Each year I am honored to provide the Florida Case Review for the 12th Judicial Circuit Family Court Professional Collaborative Annual Conference. Please click 2016-marital-and-family-law-review-course-materials to see my case law review for the year (November 2015 – October 2016). Enjoy.
Karen E. Rushing, Clerk of Court and County Comptroller, Sarasota County, Florida
Family Court Filings increased by 4 percent in 2015 in Sarasota County.
My local Attorney Bar Newspaper for Sarasota County, The Docket, had an article from our Clerk of Court, Karen E. Rushing. She provided a three-year review of cases filed in her jurisdiction. According to her statistics, many areas of case filings were down over the past three-year period. However, the area of Family Law had a four percent increase in filings; from 3,954 in 2014 to 4,110 in 2015. (The Docket, February 2016, Karen E. Rushing)
I am conducting a survey of Collaborative Law Cases in our area presently, and so far I am aware of at least 40 cases handled in a collaborative manner last year. While I am very happy to see that this number of families have been helped by this team approach to family law, I am extremely sad to see that this is still less than one percent of the total number of filings. This means that 99% of the families going through difficult transitions of divorce, post-divorce and paternity issues are not being assisted with a collaborative team approach to resolving their case.
I would love to see these numbers reversed. I know that a few people need to resort to the courts to resolve differences of opinion about their divorce or paternity cases. These people may have families that suffer from domestic violence or such severe disagreements that the only way to resolve the case is by having the intervention of a Judge to decide the case. Yet I also know that the vast majority of cases would be better served by the guidance of collaboratively trained attorneys, financial and mental health professionals to find solutions that best suit their family.
If you would like to learn more about how your family can avoid the costs, time delays, anxiety and conflict of litigation please contact my office to learn more about the Collaborative Law Process and how it can help you and your family. Visit my Website for more information: www.odayresolutions.com
Once You have had a wonderful dog, a life without one, is a life diminished. Dean Koontz
Soon after my last dog, Sally Mae Ride Astronaut Girl Dog, (my family believes that dogs with longer names seem to have more importance) passed away suddenly from cancer, my daughter and I decided to visit the local animal shelter to find a new dog to join our family. Before we left home I made a list of my priorities for the new dog: It would be smaller than Sally who was a Gordon Setter mix, it would definitely have short hair (dear Sally had left piles of her hair around my house during her life), and it would be female as they are calmer and easier to train (sorry guys, but you know it is true). With my relatively short list in hand, we traveled to Bishop Animal Shelter in Bradenton. As soon as we got there and started to walk through the aisles of the kennel, my heart was touched by one dog that was so happy looking despite the small conditions allotted to each dog. I asked my daughter how she felt about the dog and she was also immediately drawn to the dog’s bright eyes, expressive face and wagging tail. We asked to meet the dog and right away I knew this was the one. We named the dog Shorty and took him home. So, how did I do with my list of priorities? Shorty was a one year old male Rottweiler Shar Pei mix bread (we call him a Ra-pei) and weighs about 65 pounds. Okay, he has short hair but pretty much failed on all other must-have criteria. But we love him!
So, what does this story have to do with negotiations and mediation? Actually a lot! Very often I see people come to negotiations with a checklist and if they don’t get everything on their list they will not agree to anything. They may have very good reasons for the things on the list and they believe that without attaining each of their goals the negotiations will be a failure and they will leave. In negotiation parlance we call this positional bargaining. This means a person takes a position and will not move from it. They are not open to options that may meet underlying needs or desires if it is not a complete match to their pre-decided list. Had I approached the search for a new dog this way, I would have walked into the shelter and told the clerk at the front desk my list: female, small, calm, short haired. The clerk would have evaluated my list and told me if there were any dogs that met my priorities and if not I would have left. Instead, the clerk invited me to walk through all of the kennels and see if I found the right dog. By exploring options, I found the right dog for my family, now named Einstein Short Tail Entomologist Guy Dog (I won’t explain this name but there is a lot of irony in his name, which is obvious when you meet this bug hunter). I was open to the possibilities outside my initial position and because of this we have a happy, funny boy in our family that has brought us years of joy and security. My interests were met by this happy dog who fits in with our family, even if he does not exactly match my initial position. So, when you enter into negotiations, make your list of goals, prioritize them in importance (short hair was clearly a deal breaker for me) and then be open to the possibility that there may be other ways to achieve happiness that you have not thought of yet.
