Mosten: Is Your Divorce Lawyer Informing You?

If you are considering divorce, you likely think that whether you can have an amicable or collaborative divorce depends wholly on your spouse.  Certainly, the attitude and ability of your spouse to compromise has an effect, but in my experience the attorneys that you and your spouse choose has a much bigger impact.

Beginning A Litigation Divorce

If you and your spouse choose attorneys whose primary orientation is litigation, then there is a good chance that you will face a court battle.  Your litigation attorney will likely draft a petition for dissolution of marriage asking for everything, and then have a process server or sheriff’s officer serve your spouse.  These tactics are all intended to intimidate your spouse and get them to submit.

It should be no surprise that this usually elicits the opposite of the intended response.  Not willing to submit, your spouse hires a “bulldog lawyer,” and the battle is on.  Say goodbye to your children’s college saving.  Know that this money will now be going to your lawyers’ children’s college tuition.

Fortunately, there is a different way.

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Does My Child Have A Say In Custody?

So, you are thinking about divorce. You, like many parents, may wonder whether your child has a say in the custody (also known as time-sharing) schedule. Depending on your child’s age and maturity level, your child might have have some input in what your timesharing schedule should look like.  However, a child under the age of 18 does not have the final say in a time-sharing schedule.

How Your Child Can Have A Say In Custody

Whether your child has a say may depend on whether you choose to litigate your case, or instead, participate in alternative dispute resolution like collaboration or mediation. In most litigated cases, a judge will not allow a child to participate in the proceedings. However, if you proceed with collaborative practice or mediation, your child may be able to participate if you and your spouse agree. If so, your child may attend a portion of the mediation or collaborative meeting. The mediator or collaborative facilitator will help determine the appropriate forum for the child to express his wishes and whether you and your spouse should be present.

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Video: Tiger Woods, Privacy, and Collaborative Divorce

In 2012, as news of Tiger Woods’ extramarital affairs and his wife’s reaction repeated on TV broadcasts and magazines throughout the world, some professionals stood up and said it does not need to be this way.  You can maintain your privacy and dignity in your family law matter.  You can utilize the collaborative divorce process.

In the video below, Psychologist Ellie Izzo, author of The Bridge to I am: Rapid Advance Psychotherapy and co-author with Licensed Marriage and Family Therapist Vicki Carpel Miller of Second Hand Shock: Surviving and Overcoming Vicarious Trauma, discusses collaborative divorce in the wake of the Tiger Woods divorce:

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Top 20 Blog Posts of 2017

As we enter the new year, sometimes it is helpful to take a look back.  Below are the top 20 most viewed blog posts here at FamilyDiplomacy.com (Click on the title to visit the blog post):

1. SB 590: New Florida Law on Child Support and Parenting Plans

On June 15, 2017, Florida Governor Rick Scott signed Senate Bill 590 (“SB 590”) into law.  SB 590 directs the Department of Revenue to provide parents with a proposed Standard Parenting Time Plan in Title IV-D child support cases.  The bill also authorizes the Department of Revenue to establish agreed-upon parenting plans.  Further, SB 590 waives court costs for families in a Title IV-D case who cannot agree on a parenting plan and are asking the courts to establish a plan.

2. Video: General’s Daughter Discusses Her Peaceful Divorce

Cynthia Schwarzkopf, daughter of General H. Norman Schwarzkopf, Jr, discusses how she and her husband utilized the collaborative family law process to dissolve her marriage in a video released by the Tampa Bay Collaborative Divorce Group.

3. How Often Do Collaborative Divorces Terminate?

Good, you have decided that if you are going to divorce, you are going to do it collaboratively. This means that you and your spouse will each have your own attorneys, but the attorneys are not there to fight. You hire the attorneys to help reach an out-of-court agreement so you can move on with your lives.

But you may also know that either spouse at any time can decide they no longer want to participate in the collaborative divorce, causing it to terminate. All professionals are automatically fired. The spouses then proceed as “opposing parties” in the traditional divorce court route.

The possibility of losing your attorney is a scary notion. So, you may be wondering to yourself, how often do collaborative divorces terminate?

4. Collaborative Law Rules Approved by Florida Supreme Court

On May 18, 2017, the Florida Supreme Court published an opinion approving collaborative law rules.  The collaborative law rules are the last step necessary before Florida’s Collaborative Law Process Act goes into effect.

The opinion approves Rule Regulating the Florida Bar 4-1.19 and Florida Family Law Rule of Procedure 12.745.

5. What is Collaborative Mediation?

If you are getting divorced, you want to move forward as peacefully, quickly, and cost-effectively as possible.  And so you should learn about collaborative mediation.

6. Bitcoin and Divorce

Bitcoin is a relatively new type of currency that is not controlled by any government but rather is decentralized.  It is oftentimes referred to as a “cryptocurrency” as it is not physical.  Bitcoins are maintained in virtual “wallets” and can be transferred via QR codes.

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Custody: What Does The Law Consider?

Florida Statute § 61.13 lists the factors that the law will consider when developing a child custody, also known as time-sharing, schedule. One major factor is whether you will encourage a close and continuing relationship between the children and the other parent. The law considers your histories and personalities. Section 61.13 examines whether you will be reasonable when changes are required. The law also considers your ability to keep each other informed regarding important matters regarding the children. Florida law frowns upon parents who disparage the other in front of the children or bring the children into their disputes.

