COMMUNICATING WITH THE JUDGE

Parties involved in a high conflict divorce/paternity case quite often believe that if they could just talk to the Judge privately and explain to the Judge how they feel and how evil the other parent truly is, then the Judge would give them what they want.

Some misguided parties actually call the Judge's office and ask to speak with the Judge about their case, and they are surprised to find out that the Judge's assistant will not connect them with the Judge because the Judge does not communicate with parties except in a courtroom with both parties present. 

Other parties will try to send the Judge a letter hoping to secretly tell the Judge their version of the case without the other parent knowing. The letter will be sent back unread by the Judge or the Judge will file it with the Clerk of Court without reading it, and take note of the parent who tried to have an improper ex-parte communication.

If the Judge does communicate with a party or both parties in writing, it is always with a Court Order.

If a Judge ever sent a letter to the parties (this will never happen), the letter would look something like this:

Dear Parents:

I am the Judge assigned to your divorce / paternity case. 

I hope to never meet you.  I assure you I will never meet your children. 

The only reason I have been assigned to your case is in the event that you cannot make your own decisions together or in the event that one or both of you act inappropriately by violating the law. In those cases, I have the authority to issue Orders telling each of you when you are allowed to see your children, dictating the terms of child support, property division, etc.

If my Orders are not obeyed, I may hold you in Contempt of Court and you may be sent to jail. 

I am surprised every day by parents who proclaim to love their children and who insist they are only trying to do what is in the children's best interest but then they allow me, a total stranger, to set the rules of life for themselves and their children because they are too angry or stubborn to work together with the co-parent to finalize an agreement so that the parents make all the decisions and I make none.

If you insist upon me making decisions for you after a trial, I assure you that both parties will probably be disappointed because the reality is that parents together will make much better decisions for their children than a total stranger.

I will not allow you to use me to punish the other parent, and I promise you, I will NOT be fair.  A Judge's oath requires them to follow the law, not be "fair" to a party.

Do not make the mistake of calling the children as witnesses to testify against the other parent or to tell me what a great parent you are. Do not put the children in the middle of your war.

Many parents make the mistake of insisting upon a trial so they can tell me how they "feel". They seem to think it important that the Judge understand their perspective. Believe me, I already know and understand your perspective if you are working hard to minimize the time the children spend with the other parent.  You are emotionally in pain. Your dreams of happily ever after have been crushed. Your vision of the future has been altered by your co-parent and your need to hurt your co-parent has overwhelmed your good judgment.

·       You are hurt when the children spend time with your co-parent because you suffer separation anxiety and you fear the children will love the co-parent more than you if they spend too much time with them.

·       You are overlooking the fact that children need and love both parents and, unlike the romantic love once shared by their parents, the children's love will not fade or disappear over time. The romantic love that did not endure was destroyed by incompatibility and the children's love is not dependent upon that factor.

·       You will claim that your motives are pure and you are only thinking about what is in the best interests of the children, but you are forgetting the fact that I will be enforcing the right of the children to spend time with their parents - not the right of the parents to spend time with their children.

·       Your anger and pain and the need to strike back will inspire you to try to convince me that your co-parent is unworthy of spending as much time with the children as you, but the Judge does not punish a parent because of their failures as a spouse.

The litigation process ending with a trial will leave scars on both parents and add to any hostility that already exists. You and your children will pay a heavy price if you go down that road. And be aware that a trial and Final Judgment is not even final. There can be rehearings and it can be appealed and later modified under certain circumstances. So if you are looking for "Justice" and "Fairness" and "Finality", you will not find it in my courtroom. 

I look forward to receiving a signed agreement rather than a request for trial.

                                                  Sincerely,

                                                  Your Circuit Judge

(This article was recently written by retired Attorney David Thomas.)

ALIMONY REFORM

The intent of the new alimony statute is to create guidance to Circuit Court Judges for consistent spousal support rulings.  It abolishes all types of alimony but for temporary alimony and final alimony.  There is no longer bridge-the-gap, rehabilitative, durational or permanent periodic alimony.  It does not address the availability of lump sum alimony.

The statute considers both ability to pay and need for alimony. It creates a low range for amount and duration and a high range for amount and duration, and it is presumed any Judgment within that range is proper. To decide where the Order should fall in that range, there are alimony factors for review (very similar to the existing alimony factors). To deviate outside of that range, the Judge must explain why the guidelines are "inappropriate or inequitable" and she must do so in writing. It is very important to note that this law applies to all matters pending as of October 1, 2016, and therefore if you have a trial in August, 2016 but is not ruled upon until October 2, 2016, this new statute would apply.

