All entries tagged with “collaborative divorce”

Wife Sells Diamond to Pay Attorneys' Fees in Divorce

In a case that might represent a metaphor for the process of divorce consuming the last of the love between two people, a recent case touches also on the realities of divorce litigation and its expense.  In the case of Rosaler v. Rosaler, 42 Fla. L. Weekly D1061a (Fla 4th DCA 2017), the Court remanded the final judgment of divorce to allow the trial court to reassess financial findings in the case.  The wife in the action had sold her diamond ring from the marriage and used the approximately $60,0000 proceeds to fund her legal battle with the husband.  

In the course of making the final determination, the trial court considered the $60,000 part of the wife's share of the marital estate rather than a temporary support payment, according to the Appellate Court, and without making proper findings that the wife had entitlement to temporary support in the form of attorneys' fees (i.e., an inability to pay and need and an ability to pay by the husband).  Therefore, the wife suffered potentially a $30,000 loss as a result of the judgment as a result of improper ruling not based on findings by the Court.  

Leaving aside the other metaphorical considerations for the moment, this case should serve as a reminder to parties in a divorce that mistakes can be made, even by judges, and the assistance of competent counsel at the appellate level may have made the difference in many thousands of dollars for this now former wife.  If you have questions about your divorce or the process of obtaining one, speak to the outstanding family law attorneys at Icard Merrill today.  

King Solomon For Modern Times - Partitioning the Family Dog

In a sad (if also slightly comical in title only) case recently decided in the 17th Circuit in Broward County, a couple that later split ended up suing one another for the dog the two shared while a happy couple.   Persinger v. Pitts, 24 Fla. L. Weekly Supp. 998b.  In what was potentially meant to be a wake up call to two litigants who may have had designs more on spite and revenge than on establishing ownership of the dog, the Court dismissed the case finding that the two were joint owners of the dog and that neither of them could sue the other for replevin of the furry companion.  

Instead, the court advised that the parties were free to bring a partition action regarding the pup, which would be sure to send animal rights activists into a frenzy.  Although physical partition of property (i.e., "I get this half and you can have that half") is a remedy that is available to parties, it seems unlikely that the poor dog would be subjected to anything more than court-ordered visitation and habitation schedule if the matter were brought as a partition.  One other thing sometimes done with real property in a partition action is where the property itself is sold and the proceeds split between joint owners.  Presumably that would not be a merry result for the trio either. 

As this case shows, domestic disputes can sometimes lend some source material fit for Hollywood in terms of the extreme steps and battles undertaken by the parties.  In order to help prevent or wind down some of the (often quickly spiraling) hostilities and to protect you from losing your rights, it can be essential to talk to an experienced family law attorney.  Contact our family law attorneys in Sarasota and Port Charlotte today if you need help.  

Child Placement Under the Interstate Compact on the Placement of Children (ICPC)

Placement of children with a parent is one of the most challenging and emotional disputes that take place in civil courts.  Things can often be even more tense and challenging when one parent resides out of state. In order to better position courts to tackle these challenges, Florida is one of a number of states that have adopted the Interstate Compact on the Placement of Children (ICPC) via Section 409.401, Florida Statutes.  

A recent case outlines some of the requirements the ICPC places on Florida courts.  In Lawler v. State, 42 Fla. L. Weekly D879 (Fla. 1st DCA April 18, 2017), the First DCA was faced with the unenviable task of unwinding a notedly "well intentioned" order by the trial court on the basis of failure to adhere to the requirements of ICPC.  

Specifically, the trial court was found to have failed to obtain a home study of the Indiana home of the father of two of the children, the children could not be allowed to remain in his custody until the home study was completed.  The record showed that the father and the Department of Health (through DCF) had attempted on several occasions a home study report from Indiana officials without success.  Despite the fact that the children did well residing with the father after being fostered with grandparents following removal from the mother's home due to a domestic violence incident, the law required a home study before final placement could be made.  Though the appellate court rang a sympathetic (and almost apologetic) tone, it upheld the requirements of the law and sent the case back for further proceedings on that issue. 

If you are facing questions about the placement of children or the shared parental responsibilities and requirements under Florida law, reach out to the Family Law attorneys of Icard Merrill today for help.  

