Teris Deitsch

For the majority of people, going through the divorce process can be a complex and surreal period in their lives.  In some cases, however, even starting the process can be exceedingly difficult. “Starting the process” does not refer to the situation where most people contemplating a divorce find themselves, namely, grappling with the decision of whether to proceed with the divorce or not. This situation involves an individual wanting to move forward with a divorce, but the other party cannot be located, does not want to be located, or refuses to participate in the legal proceedings. Faced with this situation, some people will choose to remain married because they believe they have no other options.  Yet, it is exactly in these circumstances that a dissolution via service by publication, or constructive service, can help individuals to be awarded a divorce, find closure, and allow them to move forward.

PERSONAL SERVICE OF PROCESS

Typically, a dissolution of marriage case requires a petition for dissolution of marriage and other related documents to be filed by one spouse with the other spouse getting served with, or accepting service of, those documents. This is referred to as “personal service of process.” The rationale behind personal service of process is that the other spouse has been provided notice of the pending litigation, and thus, has the opportunity to respond to the petition and be able to participate in the case. There are specific deadlines involved, and being served with the documents usually means that the spouse initiating the divorce does not (shadily) proceed with the case without the other’s knowledge.

But what can be done when, for example, the other spouse left years ago and the individual seeking a divorce has no idea where they could be living, or frankly, if they are actually living.  In this circumstance, getting the absent spouse personally served is not only unlikely, but perhaps, impossible.  In circumstances where personal service cannot be accomplished, the spouse seeking a divorce can complete the necessary service of the documents using the method of “service by publication” or “constructive service.”

SERVICE BY PUBLICATION

The case law makes clear that service by publication can only be used as a last resort.  Further, there are only a few specific types of cases in which this method of service can be utilized.  The procedure must be followed strictly.

1. Affidavit of Diligent Search and Inquiry. The first step is to ensure that the spouse filing the petition has made a concerted effort to try and discover the address or location of the other spouse. This requires filing an Affidavit of Diligent Search and Inquiry in which several sources must be searched[1] in an effort to locate the other spouse. These sources[2] include the United States Post Office inquiry through the Freedom of Information Act; last known employment; names and addresses of relative; law enforcement agencies; Department of Corrections; hospitals;
2. Notice of Action. Once the search is completed, the Affidavit of Diligent Search and Inquiry is filed along with the petition for dissolution of marriage and other documents.  A Notice of Action indicating that there is a divorce action pending against the other spouse and indicating they have a certain amount of time to provide a response is also filed and returned by the Clerk of Court to the petitioner or petitioner’s attorney.
3. Publication. The Notice of Action must then be published in a newspaper in the county where the petition is pending once during each week for four consecutive weeks.
4. Proof of Publication. Once the Notice of Action has been published for the required amount of time, the proof of publication is filed.
5. Default. If the other spouse fails to provide a response within the allotted time, a Motion for Default is filed requesting the Clerk of Court enter a default against the other spouse.
6. Final Hearing. Once the default is entered against the other spouse, the petitioner can move toward finalizing the divorce by scheduling a final hearing with the Court.

It should be noted that by utilizing service by publication, the petitioner must still prove their elements of the case.  Generally, courts disfavor making make determinations regarding the children such as parental responsibility and timesharing based on the entry of a default; yet, if the Court finds that the petitioner requests are in the best interests of the children, they will consider making such decisions.  Further, the Court can distribute property that is subject to the Court’s jurisdiction (real property must be sufficiently described in the Notice of Action in order for the Court to obtain the proper jurisdiction over it). Determinations regarding issues of child support and alimony are more complex and depend on whether the Court has personal jurisdiction over the other spouse.

Obtaining a divorce through service by publication is a unique and complicated legal process designed to address the legal challenges when one spouse cannot be located or is purposely being evasive. While it is a last resort, it is a valuable method providing individuals a path forward to getting divorced and reach closure.  If you would like to discuss this issue or any other family law issue, please schedule a consultation with the attorneys of Artemis Family Law Group.

[1] In my practice, the client employs a private investigator to complete this search. This is the more economical method for the client since the cost of the private investigator to complete this task is usually less than paying hourly attorney fees.

[2] Admittedly, some of the places to be searched seem outdated, i.e. telephone listings in the area where the other spouse last resided

In spite of all the bleak statistics everyone has heard about the likelihood of a marriage ending in divorce, people have always entered into marriages full of hope.  The newest statistics indicate that in Florida, the marriage rate is increasing while at the same time, the divorce rate is decreasing. Given these different factors, it is not surprising that sometimes, one spouse in a marriage, does not “want” to get divorced and when faced with the other spouse filing for divorce, questions whether it is possible to stop it from moving forward.

