Florida Divorce * Child Custody * Domestic Violence Law Lawyer | Boca Raton

Couple marries. Couple is childless. Couple adopts pet. Couple is devoted to pet. Eight years later, one spouse files for divorce.

If you’re a pet lover, it is natural to wonder: which spouse will get “custody” of the pet and what visitation rights will the other spouse have?

But, at least for now, those questions will not be settled in Florida’s family courts.

Because in 1995, a Florida appeals court set aside pet custody and visitation orders entered by a trial court. The appellate court held that pets are just marital property, things, to be valued like knick knacks – and then divided between the couple based on their monetary value.

Neither the pet’s feelings nor the divorcing pet owners’ feelings nor what is best for the pet are part of the sterile formula for property division.

No Florida appellate court has re-visited this issue since 1995, so that remains the law in Florida. To tell the truth, Florida is in synch with most of the courts of the nation.

The day may come when the law will evolve. But that doesn’t help in family court now.

Today, divorcing pet owners heading to family court over this issue face the real possibility of a judge awarding their pet, rather arbitrarily, to one spouse – and balancing that award with an award to the other spouse of different property of equivalent monetary value.

Under current law, privately working out a fair and certain arrangement for the pet may be better for all concerned than taking chances in a court required to calculatingly “divide” the pet as just another one of the couple’s material possessions.

There’s a fairly new “movement” gaining favor among divorce professionals. It’s called collaborative divorce.

The core premise behind collaborative divorce is to avoid court at all costs. To do that, the divorcing parties hire a team of professionals representing several disciplines, including law, therapy and finances / taxes. The team’s job is to facilitate reaching a fair agreement on all issues.

Collaborative divorce is touted as being smoother and less expensive than traditional approaches to divorce.

Collaborative divorce is an excellent approach for many divorcing couples. But, at risk of being a naysayer, collaborative divorce may not be a good alternative in some situations.

As one example, if a couple is well along the path to a fair settlement agreement before a single professional is hired, the collaborative divorce approach may turn their divorce into a large group project that may end up costing the divorcing couple a lot more time and money than it may have otherwise.

At the other end of the spectrum, collaborative divorce may fail halfway there, where one spouse is abusive, controlling, manipulative, dishonest, secretive, unyielding, etc.

If the collaborative process does break down along the way, the couple will have to “fire” the collaborative team, eat the expenses already incurred and start all over from scratch with brand new lawyers. Again, the divorce may end up costing the divorcing couple a lot more time and more money than it may have otherwise.

It’s easy for divorcing couples (and divorce professionals) to get caught up in the latest, greatest fad and jump on the bandwagon – in some cases to the point of rejecting any other approach out of hand.

Collaborative divorce may be right for you. Or it may not.

Before making a binding, exclusive commitment to any single approach, it makes sense to make your decision informed by a) your intimate knowledge of yourself and your spouse and your family as well as b) input from eclectic professionals or professionals who are open to whatever approach will best serve your interests in your circumstances.

“Junior wants to live with me. That means I’ll get custody, right?”

Parents often boil the anticipated child custody determination down to the above analysis and conclusion. But rarely is a judicial custody determination that simple, either legally or factually.

Legally, the child’s preference is one factor that the court may consider in determining primary residential custody, one factor among many.

Obviously, choosing which parent to live with is a “heavy” decision for a child. Children don’t always know what they really want or what is in their own best interests. Even if they do know deep down, they may prefer (or think they would prefer) the other alternative.

The court, on the other hand, will balance all pertinent factors to make the determination that is in the child’s best interests. That is why the court will only consider the child’s preference if the court concludes that the child has “sufficient intelligence, understanding and experience” to form a “reasonable” preference.

In a nutshell, the court will weigh the maturity supporting the child’s expressed preference. Maturity doesn’t come at any set age.

It depends on the individual child. Some children are not mature enough at sixteen. Others are mature enough at thirteen. But, generally speaking, the older the child, the more mature the child is likely to be.

Even so, no matter how mature the child, the child’s expressed preference is still only one of several factors that the court will consider in the child’s best interests.

Then again, legal rules aside, it is not always so clear to the non-expert what the child’s true preference is in fact, something which will have to be proved to the court.

Children have been known to tell each parent that they would prefer to live with that parent. Especially if the parent grills the child (which the parent should definitely not do).