My initial calculations conclude it will save the payor money for a lower end long term marriage (17 years or less) with gross income differential between the payor and payee of $150,000.00 or less. On the other hand, it seems, but for the time duration, if the parties lived a semi-reasonable standard of living, the payor would pay more money in alimony (but not duration) for long term marriages of 25 years or longer, with gross income differential of $200, 000.00 or more.  I suggest you perform your own calculations (per the below formula) and apply the results to your opinion of average Circuit Court rulings.

The formula to determine the low end of duration is multiplication of .25 x number of years of marriage and .75 x number of years of marriage for the high end. 

To determine the amount of alimony, the low end is determined by multiplying .015 times the number of years married (not to exceed the number of 20 years married, even if married longer than 20 years), multiplied by the difference in gross income of the divorcing couple (either per month or per year, and if per year, divide by 12). To determine the high end, the multiplier number rises to .020, again with the maximum number of years for the multiplier at 20, unless if the Court establishes duration of the alimony award at 50% or less than the length of marriage, then the Court shall use the actual number of years of marriage up to a maximum of 25 years to calculate the high end of the presumptive alimony amount range.  Therefore, if the duration of the marriage is greater than 20 years, there is a possibility the "amount" multiplier for the high end range may increase to 25 years.

Two examples:

          1.       The Parties have been married for 18 years and have standard W-2 income. The wife makes $50,000.00 per year and the husband makes $150,000.00 per year. Therefore the low end amount / duration is $2,250.00 / 4½ years and the high end amount / duration is $3,000.00 / 13½ years.

          2.       The Parties have been married six years, and the wife has small business income of $75,000.00 per year and the husband has W-2 income of $60,000.00 per year. Therefore the low end amount / duration is $112.50/1½ years and the high end amount / duration is  $150.00/4½ years.

Please note the definition section has been completely reworked for gross income, potential income, underemployed, and many other definitions.  There is a presumption that if your marriage is two years or less, there shall be no Order of Final Alimony.  Also, imputation of income has been redefined along with the ability to order nominal alimony.  The taxability and deductibility of alimony has also been redefined, as has termination, modification and payment of the award. 

It is important to compare this alimony statute with the child support statute, as the child support does have a mechanism for deviation, as does this statute. However, experience concludes that Judges rarely deviate and apply the mathematical formula (either out of convenience or the Attorneys do not present sufficient requests and facts to the Court for deviation).  I would expect the same potential application of the alimony guidelines with a high end duration / amount based upon children and whether the payee is a stay-at-home parent/spouse, and toward the lower end if there are not children and both parties are actively employed.  Therefore, a rule of thumb / mid-range computation would be 0.0175 x the number of years of marriage (not to exceed 20 years) x the difference in gross income of the Parties, and I would expect negotiation to proceed above and below this rule of thumb amount.

One final note, although unrelated to alimony, it is important to note that the Statute has also entered a presumption that the Court shall begin with a premise that a minor child should spend approximately equal amounts of time with each parent, and to use this premise as a starting point subject to the Parenting Plan Factors.

OUR BUSINESS IS WORTH ??

