The Orsini & Rose Florida Divorce and Family Law Blog

Read their lips: new taxes!

2008-07-02T16:34:00.003-04:00

We've been telling prosepctive clients that they need to get their cases filed quickly due to the filing fee increases. Divorces already had the highest filing fees of any type of case except adoptions, but as of July 1, they went up even more. It now costs $418 to file for divorce, including the fee for issuing a summons, even if it's an uncontested divorce.

What's worse, you now have to pay to file a counter-petition. That's when you sue someone back for divorce who is suing you for divorce. It's almost a requirement to file a counter-petition because, if you don't file a counter-petition in a contested divorce, you run the risk that the filer will dismiss the petition, knocking the whole divorce out of court. The counter-petition means it takes two to dismiss the divorce, not just one. So the new total cost for a contested divorce (one with a petition and a counter-petition): $713!

You probably don't want me to tell you how mediation costs went up, how process server costs went up, how subpoena costs went up, etc.

You should know that the court system is completely broke. Critically broke. So broke that Florida supreme court justices are quitting because they can't pay their bills. People are getting laid off all over the place in the court system.

So a Tampa legislator had a "great" idea: let the people who use the court system pay for the court system! Sounded good. His bill sailed through the legislature and across the governor's desk with almost no opposition and--boom!--court fees skyrocketed.

My only question is this: if the people who use the courts are the ones paying for the courts, what are we paying taxes for?

Well, I guess I do have one other question: who is going to be able to afford these courts?

Okay, yeah, and one more question: weren't these courts supposed to belong to the people?

Just a happy aside here to let you know that Orsini & Rose hasn't raised it's fees. :-)

In a family law case, who's paying for the lawyers?

2008-06-07T11:05:00.005-04:00

The short answer is, probably you.

But there's a lot more to it than that, especially in a Florida family law case.

Many lawmakers have suggested that we have the "loser pays" rule in the U.S., which is where the loser in the lawsuit has to pay the attorney fees and court costs of the winning side. These legislative and congressional bills are usually killed by insurance company lobbyists (that's right, the same ones crying about the "litigation crisis") because they know insurance companies would usually be the losers in the lawsuits. The fact is, we have a number of "loser pays" rules in family law (and general civil) court already without the "loser pays" rule. But, like I said, there's more to it than that.

First, how do you determine who the "loser" is? What if one person wins custody of one child but the other wins custody of another? What if one person wins the house but another wins the 401(k)? "Winning" is difficult to define in family law.

So, in family law, we try not to focus on who is the winner, but who can afford the lawyers. If one person makes $300,000 and the other makes $30,000, the judge may often say that the person making the most money has to pay 90% of the lawyers' fees of the other person. (Why 90% and not all of the fees? The idea is that the 10% will act as a "co-pay", forcing the person receiving attorneys' fees from the other side not to purposely run up attorneys' fees just to harm the other side.) We lawyers call this the Rosen rule, based on the original appellate court case that allowed attorneys' fees to be paid by the party that makes the most money.

But don't get too excited about the Rosen rule. For one thing, judge's don't always grant Rosen fees. Sometimes, judges will say, "Well, this case ought to settle, so I'm not awarding any fees to anyone." Second, lawyers usually want you to pay the fees up front, even though the other side may have to reimburse you based on a Rosen motion. After all, lawyers have expensive rent, expensive employees, expensive furniture, and so on. Our office landlords just don't want to hear, "I'll pay you in a couple of months when the other side pays my fees." You'll probably still have to pay your lawyer up front, then get reimbursed from the other side later. Lastly, it's very, very common for judges put off attorneys' fee motions until after the case--including the trial if there is one--is completed. So, even if you do get reimbursed, it may not be until the case is completely over.

Rosen isn't the only way to get fees paid by the other side. One of my favorites--and one of the least used--is called the Request for Admissions. If, for example, the other side lies on his or her financial affidavit about income (a very common event), you can send out a request in a certain form for the person to admit that he or she makes more. If the other side doesn't respond within 30 days, they've admitted it automatically, which is great for those cases where the other side is constantly delaying. If they deny it, they must pay the cost and fees for your lawyer to prove it up at trial, subpoena the employer's records, take the other person's boss's deposition, etc., and it's almost impossible for a judge to refuse to award the fees and costs.

There are lots of other ways to have fees paid by the other side in Florida. Believe it or not, we even have the "loser pays" rule. It's just not automatic until you make it automatic. You have to invoke the "loser pays" rule by filing a form which essentially threatens the other side by saying, "If you don't settle for x, you have to pay our costs and fees." We lawyers call it the "OJ" rule (Offer of Judgment, not the O.J. you're thinking of).

Bottom line, there are lots and lots of ways in Florida family court to cause the other side to pay your attorneys' fee and litigation costs. But a lot of them aren't used, some are almost never used, and some, though used, don't get granted until the case is almost finished. So, who's paying the fees? Probably you.

