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.”

Divorce can involve a chaotic jumble of emotions, leaving most people cycling through feelings of anger, hurt, sadness, and betrayal.  For some during this traumatic period of time, this combination of feelings leads to the overwhelming desire for “justice”—-for what has been done to them, for the pain inflicted upon them.  Simply, someone needs to “pay” for the circumstances in which they now find themselves.  In these instances, individuals look to what types of legal actions they can bring against their spouse or perhaps, the “homewrecker” that is at fault by destroying their marriage and causing what is perceived as the death of their family.

Isn’t There a Law Where Spouses Cannot Sue Each Other?

Short Answer: There was. But not anymore.

Many people remember something about spouses not being able to sue each other.  This was previously true in Florida under the Interspousal Immunity Doctrine. This doctrine prevented spouses from bringing civil torts (wrongful acts or infringement of a right leading to civil legal liability) against each other. The rationale behind this was the belief that lawsuits among family members would destroy relationships.  In 1994, this doctrine was abolished, allowing spouses to sue each other for things like battery, negligence, fraud, and intentional infliction of emotional distress.

Can I Sue My Spouse for Cheating on Me?

Short Answer: Yes, for some things.

Cheating is a Crime. It may be difficult to believe, but cheating on your spouse is actually illegal in Florida.  Pursuant to Florida Statutes, §798.01, if either party involved in the cheating is married and they “live in an open state of adultery,” both parties are guilty of a second-degree misdemeanor.  Thus, your cheating spouse can be subjected to up to 60 days in jail, a monetary fine of up to $500, and up to 6 months of probation.  However, before there is a deluge of calls to the police requesting arrest of the adulterous offender (and his or her cheating partner), this law is rarely put to use.  In fact, adultery laws are most likely unconstitutional[1].

Suing for Contracting an STD/STI from Your Spouse. What if the other person gave your spouse an STD/STI and then your spouse gave it to you?  If your spouse knew that they were infected by a sexually transmitted disease (STD)/sexually transmitted infection (STI), knew that they could transmit it to you through sex, had sex with you, and you were unaware that they were infected, your spouse could be charged criminally pursuant to Florida Statutes, §384.24.  However, you could also bring legal action against the cheating spouse who gave you the STD/STI under the above circumstances in a separate civil suit for monetary damages or as a claim in a divorce.

Intentional Infliction of Emotional Distress.  The emotional toll associated with cheating may lead the aggrieved spouse to sue their cheating spouse using the seemingly most fitting cause of action, intentional infliction of emotional distress. However, proving that your spouse intentionally inflicted emotional distress upon you by his or her cheating, is a challenging undertaking.  You would have to prove that by cheating, your spouse (1) acted intentionally or recklessly; (2) his or her conduct was extreme and outrageous; and (3) his or her conduct caused (4) severe emotional distress. Given that some statistical data indicates that approximately 57% of divorces were caused by infidelity, proving that your spouse’s cheating was “extreme and outrageous” is unlikely.  This cause of action against your spouse is likely not going to get you very far.

 

Can I Sue the Other Person?

Short Answer: No.

As mentioned above, technically, the other person involved in the cheating could be charged with a crime; however, for the reasons stated above regarding the unlikelihood of having your spouse charged with adultery, it would be even more unlikely that the other person would be charged.  Further, in the very unfortunate event that you contracted a STD/STI from your spouse because he or she contracted it from the other person, there is no cause of action against the other person (other than perhaps your spouse bringing his or her own case against them because they gave him or her the STD/STI under those elements above).

 

Alienation of Affection.  This cause of action is what some people immediately think of when seeking “justice” against a homewrecker.  These types of lawsuits, where the aggrieved spouse sues the other person, are , in fact, called, “homewrecker lawsuits.” The angry thinking goes like this, “This shameless homewrecker did just that, wrecked my home and family, and he or she needs to pay.” In 2010, a North Carolina woman was awarded $9 million after suing the other person for destroying her 33-year marriage. However, North Carolina is one of the six states in which an aggrieved spouse can bring a lawsuit of this kind.  Florida is not one of the other states[2].