I was driving back from the grocery store this morning and listening to CNN’s Fareed Zakaria GPS show. He had a group discussion that made me wait for the conclusion of the segment before taking my groceries into the house. The topic was international peace negotiations with the lead guest being our former Ambassador to Austria Swanee Hunt. She was discussing a peace negotiation that she had been involved with to bring peace to the Balkans. I was particularly interested in this as I was working with the UNHCR in Croatia during this same time. The negotiations had been very difficult and complicated. When the day came to sign the agreement finally reached she said she looked out at the room filled with men in grey suits and it hit her. Perhaps it was the lack of women at the table that made the negotiations difficult. When she then discussed with women around the world why they were not included she was told that the warlords did not want the women there because they “would be more likely to compromise”. After all the men with the guns had a specific agenda and they wanted to negotiate from a place of power and the women had different priorities.
In fact, the women did have different priorities, and these included peace, security for their children, and the ability to provide their family with stability, education and health care. This is not to say that many men don’t also have these as priorities for their society but the political and military men who were negotiating for land, rights to assets and power were not the men that may have these priorities. The results are that the international negotiations are too often inclusive of only one group, the ones with the guns that benefit from war or at least “power negotiations”. As was discussed in the piece on GPS, this too often make negotiations difficult and the agreements reached tenuous.
The lessons to be learned from this piece struck me hard. Almost all of the negotiations that I am involved in on a daily basis do include women as they mostly involve family negotiations and mediation. However, the participants may approach the negotiation priorities very differently. It is important to ensure that everyone is clear on the goals of a lasting agreement. Also, it is important to ensure that all parties affected by the agreement have a voice at the table. The children are usually not included in the adult negotiations of divorce and sometimes the elder suffering severe dementia or health problems are not included in negotiations that seek to resolve their situation. However, it is often helpful to have a picture of these “parties” present at the negotiations to keep them “present” while we discuss their priorities. In more expansive societal negotiations, whether it be community relations, politics or international peace negotiations, it is critical that we include representatives from all aspects of the society at the table.
For more information on Swanee Hunt and her programs to include women on an international scale, please visit her website https://www.swaneehunt.com/
As the year comes to an end there is one thing I always try to do and I want to recommend to you as well. I take a few days near the end of every year to evaluate what has transpired over the past twelve months. I consider what went right and what went wrong. I actually put pen to paper and write down a list of the highs and the lows.
Then I examine the highs with gratitude. I consider each one as a gift. Some were given to me by others or the universe. I am thankful for my beautiful daughter and the wonderful things she has accomplished throughout the year. I am thankful for the others in my circle of family and friends and the joy that each has brought me. And I am blessed to live in Florida where it never gets too cold and I can take a break to walk on the beach anytime I want. These things I have been lucky to have in my life, provided by the universe. I am also thankful for my clients and the opportunity that they have given me to help them through difficult situations. They have trusted me to assist them as they go through a divorce, paternity or other legal matter. Many lawyers find working in Family Law challenging because our clients are under a lot of stress and confusion. But this is not the case in my practice. Because I have chosen to help people in a non-litigated way through these complex transitions, I am able to help them avoid the stress and anxiety that too often accompanies divorce or other family law matters.
When I consider the “lows” of the past year, I try to look at the list with some gratitude as well. Perhaps it is for the lessons I learned such as when I learned that I never wanted to represent a person in a litigated divorce after a year of lows for the anxiety that my clients and I felt. This year one of my “lows” included needing surgery on my ankle and having three months of pain and recovery. But then I must be grateful for the wonderful skills of my surgeon that could perform the operation and that I live in a time when we have the technological skills and equipment to allow this to happen. Generally, I have to say, that this year the list of lows was pretty small. Another blessing.
