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UPDATED: Amendments to Family Law Rule Improves Financial Privacy in Some Divorces

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New Rule 12.285

On September 7, 2023, the Florida Supreme Court announced amendments to Florida Family Law Rule of Procedure 12.285 related to mandatory financial disclosure requirements.  Under previous versions of the rule, parties were required to file and serve their financial affidavits, with the only exception being simplified dissolutions of marriage with no minor children and no support issues, which are rare.

Under the new Rule 12.285, the parties may agree to forego filing their financial affidavits with the court.  Instead, the parties must file a joint verified waiver of filing financial affidavits.   According to the new rule, in the joint verified waiver the parties must acknowledge the following:

A.  that evidence of their current or past financial circumstances may be necessary for future court proceedings;

B.  they each have provided the other with a fully executed and sworn financial affidavit in conformity with Florida Family Law Form 12.902(b) or 12.902(c), as applicable;

C.  that the responsibility to retain copies of all affidavits exchanged rests solely with the parties;

D.  that the waiver only applies to the current filing and does not automatically apply to any future filings; and

E.  that the waiver may be revoked by either party at any time.

Rule 12.285(c)(2), Florida Family Law Rules of Procedure.

Thus, according to the new rule, the parties must still provide each other with completed and sworn financial affidavits, but they are not necessarily required to file them.  They must also ensure that they have properly retained copies of the exchanged affidavits among themselves as the court will not have copies to maintain.  While the new rule was announced on September 7, 2023, it does not become effective until November 1, 2023.

Limited Application of New Rule 12.285

While the new 12.285 could apply to any case, realistically speaking if your matter is contested and the judge is having to decide financial matters, whether temporary support during your divorce, or resolving financial issues like alimony, child support, etc. at a trial, both parties will have to file financial affidavits so the court can review and weigh that evidence.  It is also going to be vital to ensure that the financial affidavits are part of the trial court’s record if the matter ends up before the appellate court.  Failure to include financial affidavits in the record on appeal could very well result in an unsuccessful appeal due to an incomplete record.

So, in what circumstances will the new 12.285 apply?  Collaborative divorces are a primary candidate for 12.285’s financial affidavit filing waiver.  Additionally, uncontested divorces are also likely to take advantage of the new rule, as they don’t require court intervention to reach a resolution.  Another scenario that could apply is contested divorces that are able to reach a resolution at mediation or at any point before court intervention is required.  Importantly, however, the parties would have to agree to simply exchange completed and sworn financial affidavits during the mandatory disclosure process and wait to see if filing them becomes necessary.

Why Does This Matter?

Financial affidavits are incredibly detailed documents, containing every facet of a family’s financial standing, including incomes, all debts, monthly payments to creditors, monthly bills, and all assets such as real property, investment and retirement accounts, and jewelry, to name just some of the required items.  Filing a financial affidavit makes it part of the public record, accessible to anyone who would seek to view it.  Many individuals value their privacy and would prefer not to have that much of their financial life placed into the view of the public.  The new Rule 12.285 provides a way to avoid so much public financial exposure.

UPDATE:  Affidavit of Income For Child Support; Standard Notice of Verified Waiver of Filing Financial Affidavits

Since the revisions to Rule 12.285, discussed above, which permitted parties to waive the requirement of filing financial affidavits, the Florida Supreme Court has created a new form to address a shortcoming in the new rule.  Financial affidavits are used to determine parties’ incomes in order to calculate child support.  Without financial affidavits filed, the court does not have a basis to ensure child support is being calculated correctly.  To remedy this problem, the Florida Supreme Court created a new form, the Affidavit of Income for Child Support.  This form is limited to just the financial information needed to calculate child support and is therefore less invasive than the standard financial affidavit, which encompasses every aspect of a person’s financial life.  As a part of these revisions, the Florida Supreme Court also implemented a standard form for the Notice of Joint Verified Waiver of Filing Financial Affidavits, which the Court had previously declined to adopt.

Thus, there is now a standard form for the Notice of Joint Verified Waiver of Filing Financial Affidavit and for the new Affidavit of Income for Child Support to guide parties through this process.

If you have any questions about how best to maintain your financial privacy in a divorce, please click here to schedule a consultation from the convenience of your computer or mobile device.

Parallel Parenting: When Co-Parenting Won’t Work

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Co-parenting during and after a divorce isn’t easy, even under the best of circumstances.  It asks a lot of both parents:  to set aside or ignore their feelings toward their ex-spouse, to put on a happy face during exchanges when they are emotionally distraught, and to restrain themselves when potentially triggering comments are made by their ex-spouse.  Many divorces are based, in part, on communication issues between spouses, so there is no reason to think those communication issues will simply vanish when it comes to co-parenting.  Fortunately, something called “parallel parenting” offers another option, in particular in high-conflict situations.