Children are children. They may not want to hurt or disappoint either parent by stating a preference to live primarily with the other parent. Or they may be fearful of resulting rejection or even punishment. Not to mention that children change like the wind.

In some cases, parents should think twice before pinning too much on a child’s expressed preference.

Imagine a couple divorced and the Florida divorce court eventually entered an order for custody of the couple’s children. Imagine one of the parents didn’t like the terms of the custody order.

Now imagine that the dissatisfied parent took the children to, say, Wyoming, during summer visitation and got a new custody order in Wyoming. The previously dissatisfied parent liked this Wyoming custody order a lot better than the Florida custody order.

This probably sounds like science fiction. But this sort of thing used to happen all the time throughout this country. Then, over time, most of the states passed one of two versions of a uniform act intended to prevent such conflicting orders from being entered by different states. (Florida now follows the second version.)

Fast forward to today. Now imagine a couple divorces and a Maryland divorce court eventually enters an order for custody of the couple’s children. Imagine one of the parents doesn’t like the terms of the custody order. Imagine both parents and the children move to Pennsylvania after the divorce.

Now imagine that the dissatisfied parent takes the children to, say, Greece, during summer visitation and gets a new custody order in Greece. The previously dissatisfied parent likes this Greek child custody order a lot better than the Maryland child custody order.

This also probably sounds like science fiction. And, yes, there are also international agreements intended to prevent such conflicting orders from being entered by different subscribing nations. Greece is one of the subscribing nations.

Still, according to a report in a Pennsylvania newspaper, a father was just arrested for allegedly absconding with his children to Greece in 2003. According to the report, the father got a conflicting Greek child custody order despite the existence of the prior Maryland custody order.

“A sheriff came to my job and served me with a summons and petition. The summons says a lawsuit has been filed against me and I have to file a response within 20 days or I could lose.”

The spouse who initiates a divorce has probably thought about it for quite some time. They probably consulted a lawyer and put some thought and preparation into their case before taking any formal action to start the divorce.

The other spouse sometimes first learns that the initiating spouse wants a divorce when they get served, more or less as described in the opening of this message. Sometimes, the served spouse is utterly shocked – and panic-stricken. Sometimes, other emotions take over.

Sort of understandable. Getting served is an unpleasant experience. Based on that alone, some spouses leap to the conclusion that the initiating spouse is out for blood.

But that may not be so at all. It’s easy to forget (or never know in the first place) that, like it or not, even an amicable divorce is a type of lawsuit.

Civil (meaning non-criminal) lawsuits must typically be kicked off by service of process by a sheriff or professional process server. And so it is for the typical divorce case.

Now, there is more than one strategy for dispensing with the unpleasantness of service. And there are also ways to soften the shock of being served.

That can be good to know, for some cases. But whether one of the alternatives is appropriate in any particular case is really a tactical decision. The answer depends on the personalities of the spouses and how they deal with things and each other.

In the last couple of days, the media has briefly covered a couple of fleeting cases of the ultimate form of domestic violence – murder. These cases attract media attention only because they culminated in murder.

The media rarely delves into the domestic violence history that led there. Often that history is extensive.

If we, as a society, took “lesser” incidents of domestic violence as seriously as we take murder, perhaps there would be fewer deaths resulting from domestic violence.

Granted, many states have made it possible for victims of domestic violence to obtain orders of protection. Unfortunately, petitioning for an order of protection is just the first, often easiest, step victims of domestic violence can take.

Often, taking that step, draws intensified wrath from the abuser – and little real protection for the victim. Victims of domestic violence, and attorneys who represent them, know this only too well.

Nathaniel Hoffman, of The Contra Cost Times, reported last month on Domestic Abuse Laws Neglected . Hoffman cited as examples failure to serve orders of protection on abusers, failure to confiscate abusers’ guns, etc.

Although not noted in the article, having an order of protection in Florida is effectively undermined by too often lax enforcement of the orders and lack of punishment for violations.

Another disturbing trend in Florida domestic violence courts is too often deferring to family courts in matters of child custody and visitation if a divorce case is filed after the temporary order of protection is issued. This has the virtue of speeding cases through domestic violence courts and avoiding multiple judges having to tackle the same issues multiple times.

But there’s also a huge downside. In practice, there are more and more obstacles and delays until these custody and visitation issues can be reached in Florida’s family courts. This gap may expose victims of domestic violence – and their children, who are also potential victims – to unnecessary risks for far too long.

