, Dad Wednesday and Thursday, and rotating Friday through Sunday).  The specifics of each plan will depend upon the work schedules of the parents, the division of parenting responsibilities, and many other factors. 

In addition, the new law addresses the situation where the parents had a long-distance parenting plan because one parent lived more than 50 miles away but then the “away” parent moved back to within the 50-mile radius.  In such a situation, the law now provides that this will be considered a substantial change in circumstances for the modification of the parent plan.  Historically, a parent who moved back to the area where the children lived would not have a basis to modify the plan and may be resigned to minimal time with the children even though they lived nearby.  Now, the law allows for a modification of the parent plan to have more consistent contact with the children for each parent. 

Working out a co-parenting plan is often one of the more difficult issues to be addressed for any family going through transition.  If you need help developing your plan, please contact our office for coaching or mediation. 

2023 Case Law Update

Posted by Sharon O'Day on

Once again I was invited to present the Annual Case Law Update to this years Family Court Professional Coalition (FCPC) Annual Conference. It is my great pleasure to work with this organization and serve on their Board of Directors in order to help improve the Family Court system in my local area. It is also an annual highlight to present this update of all legal cases involving family law decided in the last year from the Florida appellate courts. While I do not litigate, it remains important to stay up to date on the current law in order to assist my clients in reaching the best resolution to their cases. To view the update click here.

2017 Case Law Review

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It is that time of year again, when I present the Case Law Review at the Annual Family Law Professional Collaborative Conference.  And, after each conference I provide my case law review to those who may be interested in how family law has developed over the last year.

This year one important development is the approval of Collaborative Law Rules of Procedure.  With the approval of these rules, the Collaborative Law Act goes into effect.

In addition, there were a number of significant cases decided over the past 12 months.  One that I found particularly interesting is the Rosaler v. Rosaler case, in which the Wife spent almost one million dollars for her attorneys, accountants, Guardian Ad Litem and costs.  If ever there was a case that showed the benefits of a collaborative approach to divorce, this case is it.

You can find the complete case law review HERE

Step Four: Establish the Ground Rules

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rules 2

You have to learn the rules of the game. And then you have to play better than anyone else.  Albert Einstein

Welcome back.  If you have taken the first three steps you are now ready to enter into the negotiations arena.  You have done your homework and are therefore well prepared.  If the other side of the negotiations has not completed the first three steps then I can guarantee that you will be in a better, more confident position when you begin the formal negotiations.  You will know not only what you hope to realize from the negotiations but also your underlying reasons for participating.  You will know when it is best to walk away from the negotiations and how far the other side can go before they feel they must walk away.  You will have determined a fair and reasonable value for any material items that are on the table and assessed the strengths and weaknesses of your case if this is a litigation matter.  You have a strategy and understand the possible outcomes of the negotiations. 

Now, the final step before anybody makes the first offer is to be sure that everyone is on the same page about the process.  This may be a very easy step in the case of informal negotiations but it may take on huge significance in the case of more complicated matters.  As negotiations become more complex, with a greater number of issues on the agenda and more parties seated at the table,  the necessity for clearly defined rules becomes more important.  Without clearly defined rules the negotiations can devolve into chaos or, worse, fail to take place altogether.  You can easily imagine how hard it would be to participate in a six party negotiation with each party represented by zealous advocates but no agreement as to the rules defining the process.  However in simple daily negotiations the rules may be set by regular custom and practice.  If you are discussing where the family should go for dinner the ground rules may be simple: that everyone has a chance to make a suggestion, no one raises their voice, the options will be discussed and the majority wins.

In the case of more significant negotiations that occur in our daily lives, such as the purchase of a home, the rules become more formal and inflexible.  The homeowner lists the property for sale at a given price, the buyer makes an offer to purchase the home perhaps with some specific terms regarding allowances or closing times, the homeowner makes a counter offer and the negotiations continue in this back and forth manner until a deal is made.  The final agreement is then formalized into a purchase contract for the property and a closing for the sale is scheduled.  While the terms of the sale may be more complicated and the process involve more people including the seller, her agent, the buyer and his agent, the overall rules of the process are fairly straight forward. 