What is Parallel Parenting?

Parallel Parenting is a type of parenting in which both parents severely limit their communications and contact with each other.  Often they agree to one specific form of communication, usually written, such as text messages, email, or use of a third-party parenting app.  Instead of parents speaking regularly to each other about their children, they limit their communication to only that which is necessary, and usually only when an exchange has occurred or is occurring.  For example one spouse may text the other that a child has a cold before dropping him off with the other parent.  Otherwise, communications are limited to only what is strictly necessary.  “Just the facts, ma’am.”  No one is asking about each other’s weekends or how the new job is going.

In more high-conflict parallel parenting arrangements, the children are exchanged in “neutral” third-party locations, such as a parking lot, instead of at either spouse’s residence, which can trigger conflict.

While the ideal arrangement is healthy co-parenting in which both parents are able to communicate robustly about and around their children, this is simply not a realistic option for many parents.  In those situations, it is in the best interests of the children that they be sheltered from parenting conflicts, even if it means setting up strict communication boundaries between parents.

Parallel Parenting Doesn’t Need to be Permanent

Just because a rigid Parallel Parenting arrangement is necessary during a divorce, or immediately upon conclusion of a divorce, does not mean that it will be necessary forever.  Often Parallel Parenting offers parents the opportunity to get comfortable with their new lives, their new independence, and their new roles as single parents.  This can provide the hostility and negative emotions between parents the opportunity to dissipate.  Once things have “cooled down” between the parents–after a few months, or a few years–they can allow their Parallel Parenting arrangement to evolve into a more traditional co-parenting relationship, with stronger communication and integration between the parents.  Text messages only become phone calls and FaceTimes as well; exchanges at the mall parking lot start to occur at the parents’ residences; parents start to share details about the children’s time with them with the other parent.  Sometimes getting to a point like this requires distance and strong boundaries at first to get there.

Parallel Parenting Isn’t Just for High-Conflict Divorces

When you receive your Final Judgment of Dissolution of Marriage, you will be legally divorced, and you will be financially divorced.  However, in many cases you will not be close to emotionally divorced yet.  Couples often focus so much on the details of the divorce itself while it is happening that they do not take the time to process the emotional cost of being divorced officially.  Even if you are on decent terms with your former spouse, coming out of a divorce can be a difficult time, one in which boundaries and limited overlap between the parents may provide both parents the opportunity to “move on,” which they were unable to do while in the midst of a divorce.  A less rigid form of Parallel Parenting can aid couples who need the time and distance to process their divorce before establishing a new co-parenting relationship in the future.  Opting for a short- or medium-term Parallel Parenting arrangement can often be the best way for families to move into healthy long-term dynamics.

Figuring out the best parenting arrangement for your family can be one of the most difficult decisions you make during a divorce, but it is also often the most important.  Each family is unique and as such no one-size-fits-all Parenting Plan will work for every family.  When you are ready to explore your options and discuss parenting further, click here to schedule a consultation.

Don’t Forget These Things in Your Divorce Settlement Agreement!

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If you resolve your divorce amicably, either through an uncontested divorce process, mediation, or a collaborative divorce, you will end up signing a Marital Settlement Agreement.  The purpose of this document is to list out all of the terms of your divorce, including which of you will receive which assets and which debts, or some specific portion of various assets and debts (in other words, memorializing the terms of your equitable distribution).  It is very important that your Settlement Agreement be as exhaustive as possible and include every asset of some significance.

Most couples can work out personal property (furniture, clothes, appliances, etc.) without needing to clutter up a Settlement Agreement with such minute details. However, failure to include important assets can lead to confusion in the future over who it belongs to after the divorce is finalized.  Here is a list of assets we have found are commonly overlooked when divorcing:

  • Cryptocurrency. This has become a major source of investment for many people.  As such, it should be treated like any other marital asset and distributed according to the couple’s wishes.  All cryptocurrency accounts and amounts should be disclosed the same as bank accounts and investment accounts.  You should consult with a financial specialist if you are unclear on the monetary worth of cryptocurrencies as some can have a very significant value.
  • Jewelry. If you have jewelry you believe to be of significant value (which is for each couple to decide for themselves), then there is a good chance it should be included in the Settlement Agreement.  If the jewelry is of such a value, occasionally an appraisal will need to be performed to determine its total overall value.  But remember, wedding rings and engagement rings are not considered marital assets and are not subject to equitable distribution.
  • Hotel or Vacation Points. These can be quite easy to forget about when you are navigating a divorce.  But they can have value, and if nothing else it should be clear who is going to keep them and whether and how a transfer will be necessary to make that happen.
  • Future tax refunds for the prior year. If you are anticipating receiving a tax refund during or after the divorce, for a year in which you filed as married and are both entitled to a refund, you should ensure that is addressed in clear terms in your Settlement Agreement.  Some tax refunds are for substantial amounts and should not be overlooked.  The same goes true for tax liabilities as well.
  • Frequent Flyer Miles. Similar to hotel and vacation points, frequent flyer miles are easy to miss but can provide plenty of value.  Check to see whether and how frequent flyer miles can be transferred from one spouse to another if that is part of the Settlement Agreement.
  • Paid Time Off/Sick Leave Time. Florida law provides that accrued vacation and/or sick time which is unused at the time of divorce is a marital asset and subject to equitable distribution.  Not all vacation and sick time is created equal, however.  The employee must be eligible to be compensated for unused hours upon termination of employment.  This includes military vacation and sick time as well.  The non-employee spouse cannot choose to exercise the vacation or sick time on behalf of the employee spouse, so the total value of the benefit should be determined so the employee spouse can “buy out” the non-employee spouse for their share of the leave time’s value.
  • Cemetery Plots. Many spouses make arrangements to be buried next to each other.  This can be an expensive arrangement and should thus be addressed in the Settlement Agreement.  Otherwise, if there is lack of clarity after someone has passed away, it can lead to a host of complications.  Further, if one former spouse re-marries and wants to use the burial plot for their new spouse, if the agreement is silent as to who has claim to the burial plots, it is entirely possible that neither former spouse will be able to use the burial plots with a new spouse.

Equitable Distribution can be a daunting and complicated process, particularly for longer marriages which have had more time to accrue more marital assets.  This is why it is important to have an attorney review your equitable distribution, even if you don’t need legal advice on how to split things up.  Ensuring that you get your Marital Settlement Agreement done correctly and completely the first time can avoid uncertainty and potential legal intervention in the future.  We at Artemis Family Law Group are ready to discuss your thoughts about equitable distribution and the status of your Settlement Agreement.  Please click here to schedule a consultation at your convenience.

Case Study: One Fictional Couple’s Journey Through Traditional and Collaborative Divorce

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The world of family law can be a mysterious one to outsiders.  Even if you have been through a divorce, your knowledge and experience is limited to your unique encounter with the family law system.  However, once you’ve seen the process play out time and time again, you begin to see patterns and similarities.  Below is a fictional example of how one couple, “John” and “Betty,” navigate the family law system through the traditional litigation method and the collaborative divorce method.  While this is by no means a representation of how every divorce unfolds, either traditionally or collaboratively, it is emblematic of the key differences between the two methods and showcases how the collaborative method can de-escalate problems while traditional litigation can often make matters worse.