Moving Forward with Collaborative Law

All the above being said does not necessarily mean that your spouse’s cheating considered in a Florida divorce.  For instance, adultery can affect distribution of assets and alimony (if your spouse spent a great deal of marital money on the other person) and timesharing (one of the factors a court considers in determining the best interests of the children is the “moral fitness of the parents”). These things may be considered by a court if you choose to take the litigation route for your divorce. However, while the emotional rollercoaster of a divorce can lead to wanting a spouse or the other person to “pay” for perceived wrongs, it is more important to move beyond the need for vengeance and move forward with your future. Yes, you are allowed to feel all of the challenging feelings associated with a divorce but recognizing that a mindset focusing on retaliation will not be beneficial to your (or children’s) future, can pave the way toward more constructive and amicable resolutions. Thus, instead of focusing on making someone “pay,” moving forward with your divorce through collaborative law can shift the focus from finding “justice” to finding equitable solutions.  Through the framework of collaborative law—encouraging transparency and focusing on goal and interest-oriented resolutions—families can work together toward more positive futures, keeping each person’s and the children’s emotional well-being intact.  Please schedule a consultation today if you would like to discuss a family law matter.

 

 

 

 

[1] In Lawrence v. Texas, the Supreme Court ruled that criminal punishments for “consensual, adult, non-procreative sexual activity” (in this case, same-sex sexual activity) were unconstitutional, basing their ruling on the right to privacy, personal autonomy to decide on one’s relationships, and non-interference with private decisions regarding sex between consenting adults.

 

[2] The states other than North Carolina in which “homewrecker lawsuits” can be brought are Hawaii, Mississippi, New Mexico, South Carolina, and Utah.

 

I like to think I stay well-informed regarding current issues in family law.  I read new case law; attend continuing legal education seminars; seek out multiple-day conferences; I even read up on new procedural law changes (believe me, that is elevated nerdiness). Further, when the sweeping changes affecting the Florida family law statutes encompassing timesharing, alimony, and paternity were enacted in July 2023, I could see the arguments for and against these changes to family law.  This is a lead-up to letting you know that either I simply missed it, or I had completely disassociated from Florida’s asylum-like politics and purposely pretended it was not happening. . . It was only today when preparing for a hearing involving the UCCJEA that I learned the Florida legislature snuck in a provision into this fairly straightforward  statute.

 

What is the UCCJEA?

“UCCJEA” is the acronym for the Uniform Child Custody Jurisdictional Enforcement Act.  This act serves as the legal framework in resolving child custody disputes that can cross several different states and jurisdictions within the U.S. or foreign countries.  As the word, uniform, suggests, the UCCJEA has been adopted in some form by every state (except Massachusetts that follows the older version of the law, the UCCJA).  The intended, and stated, purpose of the UCCJEA is avoiding jurisdictional competition between courts in different states in child custody cases. The UCCJEA establishes and maintains consistency in custody determinations, avoiding potential conflicts and confusion that might arise when two different states have related interests regarding a child.  Essentially, the UCCJEA was enacted so that parents would not utilize the court systems in different states to try and find the one that best suited their objectives.  The bottom-line—-the UCCJEA was put in place to prevent forum shopping.

 

How is Jurisdiction Determined According to the UCCJEA?

 The UCCJEA establishes clear guidelines to determine when a state would have jurisdiction over a child.  Having jurisdiction over the child means that the court would be able to make decisions regarding the child.  The concept of the child’s “home state” is the first consideration as to which state has jurisdiction over the child.  A child’s home state is the state where a child lived with a parent for 6 consecutive months before the filing of a case that involves child custody issues.  The child’s home state would be the proper state to determine an initial child custody matter.  In circumstances where the child has not lived in any state for at least six months, a court can accept jurisdiction of the child if other criteria are met.  Namely, the child and at least one parent have significant connections with the state and substantial evidence involving the child exists in the state.

 

Temporary Emergency Jurisdiction

 Other than the above methods of exercising jurisdiction, the other method in which Florida can exercise jurisdiction is under Florida Statutes, §61.517, Temporary Emergency Jurisdiction.  Previously, pursuant to this part of the UCCJEA, there were two circumstances in which Florida could exercise temporary jurisdiction in emergency situations if the child was present in Florida and (1) the child has been abandoned or (2) the child, a sibling, or parent of the child has been endangered or threatened with mistreatment or abuse.  As I indicated at the start, these are straightforward and rational reasons as to why Florida courts should exercise jurisdiction over a child:  Protecting children who are physically present in Florida when they are in emergency situations.  However, Florida recently added another “emergency” circumstance under which Florida could chose to exercise jurisdiction: When “it is necessary to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions and procedures.”  Under the Temporary Emergency Jurisdiction Statute, if a matter involving child custody issues has not been started in a court of a state having jurisdiction, “a child custody determination becomes a final determination if it so provides and Florida becomes the child’s home state.”