Can stimulus checks be seized for back child support?

2008-05-21T18:00:00.002-04:00

Apparently the IRS thinks so. They've decided to seize stimulus checks as if they were tax refunds. Moreover, take this scenario:

Suppose a child support payor has remarried and the payor and the new spouse are both receiving a stimulus payment (let's say $600 for the payor and $600 for the payor's spouse). Do you think the IRS can hold the portion of the check which is due to the payor's spouse? In other words, can they take the whole $1200, or just the $600 that would be coming to the child support payor?

Yeah, that's what I would have said, too, but the IRS disagrees with us. They'll seize the whole $1200. You didn't really expect the IRS to do the right thing, did you?

How can I get a divorce if my spouse won't sign?

2008-05-16T14:50:00.003-04:00

In the old movies, you see the spouse shout, "I'll never give you a divorce!" Before 1970, it was true that both spouses had to agree before a divorce could be granted. Or, if they didn't agree, one spouse had to prove grounds for divorce, like abandonment, cruelty, adultery, etc.

None of these grounds matter anymore (though they can sometimes affect alimony and custody). Now every state has some form of "no fault" divorce law. Under Florida's no-fault law, all one spouse has to say in the divorce petition and in court is that there the marriage is "irretrievably broken," which means, essentially, "I don't want to be married to this person anymore." Some states call it "irreconciable differences" (which makes no sense to me since I think spouses can have irreconcilable differences every day yet still remain happily married), but it all means the same thing. It all comes down to not wanting to be married, regardless of fault or, for that matter, regardless of if there even is fault. So the answer to the question, "how can I get a divorce if my spouse won't sign?" is that you just plain can. The spouse's lack of signature can't stop the divorce. The spouse's signature is irrelevant.

(An interesting sidenote is that many organizations exist today to end no-fault divorce, claiming it's a liberal invention by women's rights activists to make it easier for women to get out of marriages. Actually, the first no-fault statute was signed into law by Ronald Reagan.)

Spousal signatures may make a divorce easier, however. There are two types of divorce in Florida: contested and uncontested. In the uncontested divorce, the parties have agreed in writing to all issues, like child support, custody, alimony, division of debts and property, etc. In the contested divorce, the parties can't agree on at least one of the issues.

However, one issue they don't have to agree on in either kind of divorce is whether there will be a divorce. Even if only one person wants the divorce and the other refuses to sign or agree, the divorce will still happen. A divorce is not contested or uncontested based on whether the divorce will happen, it's contested or uncontested based on whether all the other issues are settled.

If both spouses settle and sign, the divorce is easier; it's uncontested. If one spouse won't sign on one or more of the issues, there has to be a trial to resolve the unresolved issue(s). The issue is never whether the divorce is going to happen. It only takes one person to get a divorce. The issues are custody, support, etc.

So here's an interesting thing: a divorce can be uncontested even if one spouse is begging and pleading for the marriage to continue! Remember, the issues are child support, alimony, debt, custody, property, not divorce itself!

When the judge has a divorce trial, the judge (or the lawyers) will ask questions about who should have the kids, how much is in the 401(k), how much is on the credit cards, those types of things. The question, "who broke up this marriage?" probably won't even come up. It's irrelevant.

So how do you get a divorce if your spouse won't sign? You just do. Have the papers served on spouse and try to resolve the issues that matter through a phone call, a mediation, or some other way. If you can't settle custody, support, propoerty division, etc., you'll have to have a trial, but you will get your divorce, spouse's signature or not.

There's nothing more expensive than NOT having a lawyer

2008-04-23T13:29:00.002-04:00

"There's nothing more expensive than NOT having a lawyer."

I say this more often than anything else, yet people still don't believe me. Every once in a while, I like to post examples of why this is true. Here's a scenario I hear about once a week or so:

"When we got a divorce, I [or she] was pregant with another man's baby."

Well, okay, as good a reason as any to get a divorce, I suppose, and I've heard every reason there is. No problem. But that isn't why the person is coming to see me. They're coming to see me because:

"We didn't use a lawyer."

Big problem. It's a big problem because they didn't deal with the child's father in the divorce. If the divorce judgment doesn't mention that the husband isn't the biological father then, guess what, biology suddenly becomes irrelevant. Once the judge signs the divorce paper, husband just gained a child that isn't biologically his.

Many men are okay with this, and I admire them for it. They'll exercise visitation (maybe even assume custody), pay support, maybe become more of a father than the biological father would. Of course, we're ignoring the rights of the biological father here, who may want a shot at custody. We're also ignoring the rights of the child, who may want to know who his or her real father is sometime before he or she suddenly needs a blood transfusion. But this discussion is a little off the topic.

