The primary goal of every parenting plan and timesharing agreement is the protection of the best interest of the child.  The established public policy of the State of Florida is that children should havefrequent and continuing contact with both of their parents (assuming they are fit) after separation and divorce, and that parents share the burden and the joys of raising their children. Therefore, the parenting plan must explain in detail how the parents will share responsibility for raising their children on a day-to-day basis, as well as for major life decisions.

The court will then evaluate this plan to determine if it is in the child’s best interest.  In doing so, the court will look at numerous factors, such as:

• The parents’ ability to encourage close parent-child relationships and to be reasonable;
• How the parents divide up the specific child-rearing duties;
• The emotional maturity of the parents and their moral character;
• The stability of each parent’s home environment for the child;
• The amount of travel necessary for the children to maintain contact with each parent;
• The ability of the parents to be informed about their child’s life and provide a consistent routine for the child;
• The presence of any domestic violence or abuse;
• The ability of the parents to protect children from the stresses of the divorce proceedings and to speak positively about the other parent.

Putting together a good parenting plan can be the foundation for a smooth transition to the future for your child. Contact us for more information.

From our experience, however, the opposite is true.  Clarifying numerous life issues at the outset often helps decision-making during the marriage and reduces tension, which can strengthen the relationship.  A prenuptial agreement is not only about money and finances. It should touch on any number of other issues.

After money and finances, here is a list of our top five:

1. Where Will We Live?

The passions of new love often come with blinders on issues as basic as where the couple will make their home in the long-term.  She wants to live by the shore, and he wants to live near his parents.  Just raising this question in a prenup can help the couple work out their values and preferences.

2. How Will We Balance Our Careers?

After the marriage, the family may begin to grow. What happens when a child gets sick? How will the couple decide who stays home if it is to the detriment of their career? What happens when the spouses’ workplaces make conflicting demands?

3. How Will We Raise Our Children Religiously?

Before marriage, many couples underestimate their religious differences.  In some cases, it is obvious they will raise their children with both or neither religion.  That may work until the first major life event comes along requiring spiritual guidance. A prenup can help pave the way to avoid conflict down the line.

4. Educational Choices

Where will the children go to school?  Should the couple pay for private school?  What do the parents think about a college education?  Newlyweds who have never before had children tend not to discuss these important issues, and the prenup can help clarify values upfront.

5. Settling Disputes

Invariably, a couple will encounter unforeseeable challenges after marriage.  If these challenges create a major conflict between them, how will the spouses overcome them?  It may be wise to describe how they will settle disputes, such as by seeing a counselor.

A pre-nup is not a formula for failure, but it can be a recipe for success.  Contact The Law Offices of Robert L. Bogen for help with the emotional and foundational process of putting together a prenuptial agreement.

While the Walsh case was resolved by settlement agreement, many other cases are not.  Too frequently, a parent who has been ordered to pay child support does not fulfill this obligation, leaving the other parent with whom the children primarily reside trying to pay the bills alone.  Is there any way to get the non-compliant spouse to pay his share of child support?

The residential parent does have recourse through contempt proceedings, in which a request is made of the court to force the non-compliant parent to pay his or her share of child support under threat of jail.  In such proceedings, evidence will be presented and the court will determine if the non-compliant parent has or had the financial ability to pay his share of child support.

The court has various resources to help collect the child support, including the following:

• Implementation of an income deduction order that will allow the child support to come directly out of the non-paying spouse’s paycheck
• Suspension of the non-paying spouse’s driver’s license or vehicle registration
• Taking the child support funds from the non-paying spouse’s bank account or tax refund
• Sending the non-paying spouse to jail until he or she complies

If you have difficulty collecting child support that is due to you, contact our office to see how we can help you obtain the child support that your children need and deserve.

Depending on the state you are in, a divorce may be “no fault.” A no fault state does not look at reasons for divorce. The divorce is granted whether one party wants it or not. Some states, such as Florida, have no fault divorce, but the Court may look to certain faults in awarding alimony or spousal support. A state that is not “no fault” looks at the reasons two people are getting divorced, and the Court’s ruling is based somewhat on the actions of one or the other spouse. Sometimes the actions of both spouses may cancel each other out.

Once it is determined which set of rules (fault or no fault) your state follows, you must then choose what kind of divorce you want. An uncontested divorce means that both parties agree to get divorced without fighting over issues such as custody, visitation, child support or alimony. An agreement is drawn up between the parties. The parties can tell the Court what they want, or they can have an attorney draft an agreement for the parties. An agreement will generally spell out who gets the children and who has visitation if children are involved, what days are visiting days for the non-custodial parent, how much child support is ordered (most states have a formula based on the parties’ incomes for determining child support), how much alimony shall be paid (if any) and who gets what as far as assets and liabilities. An uncontested divorce generally moves through the system faster than a contested divorce, and less documentation from the parties is required.

