The myth of 50/50 timesharing

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

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

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

The pitfalls of paternity

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

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

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

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

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

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

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

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

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

Yours, Mine and Ours

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

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

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

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

Should I stay or should I go?

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

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


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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Divorcing when times are tough

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

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

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

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

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

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

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

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

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

What Florida’s parenting bill will and will not do

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.