 

Potential Problems Caused by this Provision[2]

Although the current governor and his people proudly boast that this addition to the UCCJEA is meant to protect the “innocence of Florida’s children” and Florida is “following the science to elevate our standards of care to protect kids from harmful drugs and surgeries,” this provision actually creates the potential for problems that the UCCJEA was created to avoid.  By adding in the third provision above, Florida’s UCCJEA gives permission for parents to use the Florida court system in their “forum shopping.” Most troubling is that this new provision essentially obliterates the criteria in determining which state would have the jurisdiction to make custody determination. As indicated above, even if another state had actual jurisdiction over the child, if a parent gets to Florida with the child first, claims that their poor, innocent child needs to be protected because they have been a victim of, or been threatened with, sex-reassignment procedures, that parent could have the court in Florida enter a judgment regarding custody of the child, and if the Court chose to label the judgment as “final,” it would be.  And Florida is deemed the home state of the child.  This means that Florida would have continuing and exclusive jurisdiction over any litigation involving a child.  Thus, the other parent would not be able to bring litigation in the correct state with actual jurisdiction.  Although clearly, the governor meant it to be compliment for Florida, he actually stated the potential issue plainly, “As the world goes mad, Florida represents a refuge of sanity and a citadel of normalcy.” He might as well held up a flashing sign to parents that want to circumvent the law of their own jurisdiction that said, “Come to Florida, folks, we don’t care about actual uniform procedures and law.”  The UCCJEA’s aim was to prevent competitions between states and instead encourage cooperation through uniform laws.  By imbuing political attitudes into the law, Florida’s UCCJEA now does the exact opposite.

 

If you would like to discuss a family law matter, please schedule a consultation today.

 

 

[1] Said with a shaking of the head, pursed lips, and a heavy sigh in disappointment

[2] I actually wanted this headline to read, “Florida Man F**ks Up Family Law by Putting Politics Into Procedures Purporting to Protect the Innocent Children” (I really like alliteration.)

 

No matter how ideal a family may appear, everyone knows that all family dynamics can be complicated. Those dynamics can become more complicated when children and grandparents are involved.  And this is when families are still together. When parents divorce or separate, grandparents’ relationships with their grandchildren can be severely affected.  If parents are willing to agree to grandparents’ visitation, then the grandparents may sigh with relief; however,

 

Can Grandparents Get Visitation or Timesharing with Their Grandchildren?

Many people will not like the answer to the above question.  The answer(s) to whether grandparents have visitation or custody rights to their grandchildren in Florida is: “No,” “sort of, but not really,” or , “it depends now.”

No.

In the late 1990s, a Florida statute existed which some grandparents point to as authority for “custody” rights to their grandchildren.  However, that statute was deemed unconstitutional by the Florida Supreme Court.  The rationale behind this is that parents have a fundamental right to raise their children.  Unless there are very compelling factors, the government (i.e., the Florida legislature or the courts) will not interfere in this right belonging to parents.  Thus, although various states answer the above question in the affirmative, Florida historically has been reluctant to fully grant visitation or timesharing to grandparents or other third parties.

Sort of, But Not Really.

If certain circumstances are met, grandparents may obtain “custody” of their grandchildren pursuant to various statutes, such as Florida Statutes, §751.01, “Temporary Custody of Minor Children by Extended Family” or Florida Statutes, §39.501, “Petition for Dependency.”  Florida Statute, §751.01 explicitly recognizes that extended family members may be taking care of children full-time because the children’s parents are not able to provide such care.  In order to obtain temporary custody or concurrent custody (extended family members are awarded custodial rights along with the child’s parent or parents), the extended family member must have the written, notarized consent of both parents, or if either of the parents raise objections, then the extended family member must show that the parents have abused, abandoned, or neglected the child as defined in the dependency statutes, Chapter 39.