Even in an uncontested divorce, if the Court does not think the agreement is fair, it will not ratify the agreement and order the parties to come up with a better agreement, though this rarely happens, unless the agreement was not drafted by an attorney and is extrememly one-sided.

A contested divorce takes quite some time to go through the Court system, especially if the parties cannot agree on anything and they are always filing motions with the Court. Motions can include requests for temporary custody and child support, temporary spousal support and temporary attorney’s fees and costs, among other things.

The basic steps in a contested divorce include the filing of a Petition for Dissolution of Marriage against the other spouse, who must then be served with the Petition, then an answer from the respondent. Once the respondent answers and files a Counter Petition for Dissolution of Marriage, the petitioner files an answer. Once that is completed, the discovery process starts if it has not already been started. Discovery means that both parties must provide the other party with all of his or her financial information. This usually includes completing a Family Law Financial Affidavit. Most states will require that the parties provide each other with bank statements, retirement account statements, stock account statements, credit card statements and all earnings of the party.

If the parties cannot come to an agreement through mediation or with the help of their attorneys, they will attend a final hearing. Depending on how many issues need to be heard, the final hearing can be as short as a couple of hours to as long as a few days. Generally, parties with a lot of assets and liabilities have longer hearings, especially if the assets are large, such as numerous properties.

One other type of divorce comes out of a contested divorce. The divorce may start out as contested, but the parties decide that they A) don’t think its worth it to involve attorneys anymore and come to an agreement on their own; B) cannot afford the attorneys, and are therefore forced to come up with an agreement; or C) settle all of the issues in a Court ordered or voluntary mediation. In any of these circumstances, a Marital Settlement Agreement is drafted and ratified by the Court.

In one other situation, a divorce starts out contested with all of the issues (say there are seven issues), and the parties settle five of those issues on their own. A Partial Marital Settlement Agreement is drafted then ratified by the Court, and the other two issues will go to Final Hearing. Once the Final Hearing is completed, the Court will draft (or order the attorney, if involved) to draft a Final Judgment. The Final Judgment will include the Court’s order on the two unsettled issues plus the ratified Partial Settlement Agreement.

In all situations, a Final Judgment of Dissolution of Marriage is always filed with the Court. The parties must abide by the Final Judgment, else the injured party may reopen the case to ask the Court for relief.

1. Tell your children the honest truth about divorce. Every child needs to understand that divorce is final and not up for debate. However, the age of the child will determine how you explain the situation, as younger children may not need as many details.

2. When explaining divorce to your kids, ALWAYS make it clear that they were not the reason for your divorce.

3. Your kids don’t need to know about your anger and resentment towards the other parent. Don’t tell them about arguments or other adult issues.

4. Encourage questions from your kids. Opening the communication lines lets your children know they can share their feelings now and in the future.

5. Tell your child about upcoming events and other life changes before they happen. A child will adjust better if they know about schedules, visitations, and activities.

6. Work with the other parent to set consistent rules. The goal should be to enforce the same rules the kids have grown to expect.

7. If your child acts out by misbehaving, validate their feelings first. The bad behavior could be coming from a place of pain, anger, sadness, and confusion over your divorce.

8. Spend quality time with your child every day. This means no distractions when you’re devoting time to your family.

9. Make your home a safe place and somewhere your child wants to be.

10. Find a counselor or therapist who can talk to your children about the divorce and problems they are working through.

Both spouses normally pay their own legal and court costs upfront. You can have your attorney request that your spouse be responsible for all or a portion of those fees and costs. In some situations, it is commonplace for a judge to order one spouse to pay the legal costs of the other spouse.

For example, if you have been a stay at home mom and your husband files for divorce, your husband is in a better position financially and would suffer less financially if he paid all or a portion costs related to the divorce. Who pays the costs associated with the divorce will also depend on who has the best attorney. A great reason to not skimp when hiring an attorney.

Below are some issues that will determine the cost of a divorce:

• Whether your divorce is adversarial or collaborative. The more you and your spouse are able to agree on the less you will spend on attorneys, legal fees and court costs. If it is at all possible to discuss and come to terms on such issues as child support, child custody,division of marital property you should do so. I will mean saving the major portion of the expenses incurred during a divorce.

