Prenuptial Agreements: Divorce Planning or Collaborative Marriage Planning?

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Prenuptial agreements have been around for quite some time in Florida.  They are an agreement between people who are about to wed in which the parties set out their rights and responsibilities in a written document that is executed in front of a notary and two witnesses.  Prenuptial agreements are oftentimes thought of as “divorce planning” so as to avoid a future nasty court battle, should the parties’ marriage not work out.

But who wants to plan a divorce, especially when you are not even done making the wedding plans?

There is an alternative.  It is a new process known as Collaborative Marriage Planning.

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Tampa Same Sex Divorce Appeal: Text of Answer Brief

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We know all men are not created equal in the sense some people would have us believe – some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others – some people are born gifted beyond the normal scope of most men.

But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president.  That institution … is a court.  It can be the Supreme Court of the United States or the humblest [lower] court in the land. . . . Our courts have their faults, but in this country our courts are the great levelers, and in our courts all men are created equal.

Lee, Harper. To Kill a Mockingbird, pg. 274 (1960).  Mockingbird is a timeless novel set in the fictional town of Maycomb, Alabama in the 1930’s.  Discrimination was the norm and “separate but equal” ruled the day.  Plessy v. Ferguson, 163 U.S. 537 (1896).  The words are from a different time, yet they apply directly to the laws being challenged in this Court.

You can find the answer brief in the Tampa same sex divorce appeal at the following link: 2D14-2384 Shaw Appellee’s Answer Brief.

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Will a Florida Judge Order a Doggy Custody Schedule?

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When two people are getting divorced in Florida, and they have one or more minor children, a custody schedule (now known in Florida as a time-sharing schedule)  must be established.  Approximately 90-95% of all cases settle at some point (whether it is before the filing of a petition for divorce or after spending tens or hundreds of thousands of dollars preparing for or even going through trial), and so the parties generally end up agreeing to a child time-sharing schedule.  But in those times where they do not agree, a Florida family law judge will take the decision out of the hands of the parents and set a time-sharing schedule.

But divorce doesn’t only affect the children.  It also affects the family pets.  So will a Florida judge order a doggy (or kitty) custody schedule?

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Attorney General Seeks to Prevent Tampa Same Sex Spouses’ Divorce

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Florida Attorney General Pamela Bondi has filed a motion to intervene in my client’s same sex divorce matter.  The parties married in Massachusetts, moved to Florida, came to a full settlement agreement via the Collaborative Divorce Process, and asked a Hillsborough Judge to dissolve their marriage.  Their request was denied and their case dismissed.  The case is now in the Second District Court of Appeals.

The Tampa Tribune has reported the development as follows:

Attorney General Pam Bondi may be fighting to prevent same-sex couples from marrying in Florida, but she is also taking a legal position that has the effect of forcing gay couples who married elsewhere to stay married, lawyers in a Tampa case say.

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Tampa Same Sex Divorce Case First DOMA Challenge Certified to Florida Supreme Court

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Can two women who were married in Massachusetts but now are residents of Florida divorce in Florida?  That is the question that my Tampa client and her wife were looking to have answered in the affirmative.  The trial judge determined that she did not have the power to dissolve a marriage that the State of Florida did not recognize.

When we appealed, we asked a panel of judges to skip the normal appellate process and go straight to the Florida Supreme Court.  Our argument was that this case involves issues of such public importance, and that determining whether married couples of the same sex can divorce affects the administration of justice throughout the state.  Our request for the expedited process was denied.

And then we got word yesterday.  The judges of the Second District Court of Appeals decided en banc (with the input of all of the judges of the Court, excluding a judge who had recused himself) that this case should go straight to the Florida Supreme Court.

Below are portions of the brand new ruling:

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Florida Family Law: Mandatory Disclosure

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When you file and serve a petition in a Florida family law case that involves financial issues such as child support, alimony, or the division of property in debts, a clock starts ticking.  Within 45 days of the initial pleadings being served on the respondent, each party is required to provide the other party with a whole host of financial documents and information.

This is what is known as Mandatory Disclosure, and it is governed by Rule 12.285, Florida Family Law Rules of Procedure.