Short Answer: Not Really

If one spouse is really intent on getting divorced and the other does not want to get divorced, there are instances in which the divorce may be delayed for a bit of time, but most likely, finalizing the divorce is inevitable. The reason for this is simple:  Florida is a no-fault state.

The No-Fault Principle in Florida

The Florida divorce system operates on the principle of no-fault. This means that in order to seek a divorce, neither party needs to prove that the reason the marriage is over is due to the fault of one of them. Further, unlike other states that require a separation period before being able to file for divorce, Florida has no such requirement. It is worth noting that Florida has a “cooling-off period;” however, that simply provides a final judgment cannot be entered until after 20 days have elapsed from the date of the filing the petition for dissolution of marriage.  Pursuant to Florida Statute,§ 61.052 here are only two grounds for a divorce, with one being required to be pled in the petition for dissolution of marriage: The marriage is irretrievably broken or mental incapacity of one of the parties. In this last circumstance, the party must have been adjudicated incapacitated for at least three years prior to the filing for divorce. The principle of no-fault and only needing to allege the marriage is irretrievably broken (which is the most common allegation pled), makes it fairly easy for the spouse seeking the divorce to move the process forward, and conversely, much more challenging to stop the process once it has been initiated.

But What if the Marriage is NOT Irretrievably Broken?

The concept of a marriage being “irretrievably broken” essentially means that the marriage cannot be saved and all attempts of reconciliation have been attempted and failed. If there is an allegation in the petition that the marriage is irretrievably broken, the other party does not deny it is in their response to the petition, and the court finds that the marriage is indeed irretrievably broken, then the divorce will be granted.  However, the statute provides that if one party has denied that the marriage is irretrievably broken or if there is a minor child of the marriage, then the court may take some actions that would delay the proceedings. Under these circumstances, there would be a hearing and based on the evidence presented, the court may order one or both parties to consult with a marriage counselor, psychologist, psychiatrist, religious advisor, or “any other person deemed qualified by the court and acceptable to the party or parties ordered to seek the consultation.  The court may also decide to continue the proceedings in order for the parties to attempt reconciliation.  This continuance has to be for a reasonable period of time, not to exceed three months.  Lastly, the court may utilize the catch-all by “taking any such action as may be in the best interests of the parties and the minor child of the marriage.”

How The Above Works Practically

it is extremely rare for a party to deny that the marriage is irretrievably broken. The reasons it is rare are the practical consequences of going through the above process. Having a hearing in order to provide evidence of why your marriage can, and should, be saved is likely to be an awkward, uncomfortable, and distressing experience. Further, the party seeking the divorce may believe the other party is using the denial as just an attempt to thwart or strategically delay the process. This party will then work their hardest to convince the judge that there is no saving the marriage, making that hearing even more difficult.  The overriding consideration, however, is that the court and the State of Florida will not force someone to remain married if they do not want to remain married.

When the Parties Want to Reconcile (Or, At Least Try)

In instances when both parties decide they want to attempt reconciliation, there are some options to halt the process while they see if they can save the marriage.  The person who filed the petition could file a motion, or both parties could file a joint motion, to abate the proceedings. This lets the court know the parties are “pausing” the divorce while they attempt reconciliation.  Keep in mind, however, that if the party seeking the divorce does not agree, the other party cannot unilaterally abate the proceedings.  Another option is the party who sought the divorce and filed the petition could voluntarily dismiss their petition. If both parties filed petitions, they could voluntarily dismiss both their petitions.  By voluntarily dismissing the petition or petitions without prejudice, the process is not paused, but instead is completely ended.  If reconciliation does not work, either party could file another petition for dissolution of marriage.

Conclusion

The no-fault system of divorce in Florida and the marriage being irretrievably broken being sufficient grounds for a court to grant the divorce makes it challenging for someone seeking to stop the process.  Although there are avenues to have the court delay the process if there is a denial that the marriage is irretrievably broken or if there is a child involved, the practical considerations make it challenging to contest the divorce based on one party’s desire to save the marriage.  Ultimately, unless the parties decide to reconcile and dismiss the divorce action, the divorce might be delayed, but will inevitably be granted.  If you would like to discuss this issue or any other family law issue, please schedule a consultation with the attorneys of Artemis Family Law Group.