After making the list of last year, I begin to plan for the year to come. I use the assessment of my highs and lows to reevaluate my practice to see if there are things I should change to make it bigger, better, stronger. I consider how I can improve my health, relationships and spiritual connections. I set goals (not resolutions, those don’t work) and plan some initial actions to begin the year in the right direction. Again, I actually write these down. And at the end of the year I can use this list to evaluate how I did over the past 12 months and where I have to put my attention to achieve my real goals.
I want to recommend this process to my clients, colleagues and friends. In this hectic and overwhelming time that we live, it is important to take a bit of time for yourself to practice some gratitude and makes some plans. I know that, particularly for my clients who are going through stressful times it may be difficult to think of what you are grateful for. However, when times are tough it is even more important to take stock and find the things that are working right.
So, here is to an exceptional, outstanding and wonderful 2016. May you all have many blessings to count this time next year.
It is that time of year again. I have been invited to present the Annual Case Law Review for the 12th Judicial Circuit Family Court Professional Collaborative (FCPC) Fall Conference. It is a great honor to present an update of the cases to my colleagues and the Judicial Professionals in the area each year.
I have attached a copy of the Case Law Review to this Blog Post. (Click Here)
The FCPC Fall Conference is open to Lawyers, Financial Professionals, Mental Health Professionals and other professionals working in the Family Court System that qualify for membership in FCPC. If you would like more information about the FCPC Conference please call the Law Office of Faith Lodder.
I know. I’m lazy. But I made myself a New Years resolution that I would write myself something really special. Which means I have ’til December, right?
We all know the drill. That magic date is fast approaching: January 1st. A new beginning. A chance to start over. And in honor of the date, we make New Year’s Resolutions. We make a firm commitment to do or not do something (One of Webster’s definitions of “resolution”). “I resolve to lose 30 pounds”. “I resolve to stop smoking.” “I resolve to save money this year.” “I resolve to have a better relationship with my kids.” We say the words and we take some initial action to make it happen. Maybe we join the gym, or buy Nicorette gum, or make a new budget, or announce to our family that we are going to be more available to them. Have you ever noticed how full the gym is on January 2nd? But these resolutions rarely ever work. Have you ever noticed how empty the gym is again by January 30th?
I too have tried the New Year’s Resolution game and I too have failed. But that fact just puts me in the majority. According to a 2007 University of Hertfordshire study, 88% of resolutions fail. So, if these big proclamations are bound to fail, why try? Well, the basis of trying to be better, of doing things we know are good for us or not doing things we know are bad for us is a worthwhile endeavor. The point is to find a way to set ourselves up for success rather than failure. To set resolutions and then fail at them can actually be harmful. It can lower self-esteem and further a feeling of inadequacy.
So, how do we set ourselves up for success at self-improvement? Studies have shown that there are some ways to achieve lofty goals and make major changes. After all, 12% of resolutions actually succeed. Here are some hints to make better resolutions that just might work:
- Set specific goals. If your goals are too vague they are harder to quantify and achieve. Rather than “I want to lose weight”, “I want to save money” or “I want to have better relationships”, set measurable, specific goals. How much weight, how much money, in what ways should relationships improve? Make your goals measurable and attainable.
- Know your Whys. I have often discussed that for negotiations the question “why?” can be critical. It is for resolutions as well. As you think about the goals that you want to set, be very specific about why these are your goals. What will you gain if you accomplish your goal. Many people talk about losing weight so that they can see their children graduate from high school, or saving money so that they aren’t forced to eat cat food as their main protein source in old age (okay, that is my reason.) Picture your life when the goal is achieved. How will it be better. Make the image vivid and glorious. Dwell on this image and the things you will have when the goal is accomplished. Imagine the joyous time you will have travelling the world in retirement or how fun it will be to play with your children without being out of shape. Make your “whys” more important than your “why nots”.
- Break the goals down to smaller and smaller steps. Resolve to just not eat sugar for today. Resolve to give up one Grande Macchiato Latte per day and save the $6.00 in a drawer each day for a month. (Sorry fancy coffee shop, but I think you will survive.) Resolve to have fun with some exercise just for today. Then tomorrow wake up and resolve to take one more step towards your goal. There is a reason why the successful organization of AA (and all the other Anonymous groups) use the “one day at a time” motto. If you can string enough successful days together you will develop a habit that becomes a new way of living. You only have to string together the majority of 365 days to have an extremely successful year.