The good or bad news is the value of your business is different for valuation in your divorce than if you and your spouse were happily married and selling it during your marriage.  If you are happily married and selling your business, you would sell it at an arm's length transaction (meaning no "hanky panky") and the price would be what you as a willing Seller accept from a willing Buyer.  For example:  your name is Mr. and Mrs. Joe and Jane Smith and you may own a restaurant known as Smith's Food and Grille, which you own the real estate of your restaurant.  You have a vibrant business and your husband is the main chef and he is known for his special recipes, and the manager/hostess is your husband's sister, who greets every customer when they come in the door, and therefore your restaurant is known for "personal" food because of your husband, and it's a customer's favorite restaurant because it is where they are known by the owner and his family.  You have agreed to sell the restaurant to another couple who will be taking over with the same plan, except that the wife will be the chef and the husband will be the host.  Your husband and his sister have agreed to work in the restaurant for six months during the transition so all the regular customers get to know the new owner at the door, and the new chef understands the recipes 100% so the food tastes exactly the same.  Therefore, because the building is worth $500,000.00 and based on the profit of the business, you have decided to sell the business for $1,000,000.00. Let's assume you sell the business for $1,000,000.00, you put it in a bank account, a year after that you get divorced, and assuming no "boutique" facts in your divorce case, the $1,000,000.00 is divided 50/50 between the two of you. Your husband received $500,000.00 and you received $500,000.00.  HOWEVER, if you are the wife and divorcing with the business intact, you would think that the value of the business would still be $1,000,000.00 and you would think you're entitled to $500,000.00.  This is INCORRECT.  The reason why is "divorce world" is much different from the "real world", either to your benefit or detriment depending on the particulars of the facts in your case; and based on the facts in this case that "personal" goodwill is what is deemed a non-marital asset (meaning you are not entitled to any of the value of the business related to your husband's personal goodwill versus "enterprise" goodwill, which is a marital asset, (meaning you are entitled to a presumptive one-half of that value).  Because the business is directly related to your husband's personal skill in the kitchen, and his sister would not continue working with any potential new owners (as the sister testified at her deposition) and your husband and sister have stated they would refuse to sign a "non-compete" agreement if the business was ordered for sale.  Further note, it is likely an expert would determine the real property value worth $500,000.00, but the value of the business is worth only the assets themselves (often referred to as "liquidation" value) versus "capitalization" income approach value, and therefore, the operating account, food in the freezer and miscellaneous equipment which is not fixtures, tables, chairs, etc., value at $50,000.00, then the value of the business is $550,000.00 and you would receive only $275,000.00 as the wife versus $500,000.00 if sold and then divorced.  Your husband has received a windfall of $225,000.00. 

This is a perfect example of how facts are different in "divorce world" versus "real world" and how it can be of the utmost importance to seek consultation with a divorce attorney if you feel a divorce may be on the horizon in order to understand what potential future fact pattern is in your best interest (and of course the best interest of your children) at the first sign of marital discord.

Namaste'

STOP IT!

(NOTE:  This is a recent publication I submitted to a legal journal with the intention for Attorneys to read.)

 

Really.  You just said what about your client?  "He in an a**hole", "She is a bi***", "He is mentally ill", "She is a skank".

I encounter on a daily, weekly, monthly, yearly basis Attorneys who practice divorce / marital law, yet at the same time, dislike and hate their practice.  These Attorneys practice divorce solely because they need money and they have no other way to supplement their income to their practice.  It is a tragedy.  This is sad.  This is wrong.  The practice of law is an honor!  The practice of law is a jealous mistress where once it becomes your passion, your life will become the most exciting adventure one can imagine, whereas it literally becomes necessary to "pinch" yourself every morning to confirm that your life is not just a dream, but is actually a blessing of the miracle the Universe has bestowed upon you.

Let me remind you of your oath affirmed when you were "sworn" in to practice law in the State of Florida, and whether you realize it or not, you reaffirm it each year upon the payment of your dues to the Florida Bar:

I do solemnly swear;

I will maintain the respect due to courts of justice and judicial officers;

I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;

I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

So help me God. ¹ 

You work for your client.  Your client does not work for you.  Your job in a divorce matter is to educate your client to the law, the procedures, and in your opinion, how to accomplish the goal that they desire within a dignified and honorable framework.  Your client pays you money that the majority of them have worked very hard to earn, and your client will work many more hours than you do for your hourly rate.  The Practice of Marital Law is a privilege in that you have the ability to apply Contract Law and other substantive areas in an academic setting, and yet, unlike any other practice of law, it involves one's "heart".  The emotion of love combined with the academic application of law is a most exciting mental exercise. You are compensated highly to apply your intellect and emotional quotient to your clients' issues, problems and future dreams.  They rely upon us to do our job in an honorable and dignified fashion. 

Your client is paying you a lot of money to work in an arena of the utmost excitement and creativity by applying emotion (the broken heart) to academic law (Florida Statute Ch. 61 and Case Law), and yet you have the audacity to complain and "cut down" your client. Why? To justify your ego and your existence!  No matter how great our belief of ourselves, we practice Divorce Law in the Daytona Beach area in the State of Florida.² No, this is not the pinnacle of the legal world.  I understand this, yet I am honored to do so.  So I suggest you get over yourself, appreciate your clients no matter what current stressors are negatively affecting their personality, nor how unreasonable their position is for that day as it is our challenge, our duty, our job and our honor to educate them and lead them through an honorable journey in a difficult field of divorce, whereas hopefully our leadership and compassion builds a "Camp David" for their divorce.