During a pending divorce in Florida, often, one of the parties will decide to move out of the marital home. (See our post on What Happens If I Move Out During the Divorce?)  There are varying rationales as to why individuals involved in a divorce choose to leave the marital home during the process; however, one of the most consistent and pressing concerns that each party in this situation—-whether it is the spouse moving out or the spouse staying in the marital home—is how the mortgage and the household expenses will be paid during the pendency of the divorce.

The Short Answer

Both parties are expected to contribute to the shared financial obligations of the marriage and these should continue to be paid as they were during the marriage.

The Role of Standing Administrative Orders

The majority of counties in Florida have standing administrative orders that go into effect, and that parties are ordered to comply with, immediately upon the filing of a dissolution of marriage action.  The courts take these standing administrative orders very seriously.  The person filing the divorce action, or their attorney, receives a copy of the order at the time they file the petition for dissolution of marriage, and the other party must be served a copy of the order along with the petition and other initial documents.  The provisions of these standing orders that are pertinent to the question of who pays for the mortgage and household expenses during the divorce involve “maintaining the status quo” and “dissipation of assets.”

Maintaining the Status Quo.  The overarching purpose of these standing administrative orders  are to maintain the stability of families going through a divorce.  For instance, in the Ninth Circuit Court’s standing administrative order, some of the expressly stated purposes are to “provide guidance to parties in a dissolution of marriage actions” and “to help parties pattern their behavior in ways that reduce conflict.”  Further, the order states that “it is in the best interests of the parties and children. . . that parties learn about the . . .duties and responsibilities of litigation.”  According to the Ninth Circuit standing administrative order specifically, “Food, shelter, utilities, transportation and necessary medical expenses shall continue to be paid as they were during the intact marriage until further order of the Court or written agreement of the parties.” [1] (emphasis added).

This bolded and italicized language means that if during the time the parties were living as a married unit, the mortgage and household expenses were paid out of, for example, a joint account in which both parties’ incomes were deposited, then upon the filing of a divorce, both parties should continue to pay their share of these marital expenses, even when one of the spouses moves out.  In the scenario where one spouse earned all the income while the other stayed at home raising the children, technically, all the household expenses were being paid by the earning spouse; however, all of those funds were considered marital.  Thus, in order to comply with the standing administrative order, the earning spouse would still be obligated to pay all the household expenses because that is how it was done during the “intact marriage.”

Dissipation of Assets.  The other consideration of the courts’ standing orders as to the parties paying the mortgage involves the concept of one party “dissipating” a marital asset.  For most couples divorcing, the marital home is their largest asset.  If, for instance, one of the spouses refuses to pay (and has the ability to pay) their portion or the entire portion of the mortgage on the marital home, whatever was the case during the marriage, that spouse could be viewed as intentionally dissipating or disposing an asset.  Many times, this situation will occur where the earning spouse moves out of the marital home into another residence, refuses to pay the mortgage, leaving the spouse who perhaps had never worked during the marriage and without a way to pay the mortgage, and essentially obliterating the equity in the home should the home go into foreclosure.  The Ninth Circuit also states that it is in the best interests of the parties and children. . . “that the parties preserve their assets…”  Further, the standing order states, “Neither party may conceal, damage, or dispose of any asset, whether marital and non-marital, and neither party may dissipate the value of an asset, for example, by adding a mortgage to real estate or by failing to take care of an asset.”[2]

As previously stated, courts take these standing administrative orders very seriously.  Therefore, should a party have the ability but fail to pay the mortgage or household expenses as they were paid during the marriage (thus, failing to maintain the status quo) and/or the marital home goes into foreclosure, (thus, dissipating a marital asset) the court could punish these violations the standing order punishable by contempt and impose sanctions.

Other Factors & Practical Considerations Regarding Payment of Mortgage & Household Expenses

Other factors and practical considerations include the following:

1. Temporary Support (Child Support/Spousal Support). Payment of the mortgage and household expenses might be regarded as, and perhaps during the finalization of the divorce, credited toward, a parties’ child support or spousal support obligations.
2. Equitable Distribution Credits. In the final distribution scheme of the parties’ assets and liabilities, if one party completely paid the monthly mortgage on the marital home, that party may receive a credit for paying the other party’s half.   If the house was sold, after payment of the remaining loan amount, closing costs, realtor fees, etc., normally, the parties would split the remaining funds equally.  However, if one party solely paid the monthly mortgage payment (thereby, also paying what the other party owed monthly) that party would receive credit for paying the other party’s half and would receive more than half of the remaining funds.  Or, that party could receive more from another marital asset.
3. Maintaining Creditworthiness. Both spouses’ credit may be affected if the mortgage payments are not maintained.
4. Mediation Before Court Intervention. Lastly, if the mortgage and other household expenses are not being paid in violation of the courts’ standing administrative orders, the majority of courts require that you first attempt to resolve these issues at mediation prior to seeking the courts’ help.