What about the ex-husband who now realizes he's on the hook for child support for a child who isn't his? What about the biological father who suddenly finds out he gets no visitation because he's not the "legal" father of his own child? What about the mother who wants child support from the "real" farther? What about the child who needs a kidney and needs to know who the biological father is? Those are the people who end up in my office. Big mess, huh? Maybe even an emergency? Many lives completely screwed up? Can it be fixed? Absolutely! How can it be fixed? The same way any of these messes can be fixed: hire a lawyer and pay the lawyer great big gobs of money.

However, had the couple just hired a lawyer in the first place for the original divorce, the paperwork would have been done correctly, the real father would have been declared the legal father in a paternity suit, and everyone could have gotten on with their lives at a fraction of the legal expense. But the couple didn't use a lawyer for the divorce. Why not? They wanted to save money. Yeah, how'd that work out?

We lawyers all know that we are a necessary evil. But we also know that we don't have to be an incredibly expensive necessary evil. It just usually works out that way because people try to do things without us first. The do-it-yourselfers are the people who end up paying us big fees, and they're the reason we lawyers always drive expensive German and Italian sports cars (mine's German). You don't have to be one of those people. Save the money and hire us from the beginning. I'd be perfectly happy driving a Ford.

Is the settlement good if we get back together then split up again?

2008-04-18T16:37:00.002-04:00

Q.
My Husband and I entered into a Separation Agreement last year when he moved out and we were going to get divorced. Since then, we tried to reconcile and moved back in together for a few months. Now my Husband has filed for divorce and he wants to use the original Separation Agreement. I don’t agree with any of the terms, am I stuck with them?

A.
Good news- you are not stuck to the terms of the original separation agreement. Once you reconcile and rekindle the marital relationship, even if it is for a very short period of time, the separation agreement is no good. At this point you may want to consider hiring an attorney to protect your interests in the upcoming divorce.

The other parent won't give you visitation

2007-12-13T14:12:00.000-05:00

There's something I like about both the NRA and the ACLU. I know they're such different organizations. One is considered very liberal, the other very conservative. But they have one thing in common: they don't sit back and expect their rights to simply be handed to them. They fight for their rights. If they think their rights are being abridged or abused, they take charge. They go public. They get angry. They sue.

I get upset when someone says, "My ex won't give me visitation!" Well, why do you expect your ex to give you your visitation. Do you think the NRA or the ACLU expects the government to just give them their rights? Visitation is a right. Sometimes rights have to be demanded. Sometimes you have to get angry. Sometimes you have to sue.

No, it's not that the other parent didn't give you visitation. You just didn't take it. You are as much a parent as the other person is. You have a right to visitation. The law is pretty simple: the other parent can't deny you visitation. If he or she does deny you visitation, you file an action to have your visitation determined by the court. And if the other parent still won't give you visitation after a judge orders it? Watch how quickly custody changes. Maybe you agree with NRA and/or the ACLU and maybe you don't, but there is something to be learned from them. Don't expect your rights to just be handed to you. Go to court and demand them.

What happens to the rings?

2007-07-24T19:07:00.000-04:00

Weddings rings and the engagement ring are like anything else in a divorce: you need to know how they get "split."

As a practical matter, unless the are extremely valuable, rings don't come up very often when we settle divorce cases. But, if the issue of who gets the rings does come up in your divorce, here's what most judges will probably do.

Remember that Florida is something like a community property state. All items acquired by either spouse belong to the "marriage." That is, the value of the items gets evenly split. Since the wedding rings are acquired during the marriage--right at the time the marriage begins--the value of the rings is split. Both wedding rings belong to both parties. Maybe they get sold and the money is split. Maybe each party keeps his or her own ring if the rings are of equal value. Maybe something else. But the point is, the wedding rings belong to the "marriage."

The engagement ring, however, is usually a gift from the man to the woman given before the marriage begins. It's not "marital property." It's "pre-marital" property which belongs to the wife. The woman keeps it, and its value is not split during the divorce.

Sorry, guys.

Financial and dating considerations during the divorce

2007-06-26T17:49:00.000-04:00

Two questions generally come up after a couple has separated but during the time a divorce is pending:

1) Can I date?
2) Can I buy things?

Question one, dating:

The usual legal answer to both questions is yes, but you'll want to check with your lawyer to be sure, because there are a lot of exceptions.

In terms of dating, once you've separated, the marriage is over, and judges don't care if you move on with your life. Once you've split up and aren't living together with your spouse, it's usually not considered adultery to start dating (or have sex with) someone new. Judges don't want you to be trapped in your marriage until the divorce is final. No one wants your life to stagnate while your await your final hearing date.

Be careful about at least two things though: don't have someone spend the night with you when the children are also spending the night or if the children know that someone is spending the night. This could affect your custody case, since someone can say your moral character isn't what it should be. Keep that kind of thing secret from the kids. It's something they just don't need to know about. Also, don't move in with a new boyfriend or girlfriend if alimony is a possibility or you could destroy your alimony case. Living with friends is okay. Living with people you are dating could cause your alimony to be reduced or eliminated.