The title of Florida Statute, 751.01 clearly states that this situation is temporary.  Regarding concurrent custody, the order granting concurrent custody cannot “eliminate or diminish the custodial rights of the child’s parent or parents.”  Further, the parents can get physical custody of the child at any time, subject to the court providing a transition plan of the return of the child to his or her parents. Regarding temporary custody, either parent can request the court to modify or terminate the order granting temporary custody “at any time.”  Lastly, if the temporary custody order was granted because the parent was found to be an “unfit parent,” and the court later finds this is no longer the case, the court “shall terminate the order.”  Therefore, grandparents may obtain “custody” of grandchildren pursuant to the temporary custody or dependency statute; however, grandparents should understand these may not provide long-term, stable options.

It Depends.

In 2022, many grandparents were hopeful that the tides had changed toward expanded visitation rights.  However, Florida Statutes, §752.011, “Grandparental Visitation Rights, only affords grandparents visitation in very specific and unfortunate circumstances.  Pursuant to the statute, a grandparent can petition the court for visitation with their grandchild when both parents of the child are deceased, missing, or in a persistent vegetative state, or where one parent meets one of this criteria and the other parent has been convicted of a crime that demonstrates behavior that would pose a substantial threat of harm to the child.  In this case, the court holds a hearing to determine whether the grandparent has shown that the surviving parent is unfit or there is a potential of major harm to the child. However, the statute also provides that if one parent was criminally responsible for the death of the other parent, then there is a presumption for granting visitation to the grandparent if they are the parent of the deceased parent of the child.

Following the hearing, if the grandparent cannot demonstrate either of these things, then the court will dismiss the petition.  On the other hand, if the unfitness of the parent or major harm to the child is demonstrated by the grandparent, then the court will order the parties to mediation in an attempt to work things out.  The next step should the parties be unable to reach an agreement at mediation is to hold a final hearing. The court would determine whether to award the grandparent visitation based on the best interest of the minor child by evaluating several factors such as the emotional ties between the grandparent and the child, the level of the grandparent’s involvement in the child’s life, and the reasons why the parent of the child had ended the grandparent’s contact with the child.  Importantly, the court must also determine that the grandparent visitation will not substantially harm the child’s relationship with their parent.

Grandparents often are vital parts of their grandchildren’s lives. While courts in Florida recognize the value of grandparents’ contributions, as always, the paramount consideration is the best interest of the children.  Also given much weight is a parent’s fundamental and constitutional right to raise their children. Because of these competing interests, grandparents attempting to obtain visitation or timesharing with their grandchildren is a uniquely challenging endeavor. If you would like to discuss grandparents’ rights or any other family law matter, please schedule a consultation today.

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In the aftermath of a divorce or separation, there may often be a variety of emotions —  perhaps sadness, grief, happiness, even relief.   With all these whirlwinds of emotions, a common reaction is wanting to hit the “reset” button and just start over.  This prospect of starting over sometimes involves getting as far away as possible from the other person and your old life by moving away.  However, divorced or separated parents in Florida contemplating a move need to understand the legal aspects of relocation.  These parents might find themselves caught in a dilemma perfectly stated in the the song by the punk band, The Clash, “Should I Stay or Should I Go?”

What Is Considered Relocation?

Most parents do not realize or, if they had an attorney representing them in their family law matter, remember that they are required to get permission from anyone to move.  Yet, if a parent intends to move 50 more miles or more from their current residence, they must get permission from the court.  That is a somewhat simplified definition. Relocation is controlled by Florida Statutes, §61.1300

Relocation means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing.  The change in location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for the purposes of vacation, education, or the provision of health care for the child.

What Does That Really Mean?

Here are some key definitions from the relocation statute:

A parent is someone named as a parent pursuant to a court order or written agreement which can be enforced by the court or a person that is named as a parent on the child’s birth certificate and is allowed to have contact or timesharing with the child.

Other person is someone with whom the child lives with pursuant to a court order but is not a parent of the child and who is allowed contact, visitation, or timesharing with the child.

Thus, Florida law requires that if one parent wants to move 50 miles or more from their current address where they are living at the time they filed a pending family law case that involves timesharing or from the address they lived at during the time when the final judgment of marriage, paternity, etc. or any other order that established or changed timesharing they must provide notice to the other parent or other person as defined above, get their consent, and/or the court’s permission.  The move must be for more than 60 days in a row.  The relocation statute then does not apply if, for instance, the parent is spending two weeks at their vacation home.

Key Points From the Relocation Statute?