“My spouse bought a lot of real estate since we were married but didn’t put my name on the title to any of it. My spouse says that means I’m not entitled to any of it after the divorce.”

Surprisingly often, the more financially sophisticated spouse will so advise the less financially sophisticated spouse. But this is just plain wrong.

In Florida, assets acquired by either spouse during the marriage are marital property (with a few special categories of exceptions). For purposes of divorce, it is irrelevant whether the assets are put in both spouses’ names or only one spouse’s name.

(If the spouse in title didn’t know this, they would most likely find it out if they tried to sell the property on their own, without a “signoff” from the spouse not named in the title.)

Since property acquired during the marriage is marital despite being put in only one spouse’s name, this property is subject to equitable distribution or division between the spouses in Florida at the time of divorce.

Keep in mind that that doesn’t necessarily mean that the property will be divided evenly. It just means that it will be divided equitably under all of the circumstances.

“Oh, I don’t have any debts. But my spouse has sure racked up a lot of debt for her business. Luckily, I never signed for any of it. It doesn’t concern me.”

Wrong.

A lot of people find the legal principles controlling property division in divorce in Florida confusing. The first point of confusion is often: what exactly is included in marital debts? This is important to know because only marital debts are divided in Florida.

Many people, like the spouse above, believe that, if they didn’t sign anything, their spouse’s debts cannot touch them in any way. Unfortunately, that is not necessarily true, especially in divorce.

In Florida, if one spouse incurs debts for a business formed with the intent of producing income for the family (which is usually the case), those debts are considered marital, whether or not the other spouse co-signed for the debt.

Now, it is true that, depending on the particular type of debt and circumstances of any given situation, the third party lender may not be able to seek payment of the debt from the non-signing spouse. But that is a different, separate story.

As between the two divorcing spouses, all marital debt is subject to equitable distribution or division- just the same as though the other spouse had co-signed for the debt. So, contrary to many spouses’ expectations, this type of marital debt may touch and affect the non-signing spouse’s financial picture.

Of course, as with most things legal, exceptions may apply in any particular situation.

And, even if no exceptions apply, this doesn’t automatically mean that the non-signing spouse will be responsible for the entire debt or even for a full one-half of the debt. Rather, the debt will be divided equitably under all of the circumstances.

Times change. And so the law changes. And changes again sometimes.

Once upon a time in Florida, a court generally could not order visitation for grandparents. (Of course, there were and are exceptions to every “rule”.)

Then Florida law changed. Grandparents “got” rights. More than one Florida statute authorized a court to order visitation for grandparents where it was in a grandchild’s best interests.

As of today, there is still at least one Florida statute “on the books” authorizing grandparent visitation where it is merely in the grandchild’s best interests.

But, you can’t always believe what you read. As I indicated in But the Statute Says…, it doesn’t always matter what a statute says.

The law is what the court cases say it is.

For a number of years, the Florida Supreme Court has been chipping away at Florida statutes that have authorized grandparent visitation. In fact, the United States Supreme Court has also struck down similar statutes passed in other states.

In light of these cases, it seems that Florida grandparents had rights. So-called grandparent rights have been considerably diluted now.

A grandparent today is most likely not going to get far arguing to a judge that visitation would be in his or her grandchild’s best interests. That’s no longer enough.

That doesn’t mean that a grandparent can never get visitation with (or even custody of) a grandchild. It just means that it requires special circumstances.

Recently, Kim Komando wrote a USA Today article on use of intercepted digital evidence in divorce cases. The article was interesting (but please don’t take it as the final word on this complex and evolving aspect of divorce and family law).

Also, keep in mind that the article applies only to certain types of computer data, that is, intercepted communications data. That generally means only real time data, such as internet phone calls, internet chatrooms or instant messenger “chats”, and also e-mail.

But remember, that’s only the tip of the iceberg when it comes to useful data that may reside on a home computer, and, in Florida, probably the least useful information at that, most of the time. Why?

Intercepted communications data, especially real time data, as the article suggests, is generally best for showing marital misconduct or fault. Yet in no-fault divorce states like Florida, fault as such has less and less relevance to most divorce cases.

For the most part that kind of misconduct is unlikely to bear on child custody cases either (unless, perhaps, the spouse is behaving extremely child-inappropriately, such as propositioning other people’s children online).