One form of negotiations that is becoming more popular in divorces and other legal matters is the use of collaborative representation.  This is a process whereby the parties to a litigation agree to each hire a specially trained collaborative attorney and then all other professionals (accountants, appraisers, therapists) will be hired jointly as part of the team.  In collaborative cases the initial meeting of the parties and the collaborative professionals will most likely be a time to establish the rules of the negotiations.  In such cases the rules are commonly referred to as the collaborative agreement.  This agreement will determine who will be included on the professional team, how the professionals will be paid, who will be the facilitator of the meetings, how often meetings will be held, the rules of confidentiality, what happens if the process breaks down and many other finer details of the collaborative law process.  In my experience having a carefully written and considered collaborative agreement provides everyone with a clear understanding of the procedure and is critical to the success of the negotiations that are to follow.

If you are involved in a complicated law suit with a formal mediation process then there are several issues that must be decided before the mediation begins.  You may have to decide who will be the mediator, where the mediation will take place, who will pay the mediator, what will be on the agenda of the mediation, will the mediation be subject to the local rules in your jurisdiction and if not what rules of confidentiality and neutrality will apply, can anyone other than the parties attend the mediation, and what happens if the person with ultimate authority to make a final deal is not present at the mediation.   Usually these rules of mediation are established by local procedure or by the parties when the mediator is selected.  If the parties are unrepresented the mediator may use the first meeting to reach an agreement by the parties as to the rules that will apply to the process.  In some particularly litigious cases it is a good idea to have the professionals meet with the mediator prior to the initial session to make sure that everyone has accepted the terms of the mediation and are prepared to proceed with the negotiations at the initial session.

In particularly complicated matters such as international, diplomatic negotiations the rules of the process can become a negotiation unto themselves.  In the case of the negotiations for the termination of the Vietnam War the parties spent months arguing over the size and shape of the table to be used.  While this may be an extreme example of negotiations over process, there are many other times when the rules for the negotiations have taken on a life of their own.  As a mediator I have had more than a few mediations cancelled or delayed because, at the last minute, someone tried to change the rules and the other side objected.  I have had cases where, just before the mediation was to begin, one side has said they would only attend if the other side agreed to pay for the mediation or one party wanted to bring a relative when the other side had not previously agreed.  Such last minute surprises are never helpful as they set a tone of mistrust and increase hostility before the process has even started.  It is better, if possible,  to discuss and agree to the “rules” prior to the onset of the negotiations.

If you have questions about the general process of mediation, please refer to my web site (www.odayresolutions.com) for examples of some of the standard rules used in Court Ordered mediations in my area.  These may be different in your area but they will at least provide you with some areas to discuss with the mediator or your counsel before the mediation is set to begin.

Taking the Third Step

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3rd step bowling

Many a man had taken the first step. With every additional step you enhance immensely the value of your first.

Ralph Waldo Emerson

So now it is time to take the third step in preparing for negotiations.  You have identified the issues, positions and interests of your situation in the first step.  You have brainstormed possible options to resolve the situation in the second step.  Now you must roll up your sleeves and dig into some research for this third step.  In my experience this is when many people become overwhelmed and try to move right into the negotiations.  This is a mistake, because the information that you gather in the research step will allow you to properly evaluate your options and develop your strategy for negotiations.   In today’s technology age almost anything can be researched fairly simply online.  We will look at some of the simple ways to find answers and evaluate options through some basic research, most of which is free and or inexpensive.

In our example in article two we considered a family looking for solutions if Mom is having trouble with driving.  Below is a chart of some of the research tools that can be used to evaluate each of the options that we identified:

Options to Consider / Google terms Research tools to find answers
Hire a driver Google taxi services in your area

Google “drivers for seniors” for local free or low cost services
Find ways to make driving safer for senior www.aarp.org

www.aaa.org

www.safeandmobileseniors.org
We can drive for her www.ourfamilywizard.com provides calendars to keep track of family activities such as doctor appointments and plan who will drive
She can take the bus Google local bus routes
She can travel with friends Talk to her companions and friends to see if other’s can drive. This step in the research may have to wait until after you have spoken to Mom if you do not know her companions well.
We can have other’s bring things she needs to her www.mowaa.org

google in-home companions or elder companions
She could move to a community with more local services or transportation Google independent living in your area

 

If you are facing a negotiation over an offer for a new job, you would want to research similar jobs to the one you have applied for.  You want to determine what the average salary is in your area.  You may do this by researching market surveys online or by speaking to friends or mentors in the area of the employment you are considering.  You want to look for ranges of starting salaries as well as other benefits that you have determined are important on your options list.