---

1.  This is a partial publication of the Oath. 

2.  I have actually heard an Attorney say that he did not go to Law School to work past 5:00 p.m. on a weekday nor to work on weekends.  The reason I went to Law School is exactly the opposite of this, to have the honor and adventure to work past 5:00 p.m. on a weekday and to have the honor and adventure to call a client during the weekend, on a Sunday or a holiday, simply so they know that someone cares about them, will work hard to protect them and further their rights within this difficult world so they can live joyfully in a difficult world.

A PASSION FOR DIVORCE

Does the Attorney representing you have a passion for divorce?  Unfortunately, many attorneys practice divorce solely because they need the additional income to supplement their law practice.  And, there are attorneys who practice divorce who dislike their job, their clients, opposing counsel, and even the Judges due to the amount of stress and often illogical emotion involved.  In divorce, a known saying is, "You see good people acting at their worst", (versus criminal law, "you see bad people acting at their best" - during their case).  Divorce is a stressful area to practice law due to the emotions, and as an attorney, once you become an acquaintance or friend with your client, you must be careful regarding the emotional aspect of the case, as that can affect your individual stress in the case, and it can affect your ability to give your client proper neutral advice. 

So, ask your attorney - does he / she have a passion for their divorce practice? Ask your attorney - why do you practice divorce? What do you like about practicing divorce?  If your attorney practices in other areas of law, ask him or her - why do you practice other disciplines of law? When they answer your questions, watch their body language, and in doing so, instinctively, you should discern whether you received a truthful answer. If you attorney does not have a passion for their practice and if your attorney does not enjoy what they are doing 24/7, I would submit to you that the representation you will receive or are receiving may be mediocre to the representation from an attorney who has a passion for the practice of divorce.

I love the practice of divorce. I have a passion as a divorce attorney because it is an area of law where I constantly meet new people each year, the majority of my clients become acquaintances and occasionally become my friends. It is also very rewarding when you represent someone who has been wronged and terrorized for years by their spouse, and they become empowered and find their prior confidence and self-esteem, and they are able to break the chains of torment with appropriate celebration and financial security after the case.  Also, divorce law is very academically interesting to practice because it is "contract" law, but add the unpredictable and miracle of the heart, and emotions attributed to the heart, and knead those into the practice of contract law, it becomes a hybrid law, one that is an academic exercise of contract law and one that is the wonderful of exercise of heart. There is no other type of legal discipline similar to divorce. Once you become aware of the blessing to meet new people, quality people, the reward of helping people and the academic pursuit with heart, you understand my  passion for divorce.

Everybody desires a partner with reciprocal unconditional love and integrity. If your current Partner is not this "Partner", divorce is the avenue to your desired "Partner" as suggested by the Universe. I want to help you find that Partner.

Namaste´

 

 

HOW LONG WILL YOU CONTINUE TO BE AN

ASSHOLE TO YOUR FORMER SPOUSE?

 Common Statements By Children of Divorce

I slowly grew to dislike both of my parents.

My parents seemed to forget I was alive because they were so focused on their anger toward the other parent.

I spent many nights lying in bed unable to sleep.

I never wanted to have friends over to my house anymore.

I spent a lot of time at my friends' houses because I didn't want to be home.

I worried about the future and what was going to happen.

I learned what depression felt like and I was only 7 years old.

My parents never knew how I felt because they didn't seem to care most of the time and if they ever asked me I would lie since I didn't want to add to their burdens.

I quit studying in school because I just didn't care anymore.

I thought about running away from home.

I hated being in the middle of their war.

I couldn't talk to either of my parents because they were on edge all the time and got angry easily.

My dad would get made at my mother and take it out on me.

I watched my grandma and other relatives take sides and start bad-mouthing my dad.

Every time I came home from the other parent's house I was grilled as to what they were doing. Both parents did this.

I hated it when I saw my mom or dad with another person.

More Typical Comments From Children of Divorce

I started thinking about ways to stop the sadness by killing myself. I knew neither parent would care.

I was only 16 but I thought if I could get a boy to take me away from all of this that would be my escape.

I couldn't ask either parent for anything because they would snap at me since there wasn't enough money anymore.

I told my mom that I wanted to see my dad on Father's Day Sunday and she gave me the silent treatment for the rest of the day.

If I told my Dad that Mom was having a problem with something at the house he would bark at me that it was her problem not his.

Neither parent was at all interested in what was happening to me at school.