During a pending divorce, the issue of which party should continue to pay the mortgage and household expenses, especially where one party has moved out of the marital home, is multifaceted.  Individual circumstances, standing administrative orders, and how these things were customarily paid while the parties were together, all play a role in determining financial obligations during the pendency of the divorce.  Also important is how these payments are ultimately regarded in the finalization of the divorce.  Making informed decisions with knowledgeable advice is paramount for your future.  If you would like to discuss this or any other family law matter with the attorneys at Artemis Family Law Group, please schedule a consultation today.

[1] The pertinent provision in the Eighteenth Circuit’s standing administrative order states: “These restrictions (not selling, damaging, disposing, etc. any marital or non-marital property) exclude cash, checking accounts or other sources of funds customarily used to pay ongoing living expenses of the parties or marital debt or other reoccurring marital obligations of the parties.”

[2] The pertinent provision from the Eighteenth Circuit’s standing administrative order states: “Neither party shall sell, donate, pledge, conceal, damage, encumber, or otherwise dispose of any marital or non-marital property without the prior written consent of the other party or court order.”

The relationship between a client and their family law attorney is a very different one when compared to other attorney-client relationships. In comparison to other areas of law such as civil law, real estate law, criminal law, etc., family law cases involve much more heightened emotions and the sharing of inherent vulnerabilities.  Divorce, child timesharing issues, and money issues are loaded with emotional difficulties that make the family law attorney-client relationship more intricate.  Because of these additional considerations,  the specific dynamics between a client and their family law attorney is crucial to the overall success and satisfaction regarding a family law case.  Sometimes, however, circumstances arise where the best thing for both the client and the attorney is to listen to Fleetwood Mac’s sage advice and “go [their] own way.”

Most, if not all, family law cases are teeming with emotionally charged situations.  From a client’s perspective, their case is a huge transition in their lives or their children’s lives. It is about their life. As the case unfolds and progresses, clients may recognize that their needs, expectations, or personal circumstances have changed.  Or it may be that the client now perceives a big difference between the communication styles of their attorney and themselves or that they no longer agree with the legal strategy being pursued. Many clients may feel that their attorney does not fully appreciate their specific situation as being unique or is not delivering the results they want. When there is a mismatch in communication styles, legal approaches, or other reasons causing extreme frustration, it may be time for the client to reassess their attorney-client relationship, and go their own way, seeking new representation.

From the family law attorney’s perspective, there are many valid reasons to consider parting ways with a client. Just like from a client’s perspective, there may be a large dichotomy in the communication styles or the overall personalities of the attorney and client. One very common challenge arises when a client’s expectations are hugely unrealistic. These unrealistic expectations can revolve around many things including the speed of the case, the results that can be obtained, the costs of legal fees, or the strategies that the attorney should take.  Frequently, the client’s unrealistic expectations concern the amount of time and focus they believe their attorney should spend specifically and only on their case.  There are also instances where a client will insist upon their attorney arguing a position or taking an approach that the attorney knows will either not be persuasive, will affect the client’s case negatively, will sabotage the client’s case, or is even unethical. If a client constantly questions the attorney’s judgment, fails to provide information when repeatedly requested, fails to follow legal advice, if there is a breakdown in trust, becomes increasingly uncooperative, along with the other circumstances described previously, it may be in the attorney’s best interests to suggest parting ways.

Family law attorneys must maintain a professional attorney-client relationship and carefully consider that relationship to make sure that it stays productive and meets ethical and professional standards.  This decision to part ways should be handled with open communication and respect. By openly discussing their concerns and expectations, both the client and attorney can appreciate the reasons for ending the attorney-client relationship, and what they should both look for in their future representations.

Like all break-ups, ending the attorney-client relationship might be difficult at first, but it really can be the best thing. The decision to part ways, whether the idea of the client or the attorney, should not be taken personally.  Going your own way can create a chance for both the attorney and the client to find more fitting legal representations that can result in better outcomes.  If you would like to discuss a family law matter, please schedule a consultation today.