Should I Stay or Will You Let Me Go: Relocation by Agreement.  In an ideal, but unlikely world, everyone would be happily co-parenting and simply agree to one parent’s proposed relocation.  However, even in this case, the parents must sign and a written agreement approved by the court that shows the consent of the nonrelocating parent to the relocation; provides a timesharing schedule for the nonrelocating parent; and defines any necessary transportation arrangements for the nonrelocating parent’s timesharing.

Should I Stay or Will the Court Let Me Go: Petition for Relocation.  Without an agreement to the relocation, the parent that wants to relocate must provide notice to the other parent and the court by filing a Petition for Relocation and serving it upon the other parent. The contents required to be in the petition are specified within the statute.  Be aware that courts are very strict that a petition for relocation must comply with the requirements of the statute.  One of the main requirements is that the petition contain a proposed timesharing schedule for the nonrelocating parent.  If the petition does not contain this proposed timesharing schedule, the petition is “legally insufficient.”

You Should Stay and I Won’t Let You Go:  Objection to Relocation.  Even more important for the nonrelocating parent, if they object to the proposed relocation, they must file a written objection that complies with the requirements of the statute with the court and serve it on the parent wanting to relocate within 20 days of being served the petition for relocation.  If the parent does not file a written objection within this time, unless it is not in the child’s best interests, the petition will be granted and the relocation allowed without any further notice or hearing. If a parent does not want the relocation to occur, this is definitely not a deadline to miss (or have an attorney representing you miss).

It Depends Whether You Should Stay or You Can Go:  The Court’s Considerations in Relocation Cases.  There is no presumption for or against relocation.  As always when children are involved, the court’s paramount consideration is the best interests of the children.  The court must also evaluate other factors including, the reasons for the relocation, the reasons the nonrelocating parent is objecting the relocation, the extent of the nonrelocating parent’s relationship with the child and the how likely the proposed timesharing schedule will preserve the relationship between the nonrelocating parent and the child.

Relocation cases are some of the most difficult cases, and at the same time, the easiest.  They are difficult and easy at the same time because unless one of the parents comes off of their position (the parent that wanted to go, decides to stay or the parent that wanted them to stay, decides to let them go), and settles through mediation, the only real resolution is to have the court decide.  It is a dilemma as The Clash sings, “If I go, there will be trouble. And if I stay, it will be double.” If you would like to discuss a possible relocation or defending against a relocation, please schedule a consultation today.

 

Oh, holidays!  A time for joy and togetherness with the family.  A time for making great memories and continuing traditions, like listening to your favorite holiday songs while drinking hot coca before the fire[1]… Yet, in Florida, for divorcing or divorced parents and their children, the holidays may seem very different from the tranquil scene described.  Navigating the complexities of co-parenting, scheduling, and keeping everyone in “good cheer” can make the holidays an extremely stressful time.  Below are some insights and tips on how parents should manage the holidays[2] that, overall, will benefit both parents, and more importantly, will be in the children’s best interests.

Establish an Effective Parenting Plan at the Outset with the “Big Picture” in Mind

Frequently, when parents are first establishing a Parenting Plan, they can be so enmeshed in the emotions of the divorce, that they hyperfocus on the exact amount of time each parent will have, or “should” have, with the children.  This hyperfocus results in parents losing sight of the big picture with regard to future holidays, and by doing this, parents end up negatively affecting themselves and their children.  What are the different options and what should parents consider when designating holidays in a Parenting Plan?

Major Holidays (i.e., Thanksgiving Break, Winter Break, and Spring Break).  The typical methods that major holidays can be split are the following:

Follow the same schedule as the regular timesharing schedule. This option is generally a suggestion when the regular timesharing schedule is an equal (50/50) timesharing schedule.  The parent who normally has the children on that day would have them for the holiday.

At the outset, this option would not be appealing to many parents.  Depending on how the equal timesharing schedule is being exercised, by luck of the draw as to where the holidays fall, there may be a large imbalance of one parent having substantially more holidays than the other[3].  Further, if the ongoing, equal timesharing schedule is a 2/2/5 split, this option may be absolutely chaotic for the children.  Think about one parent having the first two days of the Winter Break; then the other parent having the next two days; then the other parent having the weekend; and so on for the entirety of the Winter Break.  This definitely does not seem like low stress!