If you are involved in negotiations to resolve a legal case such as a divorce the research may become more complex.  You have three general areas to research before you enter into negotiations.  These are (1) the basic facts of your case such as the value of your assets and school calendars to develop parenting plans (2) the law as it applies to your case and (3) the costs involved in litigation if the case does not settle.  The first area is conducted the same way as the research outlined above.  You use the internet to research each option you have developed.

In some cases the information that you need to assess possible solutions may not be in your control but may be in the control of the other party to the litigation.  This is when attorneys use one of the most powerful tools in their tool box to obtain the information needed.  This type of research is called “discovery”.  We can do this research through depositions (asking the other side and witnesses questions while they are under oath and in front of a court reporter), interrogatories (similar to depositions but asking the other side or witnesses questions in writing and asking them to sign the answers under oath) and “requests to produce” (asking the other side to produce documents that they may have in their control).  We may also engage experts such as appraisers, accountants, vocational experts, mental health experts and medical experts to pull together the information and to evaluate our case to have a better understanding of the facts for settlement or trial.  If you are involved in a legal dispute, you have to decide if you have enough information about your case and the other side’s case to complete the mediation before the discovery is completed.  Many times it is possible to know enough to evaluate your options without all of these formal discovery methods, although this discovery may critical to presenting your case at trial.

Another area that you must be prepared for in the case of legal disputes is an understanding of how the law will be applied to the facts of your case.  Attorneys are specially trained in conducting legal research and evaluating the likelihood of success in specific cases.  It is always advantageous to be familiar with the law as it applies to your case, in order to know what your “best day” and “worst day” in court could be.  This gives you structure and parameters to your negotiations that would not otherwise be present.  It is important to remember that an understanding of the law does not necessarily confine you to the remedies that are provided for by the law.  There have been countless times that I have represented clients who wanted a specific outcome in a case and I had to tell them that their preferred “option” to resolve the case was not possible under the law.  For instance the parents may agree that paying for college education for their child is important even though the law in Florida only requires support of children through eighteen years of age.  While the Judge could not order this solution the parties may, through negotiations agree to include this in their settlement agreement.

Finally, you should evaluate the costs associated with selecting different options.  In order to evaluate how efficient an option is in meeting your needs you must be able to examine the costs associated with the option.  In the case of a legal dispute such as divorce you should consider how much the trial is going to cost you if you do not settle.  You must have a frank and honest discussion with your attorney to determine the costs of litigation.  While attorneys can rarely give a guarantee about the costs as these are often determined by the facts of each situation and the actions of the other party, they can estimate how much is necessary for specific activities such as a full day deposition or the retainer for an expert.  As indicated above, the costs of formal discovery can be quite high.  While you may be able to mediate a resolution after conducting your own research on the options you have developed, your attorney will be able to explain how the rules of evidence may require more costly discovery to actually prove your case in trail.

In addition you should consider the costs of alternatives to settlement in terms of time missed from work to attend hearings, depositions, and trial.  Another “cost” that is often overlooked in legal disputes is the anxiety of remaining uncertain about the outcome and living in the adversarial morass of litigation.  While you may not be able to put a dollar figure on it, there is certainly an emotional and psychological benefit to reaching a resolution and being able to move on.  This benefit may have a higher value than any of the costs associated with agreeing to certain terms of settlement.

As you can see, the research step in negotiation preparation requires time and a commitment.  The more thorough a party is in conducting the research the more prepared they are when entering into their negotiations.  I have too often seen mediations be delayed because the parties could not agree upon the value of an asset or the feasibility of a rehabilitation plan for a party.  The time spent on this step can expand possible options, organize strategies for resolution and save time in the actual negotiations phase.   Knowledge is power.  By doing your homework you are in a more powerful position as you enter the next step of negotiations.

For more tools for research in specific areas please visit my website, www.odayresolutions.com.