Events Traditional Litigation Divorce Collaborative Divorce
Initial Filing John and Betty’s marriage had reached a breaking point, and they decided to end their relationship. However, they took separate paths in their divorce approach. John hired an aggressive attorney focused on winning the case, while Betty chose a lawyer who believed in a collaborative approach to conflict resolution. This difference in approach set the tone for the entire divorce process, leading to an adversarial environment from the start. Despite their many differences, John and Betty recognized the importance of resolving their issues amicably, especially for the sake of their children. They jointly decided to pursue a collaborative divorce, where they committed to working together respectfully and openly, seeking solutions that benefit both of them. This joint decision fostered an atmosphere of cooperation and respect throughout the process.
Temporary Time-Sharing (Custody) As John and Betty couldn’t agree on temporary time-sharing arrangements during the divorce process, the court had to step in to determine a schedule. This resulted in multiple court hearings, escalating tensions, and emotional strain on both parents and the children. The prolonged legal battle took a significant toll on the family, affecting the children’s well-being and causing financial stress due to increased legal fees. Opting for a collaborative approach, John and Betty engaged in a series of meetings with their collaborative attorneys and a child specialist. These discussions allowed them to understand the children’s needs better and craft a temporary time-sharing arrangement that considered their schedules, preferences, and emotional needs. By avoiding court intervention, they reduced stress on the children and preserved their sense of stability during the divorce.  This issue also resolved much faster than waiting on a court to have hearing availability and to issue a ruling.
Division of Assets During the traditional litigation divorce, John and Betty’s lawyers engaged in aggressive negotiations over asset division. Each party aimed to secure the most favorable outcome, leading to bitterness and hostility. The lack of open communication and trust resulted in a prolonged discovery process, with both sides refusing to share critical financial information willingly. In contrast, the collaborative divorce process embraced transparency. John and Betty, along with their joint financial specialist, shared their financial information openly and honestly. This allowed both parties to gain a comprehensive understanding of the family’s financial situation and work together to divide assets fairly.
Time-Sharing (Custody) In the traditional litigation divorce, disagreements over time-sharing (custody) were at the center of the conflict. John and Betty viewed their children’s future living arrangements differently, leading to contentious court battles. The children, caught in the middle, suffered emotionally from the constant tension and uncertainty. By choosing collaborative, John and Betty focused on the best interests of their children. They participated in joint sessions with a child specialist, who helped them understand the impact of divorce on their children’s lives. This deeper understanding allowed John and Betty to develop a comprehensive parenting plan that addressed the children’s emotional, academic, and social needs. The collaborative approach emphasized co-parenting, promoting a healthier and more stable environment for the children during and after the divorce.
Spousal Support The contentious nature of the traditional litigation divorce extended to spousal support. John and Betty disagreed on the amount and duration of support, leading to mediation failures. As a result, the court had to intervene and impose a spousal support decision, leaving both parties dissatisfied with the outcome. In the collaborative model, John and Betty engaged in a series of discussions facilitated by their attorneys and financial specialist. They openly discussed their financial circumstances, future financial goals, and individual needs. Through empathy and compromise, they reached a fair spousal support agreement that considered their respective abilities to support themselves post-divorce. The collaborative negotiations allowed both John and Betty to feel heard and respected, leading to a mutually agreeable arrangement.
Communication Issues In the traditional litigation divorce, the lack of communication between John’s attorney and Betty’s attorney often led to misunderstandings. This communication breakdown resulted in unnecessary conflicts and fueled distrust between the parties. The attorneys became a barrier to communication, heightening emotions and preventing any meaningful resolution. Recognizing the significance of effective communication, the collaborative attorneys encouraged direct communication between John and Betty. Through joint meetings and regular check-ins, John and Betty were able to express their concerns, share their perspectives, and find common ground. The collaborative attorneys acted as facilitators, ensuring that the conversations remained constructive and respectful. This improved communication helped build trust and cooperation between John and Betty, setting a positive tone for the entire process.
Discovery Process The formal discovery process in the traditional litigation divorce required an overwhelming exchange of documents, contributing to a contentious atmosphere. John and Betty’s attorneys engaged in extensive requests for information and documentation, leading to increased legal fees and delaying the resolution of the divorce. In the collaborative model, the financial specialist played a vital role in the exchange of information. The specialist guided John and Betty through the process of gathering relevant financial documents efficiently. By focusing on the necessary information and employing open communication, the collaborative process streamlined the discovery phase, saving time and reducing costs. This allowed John and Betty to concentrate on resolving their issues rather than getting bogged down in extensive paperwork.
Court Delays The traditional litigation divorce faced delays due to court backlogs and scheduling conflicts, further prolonging the emotional strain on John and Betty. The uncertainty caused by these delays intensified their anxieties, making it challenging for them to move forward. By choosing a collaborative approach, John and Betty were able to control the timeline of their divorce. They held meetings and discussions on their terms, without waiting for court dates. This efficient resolution allowed them to process their emotions and begin their post-divorce lives sooner. The reduced waiting time contributed to a smoother transition for everyone involved.
 Trial In the traditional litigation divorce, the trial turned into a battle of accusations, as each party tried to paint the other in a negative light. The children were caught in the crossfire, witnessing their parents’ hostility and experiencing emotional turmoil. In the collaborative approach, John and Betty avoided a contentious trial. Instead, they worked together with the child specialist to ensure the children’s well-being remained the top priority. The specialist provided guidance on how to communicate effectively with the children about the divorce, minimizing the emotional impact. This cooperative approach allowed the children to feel supported and loved, even as their parents went through the divorce process.
Final Resolution The traditional litigation divorce ended with a final divorce decree handed down by the judge, a stranger to the family. The contentious and emotionally draining process left John and Betty with long-lasting resentment towards each other, making it challenging for them to co-parent effectively.  Both spent enormous sums of money to litigate their divorce for well over a year, possibly years.  And even when the final judgment was handed down, both John and Betty appealed because of issues each of them had with the decisions of the judge.  The appellate process took another year to resolve and cost a hefty amount of money for both John and Betty.  And still, neither John nor Better were satisfied with the outcome. The collaborative divorce concluded with John and Betty reaching a respectful closure. They mutually agreed on all aspects of their divorce, fostering a sense of understanding and empathy for each other’s perspectives. This amicable agreement allowed them to transition into their new roles as co-parents with a foundation of respect and cooperation. The collaborative process empowered John and Betty to communicate openly and work together in the best interests of their children, facilitating a healthier post-divorce relationship.

We know this is a lot of information to process.  Your situation is unique and should be treated as such.  We welcome the opportunity to discuss your divorce options, both traditional and collaborative, so please schedule a consultation with us today.

Gray Divorce: Complexities and Considerations

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In the intricate tapestry of life, relationships evolve, mature, and sometimes take unforeseen turns. This is especially true for couples who find themselves facing the complex transition known as a “gray divorce.” Gray divorce refers to the increasing trend of couples aged 50 and above choosing to end their marriages. Artemis Family Law Group understands the unique challenges that gray divorces can bring, both the issues they present and the considerations involved in navigating this sensitive journey.