I realize that the title of this article may seem overly dramatic and maybe even come off as whiny. However, the reality is that family law attorneys face distinctive challenges that can affect them personally and professionally.  After close to 18 years of practicing family law, I have come to believe that if our clients understood some of the challenges that a family law attorney faces in this job, this understanding could lead to not only improved attorney-client relationships, but also better overall expectations on how their family law case proceeds.

1. Emotional Toll. There is a reason that when I inform other attorneys that I practice family law, they usually look at me with relief and say something along the lines as “Thank god someone does” or “Better you than me.”  Most family law attorneys chose this area of law because they wanted to help people.  Yet, new family law attorneys quickly learn that in each family law case, you are dealing with many more people, and consequently, each of their personalities, other than your own client.   Family law cases frequently (if not always) involve heightened emotions. Typically, there is ongoing high-conflict in divorces, “custody battles,” domestic violence injunctions, etc. Your  family law attorney is investing time and empathy in helping you through your difficult time.  What your lawyer wishes you understood is that each of their clients is going through their own difficult time and experiencing the ever-shifting emotions common in family law cases such as fear, anger, hostility, and sadness.  Thus, although it may appear to you that your family law attorney is not being as empathetic as you believe they should be to your situation, please understand that this compartmentalizing is actually beneficial to both your attorney and you.  Imagine the lack of progress and the increased costs and level of conflict in your case if your attorney, instead of engaging in problem solving, became completely enmeshed in your emotions and the emotions of each of their clients.  It is  important to recognize that your family law attorney is human and here to help you as much as possible through the legal process. Their help would not go very far if the expectation is that they should feel exactly the same way as you do with regard to your family law case.
2. Balancing Advocacy with Objectivity. Compartmentalizing the emotions and turmoil of their clients also leads to another thing your family law attorney wishes you understood regarding their job: Your family law attorney is advocating for your best interests but they can only really accomplish productive advocacy if they remain objective.  Thus, your family law attorney wishes you explicitly understood their role.  Their primary responsibility is to provide you with thorough, sound legal advice.  This advice is intended to benefit you and your life.  The attorney may push back and may not agree with your decisions or actions.  However, understand, ultimately you are making the decisions because it is your life and your future.
3. Legal Battles can be expensive. Family law cases can be expensive. Family law attorneys (at least the good and reputable ones) wish their clients understood that they are trying their best to keep their clients’ expenses low.  Nevertheless, the amount of your family law attorney’s fees depends on many different factors —most of them, out of the attorney’s control. Clients need to consider how the other party, the opposing counsel, and their own actions can affect the amount of legal fees.
4. Reputation is Important. Much of your family law case will be impacted by your family law attorney’s reputation.  As indicated in other blogs, the reputation of family law attorneys is paramount.  A family law attorney that problem-solves rather than causing more problems, treats their cases objectively rather than subjectively, advises their client intelligently rather than emotionally, advocates for their client rationally rather than advocating for whatever their client wants, is most likely a family law attorney with a good reputation.  A family law attorney with a good reputation because of the above characteristics will result in an overall more efficient and acceptable resolution of the issues in your case.
5. Value of Collaborative Divorce, Mediation, and Settlement. Lastly, family law attorneys wish clients knew about their job is that they really want to resolve your case in the most beneficial manner.  Your best resolutions are going to be through the collaborative process, mediation, our other methods of settlement.  Thinking that “a judge has to decide this,” is, in reality, your worst option for getting a resolution that will be acceptable to you.

The practice of family law can take a significant toll on attorneys, both emotionally and professionally. Understanding the challenges your attorney faces can produce a more productive and empathetic attorney-client relationship.  By recognizing these things, you will be able to work with your attorney to navigate the family law system effectively and reach the best possible resolution for your case.  If you would like to discuss how Artemis Family Law Group can assist you in your family law matter, please schedule a consultation today.

A previous article, “What Your Family Law Attorney Might Not Tell You(But Should): Part 1,” discussed central truths about family law cases that often go unexpressed by family law attorneys to their clients.  With this “Part 2,” we resume the forthright discussion about the realities in family law cases that your attorney may have left unsaid, but that you should really understand.