Split the holiday equally. This option involves either splitting the actual holiday or splitting the entire break equally and also splitting the actual holiday.  Thus, in the first instance, one parent would have the children from the previous overnight through halfway the day of the holiday.  The other parent would then have the children from that halfway point through an overnight. The parents would then resume the regular timesharing schedule.  The second instance involves counting the number of actual days of the entire holiday, with one parent having the child from the time school is out through the day which is the halfway point. The other parent then has the child from that halfway point through the day school resumes for the child. Within this split of the entire holiday break, the parents would also split the actual holiday. Many parents will choose this option believing that it the most “fair” one.

This option may work for Spring Break, during which there is not an actual Spring Break Day that is celebrated; however, if parents really thought this option through, in reality, this option is usually the worst!  Let’s think this through using the 2023 Thanksgiving Break: As typical  in the past years, the children have been given the entire week of Thanksgiving off as a break.  One parent would have the child from Monday through Thursday afternoon, essentially, Thanksgiving lunch.  The other parent would then have the child from that point on Thursday, have Thanksgiving dinner, through Monday morning when the child returns to school.  The seemingly impossible feat of being able to eat two  Thanksgiving meals hours apart aside, this “fair” option also means that parents would never be able to travel during the holidays with their children.  If parents were thinking of the big picture, they would recognize that, for example, traveling to New York to spend Christmas with their family would not be possible[4].  Further, the children would be easing into the holiday and then, “Time’s up.  Gather your things to celebrate elsewhere.”

 Rotate the entire (or half, with regard to Winter Break) holiday.  This option involves one parent having the entire holiday one year, and the other parent having the entire holiday the next year.  For instance, in odd years, one parent has the child from the time school lets out for Thanksgiving through the time school resumes.  In even years, the other parent would then have the same time.  Winter Break in Florida is typically two weeks.  With this option, in odd years, the parent who did not have Thanksgiving would have the child from the time school lets out through Christmas Day.  The other parent would then have from December 26^th through return to school.  The parents then would alternate this schedule the following year.

At first glance, this option would not appeal to many parents. “But I won’t have _______ holiday with the children” or “the other parent is getting more time with the children.”  Again, looking at the big picture, this option can actually be the best option.  First, with the yearly alternating of Thanksgiving/first half or second half of Winter Break, everything evens out in the end.  Second, you can travel with the children during your time and/or also spend time for yourself when you do not have the children.

Co-Parent and Be Flexible

After working hard and getting the parenting plan finalized, family law attorneys often tell their clients that their hope is the parents will shove that parenting plan in a drawer and never have to look at it again.  The parenting plan is there to refer to as the default, but hopefully, the parents will be able to cooperate with each other, co-parent, and do what is best for the children.  This means having open communication and being flexible with each other.  If for instance, one parent really wants to attend their family reunion with the children during the Winter Break, but it is technically the other parent’s time, both parents should be willing to compromise.

With a carefully considered parenting plan, open communication, flexibility, and most importantly, true co-parenting, divorced parents and their children can still have wonderful times during the holidays, creating new traditions and memories.  If you would like to discuss creating an effective parenting plan or any other family law issue, please schedule a consultation today.

[1] Please imagine the sound of  a record needle being pulled violently across a vinyl record and the music that has been playing in your head coming to a screeching halt.

[2] Holidays refers to all the major holidays.

[3] I know that I just indicated that parents should not hyperfocus on the actual amount of “time” each parent has with their children, but I am sure that if one parent always has Christmas or Hanukkah and the other gets Columbus Day, there will be some issues.

[4] All right, this technically could be possible, but it would be exceedingly stressful, expensive, and/or chaotic. Do you really want to be traveling on Christmas Day with children in order to make it to the other parent’s home at the “halfway” mark? Imagine all the possible issues, including delayed and cancelled flights. . .

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.

Family law encompasses many issues – usually issues that are not only complex, but also emotional.  Family law clients often deem certain circumstances as an absolute emergency, and understandably, in that person’s life, the circumstances may qualify as an emergency. However, clients should recognize that what they consider to be an emergency often is significantly different from how a court views the situation.  Moreover, clients should also understand that their attorney is not being unsympathetic when explaining why they cannot, or will not, file an emergency motion for their client. Family law attorneys must determine whether  what their client has presented to them constitutes an actual emergency within the legal framework of family law, and also consider the possible consequences if the court determines that an emergency did not exist.