The following are a list of documents that are required to be exchanged:

(1) A financial affidavit in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(b) if the party’s gross annual income is less than $50,000, or Florida Family Law Rules of Procedure Form 12.902(c) if the party’s gross annual income is equal to or more than $50,000, which requirement cannot be waived by the parties. The financial affidavits must also be filed with the court. A party may request, by using the Standard Family Law Interrogatories, or the court on its own motion may order, a party whose gross annual income is less than $50,000 to complete Florida Family Law Rules of
Procedure Form 12.902(c).

(2) All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on the party’s behalf for the past 3 years.

(3) IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared. Read more →

Florida Bar Family Law Section Moves To File Brief In Same Sex Divorce Appeal

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The Family Law Section of the Florida Bar, representing over 4,000 attorneys and affiliate members, has decided to file a brief in a divorce appeal in favor of the right of same sex spouses in Florida to divorce.  The Family Law Section is joined by the American Academy of Matrimonial Lawyers (“AAML”) in what is believed to be the first same sex divorce case in Florida to challenge the state’s Defense of Marriage Act and constitutional amendment banning “gay marriage.”

As an attorney for one of the spouses – who were married in Massachusetts, moved to Florida, and filed for divorce in Hillsborough County – I welcome the support of the Family Law Section and AAML.

In their motion requesting permission to file an amicus brief, the Family Law Section and the AAML write the following:

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New Collaborative Divorce Brochure from the IACP

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Cp LogoThe International Academy of Collaborative Professionals, a non-profit organization dedicated to helping families work through divorce and other issues privately and respectfully, recently put out a new electronic brochure that explains the collaborative divorce process.  To view the brochure, click on the link below, then click on the bottom right hand-corner of the brochure and drag to the left to flip through the pages:

http://collaborativepractice.com/media/41538/e_brochure_ENGLISH.swf

You can also find out about collaborative practice in the Greater Tampa Bay and Sarasota areas by going to the website of Next Generation Divorce, a local network of caring collaborative professionals.

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Tampa Tribune: Florida Gay Marriage and Gay Divorce Cases

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As I wrote in a previous post, a Florida Circuit Court judge in Monroe County (in the Florida Keys) declared that Florida’s ban on same sex marriage is unconstitutional.  Though that ruling was stayed (not put into effect) pending appeal, a Miami-Dade judge made a similar ruling this past week, which was also stayed.

A few days before the Miami ruling came out, I was interviewed by Elaine Silvestrini of the Tampa Tribune about my Tampa same sex divorce case now under appeal in the Second District Court of Appeals and how the Florida Keys ruling may or may not affect the divorce case.  Below are some excerpts of the Tampa Tribune article:

Although the decision [to permit same sex marriages] has no force of law in the rest of the state, lawyers [in the same sex divorce case] say it may help their case for divorce equality.

“It’s not authoritative, but it provides a little bit more persuasion,” said Adam Cordover, who represents [one of the divorcing spouses]. “It shows that yet another court has ruled in favor of marriage equality. The currents of history are in favor of marriage and divorce equality.”

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Radio Interview: Collaborative Divorce and Christian Values

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Collaborative attorney Joryn Jenkins and I recently appeared on Spirit FM 90.5’s Legally Speaking to talk about Collaborative Divorce.  Spirit FM is a Christian radio network that broadcasts out of Christ the King Church in the heart of Tampa, Florida.

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As I mentioned during the interview, we do not advocate divorce:  anyone with marital troubles should consult with their priest, pastor, rabbi, marital therapist, or other clergy or professional and do all that they can to repair their relationship, especially if there are children involved.  No matter what process is chosen, divorce is a painful ordeal, and the spouses are not the only ones affected.

However, there are times when a marriage is truly irretrievably broken.  It is in those cases that we urge parties to consider collaborative divorce, which is a private, respectful family law process that helps spouses dissolve their marriage while keeping their dignity intact.  This is in stark contrast to traditional divorce, where the adversarial court system pits husband versus wife, mother versus father, ultimately to be judged by a stranger appointed or elected to a government position.

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