Understanding Gray Divorce: Unveiling the Complexity

Gray divorce, while often echoing the emotional strains of any divorce, comes with its own set of intricacies. After decades of shared memories, assets, and intertwined lives, the decision to part ways in the later stages of life can be particularly overwhelming. Key considerations in gray divorce cases often include:

  1. Financial Complexity: Gray divorce involves unraveling shared financial ventures, retirement accounts, and properties that have accumulated over the years. Determining equitable division becomes a crucial aspect, and finding solutions that align with both parties’ financial security is essential.
  2. Retirement Realities: One of the most significant concerns in gray divorce is ensuring that both parties can maintain a secure retirement. This involves evaluating retirement accounts, pensions, and other financial instruments to ensure a stable future.
  3. Healthcare and Support: As couples age, health considerations become increasingly important. Addressing healthcare needs, including insurance coverage and potential long-term care expenses, requires careful planning to ensure both parties’ well-being.
  4. Emotional Well-being: Gray divorces can be emotionally complex, as couples reflect on the years they’ve spent together. The emotional toll of parting ways after decades can be immense, and finding ways to support each other’s emotional well-being is crucial.

The Collaborative Approach: A Considerate Path Forward

When facing the intricate landscape of a gray divorce, it’s important to consider the various approaches available to navigate this journey. While the collaborative family law model is one such approach, there are others that can also be effective. Here’s why taking a thoughtful and considerate approach is essential:

  1. Effective Communication: Regardless of the approach chosen, effective communication is key. Gray divorce cases require open dialogue and clear understanding of each individual’s needs and concerns.
  2. Tailored Solutions: Gray divorce cases often necessitate customized solutions that address the specific circumstances of each couple. Whether through collaboration, mediation, or litigation, solutions should be designed to provide stability and fairness.
  3. Emphasizing the Long-term: Gray divorce involves planning for the future, not just the immediate circumstances. Ensuring financial stability, healthcare coverage, and emotional well-being in the years to come is paramount.
  4. Professional Guidance: Seeking legal guidance from experienced family law professionals is crucial. These experts can help navigate the legal intricacies while offering empathy and support.

Empathy in Action: Navigating the Gray Divorce Journey

As legal professionals based in Central Florida, Artemis Family Law Group is committed to providing compassionate and informed guidance through the challenges of gray divorce. Our goal is to empower people with the knowledge they need to make informed decisions about the path forward, whether that’s through collaborative law, mediation, or other legal avenues.

In conclusion, gray divorce is a multifaceted journey that demands careful consideration of financial, emotional, and practical factors. At Artemis Family Law Group, we’re dedicated to supporting people in their pursuit of a brighter future, no matter which approach they choose. If you or a loved one are navigating the complexities of a gray divorce, remember that there are resources and professionals ready to guide you toward a new chapter filled with promise.

For more information on gray divorce or any family law matter, reach out to Artemis Family Law Group to explore your options.

The Importance of Communication in Family Law Cases: Strengthening Your Relationships Amidst Legal Challenges

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Divorce and family law cases can be emotionally challenging, putting tremendous strain on relationships with loved ones. As a collaborative family law firm dedicated to supporting families in Central Florida, we understand the significance of effective communication during these trying times. In this blog post, we delve into the importance of communication in family law cases and offer practical strategies to maintain healthier relationships with your family while navigating the legal process.

The Power of Open Communication

When facing family law matters, open and honest communication is the cornerstone of resolving conflicts amicably. Transparent communication can foster understanding, empathy, and cooperation, which are vital elements for reaching mutually beneficial agreements. We encourage our clients to express their thoughts and emotions openly, as bottling up feelings can lead to unnecessary tension and misunderstandings.

Emotions and Family Law

Family law cases often evoke intense emotions, ranging from sadness and anger to fear and confusion. These feelings can cloud judgment and escalate conflicts, making it challenging to find common ground. By acknowledging these emotions and communicating them to your family and legal team, you open the door to greater empathy and support.

We are here to provide a compassionate ear and guide you through the legal process, ensuring your voice is heard and your feelings are respected. Our goal is to help you approach family law matters with a clear and focused mind, enabling you to make well-informed decisions for your future.

Putting Children’s Best Interests First

For couples with children, prioritizing their well-being is paramount. A child’s emotional and psychological development can be significantly impacted by the divorce process. Maintaining open lines of communication with your co-parent can help create a stable and nurturing environment for your children.

We encourage parents to engage in frequent and constructive dialogue about their children’s needs and preferences. By demonstrating unity and cooperation, you can assure your children that they are loved and supported, even during difficult times.

Tips for Effective Communication

1. Active Listening: One of the most valuable communication skills is active listening. Give your full attention when your family members or legal team are speaking, and avoid interrupting. This fosters mutual respect and understanding.