- Do not make too many changes at once. Another study, this one by Stanford University, tested subject’s ability to make good choices when their minds were busy with a difficult task. Some subjects were asked to memorize a two digit number and others were asked to memorize a seven digit number. After having some time to work on memorizing the number the subjects were told to walk down a hall and report the number. On the way down the hall they were offered some fruit or chocolate cake. The subjects with the longer number were twice as likely to take the cake over the fruit as the subjects with the shorter number. The professors found that when your brain is busy trying to do a difficult task you are less likely to have the cognitive ability to make good choices. (This is my go to excuse for taking the chocolate cake every time – I am just doing too much with my brain.) Therefore, try to limit the goals to just one specific, attainable goal at a time. Don’t make your brain work so hard at trying to change everything at once.
- Celebrate your success and forgive your setbacks. When you attain a short term goal celebrate. Perhaps seven days of saving the funds from your Latte warrants an extra 30 minutes of TV in the evening. Or after losing five pounds you should buy yourself a new set of running shoes. But if one day you fall off the wagon and eat the cake, don’t beat yourself up. This is not failure, this is a setback. If your child came to you and told you that she did not achieve her goal for one day would you berate her and tell her that she was a failure and should stop trying? (If you answer yes to this question, then perhaps we should have a talk about positive parenting.) Of course not, you would tell her that you are proud of her trying to better herself and you know she can succeed when she gets back on track tomorrow. So, be as nice to yourself as you would be to your child. Don’t beat yourself up. Every successful person has failed hundreds of times before they accomplished their goals. If you question your ability to succeed, check out the list of 50 famous “failures”. http://www.budbilanich.com/50-famous-people-who-failed-at-their-first-attempt-at-career-success/
- Develop a social support system. You may have a hard time recognizing your accomplishments but others will surely see you trying and help you celebrate your success. I have several friends that are working hard at getting in shape. We still occasionally go out for “drinks” after work. However, they drink water and order salads. I am thrilled for them and honor their accomplishments. If you have friends that don’t celebrate your goals for self-improvement then maybe you have the wrong friends at the wrong times. You can still be friends with these folks but just don’t include them in activities where they can sabotage your forward movement. You have to know your temptations and include friends and family members in ways that will support you in overcoming them. You can also use your goals to develop new friends that support you. Join a club that supports your goals such as a runners club or a weight watchers group or an investing club. You will have a chance to meet others who have succeeded, learn from them and celebrate your successes with like-minded people. These folks can hold you accountable and be a coach through hard times.
Okay. So I don’t actually hate New Year’s Resolutions. I just hate ones that are set up for failure. I try to make resolutions regularly in my life. Some are more successful than others. None are done just once a year on a magic day in the middle of the winter. I do like to use this magic time to review last year’s goals and celebrate the successes. Then I examine the places where I may not have accomplished my goals and see how I can better work towards success. Finally, I plan my next year out with overall goals, manageable steps to accomplish these goals and planned rewards for my success. (Yes, I like the word success Just saying it makes me feel successful.) This works for me. My sincere hope is that it will work for you and 2015 will be your best year ever! Happy New Year!
“Let us put our minds together and see what life we can make for our children.”
As parents we have a responsibility to put the needs of our children first. This means shielding children from the anxiety and stress of adult confrontation such as divorce and paternity actions. It also means ensuring that the children have the love and support from their parents and family. This is why parents facing the prospects of divorce or paternity actions should consider a collaborative process.
In the collaborative legal process the parties are assisted by a team of professionals all committed to assisting them to reach a resolution to their family issues without litigation. The focal point of the team of professionals is the Mental Health Professional (MHP) who is available to work with the parents to develop a child focused parenting plan that includes a timesharing schedule that will work for the family. The MHP also works with the parents to address struggles the children may be experiencing in transitioning to two households. As important, the MHP can assist the parents in learning the new skills necessary to co-parent the children when living apart.