Practically speaking, however, a home computer typically hosts a tremendous amount of stored information that may be highly relevant and useful in a divorce case. For example, financial information in the form of saved spreadsheets and the like.

The “communications interception” legal analysis doesn’t apply to this type of computer data. With proper handling and in proper cases, this type of data may be very useful (or damaging, depending on your vantage point) in the family courtroom or at the divorce mediation table.

“I told my spouse I’m going to take the children to stay with my (nearby) mother for a while. My spouse then threatened to divorce me and charge me with abandonment, and warned I’ll lose my kids and get nothing in the divorce. Is that true?”

No, not in Florida. Abandonment of a spouse may serve as a ground for divorce in a fault-based divorce state, but not here.

So-called abandonment of a spouse is irrelevant to child custody.

Could it affect the financial outcome of a divorce case? In certain cases, circumstances of an “abandonment” may be taken into account, along with other factors. An example of such a case might be where one spouse bails out on a recently physically-disabled, dependent spouse, taking most of the marital assets acquired over many years, without providing any financial support at all – even though well able to do so.

But most people who ask the question at the beginning of this message just want to take a little time and get a little distance from their relatively ordinary spouse and marriage, to think things over and figure out what they want to do. Florida’s no-fault divorce law doesn’t penalize a person for that.

“But the statute says…”

Sometimes a client will do some “research” of their own before consulting a lawyer. Typically, that might mean reading some articles in print or on the internet. Occasionally, they will actually take a stab at reading the applicable statutes (laws) themselves.

I think that’s great. I like working with clients who take a strong interest in the law, and the nuts and bolts of their case. And, personally, I always try to educate my clients about both.

Having said that, my last post unintentionally illustrates an important point: a little knowledge can sometimes be a dangerous thing. How so?

When a non-lawyer reads a statute and that statute states something pretty clearly, the non-lawyer tends to accept at face value that that statute accurately states what the law is. Sounds perfectly reasonable, doesn’t it?

But that non-lawyer could turn out to be dead wrong. Needless to say, making that discovery at a hearing in court can hurt your case.

How can a statute be “wrong”? Sometimes statutes are unconstitutional and simply not applied. More often, unchanging statutes evolve by means of interpretation in the courts.

My post about how a soldier, stationed outside of Florida on an extended basis, can nonetheless satisfy the statutory requirement that he “reside” in Florida for six months immediately before filing for divorce here.

The moral is that you really can’t take any statute at face value, especially not if you are relying heavily on a particular statute in support of your case. If you want to be sure of the law, you must research the legal cases covering the issues in your case.

Otherwise, after you state the quotation at the beginning of this post, your opponent may cite and show both you and the judge all the cases that say differently from the statute.

“I’ve been stationed outside Florida for several years now. The state where I’m stationed takes forever to give a divorce. Can I get it in Florida?”

This question comes up more and more due to current world events.

By statute, Florida will not grant a divorce unless one of the spouses has “resided” in Florida for at least six months. Florida courts have consistently held that residing means exactly what it sounds like, that is, actually living in Florida.

That would seem to leave the serviceperson stationed outside Florida out of luck.

But the Florida courts have consistently put a gloss on the term “reside” for established, genuine Florida residents called out of state by military service. In other words, as long as they actually resided in Florida immediately prior to being called to duty out of state, they will still be considered as Florida residents.

So the serviceperson stationed outside Florida may file for divorce in Florida. And if the divorce is fairly amicable, it may even be workable to get a divorce that way.

But if the divorce is hotly contested and the other spouse actually lives in Florida, the serviceperson spouse really may want to re-think the advisability of filing in Florida while stationed elsewhere. It may put the serviceperson at a strategic disadvantage unnecessarily .

“Will I be able to get custody of my children?”

That’s how most parents still phrase the question to their lawyers. It’s a throwback to the era when one parent “got custody” and the other parent didn’t. End of discussion.

But times have changed, and involved and informed parents should consider asking different questions today.

Today, Florida and most states allow for (or, like Florida, favor) “joint custody” of children. In Florida, joint custody generally refers to joint legal custody, not physical custody.

What’s the difference? In the interests of brevity, the parent with physical custody actually has the child physically present with him or her.

In Florida, the child generally resides more of the time (if not most of the time) with the primary residential parent. The child may reside (or visit) the rest of the time with the secondary residential parent.

