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.
Tuesday, October 7, 2008
Monday, June 30, 2008
Changes in Florida's custody law: No more primary residential parent and more
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.
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.
Wednesday, June 11, 2008
An interesting article on collaborative law
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."
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."
Friday, April 25, 2008
We can’t afford the house and a divorce- the impact of the housing crisis on separation
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.
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.
Monday, March 24, 2008
Shhhh... your children are listening
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.
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.
Friday, February 8, 2008
The Seven Deadly Sins of Divorcing Men
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.
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.
Tuesday, February 5, 2008
The Seven Deadly Sins of Divorcing Women
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.
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.
Thursday, January 3, 2008
What's In It For Free: Are Free Consultations Really Worth It?
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.
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.
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