Question two, financials:

Financially, you are generally free to do as you please after you separate, especially if the divorce has been filed and is pending, but there are a couple of things to consider here as well:

a) Don't sell or get rid of anything that could be considered "marital property" (things you acquired during the marriage or things that are in both spouses' names), like a car, jewelry, a 401(k), etc. You need a judge's permission to sell or encumber (take a loan out on) marital property.

b) Even if you do acquire property after you file for divorce and during the separation, the judge may still declare the property to be "marital," and force you to give half or some other portion of it to your spouse. The law says that a judge can consider property to be "marital" (and therefore divide it up) if it was acquired 1) before the separation date, 2) before the date the divorce was filed, 3) before the trial date, or 4) before any date the judge darn well pleases.

These last two dates should worry you. In other words, if you buy a new car or add money to your IRA, even a year or two after you've moved out and filed for divorce, you still might have to sell it and give your spouse half.

Don't be too worried, though. Most judges agree that the date of separation or the date the divorce was filed is the date on which you can safely buy new stuff and claim it as completely "nonmarital." I can't even remember the last time I saw a judge rule any differently. But, as I said, check with your lawyer first. That's what we're here for.

Custody evaluation? Here's how to screw it up.

2007-06-14T16:37:00.001-04:00

More and more, Florida judges are relying on custody evaluations and social investigations to determine who should get custody of the kids.

Both of these methods (and some other ones like Guardians as Litem that aren't used as much any more) involve using professionals to evaluate the parents psychologically, speak with witnesses, talk to the kids, look at school records, that sort of thing. Judge rely on these tools pretty heavily in making custody decisions. In fact, some judges even read the conclusions of the social investigation reports and--bam!--case closed. Winner determined. Even those judges who don't just base their decisions solely on the reports are very heavily influenced by them.

So you think the conclusions in these reports are important to your custody case? Oh, yeah. Majorly.

Wanna lose? Do this. Completely destroy the other parent when you talk to the investigator. Rant and rave about how bad a parent that person is. Talk about how no child should ever be allowed on the same planet as them. Bring up every tiny thing you can think of about how awful a parent the other person is.

Wanna win? Try this. "My spouse (or ex-girlfriend or whatever) is a good parent. I'm proud of the way he/she always makes sure the homework is done. He/she gets along great with the kids, and they love him/her very much. There are some things that concern me, though, and I'd like to share them with you, because I think you'll agree that, even though he/she is overall an excellent parent, the kids are better off having more time with me. These are my concerns..."

Now I'm not saying to downplay child abuse or molestation or something horrific. You know that you'll have to disclose those things. You also know that you'll win those types of cases. I'm only saying that, in the typical case, ripping the other parent apart is only going to make you look bad, not the other parent. Ripping the other person apart is the quickest way to lose.

The myth of the soldier with primary custody

2007-05-13T18:47:00.000-04:00

I usually work out of our main office in Tampa, which is very near a major military base. Moreover, our Tampa office is near an area of town where a lot of military servicemembers live. Because of the office location, we represent a lot of soldiers and sailors.

So I was pretty happy last week when the media showed some attention on the fact that deployed servicemembers often lose primary custody. It's an important issue that deserves attention. I was glad to see it discussed.

But it's too bad that everyone missed the point.

The media circulated a series of anecdotes about how deployed soldiers will -- almost automatically -- lose primary custody of their children to their ex-spouses not only during deployment but after they return to the U.S. Divorce judges are reluctant to return children to servicemembers after they've returned from deployment. "Why should the children be bounced around?" judges will ask, "and what if the servicemember is deployed again?" You have to admit, the judges do have a point.

But it's not as much of a problem as you might think.

It's not as much of a problem because the servicemember will probably never get primary custody in the first place. The questions the judge will ask about bouncing the children around and about future deployments are asked long before a servicemember ever gets a chance at primary custody. How is a member of the armed forces supposed to respond when the judge asks, "Can you promise me you won't get deployed? Can you promise me I won't have to change the custody arrangement in a few months? How can you guarantee a stable residence for the children from now on? Will the children have to move? Will they have to change schools when you get deployed?" There are no good answers to these questions, and most of the servicemembers we represent quietly accept the fact that they will never have primary custody so long as they remain in the service and for so long as they may be deployed.

Yet another cost of war.

Grandparents' rights in Florida

2007-04-08T14:51:00.000-04:00

"My grandchildren live in Florida and I'd like to know what visitation rights I have with them?"

The answer is simple and saddening: none.

But, you say, you've seen the Florida law on the books that says that grandparents have rights in Florida.