What most parents mean when they ask the question at the beginning of this message is

“Will I be able to get primary physical custody of my children and be their primary residential parent?”

Most parents facing divorce focus almost single-mindedly on who their children will live with after the divorce . They don’t give a thought to the currently abstract issue of legal custody.

Legal custody refers to decision-making for and about the child. Not usually the routine day-to-day decisions (like, which cereal to eat for breakfast) but the significant decisions (like, whether to take medication for hyperactivity or whether to have an elective orthopedic surgery now or later).

Legal custody or decision-making authority is important. In some cases, depending on the personalities involved, the time may come when joint legal decision-making may seem as concrete as a wall or a brick.

In certain cases, a divorced parent may end up regretting not considering their legal position on legal custody at the time of divorce as carefully as they considered their legal position on physical custody.

“My spouse hits me. What should I do?”

Sadly, that’s another common question.

There are a lot of things you can do. They may include, among other things:

• enroll the violent spouse in an anger management (and/or substance abuse and/or mental health treatment program as appropriate)
• encourage the violent spouse to leave the home temporarily
• go to a domestic violence shelter (800-500-1119 throughout Florida and 800-799-SAFE nationwide) for safety planning and counseling for yourself (and your children, if appropriate under the circumstances)
• remove yourself (and, if feasible, your children) to a safe haven temporarily
• permanently relocate
• file for divorce of your spouse and custody of your children
• seek an injunction for protection against domestic violence (also called an order of protection)
• contact the Department of Children & Families (if the violent spouse has abused you in the presence of your children and / or has abused your children)
• call the police
• sue your spouse for damages for your injuries
• consult a divorce lawyer (also called family, matrimonial, marital or domestic relations lawyer) to learn more about your children’s and your rights

That’s what you can do. What you should do, however, is a very difficult and complex question that depends enormously on all the circumstances of your family.

In some cases, not doing anything can have extremely dire, even fatal consequences. Your first and foremost concern should always be your children’s and your safety.

In other cases, however, rash, impulsive, overblown responses may end up doing permanent emotional and financial damage to all the members of a viable family passing through a terrible but temporary crisis situation. Certain responses can’t be taken back – any more than the violence can be undone.

“I’d like to get legally separated.”

Floridians transplanted from certain other states often ask about this.

Florida doesn’t have a procedure to become “legally separated”. Florida spouses who are in fact living separately and apart remain legally married, without a change in legal status.

Therefore, in Florida, if a separated spouse dies, the surviving legal spouse still has full inheritance rights if there is no will. The surviving legal spouse also has certain inheritance rights even if the deceased spouse disinherited the surviving legal spouse in his or her will. Living separately and apart has no impact on the surviving legal spouse’s legal rights.

Physically separated spouses in Florida can, however, in effect, get the benefits of “legal separation” by, among other things, legally “opting out” of Florida’s laws regarding property distribution to spouses. They can do that by making what is called a post-nuptial agreement. (Of course, the agreement must comply with all applicable legal requirements in Florida.)

A “separation agreement” is nothing more than a post-nuptial agreement. If the parties later decide to divorce, the post-nup can serve as a settlement agreement. If one spouse should die before a divorce, the post-nup can also limit the surviving spouse’s rights to the deceased spouse’s estate.

“My spouse hired a lawyer for us“.

I often get on-the-sly calls from a suspicious spouse with that one too. On some level, the suspicious spouse knows he or she has good reason to be suspicious.

You see, one lawyer cannot represent both of the spouses in a divorce.

That would be a clear conflict of interest. Why? Because one lawyer can’t do his or her very best for the wife and also do his or her very best for the husband, at the same time, in the same case. Like it or not, sometimes what’s best for the husband just isn’t very good for the wife (and vice versa).

So what the spouse who hired a lawyer “for us” is really saying is:

“I hired a lawyer to represent me. But I don’t think you should have a lawyer to represent you.

Only the hiring spouse will never admit the truth. And the hiring spouse will never let the suspicious spouse near “their” lawyer.

Because “their lawyer” would be dutybound to explain to the suspicious spouse that the lawyer doesn’t represent the suspicious spouse at all, only the hiring spouse. The lawyer would probably even recommend that the suspicious spouse engage an attorney of his or her own too.

Of course, the hiring spouse doesn’t want that. The hiring spouse wants to maintain control over the divorce – and the suspicious spouse.