• How much you pay in attorney fees. It is always in your best interest to hire an experienced attorney who is willing to fight for your legal rights. If you get lucky, you will find one willing to do this without charging outrageous fees. Most though are quite expensive but worth the money in my opinion.

• If you and your spouse battle over custody of the children. In a custody battle you may incur fees related to psychiatric evaluations. If the court appoints a Guardian Ad Litem, you will have that expense. Your attorney may want to call expert witness, which will be an added expense. Not to mention that a custody battle means more work for your attorney who will probably be billing you by the hour.
• How many marital assets and debts there are to deal with. If there has been an accumulation of large amounts of marital property and debts your attorney may want to hire a Certified Divorce Financial Analyst, a real estate appraiser or pension funds expert. That is all added expense that you will be expected to help pay for.

In the end, it is up to you and your spouse how much your divorce will cost. You can work together and try to settle all major issues outside the courtroom or, you can leave it up to the attorneys and judge and pay the expense of not being able to put your difference aside and save some money.

As cellular and smart phones become more sophisticated and keep us more “connected,” they also leave a digital trail that can be used in a divorce.  This includes records of text messages, emails, and call histories.  This digital trail provides an often detailed record of what the person was doing, planning and thinking at any given moment.

Even though it may seem like an invasion of privacy, evidence taken from a cell phone is permitted in most divorce proceedings, and the trend to use cell phone evidence is increasing. A survey by the American Academy of Matrimonial Lawyers (AAML) found that 92% of attorneys reported a rise in the use of evidence taken from a cellular phone and 94% of attorneys reported an increase in the use of text messages as evidence.

Evidence taken from a cellular phone is often used to prove adultery, dissipation of marital assets, and other problematic behavior in a divorce proceeding.

Florida is a no fault state for divorce purposes.  This means that either party may ask for a divorce without having to prove that the other party committed adultery or was at fault in any other way.  However, text messages and other cell phone evidence that shows proof of adultery and squandering of marital assets can be used as evidence in many other ways.

For one thing, evidence of adultery may have an impact on the court’s opinion of the spouse’s “moral fitness” for child custody purposes.  In these cases, text messages, emails, and calls to a non-marital partner or the other spouse may be used as evidence that the adultery is likely to have a negative impact on the child.  If the court agrees, a parent’s custody and visitation may be limited. If the court agrees, a parent’s timesharing with the children may be limited

Additionally, text and other cell phone evidence of any other activity that may pertain to the parent’s moral fitness will be considered.  For example, evidence of gambling, drinking, or other questionable activity may be used against a parent during child custody proceedings.  Evidence of threats made to the other parent via cell phone are always relevant.

Evidence of adultery on a cell phone may have an impact on division of marital property and debts.  Being an equitable distribution state, in Florida marital assets and debt are usually divided evenly upon divorce.  However, a spouse may overcome the presumption of equitable distribution by showing evidence that a spouse intentionally wasted or dissipated marital assets.

A judge will consider cell phone evidence of gifts, trips, rent and other expenses for a non-marital partner when awarding each partner their share of the assets and debts.  Accordingly, a cheating spouse’s share of the assets may be reduced or their share of the debt may be increased to compensate the other spouse for the waste of marital assets.

If a client thinks that a particular piece of cell phone evidence may be useful in future litigation, the client should not rely on the cell phone company to keep records of text messages or emails.  It is often the case that most cell phone companies do not keep this type of records.  It is recommended that clients preserve important text messages by saving them on their telephones and either taking a photocopy or digital photograph of the incriminating text message.

When you do hire a divorce attorney, it’s more than a matter of running your fingers through the lawyer ads in the yellow pages until you spot the word “divorce” or simply hiring the lawyer who helped you negotiate your office lease or draw up your will.

• You need to hire an attorney experienced in family law.

In some states, attorneys can be board-certified in family law. These lawyers specialize in divorce cases and other kinds of family law issues. To be certified, they must have significant trial experience and pass a rigorous test. To maintain their certification, they must receive substantial continuing education in family law each year, generally twice the amount of required continuing education of non-board certified family law attorneys. This type of family law attorney tends to charge more and demand higher retainers to begin a family law case than those who are not board-certified, but they are usually more experienced.

• The attorney you hire should talk to you in plain English, not legalese.

• The attorney should be someone you trust and feel comfortable with, because you may have to reveal highly personal information about yourself and your marriage.

• If you have young children, look for an attorney who makes it clear that during your divorce you must put your children’s needs first and that he or she will not pursue unreasonable demands for child support or help you pursue vindictive child custody and visitation arrangements.

• And last, but certainly not least, your lawyer should be affordable.