2. Choose the Right Time and Place: When discussing sensitive matters with your family or co-parent, choose a calm and private setting where you can communicate without distractions.

3. Use “I” Statements: When expressing your feelings or concerns, use “I” statements to avoid sounding accusatory. For example, “I feel hurt when…” instead of “You always…”

4. Stay Focused on the Present and Future: While it’s natural to discuss past grievances during emotional conversations, try to stay focused on the present and future. This approach promotes problem-solving rather than dwelling on past mistakes.

5. Seek Professional Support: If communication becomes too challenging, consider seeking support from a therapist or counselor who specializes in family dynamics. A neutral third party can facilitate conversations and help navigate difficult emotions.

6. Embrace Technology: Utilize technology to stay connected with your family and co-parent, especially if distance is a factor. Video calls or messaging platforms can bridge the gap and facilitate regular communication.

Conclusion

At Artemis Family Law Group, we understand that effective communication is the key to preserving the strength and harmony of your family during challenging legal processes. By fostering open dialogue and empathy, you can navigate family law cases with a more positive and cooperative approach.

Our warm and professional team is dedicated to supporting you through every step of your journey, providing the guidance you need to make informed decisions that serve your family’s best interests. Remember, you are not alone – we are here to help you find resolutions that honor your values and create a brighter future for you and your loved ones.

Reach out to Artemis Family Law Group today to learn more about our collaborative approach to family law and how we can assist you in this important chapter of your life. Together, let’s strengthen your relationships and build a foundation for a thriving future.

Why Collaborative Divorce Is Better for Families Than Traditional Divorce

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The team moves at your pace. 

Whether you’re motivated to move quickly through the process, or you are seeking a slower, deliberate process, the team is able to accommodate your needs.  In a traditional divorce, the timeframe is set by one-size-fits-all statutory deadlines that may not be appropriate for your family.

Your goals and priorities are central to the process.

At the start of a collaborative divorce, each client is asked to compile a list of their goals for the process and after.  Some examples include developing co-parenting skills together, maintaining financial security, or ensuring that you receive a fair split of the marital assets.  Your goals help the professional team that is supporting you in the process understand what is important to you when exploring various options and scenarios.  In a traditional divorce, your marriage is treated more like a business dissolution than a unique set of emotionally-charged circumstances and history. 

Your family’s privacy is safeguarded.

Because the conversations and negotiations in a collaborative divorce occur in a private, non-litigation setting, people feel free to have some of the awkward conversations that are necessary to resolving underlying issues in a divorce.  Further, collaborative divorces typically occur with minimal filing of court documents, which helps to protect your family’s privacy.  In a traditional divorce, extensive personal and financial documents are often filed with the court and are accessible to the public.

Your children are not weaponized.

In a collaborative divorce, parents work with a collaboratively-trained licensed mental health neutral who facilitates co-parenting conversations and helps parents develop a parenting plan and timesharing schedule that is best for the children.  Unfortunately, in a traditional divorce, children often end up being treated like objects to fight over and “win.”

Your family’s finances are protected.

Each family in a collaborative divorce is guided by a collaboratively-trained and licensed financial neutral, who gathers all of the necessary financial information to create an overall picture of the family’s finances.  This allows the team to explore financial options more efficiently than in the traditional divorce, where each side’s attorney, who rarely has any financial education, spends countless hours poring over financial documents and fighting with the other side to make sure everything is disclosed, and nothing is hidden. 

You have the final say in what your future will look like.

At the conclusion of a collaborative divorce, you will decide what your future looks like. In a traditional divorce, your entire family’s history will be condensed into a brief hearing, where a judge who is a stranger to your family will hear minimal evidence and testimony and then decide your future for you. Instead of handing over your family’s future to a stranger, collaborative divorce allows you to stay in control of your family and your future.

Do I need a prenup?

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It is an understandably awkward situation—two people moving toward their wedding date to declare their undying love, through better or worse, through richer or poorer, etc., but before this happens, also negotiating a contract that contemplates a possible divorce.

Describing a prenuptial agreement as a contract is a general definition; however, in short, a prenuptial agreement is a document that dictates the provisions in a divorce. Often this means that instead of relying on Florida law existing at the time of their divorce, the parties have instead decided to create their own set of rules in the event they should divorce. This reason—being able to control how the important aspects of their divorce will be handled—is the main advantage in entering into a prenuptial agreement.

Parties enter into prenuptial agreements for various reasons.   It may be that one or both parties have accrued significant assets prior to entering marriage, and although these assets may be pre-marital, under Florida law, the spouse may be entitled to a portion of those assets. Thus, the parties can contract in a prenuptial agreement that all pre-marital assets remain entirely the assets of the party who had them before the marriage.