You're correct, there is such a law on the books, but, unfortunately, the Florida supreme court has said that the law is null and void, or, as we lawyers would say, unenforceable. The reasoning is: giving grandparents rights would interfere with the rights of the parents. Only the parents should decide whether the grandparents have any rights. Or, at least that's how the argument goes. The United States Supreme Court has generally agreed, at least for now.

I'm told that the law is different in other states, but, in Florida, at least for now, grandparents' rights are at the mercy of the parents, such as that mercy may be.

Waiving child support

2007-01-22T18:25:00.000-05:00

Someone in Texas told me today that a child support recipient there can waive child support payments. That's rather surprising. Florida is pretty conservative when it comes to child support, and unless you can convince a judge of it (in law school we used to say, "There is as much law as there are judges."), child support payments can't be waived.

There is a reason for that: child support belongs to the child, not to the parent, so the parent has no right to give up the money. Judges are a little more liberal about back child support, but it's tough to get current child support payments eliminated. It's even tough to get current child support payments reduced much below Florida's guidelines schedule.

I know what you're thinking: "But the custodial parent can spend the money on anything he or she wants! The child support money doesn't even have to get spent on the child! Why can't he or she waive the money!" I hear ya. I'm not even saying I disagree. But that's the way it works.

Increasing/Decreasing child support or alimony

2007-01-19T16:18:00.000-05:00

Child Support

Increasing or decreasing child support is a fairly common routine. Child support should probably be reviewed every three or four years to see where the incomes relate to the child support guidelines. The guidelines themselves rarely change, but, of course, incomes often do.

In addition, child support can be lowered or raised any time there is a substantial, unexpected change of circumstances, such as job loss or promotion.

Payors should also watch for a change such as a child no longer enrolled in day care, or maybe a child that was enrolled in full-time day care and is now only enrolled in after-care. Daycare and health insurance costs can have a very substantial impact on the amount of support paid, often more of an impact than an income change. When a child is no longer in daycare, child support should be reduced, so you should get to the judge as quickly as possible.

And be careful not to rush off to the lawyer just because the child support recipient gets a big raise. I hear this a lot: "My ex makes a lot more money now, so I want my child support payments to go down." It usually doesn't work that way. In fact, if the child support recipient gets a raise, the child support payments to the recipient usually go UP, not down. (I know it doesn't seem to make sense, but that's how it works.)

Alimony

Assuming the payee doesn't re-marry or live with someone, alimony rarely changes. The usual reason for alimony to be reduced is that the payor gets fired or retires. Watch out for the payor who gets himself or herself fired on purpose. Judges aren't stupid. They know that payors are only doing this to get out of alimony. We call this "voluntary underemployment," which means, "now you make a lot less and you're still going to be stuck with the alimony.

Alimony is rarely increased. About the only time alimony gets increased is if the payor claimed at the time of the divorce that he or she couldn't afford the alimony, but now circumstances have changed in such a way that the payor can now afford what the payments should have been. (Did I say that right?)

Getting back your maiden name/Keeping your married name

2006-12-06T10:02:00.000-05:00

When your divorce is being completed, the judge will sign a "final judgment of divorce" or something similar. Many states call this a "divorce decree." If you want your maiden name back, you need to say so in your final judgment.

We usually add in a paragraph to the final judgment that says something like, "The Wife's former name of Jane Doe is restored." That's all you have to say. Then you can take your final judgment to the Social Security office to get a new Social Security card. After that, take your final judgment and your new Social Security card to the Driver License office to get your new driver's license. (It can be a bit of a hassle, and many of my clients have said, "That's too much trouble, I'll just keep my married name.") Of course, many women keep their married name so that they have the same last name as their children.

I should point out also that you have an absolute right to go back to your maiden name or keep your married name. I've seen many men try to object to the wife keeping "his name." The choice is yours, not his.

If you forget to change your name back to your maiden name through the final judgment, you may be able to get your final judgment amended, but, more than likely, you'll have to file a name change lawsuit, which most any family lawyer can help you with.

The lump sum alimony tax trap

2006-12-01T16:13:00.000-05:00

You may get an offer something like this from an opposing lawyer:

We'll give you your spouse's share of the house as lump sum alimony. "Hey, sounds good," you think. You know Florida law. You know that spouses usually split their equity in a house equally if the house was purchased during the marriage. "I get my spouse half of the house," you think, and you continue with other settlement terms. In exchange for half the equity in the house, you give up your interest in, say, your spouse's 401(k). "That's a fair and even swap," you say. "My spouse keeps his or her 401(k), but I get all the house."

But, ouch! Watch out! You just got stung by one little word: "alimony."

As I've explained in the past, the person who is receiving alimony may have to pay taxes on the received alimony as if it were income. The person paying alimony may be able to claim the alimony paid as a tax deduction.

When you accepted half the house as alimony, you may have just taken a big tax hit and given your spouse a big tax deduction. The deal is suddenly not looking so equal, is it? Make sure you take the house as a marital distribution, not as alimony, unless you're really certain you know what you are doing. One little word can cost you thousands.