Periodic Alimony in Long- versus Short- Term Marriages in Florida

Two cases recently decided highlight the differences between alimony awards depending on whether the marriage is considered short-term or long-term.  RODRIGUEZ v. LORENZO, 2017 Fla. App. LEXIS 4653, 42 Fla. L. Weekly D 790, 42 Fla. L. Weekly D 790 (Fla. Dist. Ct. App. 3d Dist. Apr. 5, 2017) dealt with a marriage of four years at the time of filing (six years by the time the decree was entered dissolving the marriage), while COOK v. COOK, 2017 Fla. App. LEXIS 4620, 42 Fla. L. Weekly D 770, 42 Fla. L. Weekly D 770 (Fla. Dist. Ct. App. 2d Dist. Apr. 5, 2017) dealt with a marriage that lasted eighteen years.  

Under Florida law, there is a rebuttable presumtion that "a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater . . . . until the date of filing of an action for dissolution of marriage." § 61.08, Fla. Stat. Under Florida statutes, there is a rebuttable presumption that a marriage that is short term should not result in permanent periodic alimony, as noted by the Court in the Rodriguez case. Whereas, in long-term marriages, the Court must determine whether there is a need by the spouse seeking alimony and whether there is an ability to pay by the other spouse.  If those criteria are both met, alimony is then awarded, as mentioned int he Cook case.  

As is often the case, these presumptions are usually rebuttable, which makes each case a very fact-specific endeavor.  The help of a trusted and experienced attorney can often mean the difference in many thousands of dollars over the course of life after divorce.

If you have questions about whether you are entitled to alimony or whether your spouse may be entitled to alimony if a claim for it is made, contact the excellent Family Law attorneys at Icard Merrill today.  They can help you understand your rights and obligations. 



Inequitable Conduct Doctrine in Divorce Cases

The discretion of the court in divorce actions is very broad, and the judges overseeing those actions have the ability to impose relief over a wide range of possibilities.  One area in which the court normally exercised that broad discretion is in the area of attorneys' fees.  For instance, upon a finding of need for one party, the court can impose ongoing liability for paying for that party's fees in a case on the other party if the court believes that party can pay for those fees.  Divorce actions are the only place you will generally see that type of fees where a party has not yet prevailed or where there have not been sanctions imposed.  

Sanctions is another vehicle for awarding fees, and in divorce actions, one type of sanctions are on the basis of what is called "inequitable conduct" doctrine.  As explained in a case this month before the Second District, the inequitable conduct doctrine requires a finding that the party which is to pay fees "has exhibited egregious conduct or acted in bad faith." Myrick v. Myrick, 2017 Fla. App. LEXIS 3971 (Fla. 2d DCA 2017) citing Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998).  But, the court also mentions that "[s]uch awards are rarely applicable and should be reserved for extreme cases in which a party litigates vexatiously and in bad faith" and that courts imposing the inequitiable conduct doctrine must make certain findings of fact that show and illustrate the bad faith in question.  Id.

In this case, the trial court found that:

[the] entire case, since it began at the Former Husband's relocation on January 9, 2013, was made necessary by the Former Wife's conduct, her actions, and her life choices. . . . [T]he Court specifically finds a pattern of excessive, expensive, and needless litigation. . . . [T]he Court finds that the Former Wife's actions have been abusive of the judicial system, not of taking up this Court's time, but to the two years of the parties' [*7] respective lives and that of their young son.

However, the appellate court found that these statements were not specific enough with respect to the bad faith upon which the inequitable conduct doctrine was based in this case.  The trial court did indicate it believed the wife may have "mental problems or perhaps it is just an obstinate refusal to appreciate that she is not a good person to parent the parties' child," however, that was not a specific finding of bad faith. The appellate court also mentioned that it is a high bar for bad faith conduct capable of supporing an attorney fee award under this doctrine, since it would not be enough to simply show that a party acted in a way that is "selfish and contrary to the best interests of the child." 

This case gives a small glimpse into the challenges and behaviors that are too often found in divorce actions (as well as mentioning the expense related to protracted litigation).  If you need help in a divorce action or just have quesitons about your rights and how you might avoid the expenses of a protracted divorce action, contact the family law attorneys of Icard Merrill today. 