In almost 18 years of practicing family law, I have never filed an emergency motion. This does not mean that (1) clients have never asked me to file an emergency motion;  (2) I have never empathized with a client and felt that the circumstances they find themselves in would certainly feel like an emergency; or (3) I have never heatedly debated with a client regarding why their current situation would not qualify as an emergency in the court’s eyes.  The fact that I have never filed an emergency motion in almost 18 years does mean that true emergencies in family law are relatively rare.  Here are some reasons why true emergencies in family law are the exception, not the rule:

Balance of interests when children are involved.  As a parent, if the critical situation involves your child, the situation will likely always qualify as an emergency to you. However, when presented with a request to immediately suspend one parent’s time-sharing ex parte or without notice to that parent, the court must balance the best interests of the child with the rights of the other parent.  The situations that would warrant such an extreme action would be when a child is likely to suffer serious and imminent harm (i.e., a child is a victim of domestic violence and abuse, been neglected or abandoned, or endangered because of a parent’s substance use disorder or mental health issue) or there is a reasonable belief that a child will be removed from the state.

Legal process, preventative measures, and misunderstandings.  It may not provide much comfort at the time that clients are embroiled in their difficult situation, but the family law system is designed to handle most issues through an orderly legal process. Usually, parties must attend mediation prior to having a hearing before the court. The rationale behind this requirement is that parties are expected to attempt resolution of their issues between themselves before the court must step in and resolve the issues for them.  Further, family law involves legal tools that act as preventative measures in avoiding emergencies.  These tools may include standing administrative court orders, prior court orders specific to the family, parenting plans, and domestic violence injunctions. Lastly, many situations that appear to be an emergency are often a result of misunderstandings or miscommunications between parties. These situations can often be resolved through communication rather than the court taking immediate action.

Court’s limited resources.  A consistent statistic regarding family law courts in Orange County is that each family law judge has a minimum of 2,000 cases. Thus, imagine if 10% of these cases involved an emergency.  With the court’s limited resources, true emergencies must be prioritized.

Consequences of  misusing the term or “crying wolf”.  Misusing the term “emergency” will have consequences. Once the court receives a motion labeled as an “emergency,” the court will essentially drop everything they are doing in order to review and contend with the issues laid out in the motion. Thus, if the court subsequently determines the issues do not qualify as an emergency, the other cases that judge was handling have been affected by this interruption, leading to a domino effect of delay and continued congestion in the court system. Importantly, misuse of the term has also hindered the court in resolving other more urgent cases.  Lastly, and a large reason behind most attorneys’ hesitancy to file an emergency motion, one consequence of “crying wolf” is that not only does the client lose credibility, but so does that attorney. Family law judges commonly indicate in their written practice and procedures that an attorney who has titled, filed, and requested an emergency hearing on an “emergency” motion that later is deemed not to constitute an emergency, will never receive an emergency hearing again. Understandably, a client and an attorney that want to keep their credibility and reputation will use the term “emergency” carefully.

As an example of the high bar set for emergencies, the following is an excerpt from the practice and procedures of the Honorable Diana Tennis:

Emergency Hearings:  Parties are reminded that difficulties with time-sharing or other problems that are not objectively extremely serious and imminent are NOT emergencies.  Very rarely will the Court take ex parte action, as it does not afford due process to all parties.  Non-emergency issues should not be the subject of an emergency motion.  If a true emergency situation arises, counsel may request that a hearing be set on short notice.  The body of the motion must contain a detailed explanation of the circumstances constituting the emergency as well as the substance of the motion8. The Court will not take ex parte action on a motion that is not verified. The (Court’s footnote 8: Generally, this is where things go awry.  Emergency does not mean any dispute between parents no matter how dramatic. The request is by-it-nature a due process violation and that means should include allegation that include an airport or severe and immediate endangerment.  If not, and this is typically the case, try an ”expedited” motion instead.)

The above is in no way meant to minimize either true emergencies or the feelings of family law clients involved in what may be an incredibly difficult situation, but not rising to the level of an actual emergency. Family law cases are filled with emotionally charged and contentious situations. By understanding the distinction between a situation that feels like an emergency and what the court qualifies as an emergency, clients can navigate the family law legal system more effectively and efficiently.  If you would like to discuss a family law matter, please schedule a consultation with an attorney at Artemis Family Law Group today.