This divorce stuff sure is tricky, isn't it?

Beware, visitation can affect child support

2006-11-13T18:15:00.000-05:00

I hate to give away "dirty divorce secrets" like this one. It's not that I want to keep the secrets to myself and to other family lawyers who've done this long enough to know all the tricks. It's just that, by trying to save people from getting stung, I know I'm also helping people to "sting" others. I'm hoping this advice will be used to help people get child support they deserve and not helping people from tricking others into lowered support.

Still, we lawyers have a saying: "The truth will out!" Yeah, I never really understood that saying, either, but it's by Shakespeare, so it must mean something important.

So let me out the truth on how being generous about visitation affects child support. I can only hope, as I always do, that this knowledge will be used for good and not evil.

You already know that giving the kids more time with the other parent is usually good for the kids. You know that the more exposure the kids have to your ex, the more well-rounded they'll be, the more they'll be able to adjust to the divorce. I applaud you for this sentiment. Studies show that kids do better when they have significant contact with both parents. Agreeing to more visitation with your ex is usually a good idea.

Now here's the reason not to do it:

Under Florida's child support guidelines, if you kindly (or even unkindly) agree to allow your ex to have over 40% of the overnights (the family law system thinks in terms of overnights, not days, when calculating time with the kids) your child support could be--and almost certainly will be--drastically reduced. I've seen child support reduced from $1500 per month to $200 per month. That's how much kindness can cost you. Deciding for instance, to give your ex all of the summer? Guess what, your child support just dropped like rain in a Florida July. (In big buckets, for those of you from up north.) You think giving your ex 50-50 "custody" is the best way to go? You may just wipe out child support altogether. This is a sad truth.

I don't want to convince you not to agree to a lot of visitation. In most case, you should agree to lots of visitation. More often, it's the fair thing to do, the right thing to do, the best thing to do for the kids. Just keep in mind what will happen to your support. It's usually good to offer lots of visitation. It's always bad to be unable to afford to feed your kids.

Can I keep my child's grades away from my ex?

2006-10-27T17:20:00.000-04:00

Question: "I was given sole custody. I know that means I have full control over where my child goes to school, goes to church, goes to the doctor, etc. My ex has asked the school to send my child's grades to both of us, not just to me. How do I make the school send the grades only to me?"

My first question is, why would you want to deny your ex that information? Putting a block between your child and your ex will almost certainly backfire on you. Your child will most likely have a great difficulty understanding why you took a step, however small, to alienate him or her from your ex. Your may distrust your ex, fear your ex, even hate your ex, but your child probably doesn't. Your child, at any age, probably wants a relationship with your ex. I realize there are exceptions to this rule, especially at the older ages where children often become less attached to and dependent on their parents, but you should stay out of it. DON'T DO ANYTHING TO DISTANCE YOUR CHILD FROM YOUR EX unless you have a really, really, REALLY good reason. Like maybe a court order or a provable fear of harm to your child. Notice I said, "provable."

And most judges won't back you up if you try to keep grades from your ex. Florida judges are very reluctant to prohibit a parent from seeing the grades of his or her child. Judges do what they can to unite children with estranged parents, and they are very reluctant to do anything that separates children from their parents in any way unless there is evidence of child abuse or some other direct harm to the child.

But that doesn't really answer your question, does it? Despite my warning, if you want to keep the grades from your ex, you can probably get away with it. Show the principal your "sole custody" order, and the school will probably send the grades only to you from that point forward. Your ex may complain to the school, but most school officials would recommend to your ex that the matter be taken up in court. Then they'd continue to send the report cards only to you. Keeping grades from your spouse may be wrong, but you'd probably be successful. Now that I've answered the question, I can only hope you'll use your newfound knowledge for good, not evil.

Can my new spouse's income be used against me?

2006-10-12T11:34:00.000-04:00

So you lucked out on your second marriage and married a bazillionaire who makes tons of money? I know what you're afraid of: your ex will take you back to court to raise your child support based on your new spouse's income.

Don't worry, although there are rare circumstances where a new spouse's income or wealth can affect child support (maybe you previously claimed an inability to make back payments or something like that and now your expenses are reduced such that you can afford the back payments nowe), but child support is based on the income of the parents, not the income of new spouses. You should be fine.

The name on the debt/house/property/car, etc.

2006-10-11T11:51:00.000-04:00

All the debt's in your name? Worried that you'll get stuck with it in the divorce?

Don't worry. Though Florida isn't a community property state, the result is almost the same. In Florida, if the debt or the house or the car or whatever was acquired during the marriage, it is considered "marital property" or "marital debt." There are some exceptions, but marital property or marital debt are almost always divided equally in Florida between the spouses, regardless on the name on the debt or asset.