1. The Impact of Social Media. In these modern times, social media plays a large role in many people’s lives. Your attorney might mention offhandedly to be cautious on what you post on social media; however, in reality, individuals involved in family law cases, especially contentious ones, should avoid using social media altogether.  Clients should recognize the potential consequences of their activity on social media. Anything you share can be used against you in court.  These posts may negatively impact the outcome of your family law case.  This also applies to posts on the social media accounts of your friends or new girlfriend or boyfriend.  Many people believe they are somehow invisible while on other people’s accounts, but you can be sure, one of the first things the opposing party informed their lawyer of was the name of your new girlfriend or boyfriend. That attorney then found them on social media, took screenshots of all the vacations and shopping trips you took together, ready to use this evidence to eviscerate your claims of impoverishment.

2. Honesty about Everything is Essential. That last sentence above brings us to this: You need to be absolutely honest about everything to your attorney. Further, this honesty needs to start from the very beginning. Honesty is critical during the entire process. Your attorney is not going to judge you; however, they may very much dislike you after they are surprised-attacked by opposing counsel with something they had no knowledge of, and essentially, made them look foolish.  In some cases, the withholding of the truth is so extreme, your attorney may decide that they do not wish to damage their reputation by continuing to work with you and will withdraw from your case.  Another very important consideration is that courts make many decisions based on the credibility of parties while testifying. Being cagey or untruthful in court is a guaranteed way to torpedo your case.

3. There is No Real Privacy. Being honest about everything ties in with this truth: Once you become involved in a family law case (again, especially a contentious one), there is no real privacy.  You must understand that it will become necessary for your life to be an “open book.” So, please do not feel offended if your attorney asks you some very personal questions or asks you to provide a response to what the opposing party has alleged. Different aspects of your personal life are going to be studied because, for instance, it may affect your contact with your children or your finances will be scrutinized because it may affect your alimony claim.  It is best to be open and honest about everything so that you and your attorney can prepare for anything that may come up.

4. Frequently, There is a Difference between What is Legal and What Seems Fair. Some family law attorneys will simply tell their clients what they believe they want to hear. “Of course, you will get X, Y, Z” or, I can guarantee I can get X, Y, Z for you.” However, as much as an attorney can advocate for their client’s best interests, you must also understand that they can only work within the constraints of the law.  Many times, the hard truth of what actually can or does occur in your case given the state of the law, feels completely unfair. The laws may go against your goals or what you feel you deserve in this case. Unfortunately, there is often a difference between what the law can do and what seems fair. You need to appreciate this difference at the outset so that your expectations are tempered.

5. Emotional Toll. Being involved in a family law case can be one of the most stressful times in your life.  The continued stress, anxiety, anger, etc. during your family law case (and after its conclusion can have a huge emotional toll on you. You need to have a good support system of friends and family. Moreover, there should be no shame surrounding receiving help through therapy or support groups. You will need and appreciate the emotional and practical assistance these different people can provide during a challenging family law case.

6. Litigation is the Worst. All the truths contained above lead to this reality that many family law attorneys will not tell you: Litigation is the worst way to proceed in a family law case. Litigation can be a challenging, extremely stressful, and a resource-intensive process. The only people who really benefit from a traditional litigation model are the attorneys. The alternatives to litigation, such as the Collaborative model, uncontested model, or pre-suit mediation, offer real advantages over the traditional litigation model. The Collaborative model, specifically, prioritizes cooperation, transparency, privacy, and allows individuals to come up with agreements that are mutually beneficial and best for their particular family – often crafting agreements that courts cannot (due to those constraints of the law). Lastly, this alternative is superior to the traditional litigation model because the Collaborative model helps preserve relationships between the parties.

Appreciating these realities provides a deeper understanding of the inner workings of the legal process, potential hazards, and better approaches to family law cases.  Hopefully, supplied with these insights, you will be well-equipped to navigate your personal family law case.  Artemis Family Law Group would also be prepared to assist you in any family law matter.  Please click here to schedule a consultation.

Navigating the world of Florida family law can be a surreal, intimidating, and emotional experience.  Even if you have a practiced attorney on your side to help you through the legal intricacies of time-sharing, equitable distribution, alimony, child support, etc. there are often very important truths that go unspoken.  These important but unexpressed realities are concepts that individuals involved in a family law case should be familiar with and are also points that their attorneys should explicitly express to their clients, but often, fail to do so.

1. Time-lines and Delays. For many individuals, the family law case they are a party to is their first instance of being involved in the legal system.  Many think that their case should proceed swiftly and assume, for example, they will be divorced within six months or less.  In reality, there are many different factors that can affect the time that it takes to completely resolve a case.  These different factors include the type of case it is (i.e., uncontested, contested, or Collaborative); the main issues in the case; the court’s availability for hearings or trials (this is different for each judge and county); the availability of both attorneys for each party; the availability of the parties; or even how well the attorneys for each party get along with each other.  You should be prepared for the potential delays and understand that your case may take longer than expected to reach a resolution.