My little brother would come into my room after we went to bed because he was scared and lonely.

I didn't have any money for a school field trip but I was afraid to ask either parent.

I noticed my friends at school quit talking to me.

Both of my parents asked me to take their side and I didn't.

And More

What was amazing looking back was that my parents never seemed to notice what effect their fighting and conflict was having on my sisters and me.

My brothers and I became closer as our parents argued and spoke poorly about each other in front of us kids. We all slowly grew to hate our parents at the same time.

I sure saw my parents in a different light. I mean before the divorce I thought my parents were the smartest people in the world and that they loved me more than anything. Watching their divorce destroyed that perception. I saw my parents for the small, mean spirited people they really were. I lost all respect for both of them.

I am old enough now that I have experienced being dumped by a (girl friend / boy friend) and the hurt that that kind of break up causes. But finding out that my parents didn't really love me enough to stop fighting each other was much more painful and long lasting. I got over breaking up with my (girl friend / boy friend) eventually but I will never get over my parents' divorce.

"Children begin by loving

their parents;

As they grow older

they judge them;

Sometimes they forgive them."

IF YOU ARE AN ASSHOLE, OBVIOUSLY YOU WILL CONTINUE TO BE, HOWEVER, YOU ARE A PERSON OF UNIVERSAL FAITH, AND IT IS TIME TO FEEL THE UNIVERSE AND STOP THE ACTIONS THAT CREATE THE ABOVE COMMENTS.  PLEASE CHECK YOURSELF.

WHAT IS A CASE MANAGEMENT CONFERENCE

A Case Management Conference is a meeting scheduled by the Judge to review the status of your case.  The substance and procedure of a Case Management Conference varies from Judge to Judge.  Some Judges require the client to attend the Case Management Conference, while other Judges do not mandate the attendance of the client, nor do they necessarily mandate the attendance of the Attorney for the client (if that client's Attorney has arranged for another Attorney to cover the matter for them.) 

Pursuant to Family Law Rules of Procedure 12.200(a), the purpose of the Case Management Conference is to schedule or reschedule service of motions, pleadings and other papers; set or reset the time of trials; coordinate the progress of the action if complex litigation factors are present; limit, schedule, order and expedite Discovery; schedule disclosure of Expert Witnesses, and discovery of facts known and opinions held by such Experts; schedule and hear motions related to the admission or exclusion of evidence; pursue the possibility of settlement; require filing preliminary stipulations; refer issues to the General Magistrate for findings of fact, if consent is obtained; review if there is a history of Domestic Violence, and if not a prohibiting issue of Domestic Violence, refer the Parties to mediation; coordinate voluntary binding arbitration; appoint Court Experts and allocate expenses for appointments; refer the cause for a Parenting Plan recommendation, social investigation and study, home study and psychological evaluation and to allocate the initial expense for the studies and evaluations; appoint an Attorney or Guardian Ad Litem for a minor child(ren) if required and allocate the expense of that appointment; and schedule other conferences or determine other matters that can aid in the disposition of your divorce.

A properly run Case Management Conference by the Judge saves time and money for the case and allows for better communication between the Attorneys.  This creates a more efficient / amicable result in your case.  A poorly run Case Management Conference by the Judge only reviews whether or not the case is ready to be put on a trial docket or if there should be another Case Management Conference, and therefore they are only proceeding with the Case Management Conference because it is mandated by the Family Law Rules of Procedure.  It is my opinion that this type of Case Management Conference is a waste of time and resources.  A proper Case Management Conference is one  that the client attends and the Judge thoroughly reviews the case file, pending motions, mandatory disclosure dates and assists the Parties in scheduling mediation.  This keeps the case moving along and avoids an Attorney (without ethics) from stalling the case if it is to their client's advantage (for example:  delaying the ability to set a temporary hearing wherein your spouse would have to pay you temporary Alimony, child support/Attorney Fees and Costs.) 

In "English", ask your Attorney about the Case Management Conference and how the Judge assigned to your case runs his or her Case Management Conference.  Discuss with your Attorney whether or not your attendance at the Case Management Conference is mandatory or advisable, and ask your Attorney to explain to you why it is in your interest to properly prepare for the Case Management Conference and how this will help your case.  Ask your Attorney how you can assist in the preparation for the Case Management Conference, and as always, tell your Attorney what you want and confirm what you want via email.  I hope the Judge assigned to your case properly runs his or her Case Management Conference.