Annulment

2006-10-09T16:16:00.000-04:00

So you'd rather erase your marriage than get a divorce? Not a bad idea, if you can get away with it. Florida does allow for annulments, but they are rare.

Be careful, though. Just because a judge gives you an annulment doesn't mean that your church will. (Though many churches will annul a marriage even after divorce.) Also, an annulment may cost you your interest in property you may be entitled to in a divorce.

To get an annulment, you'll have to prove that your marriage was fraudulent and void (or voidable).

There are a number of ways to prove fraud, but the most common is to prove that your "spouse" was already married when you got married. You can't marry someone who is already married, so your current marriage is a "nullity" and can be annulled. (You may not even have to get an annulment, since, technically, there is no marriage to annul, but that's another story.)

But assuming you can't get out of marriage just by proving that your spouse was already married on your wedding day, you may have to prove the marriage wasn't "consummated." Consummated doesn't mean what you think it does, but in-bedroom activities are a part of consummation. "Consummate" means "to begin." So, in essence, you'd have to prove that your marriage never began. That is, you never moved in together, never opened accounts together, never referred to each other as husband and wife, etc. In other words, you had a ceremony, filed the license, but then stopped the whole marriage deal.

Be careful what you ask for, though, when filing for annulment instead of divorce. If you get your annulment, you may lose your entitlements to alimony, interests in your "spouse's" property, etc. (Though at least one Florida appellate court has said that a man can't get out of paying alimony when he was the one committing the fraud by marrying more than one woman.)

When we file for annulment, we tend to file for both annulment and divorce in the alternative. That way, we try for the annulment, but, if we learn that our client will lose property because the marriage will be annulled, we switch strategies and go for divorce instead.

Relocating with the kids

2006-09-28T16:24:00.000-04:00

You got primary residential care ("primary custody") of the kids, and now you or your new spouse wants to move out of state for that great new job. What do you have to do to move?

In Florida, you must (that's MUST) notify the other parent before you can move more than 50 miles away. You notify the other parent (and anyone else with visitation rights) by giving them a written notice and at least 30 days to file against you in court. The notice has to be sworn to and signed before a notary, along with some other technicalities.

The other parent then has two choices:
1) Enter into an agreement with you to specify how visitation and transportation will work once you move, or
2) Let you take them to court within 30 days after their notice time is up.

If you go to court, the judge will decide what's best for the kids. The judge will look at how visitation will be affected, whether step- and half-siblings will be affected, the life the kids will have at the new location versus the current location, the impact on education, the impact on emotional and physical health, special needs of a child, etc.

Recusing the old judge and getting a new one

2006-09-22T11:59:00.000-04:00

So you think the judge hates you, huh?

Well, maybe, but just remember, it could mean that you are just wrong.

But, you say, the judge rules against me at every hearing! Well, maybe you're just wrong at every hearing.

In all my years of practice, I've only ever asked one just to recuse himself (step down) from a case. And that was only because he said something that I don't think he meant to say, but it made it look as if he was drastically opposed to my client. Judges are, by and large, very fair people trying to do the right thing. We lawyers almost never file motions to recuse judges, and there's a good reason for that: almost all judges are fair and honest. Even in those rare times that I lose a motion -- very rare :-) -- I've almost never thought the judge was biased or, for that matter, even wrong. Notice I said "motions." I can't remember the last time I lost a trial. (What's the point of a blog if you can't brag?!)

However, there is a way to get a new judge, and I'll tell you how it's done. But beware, if the judge doesn't step down, imagine what a position you'll be in after you've filed this kind of motion and lost. You think the judge didn't like you before? Imagine how much he or she will like you after you accuse him or her of being biased or incompetent.

File a Motion To Disqualify or Recuse the Trial Judge. In your motion, you'll have to describe why the judge needs to step down and order the clerk to assign a new judge. You'll also have to say why you "fear that you could not get a fair and impartial trial from the judge" and you'll have to swear to all of it. You may want to look at Florida Statutes Section 38.10 and the Florida Rules of Judicial Administration 2.160(f). If the motion is found legally sufficient (done right), the judge should immediately enter an order granting disqualification and proceed no further in your case. In other words, if you write the motion correctly, the judge isn't allowed to say if you are right or wrong about the alleged unfairness. The judge can only say, "you got the motion legally right, even if I don't agree with what you say, so I have to step down." Technically, you can't lose, but I've seen it happen to many experienced lawyers.

Remember, though, this is powerful stuff. You never want to file this motion and lose. It's a last ditch effort to help you win. If you lose, you may end up worse off than ever. As one of the partners in my law firm likes to say, "If you try to kill the king, you'd better kill the king."

Getting an injunction and why

2006-09-19T13:38:00.000-04:00

The Florida Office of State Courts Administrator reports that more petitions for domestic violence injunctions are filed than anyl other type of family law case, including divorces, child support cases, adoptions, even cases charging juveniles with crimes.