The Video Dad and Under-Employed Mom

A father recently appealed a court’s order in a divorce action on two points that together remind us of the challenges and intricacies of modern divorce actions.  In the case of Saucier v. Nowak, a father sought to have a court order amended to reflect a schedule for daily Skype video conferencing with his child (something the child’s mother contested on appeal). Further, the father asked that the court apply imputed wages (i.e., wages that were not actually earned) to the mother based on the fact that the mother was a trained phlebotomist and was instead only imputed an amount equal to the state minimum wage.  41 Fla. L. Weekly D2339 (Fla. 5th DCA October 10, 2016). 

This case highlights some issues present in divorce actions being brought in the current day and age, the first of which is the prevalence of other means of contacting and staying in touch with loved ones.  Skype and other video conferencing software is widespread now in its accessibility and use.  Other forms of electronic connection are available and emerging, as well.  It’s not inconceivable that orders could start being sought and rendered for a period of daily cooperative gaming between parent and child using headsets and video game servers.  There are many means available to stay connected now, and courts have long recognized the value in children staying as connected as practicable to the non-majority timeshare parent.  These alternative ways of staying in touch simply make that goal more attainable and some creative use of technology is something that parents should consider in a divorce action.

The second highlight from the Saucier case is a continued effort to see parents encouraged to reach their full economic potential—or perhaps more accurately, to penalize those parents who are the recipient of spousal support and who don’t realize that full potential.  It is a bit interesting, perhaps, to contrast that the “balanced life” counter-culture now often associated with millennials refusing to take up the yoke of the financial results-focused generations made famous in the 1980’s with that latter money-driven “workaholic” mindset.  Regardless, courts do in some cases reduce the amount of spousal contribution where a parent receiving that support is not either putting in the amount of hours they could be working or if they take work that is below their reasonable earning level. 

The challenging (or enforcing) these mechanisms takes real skill in order to maximize a party’s chances of success.  If you are facing a divorce or are seeking to review or amend a previous order in your divorce case, reach out to the skilled and effective family law attorneys at Icard Merrill today.

Limiting the Reach of Financial Discovery Against Non-Parties in Divorce

In what seems to be an unfortunately common practice in divorce actions, the former wife in a recently decided Florida divorce case sought and was initially granted by the trial court permission to get personal financial information regarding her three adult children with the former husband. Inglis v. Casselberry, 41 Fla. L. Weekly D1651 (Fla. 2d DCA July 15, 2016).

In Inglis, the former wife wanted to get to the bottom of trust distributions to both the former husband and to his three adult children from a trust that distributed to all four.  However, in a decision underscoring an important protection for families of the parties to divorce, the Second District Court of Appeals determined that Article I, section 23, of the Florida Constitution protected a person's right to privacy in their finances unless it could be shown with evidence and allegations that there was some basis to believe the material sought was likely to have a bearing on the case directly.   

This decision might help reinforce protections for families which are too commonly dragged into divorce litigation--often out of spite or in an effort to try to uncover private financial information with no real bearing on the divorce itself.   If you have questions about your rights in a divorce or about your rights as a non-party to a divorce from whom information is sought, contact the outstanding divorce attorneys of Icard Merrill today. 

Equitable Distribution Issues Lead to Unfavorable Result for Wife

In the April 20, 2016 decision rendered by the Second DCA on a Hillsborough County Case, Thomas-Nance v. Marcio Nance, 189 So. 3d 1040, 1041 (Fla. 2d DCA 2016), the Court cast light on an issue that faces many people in divorce actions--inconsistent operation of the law affecting distribution of assets.  

In this case, the wife and husband shared a marital home that had about $50,000 in equity at the time of the divorce.  Since the husband had inherited the property, he wanted to keep living in it.  Neither party had the ability to buy the other out of the loan, so the judge simply ordered the wife to turn over her ownership interest in the home within 30 days (via quit claim deed) and allowed the husband to himself set what he thought he could pay per month on the $25,000 in equity on the home that the wife was entitled to.  

With no further inquiry, the husband decided $100 per month was all he could pay and the magistrate entered a recommended order and the court entered an order to that effect.  In essence the husband had almost 21 years to repay the wife with no interest owed on that sum.  The appellate court rightly decided that the wife had been deprived of her current interest in the home and did not adequately address how she would be paid or protected in a reasonable manner.  