Parental Responsibility and Child Custody

Section 61.13 also discusses parental responsibilities and whether third parties will have decision-making authority. For example, if you work eighty hours a week, it may not be realistic for you to have custody the majority of the time. Another consideration is whether you will be able to participate in the children’s school and extracurricular activities.

Another factor is whether you have demonstrated the capacity and disposition to determine, consider, and act upon the needs of the children as opposed to your own needs or desires.

It is important to maintain stability as much as possible for the children.  Accordingly, the law considers the length of time the children have lived in a stable, satisfactory environment. Often times, if a temporary schedule is going well, the law suggests that it may be best to keep that custody schedule in place, especially if the child is tied to that home, school, and community.

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Collaborative Law Training Ft. Lauderdale – January 5-6, 2018

Give yourself and your clients a Christmas gift: Become trained in Collaborative Family Law!  Learn to address not only the legal needs of divorcing clients, but also the psychological and financial needs.  Find out what it is like to approach family law in a team-based manner, as opposed to an adversarial manner.

Tampa Bay Collaborative Trainers

Adam B. Cordover, Jeremy Gaies, Kristin DiMeo, and Enid Miller Ponn Demonstrate a Collaborative Divorce Team Prep Meeting

Join the Tampa Bay Collaborative Trainers at Nova Southeastern University in Davie, Florida, right outside of Ft. Lauderdale.

What2-DAY Interdisciplinary Introductory/Refresher Collaborative Training

Collaborative Family Law Professionals of South Florida

Sponsor: Collaborative Family Law Professionals of South Florida

Where: Nova Southeastern University, 3301 College Ave., Davie, FL  – Maltz Psychology Building (around Ft. Lauderdale)

When:  January 5-6, 2018 (A third, locally staffed advanced training will take place on January 14, 2018)

Continuing Education: CEUs, CMES, and CLEs will be applied for

Registration Now Open!  Click Here!

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When Will I Get to See My Children?

Has your spouse petitioned for divorce and is now keeping your children from you? If so, you are likely wondering when you will get to see your children. There are several scenarios that could affect when you will be able to see your children.

Traditional Litigation Approaches

If your spouse simply refuses to allow you to see your children, and there is not yet a court order in place governing when each parent has time with the children, you may have to wait a few months before you see them. Of course, you have just as much right to your children as your spouse. But if your spouse is refusing you access, it likely isn’t in your children’s best interests to force the issue and cause an altercation. Depending on your situation, you may need to move for an emergency hearing to have the judge decide temporary timesharing as expeditiously as possible. Even in situations where a parent is denying the other parent access, a judge may require that parties mediate before allowing a temporary relief hearing to be set.

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Alimony Tax Deduction Repeal Delayed

As part of the U.S. Congress’ drive to reform the tax system, one issue that kept on arising was whether the alimony tax deduction would be repealed.  The House of Representatives passed a version of the tax bill that included a repeal for divorces finalized after December 31, 2017, while the Senate version of the bill included no alimony tax deduction repeal.

In conference, both houses agreed on a final bill that includes the repeal.  However, it will only take effect for divorces that occur after December 31, 2018.

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Will I Get Custody of My Kids?

Every parent going through a divorce fears that they will not receive sufficient time or custody with their children. For parents who are used to seeing their children whenever they please, the thought of a third party ordering a schedule by which they have to abide can be nerve-wracking.

Traditional Divorce Court – Judge Decides Custody

If you decide to litigate your divorce in court, you will leave your destiny to a judge who only receives a snapshot glance at your life and parenting abilities. Outside factors will impact your case like the attorneys’ trial abilities, the mood and beliefs of the judge who is assigned to your case, the opinion of the experts which may be determined by which party is paying him, and how the parties and witnesses present themselves in court.

So how do you ensure a positive result in your case? Keep the decision in your own hands. Divorces do not have to occur in court, and actually, most do not. There are several courtless divorce options that are available that leave these important decisions to you and your spouse.

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Collaborative Divorce Is Not Right For You If…

Collaborative divorce is not for everyone.  Sure, most families going through divorce would benefit from the private, secure, and non-adversarial nature of the collaborative process.  However, it may not be right for you if certain things are important to you.

Collaborative divorce is not right for you if…

You are seeking revenge

If you are seeking revenge, collaborative divorce is not right for you.  The collaborative process will not satisfy your need to see your spouse suffer.  This is because, at the beginning of the case, everyone signs a collaborative participation agreement in which the spouses agree to engage in good faith discussions to reach a resolution.  Each spouse has his or her own attorney, and the attorneys are there solely to help the clients reach an agreement.  The attorneys cannot be used for opposition research, lengthy motion practice, or accusatory litigation.

Picture for representational purposeHowever, the attorneys are also there to safeguard the process.  If an attorney believes that his or her client is no longer acting in good faith, or is only attempting to damage the other spouse, the attorney may have the right to terminate the process.  This shuts down behavior meant to harass the other spouse.  If the attorney believes his or her client can put the need for revenge aside, the collaborative process may continue.  If not, the collaborative attorney has a duty to ensure that the process is not being used as a tool for vengeance.

Further, the collaborative process generally involves a neutral facilitator, with a background in communication, childhood development, and family and power dynamics.  The facilitator helps keep conversations productive and forward-focused rather than centered on past grievances.  The facilitator is also there to address power imbalances and shortcut vengeful actions and communications.

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