That's an astonishing statistic. Now, while I recognize that many people use this type of action to get their spouse kicked out of the house and get custody of the kids, I'm sure the great majority of cases are legitimate and true. That is to say, there are a lot of women (and sometimes men) and children being abused in this state.

Getting an injunction against someone in Florida is pretty easy (some would argue too easy). Just go to the courthouse and ask where you file for injuctions, and they'll take it from there. You'll have to write out and swear to how you were threatened or injured. You'll need to describe at least two threats or injuries if the person you are trying to get the injunction against is not a family member, member of the household, a relative by blood or marriage, or someone you were romantically involved with. There should be no fee to file for an injunction, but you may want to check with your county clerk to be sure.

Once you've completed your affidavit stating what happened, your affidavit will be taken to a judge, usually right away. The judge will then decide whether to grant you a temporary injunction. If your temporary injunction is granted, you'll be given a hearing about 15 days later to prove your case. If your injunction is denied, you may still be given a hearing, even though you won't have temporary protection.

If you are given a hearing, the person you are filing against will be served with the paperwork about the hearing date and time. If the temporary injunction was granted, the person will also be told to stay away from you, leave the house, not contact you, or whatever else the judge orders.

If you don't show up at the hearing, the temporary injunction will be dissolved.

If you do show up, you will have to make your case (and the other person will make theirs), and the judge will decide if the injunction should continue and for how long. Injunctions usually last one year, but the length is up to the judge. Some even last forever.

There is no jury in injunction court, and it's a lot like the People's Court. Lawyers, however, are permitted, and the best way to lose is to show up without a lawyer when the other side shows up with a lawyer. Strongly consider hiring a lawyer to help you with your hearing. Many times, injunction judges will order temporary custody and child support at the hearing, so be ready to ask.

Don't use your lawyer for visitation agreements while the divorce is pending

2006-09-08T14:28:00.000-04:00

Well, today is Friday, which means I'll get a flurry of faxes from other lawyers about how their client hasn't been able to work out visitation for this weekend with my client, and now the opposing lawyers are demanding this, that, and the other thing or else they'll rain down horrible and numerous contempt motions on my client if I don't respond by Friday at 5 p.m. Good luck with that.

The faxes usually come in at around two or three in the afternoon. The funny thing is, we're usually closed on Friday afternoons, so I don't even see the faxes until Monday morning.

I really get a kick out of that. It's not that I don't want people to see their children. Just the opposite, I want people to see their children. I just can't believe that everyone waits until Friday to do something about it.

First of all, did you not see the weekend coming? Did you think there wouldn't be a weekend this week? Didn't you realize that every single week ends in a weekend? Did Tuesday somehow go by and you were thinking, "I wonder if there will be a weekend this week?"

Worse still, did your lawyer forget there was a weekend this week? Didn't your lawyer realize that Friday afternoon is too late to do anything about visitation?

But while all this is funny to me, it's really not funny at all to the kids who don't get to see their other parent that weekend. Especially if the kids expected to see the other parent that weekend, then suddenly find out it won't happen. In fact, to the kids, it may be downright confusing, disappointing, maybe even devastating. More and more, studies are showing that divorce proceedings don't hurt kids emotionally, they destroy kids emotionally.

So here's the advice of the day: don't call your lawyer on Friday and say, "You've got to do something! He/she is not answering my calls" or "He/she is not responding to my emails" or "He/she is not agreeing to the time I want."

Here's a better plan: you know that weekends and holidays are coming. Bite the bullet and sit down with your soon-to-be-ex-spouse and work all this out well in advance. You may not be satisfied with the solution for now, but it's better than panicking on Friday. And it's a whole lot better than letting the kids down.

Worse still, if you have to go before the judge to get visitation, the judge will ask, "What did you do to get visitation?" If your answer is, "Well I had my lawyer send out a fax," you'll only demonstrate that you have no ability to co-parent, no ability to put the kids first. If you say, "I tried to call, I tried to email, I sat down with my spouse but my spouse won't agree, I did everything I possibly could, and finally, with all options exhausted, I called my lawyer," you will look to the judge as if you are, by far, the best parent. You'll look like the one who should have the kids. Don't call your lawyer, call your spouse.

I know what you think: well, Brent, if you'd respond to those faxes, maybe you'd be helping the kids. I know, I used to think that way. believe, I used to stay very late on Fridays working out visitation for people who should have worked it out for themselves days or weeks earlier. Now I realize that if I work it out for them this time, I'll have to work it out next time. And next time. And next time. My job, I realized long ago, is to be lawyer, not parent.

Yes, it's Friday and I hear the fax machine. Stacks of paper will be coming in soon from lawyers doing no more than proving that their clients have no ability to co-parent. Can't wait to use that against them at the custody hearing.

Fridays are busy days for my fax machine, but, hey, you ought to see the day before Thanksgiving!