Even when parties believe they have resolved nearly all issues between themselves--as the parties here did--it still is a great idea for each of them to talk it over with an attorney who represents their interests and who can help guide them around the unseen hurdles and potentially bad results at a hearing where the parties are not adequately prepared or represented.  

Talk to our family law attorneys today if you have questions about a divorce or other family law issues. 

Fighting the Solomonic partitioning of assets in divorce cases

As the the Bible story goes, King Solomon proposed to deal with the squabbling of two women fighting over a baby each claimed as her own by dividing the child in half—the ultimate compromise in the face of absolute and mutually exclusive options.  Of course, in the bible verse, King Solomon’s wisdom is borne out (the judgment is avoided when the true mother of the child is determined by her response of offering to give up the child rather than see it hurt), though less clear is the wisdom of the ‘splitting the baby’ approach that has long been a hallmark of divorce courts. 

The Fourth DCA recently addressed the legislative protections in place against the Solomonic method for dividing a couple’s assets in divorce in the case of Pierre v. Pierre, 185 So. 3d 1264, 1264 (Fla. 4th DCA 2016).  In Pierre, the trial court awarded the wife a vehicle, the marital residence, and held that each husband and wife would keep his or her own retirement and be responsible for the individual debt each had accrued.  However, the court made and recorded in the judgment no findings as to the value of the assets and liabilities when it carved them between husband and wife, in contravention of § 61.075(3), Florida Statutes. 

Thus, despite being protected by an abuse of discretion standard (such that a judgment will stand unless “no reasonable [person] would take the view adopted by the trial court”), the trial court was reversed and the judgment overturned.   The moral of the case for trial judges should be that simply dividing assets by what ‘feels’ right or equitable without careful determination and notation of the actual value of those assets will result in abuse of the court’s discretion and allow successful challenges by those that feel the baby was not properly divided at the trial court level.

In order to help ensure your assets are protected in a divorce and that you are not on the wrong end of a Solomonic division in your divorce case, contact the skilled and experienced family law attorneys at Icard Merrill for a consultation today. 

More States Adopting Formal Rules for Collaborative Divorce

First introduced in 1991, the practice of collaborative divorce has grown tremendously in the last 20+ years.

A collaborative divorce can be defined as “a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation.”

Rather than going through the stress and cost of a traditional divorce, the collaborative divorce approach allows separating couples to settle the terms of their separation face-to-face, in good faith and out of court. This approach has been shown to reduce stress, especially on any children involved. It is also more private since any litigation is a matter of public record.

Since its inception over 20 years ago, the collaborative divorce option has experienced a dramatic rise in popularity.

Some states, like New Jersey, are going a step further and by mandating divorcing couples try a collaborative approach first before resorting to the traditional route of litigation.

Generally speaking, New Jersey is following the Collaborative Law Act developed by the National Conference of Commissioners on Uniform State Law (a.k.a. the Uniform Law Commission, or ULC). The ULC was established in 1892 and “…provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.”

Similar laws related to collaborative divorce have been enacted in:

  • Alabama
  • District of Columbia
  • Hawaii
  • Maryland
  • Michigan
  • Nevada
  • Ohio
  • Texas
  • Utah
  • Washington

Although other states do not have formal statutes related to collaborative divorce, there are procedures developed by local courts and legal organizations to facilitate this process. It’s estimated over 22,000 attorneys in the U.S. and across the world has received training in this form of alternative dispute resolution.

A collaborative divorce bill, SB 1190, was filed in the Florida Senate in 2014. Although the upper-chamber passed the bill unanimously, the Florida House was unable to act on it before the conclusion of the session.

According to an analysis and fiscal impact statement for the bill, collaborative divorce is a much faster option and much less expensive. A study by the International Academy of Collaborative Professionals evaluating 933 cases found that 80% of all collaborative divorces are settled within a year, and 86% of the cases ended with a formal agreement and no court.

While a collaborative divorce is a good option for separating couples who feel they can amicably negotiate a settlement, it is generally not recommended in cases of domestic violence, substance abuse or severe mental illness.

Icard-Merrill’s exceptional team of Florida divorce attorneys and mediation experts strongly support the idea of collaborative divorce, or any case where two disputing parties can come together and hammer out an agreement.

If you’re considering divorce, this collaborative approach has been shown to cost less, and more importantly, minimize stress in an already stressful situation.