2. Things Out of Your Control.   That leads us to the second thing family law clients should grasp fully:  There are numerous things that can affect your case over which you have absolutely no control.  Family law cases can involve many people.  There is you, the other party, your attorney, the other party’s attorney, the judge, perhaps even other people like a mediator, parent coordinator, guardian ad litem, etc.  All these personalities, and how they interact, must be taken into consideration.  You, definitely, and to a very real extent, the other people involved in the case, will not be able to control how the other party behaves.  The other party may be exceedingly difficult, hostile, or uncooperative, and your case may not be moving forward in the way you believe it should be due to these reasons.  However,  understanding that these may be the very reasons which have brought you to the current case, understanding that your attorney is attempting to solve problems within those parameters, and understanding that neither you nor your attorney can totally control the other party’s behavior will lead to a great deal less stress during your case.

3. “Tit-for-Tat” Behaviors (Parties and Attorney). Frequently, one party in a family law case will do something objectionable or even reprehensible, such as, make derogatory comments about the other parent to the children.  In response, that parent will engage in tit-for-tat behavior and since the other person did it (and did it first), feel that they should do a similar action as well.  Unacceptable behavior from anyone will be looked poorly upon by everyone involved. This includes the children, the attorneys, guardian ad litem, and most importantly, the court.  It may be frustrating but you do not and should not “get down in the dirt” when instances like the example above occur.  Doing so will only hurt your credibility, and your case, in the eyes of the court.  Further, the same thing holds true for your attorney: If the other party’s attorney engages in overly aggressive or unnecessary actions, please do not expect your attorney to engage in the same behavior or practice.  Judges absolutely talk with each other and are familiar with the “problem” attorneys.  If your attorney decided to unnecessarily “fight fire with fire,” the attorney’s reputation is on the line, it can affect your case negatively, and perhaps, more importantly to you, engaging in “tit-for-tat” behavior increases your legal fees.

4. Financial Realities. That leads us to another thing of which individuals involved in a family law matter should be aware: You should have a very clear understanding of the potential financial implications of a family law case, and what can affect the amount of your legal fees.  The total amount of your legal fees is first, frequently unknown, and second, affected by things out of your control (see #2 above).  We realize it must be aggravating when, in response, to your questions about how much the case will cost you in total, your attorney responds with the completely maddening, “lawyer” answer, “It depends.”  However, it does depend.  It can depend on whether the case is uncontested, contested, or Collaborative; how well the attorneys get along; if the other attorney is especially aggressive and litigious; etc.  At best, your attorney will be able to provide an estimate as the case unfolds, and all the factors are considered (some of those factors being out of your and your attorney’s control).  If your case goes to trial, that trial fee is in addition to attorney’s fees you have already paid, and it can become very expensive.

5. Your Day in Court is Not Going to Be Epic. This leads us to the truth about trials: Many people involved in a family law case believe that the only way their case will be resolved is before a judge. They imagine, for example, their divorce trial will be their day in court to tell their story to the judge who will then rightfully see how they have been wronged by the other person. Just like in the movies, justice will prevail, and it will be epic.  However, the very unspectacular reality is that the majority of family law cases are settled; only a small percentage go to trial.  Further, what many people need to realize is that usually, going to trial is not in their best interests.  There is rarely a “slam dunk” case and a “winner.”  A judge wholly unaware of you, your life, your children’s lives, etc. will listen for two hours, four hours, eight hours, two days, etc. to your attorneys, your testimony, the other party’s testimony, and perhaps, the testimony of other witnesses.  After the completion of those hours or days, the judge will make decisions affecting your future and the future of your children.  Simply, going to trial is one of the ultimate gambles of your life and one which despite the facts or law being on your side or the attorney you have, is really out of your control.

6. You Do Not Want An “Aggressive,” “Bull-Dog” Attorney. Tying in with all of the other truths above is this:  What many people involved in family law cases are unaware of is that the skilled family law attorneys are rarely in court.  A skilled, experienced family law attorney acts as a problem-solver to craft settlements in mediation or through the Collaborative process that will be acceptable and beneficial to you, allows you to have some part in shaping your future, and keeps you out of the ultimate gamble of trial. Of course, this is not universal in all cases.  Advocating for you and going to trial where necessary is something that a skilled, experienced family law attorney does as well.  However, it is usually the attorneys that only want to make money off of your case that know the way to do so is to be unreasonable, not accept or give reasonable or rational settlement offers, and take everything to trial.