The collaborative process also allows the parties to develop a family financial support structure that is realistic. Using the guidance of the Neutral Financial Professional, the parties consider all aspects of the family’s financial priorities including the payment of private school tuition, tutors, extra-curricular activities, college financing and other needs of the children. These issues are often not addressed in the traditional litigated divorce due to the legal constraints of the laws in various states that do not provide for consideration of such expenses. It is axiomatic that two households cannot live at the same level of spending that it costs to support only one household. However the financial neutral can help the parties to develop budgets that will best work within their income levels.
Finally, the team of professionals approach prevents the escalation of the conflict that is often present in the traditional divorce context. The parties, their attorneys and the neutral professionals work together to identify the priorities of the family and brainstorm ways to meet their needs. The team is never focused on a win-lose proposition but rather looking for ways to overcome the problems faced by the family going through transition. The MHP, as the facilitator of the process, keeps the team focused on the issues and ensures that the process moves forward. This allows the family to develop a settlement in a shorter time and at less cost than the traditional divorce process.
Many studies have shown that it is not the fact of a divorce that causes anxiety and disruption in a child’s life but rather the conflict that exists between the parents. The collaborative process reduces this conflict and focuses the parents on meeting the needs of the child.
POST DIVORCE CHECKLIST
Too often when a divorce is completed the parties are handed a Final Judgment of Dissolution and a copy of their Marital Settlement Agreement and nothing more. After many months of being under the care of professional counsel, financial advisers, mediators and mental health experts, the parties suddenly are left on their own to move on with their lives. In order to help with the transition, here is a list of items that should be considered after the divorce is final. For my professional colleagues, please print out the list from the link above and hand out to your clients. If you have other items that should be included on the list, please let me know and I will update on this site.
The first thing you should do at the conclusion of your divorce process is to obtain several Certified Copies of the Final Judgment. Review all of the paperwork carefully with your counsel to ensure you understand what you must complete under the Settlement Agreement and / or Final Judgment. While the list below is comprehensive, there may be additional items required in your decree that are not listed below.
- If you are feeling a sense of loss, grief or depression seek professional assistance or a support group to take care of yourself
- Take some time for a little personal self-care. Have a massage, visit a spa (yes even the guys enjoy this), take a short vacation or weekend break.
- Close all joint checking & savings accounts as soon as all outstanding checks and automatic payments have cleared the bank
- Open new checking & savings accounts
- Update automatic payments taken from your accounts with new account information
- Change named beneficiaries of retirement accounts & life insurance policies
- Create new Estate Plan (Will, Trust, Health Care Surrogate, Living Will & Power of Attorney)
- Ensure all prior Powers’ of Attorney are revoked in writing
- If Qualified Domestic Relations Order (QDRO) is required by Final Judgment, follow-up with Plan Administrator to ensure they are notified of the divorce and the QDRO is completed
- If there is to be a transfer of IRA funds the receiving spouse must open a qualified IRA to receive the funds and the distributing spouse must notify the financial institution to initiate the transfer
- Close all joint credit card accounts
- Change all passwords for online account access
- Request a final bill from your legal counsel and ensure it is paid
- Obtain a copy of your credit report 30 days after the final judgment to ensure that all joint accounts have been closed
- Close joint safe-deposit boxes & open new one in individual name
- Secure COBRA or other health insurance / notify employer of divorce if health insurance provided through employer
- Update auto, home owner & flood insurance records / secure new insurance
- Change beneficiaries on all life insurance, disability or other insurance policies
PROPERTY & ASSET RECORDS
- Sign documents to retitle cars, campers, boats, planes and other vehicles into individual names and file new title with DMV or other agency
- Record deeds transferring title to real property
- Notify utility companies if new name on account
- Ensure any funds held in escrow are transferred or returned (security deposits on rental property, utility deposits)
- Notify the Post Office of change of address and mail forwarding
- Arrange for the transfer of any personal property that must be distributed as soon as possible
- Update school records with name and address of both parents
- Update medical records with name and address of both parents
- Sign up for Our Family Wizard (http://www.ourfamilywizard.com/ofw/) or other program to manage parenting contact, children’s schedules, medical re-imbursement payments, etc.