Appropriate skills and experience

An old adage states, “There are horses for courses.” This saying is as true for an attorney as for any other professional. In other words, when you select a family law attorney, you want one with the legal skills and knowledge needed to get the job done for you:

• If you need help negotiating your divorce agreement, the ideal attorney is a problem solver, works well with people, is adept at compromise,and is comfortable in court. Although you and your spouse may have no intention of going to court, an attorney’s trial record and history of success in court can have some bearing on his or her ability to negotiate a settlement with your spouse’s attorney.

• If you know from the start that you’re headed for a divorce trial, you want an attorney who has considerable courtroom experience. Not all lawyers do.

• It is also helpful if the attorney you choose is familiar with the family law judges in your jurisdiction. Knowing the courtroom style of the judge who’s likely to hear your case and how the judge has ruled on previous cases similar to yours helps your attorney adapt his or her legal strategy and style to that particular judge.

Don’t base your hiring decision on which attorney has the nicest office. A fancy office in an expensive building says nothing about the adequacy of a lawyer’s legal skills. At the same time, don’t assume that just because you pay a lot of money to an attorney that his or her legal representation is appropriate to your needs or is of high quality.Also, don’t let a lawyer’s physical appearance influence your hiring decision.

If your financial situation is complex, the lawyer you hire should either have a solid understanding of the issues and laws that pertain to your divorce or work closely with other lawyers or financial experts who have that knowledge, such as a CPA or appraiser. Remember, negotiating your divorce agreement is as much about financial matters as it is about ending your marriage.

Personal style

If you are relying on an attorney to do more than simply review your divorce paperwork, you must be prepared to share details about your personal life, marriage, and finances. Therefore, you must feel comfortable with whoever represents you.

In addition, your attorney should share and support your basic philosophy or attitude toward your divorce. For example, if you want to keep things as calm, cooperative, and nonadversarial as possible, then avoid attorneys who like to “go for the jugular.”

Do not confuse your attorney with your therapist or religious advisor. Your attorney’s clock is usually running regardless of whether you call with a legal question or to complain about your spouse.

Affordability

If you don’t have much money to spend on legal help, you may have to hire a relatively inexperienced lawyer instead of a seasoned professional. New attorneys tend to cost less than lawyers who have been practicing law for years and already have solid reputations. However, working with an up-and-coming or novice attorney has a potential advantage. In order to build up a good reputation, the attorney may be willing to work a little harder for you than a seasoned lawyer would.

Most family law attorneys bill for their services on an hourly basis. Few agree to take a flat fee based on the total amount of time and labor they think your divorce requires. Estimating up-front just how much time is necessary to finalize your divorce is difficult, because no lawyer knows exactly how any divorce is going to play out.

You’re more apt to find an attorney who’ll take your case for a flat fee if your divorce is 100 percent amicable and if the tasks the attorney will perform are very well defined. You may be able to find an attorney willing to accept a flat fee if your legal needs are very specific and very limited — for example, you just need some paperwork filled out and filed.

Among other things, an attorney’s hourly rate depends on your region of the country and whether your community is rural or urban. Those of you living on the East and West Coasts can expect to pay the most.

Depending on where you live, on average the services of a divorce attorney will cost you anywhere from $100 an hour to more than $600 an hour, plus expenses.

1.    Talk to your spouse instead of making all communication go through your attorney.  Your attorney can help you understand the law.  She can help you keep your emotions in check.  However, if you are using your attorney to discuss issues like who will drive the children to a party or what you should do about cooking dinner or not for your spouse you need to take a look at how much you are paying for that advice.

2.    Voluntarily exchange information about income, assets, retirement plans, income tax returns and debt.  Turn over copies of all original documents in your possession.  Put them in order.  Provide them in an organized fashion to your spouse and your attorney.
3.     Don’t waste time having your attorney seek documents from your spouse which you can obtain yourself.  For example, if you were the partner who did a spreadsheet and/or paid the bills, don’t ask your attorney to obtain this information from your spouse.

4.     Don’t fight about inconsequential issues.  Think about the movie “The War of the Roses” and don’t duplicate the conduct in it.  If an item your spouse wants costs $200 and you don’t want your spouse to have it, don’t spend $600 in attorney fees trying to get it.

5.     Be sure you know what your attorney is doing for you and why she is doing it.  A good way is not make numerous inquiries of your attorney regarding the status of your case.  Have her provide you with a copy of all correspondence and emails about your case.  Then only if you don’t understand will you need to make an inquiry.

Your attorney is working for you, but in the end you are the one who will bear the cost of the divorce and the result.