It is important to note that not all family law attorneys withhold these truths purposely (or at all), act unreasonably, or are the “problem” attorney.  The Artemis Approach believes that clear, realistic, and truthful communication is essential to ensure clients can make informed decisions during what can be a stressful and emotional process.  If you have questions regarding a family matter, we would be happy to discuss them further with you.  Please schedule a consultation today.

Here is the reality: Your divorce is not going to be like what you see in the movies or TV (and frankly, you really would not want it to be).  Movies and shows exploit all the drama and the emotions like hostility, sadness, and disappointment that comes with a divorce.  However, an actual divorce in Florida is vastly different from Hollywood’s portrayal.

1. There is not going to be a dramatic courtroom climax. Movies and TV shows usually portray bitter, hateful spouses involved in a highly contentious divorce. Their actions during the divorce process are not only highly questionable, but also sometimes border on the unhinged (hello, War of the Roses??).  In movies and TV shows, each party to the divorce has an aggressive, “bulldog” attorney hurling accusations and engaging in a devasting cross-examination of the other spouse during the trial, until one person is victorious.  In actuality, most divorces are settled out of court through mediation, negotiations, or by the Collaborative divorce process.  If your case is part of the small percentage that goes to trial, a judge will hear and decide your case. The attorneys will no doubt advocate for their clients; however, a judge would not allow unprofessional or continued aggressive behavior by an attorney.  Further, an ethical attorney would not risk their reputation or license to practice law by engaging in such behavior.

2. There is not going to be one winner. As mentioned above, in Hollywood’s portrayal of divorce, one party emerges as the total victor. Yet, any experienced family law attorney will inform you up front that there are no winners in a family law case. The best outcome is one that sees both parties receiving some benefit and each having their specific goals or interests met. Using the Collaborative process, moving forward in an uncontested manner, or resolving the case through mediation encourages parties to work together in finding these mutually beneficial resolutions. Moreover, resolving divorces in this way is better than the “scorched earth” method because they can be less stressful, less expensive, and less damaging to relationships.

3. Your divorce will not be resolved instantaneously (or, in 90 minutes or 6 episodes). Hollywood makes it seem as if an entire divorce case can be resolved within a few scenes.  However, in reality, the length of divorce proceedings can be a few months or even years.  The time it takes to reach a complete resolution of real-life divorces in Florida depends on different factors such as what type of model the divorce has taken (Collaborative, uncontested, or contested litigation); the complexity of the issues; the willingness of the parties to cooperate; the court’s schedule; and also, the attorneys the parties have chosen for themselves.

4. One spouse is not going to be ruined, personally or financially. Hollywood often relishes in the drama by depicting how one spouse is ruined personally when all the embarrassing and unflattering information comes out during the divorce. Although divorce proceedings are normally public record, in reality, sensitive, confidential information can be shielded in some ways in order to protect the privacy of the parties.  Further, when privacy is a top concern, in the Collaborative process, the actual financial information and agreements reached are not filed so that they do not become public record. Hollywood portrayals will also show one spouse becoming destitute while the other spouse walks away with everything after the divorce.  This would not happen in an actual divorce.  In Florida, the distribution of the assets and liabilities is controlled by the concept of equitable distribution. This does not necessarily mean that everything will be split equally between the parties; it simply means that things will be split fairly depending on the circumstances.  There is also a new Florida law regarding alimony that would allow for spousal support to the party with significantly fewer financial resources if other factors are met.

5. Your children’s best interests are the paramount concern. Typical in most onscreen portrayals of “custody battles,” the issues between the parents overshadow the welfare of the children.  In Florida, the best interests of the children are the primary concern when children are involved.  In fact, the court has the final say on any issues having to do with  There are over 20 statutory factors that are considered when establishing a time-sharing (“custody”) plan.

Hollywood portrayals of divorce are typically overblown exaggerations filled with drama. An actual divorce proceeding in Florida is very different from these onscreen portrayals. An actual divorce proceeding is not a furious, quick battle that is won in the courtroom by the person with the attorney that is the loudest and most aggressive.  In reality, a divorce is more likely a complex, emotional, and methodical process where parties realize the best outcomes for themselves and their children are ones that focus on finding mutually beneficial resolutions and protecting the well-being of everyone involved. If you would like to divorces or other family issues further, please schedule a consultation today.