Another example is when parties have children from a previous relationship that they would like to leave their assets to once they pass away.   Under Florida law, if there was no will, those assets would first pass to the surviving spouse.  A prenuptial agreement could provide that the surviving spouse waive all rights and interests that they may have had pursuant to the laws governing probate.  A common reason that some parties enter into prenuptial agreements is to determine how the issue of alimony will be addressed in the event the parties divorce. The above are only a few reasons for parties entering into a prenuptial agreement.  There may not even be a distinct reason why a prenuptial agreement is needed, but parties wish to think toward the future.

Keep in mind, there are some issues that cannot be dictated by a prenuptial agreement—-namely, anything having to do with children.  Thus, a prenuptial agreement cannot determine issues of time-sharing (custody), parental responsibility, or child support.   Also, under current Florida law, there are certain temporary rights—temporary support and temporary attorney’s fees—that cannot be waived pursuant to a prenuptial agreement; however, many parties still agree to waive these rights voluntarily within a prenuptial agreement.

There is a misperception that prenuptial agreements carry little weight in the legal world and that if either party expends enough money on challenging the prenuptial agreement, they can undo any prenuptial agreement. To the contrary, courts are very hesitant to undo contracts between parties, and that includes prenuptial agreements. There is an abundance of case law that establishes that a prenuptial agreement may still be binding although one spouse is unable to read English but signs anyway; or a spouse was on anti-depressants, anti-anxiety medications or other similar medications when they signed; or an agreement was signed only a few days before the wedding and the spouse was told that the wedding would be cancelled if they did not sign, etc.

The prenuptial agreement’s provisions directly impact the actions of the parties once married. Thus, depending on the controlling provisions, parties must make decisions as a married couple in terms of how assets are titled, how individual and joint funds are held, how to pay their income taxes, etc. In short, a prenuptial agreement involves developing and continuing a mindfulness toward important financial decisions and purchases during the parties’ life together.  Lastly, although prenuptial agreements are routinely perceived as a one-sided contract that benefits only one party, in truth, prenuptial agreements may be advantageous to both parties should their undying love, die.  At Artemis Family Law Group, we specialize in drafting and analyzing prenuptial agreements, from simpler agreements to more complex ones.  Contact us today to discuss whether and how a prenuptial agreement is something you should explore.

Does Florida have a presumption in favor of 50/50 time-sharing?*

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*THIS ARTICLE WAS UPDATED PURSUANT TO THE REVISED FLORIDA STATUTE, 61.13, WHICH BECAME EFFECTIVE AS OF JULY 1, 2023

Does Florida have a presumption in favor of 50/50 time-sharing?  The new, short answer is YES.

On July 1, 2023, the Florida law regarding time-sharing (formerly known as custody) was revised significantly.  After previous unsuccessful legislative attempts to do so,  the law regarding parents’ contact with their children now provides that parents should have equal time-sharing with their children.  Specifically, Florida Statutes section 61.13 states the following: “Unless otherwise provided in this section or agreed to by the parties, there is a rebuttable presumption that equal time-sharing of a minor child is in the best interest of the minor child.”

What does all that actually mean for parents?  Simply put, the belief is that the children should be spending an equal amount of time with both parents despite the fact that their parents are going through a divorce or otherwise separating.  In order to overcome this presumption of equal time-sharing, one parent must prove by a “preponderance of the evidence” that equal time-sharing is not in the best interests of the child or children at issue.  Thus, the parent objecting would have to show  it is “more likely true than not” that an equal time-sharing schedule would not be in their child’s best interests.

The best interests of the children continues to be the primary consideration when it comes to time-sharing.   If parents cannot agree to a time-sharing schedule, the court still must consider the 20 factors listed in the statute when determining time-sharing.  Further,  the court has the final say on issues having to do with children.  Parents should be aware that because of this, even if the parents agree to a time-sharing schedule, there is a possibility a court may review their agreement, decide that it is not in the best interest of the children, and establish a different time-sharing schedule.

Another point of note is that the presumption outlined in the new law is a presumption of equal time-sharing, not of  50/50 time-sharing.  This may not be a large distinction to some; however, it is worth noting because sometimes, parents can become blindly focused on the numbers, 50/50.  We have seen in many instances, parents locked in  lengthy, contentious battles to ensure that the child’s time spent with each parent is exactly 50%.  This tunnel vision on the numbers, 50/50, often results in parents losing sight of some realities–that their specific circumstances (for example, employment, school, distance from each parent’s homes, etc.) are not conducive to an exact 50/50 time-sharing schedule and, more importantly, that their children will remember the quality of time they spent with their parents, not whether they could look on their calendars and assign them each 182.5 days per year during their childhood.

The Artemis Approach in any matter involving time-sharing is to consider each parent’s case individually and be guided by their family’s particular circumstances before, during, and after their family law matter in reaching a resolution that works best for them.  If you have further questions regarding time-sharing, the revisions to Florida’s time-sharing law, or any other family law matter, please click here to schedule a consultation.