- Set up direct deposit or Income Withholding Order for child support
- Update Social Security Administration
- Update driver’s license & auto registration with DMV
- Update bank and credit card records
- Update employment records
- Update insurance records (health, life, disability, auto, homeowners)
- Update IRS records
- Professional licenses
- Update Passport
- Obtain IRS Publication 504, “Divorced or Separated Individuals” for information about filing status, exemptions, alimony, QDROs, etc.
- Change your tax withholding allowances with your employer
- Use the IRS withholding calculator to determine your new withholdings (http://www.irs.gov/Individuals/IRS-Withholding-Calculator)
- If you are receiving alimony or self-employed determine if estimated quarterly payments will be necessary.
- Execute IRS form 8332, Transfer of Dependency Exemption, if required under terms of the Settlement Agreement / Final Judgment
Sharon O’Day, Esq., O’Day Resolutions, 2014
Florida Board Certified in Marital & Family Law, Supreme Court Certified Family & Civil Mediator
I often explain to potential clients that the divorce process is somewhat like a ladder. The rungs on this ladder relate to the formality involved in the process.
The lowest rung would be the least formal and would correlate to the couple that is able to sit down at the kitchen table and work out the details of their divorce between themselves. In Florida they could then use the forms published by the Supreme Court (found here) and file the case with the court for final approval.
The next rung would correlate to a couple that may need more assistance, a couple that may want help in drafting the agreement or who cannot calmly work out the details without some professional assistance. In this case the couple can employ a mediator and, with the help of a skilled facilitator, work out the details of their divorce. This couple may decide to each retain legal representation to review the agreement after it is drafted or even to attend the mediation, but they determine early on that they will not litigate and do not need court intervention to reach an agreement.
The next rung would be occupied by a couple that struggles with a lot of issues such as developing a parenting plan, division of assets and ongoing support. They may need more formal structure and advice from separately retained counsel. The problem is that many couples skip an available rung and end up consulting litigation lawyers who advise them to begin the litigation process. This is a problem because the couple have now developed an adversarial posture by filing accusatory pleadings. The attorneys, because of their training and historic roles, often serve to increase the conflict through adversarial style of advocacy. Even as the attorneys work with the clients to resolve the case, they are constantly strategizing how the case will be tried in court if resolution fails. The parties have missed the “next rung” on the conflict resolution ladder — collaborative representation.
In the case of collaborative procedure, the parties would each retain legal counsel but the attorneys would be committed to working with the other professionals as a team to resolve the issues and minimize conflict. Being a trained collaborative attorney I can tell you there is a substantial difference when the parties have one financial expert whom they both trust, one mental health facilitator whom they both work with and two attorneys treating each other with respect and working towards a settlement without any motivation to prepare for possible trial. It truly is a “paradigm shift” for the attorneys. The collaborative process should be considered as the next rung on the dispute resolution ladder prior to any advice to consider litigation to resolve the case. Not every case may be appropriate for collaborative resolution, but too often this option is not even presented to the parties and they miss the opportunity to maintain control over their lives and the outcome of their divorce.
Collaborative Practice is also very different from the mediations that take place after many months of litigation and trial preparation. Often the parties in these cases have attended temporary hearings where they have become agitated and hostile. They have exchanged adversarial pleadings and answered extensive discovery requests. By the time they arrive in mediation each side has developed a hostile position for the negotiations. Often these cases start mediation with each side sitting in separate rooms with their attorneys and the mediator shuffling back and forth doing the “give and take” dance with the parties. There is a reason that many mediators often start these mediations with the advice that “if you both leave here unhappy then we have a good agreement” The parties have often invested so much in the conflict that their compromises are painful and hard fought. This too is different than the collaborative process where looking for creative solutions starts from day one.
If the collaborative process is unsuccessful, the parties can still climb the ladder to the last rung and resort to litigation. The couple will then turn their lives over the the straight-jacket structure of the laws passed in the state capitol and the formality of a court room. Evidence will be restricted by rules and the judge will make the ultimate decisions about how to resolve the conflict.