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One of the more common, and resilient, misconceptions in Florida family law is the myth that there is a presumption in favor of 50/50 timesharing (formerly known as custody). While it is true that there have been some legislative attempts to create this presumption, no bill has become law that would create this presumption. There is a statement in Florida Statutes section 61.13 that it is the public policy of Florida that each child be permitted to have “frequent and continuing contact with both parents.” However, this is far from the creation of a presumption of a 50/50 time-sharing arrangement.

Instead, section 61.13 provides the judge a vast amount of discretion in determining the appropriate timesharing (custody) arrangement for each case. Section 61.13 lists 20 factors that the judge is compelled to consider when making a time-sharing (custody) determination (see Frequently Asked Question: When can a child decide who to live with in Florida? for a more detailed discussion of those factors). Additionally, section 61.13 specifically declares that “there is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule.”

Part of what has caused confusion is the change from the prior term “custody” into two distinct, but related concepts of “time-sharing” and “parental responsibility.” As discussed above, the law does not create a presumption of equal time-sharing. The law does, however, create a presumption in favor of shared parental responsibility. Shared parental responsibility is the idea that both parents are equally involved in the decision-making as it relates to their children and that all decisions are made on a joint basis, or not at all. Shared parental responsibility does not mean that the timesharing arrangement is 50/50. In fact, it is quite common for both parents to have shared parental responsibility while exercising a timesharing plan that is far from 50/50.

While it is true that there is no statutory presumption in favor of a 50/50 time-sharing plan, some judges, in the exercise of their broad discretion, will favor timesharing arrangements that are as close as possible to 50/50. On the other hand, some judges view 50/50 time-sharing plans more skeptically than other arrangements. Therefore, it is important to retain a Florida family law attorney, like those at Artemis Family Law Group, who are aware of each judge’s preferences and skepticism in a dissolution of marriage involving children or other family law cases concerning time-sharing disputes.

When can a child decide who to live with in Florida?

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One of the more common misconceptions that we encounter in family law is the myth that once minor children reach a certain age in Florida, they can simply decide for themselves who to live with and the courts will defer to that preference. The reality is that it is much more complicated than that, as we discuss in more detail below. Quite simply though, children do not get to make their own time-sharing (formerly known as custody) determinations.

When the parents cannot decide on a time-sharing (custody) arrangement with their children, the Court must step in and decide for them. After hearing evidence from both parents, the Court will create a parenting plan which is based on what is in the children’s best interests. The parenting plan is a comprehensive document, which includes a time-sharing schedule.

The law instructs the courts to consider 20 factors in crafting this parenting plan (see section 61.13(3), Florida Statutes). These factors include, but are not limited to:

• each parent’s willingness to honor the time-sharing schedule and to be reasonable when change is required;
• how much parental responsibility would be delegated to third parties;
• each parent’s demonstrated ability to act on the best interests of the child instead of their own interests;
• whether it is in the child’s best interest to maintain continuity with the current living arrangement;
• how much time would be spent traveling in order to effectuate the parenting plan;
• the moral fitness of the parents;
• each parent’s physical and mental health;
• each parent’s demonstrated ability to keep the other parent informed of issues related to the child;
• each parent’s demonstrated ability to stick to a routine for the minor child;
• evidence of child abuse and/or domestic violence;
• evidence of substance abuse.
• “Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.”

In addition to these, and other factors, the courts are also instructed to consider “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” So, what does this mean and when will the courts actually consider a child’s preference in crafting a parenting plan?

First, the courts are provided an incredible amount of discretion when determining whether or not to consider the preferences of a child in a time-sharing (custody) dispute. The statute does not simply instruct the courts to consider the child’s preference, but requires the preference to be “reasonable” and also only be considered after the court determines that the child has the maturity to express a preference.

Second, there is no specified age in Florida at which the courts will consider a child’s preference. The court will instead decide this based upon the specific circumstances of each case. The older a child is, the more likely the court will consider his or her opinion, but there is still no magic age at which the courts must consider this.

Third, the courts often have strong and justified concerns with eliciting a child’s time-sharing (custody) preferences. The reality is that children’s preferences can be influenced and even manipulated by a parent or be based on things like which parent is the disciplinarian. When a judge does agree to hear a child testify on this matter, it often occurs in chambers as opposed to open court. However, in practice, most judges do not want to hear from the child directly as they do not want to put the child in the position of “choosing” one parent over the other. A better option is to obtain a child’s preferences via the testimony of a guardian ad litem. Additionally, a child therapist is sometimes used to determine a child’s preference.

In sum, most of the time, the courts will not consider the child’s preference in making time-sharing (custody) determinations. If they do, it will be based on the individual circumstances of the case and not on any specific age at which a child will be permitted to make his or her own time-sharing decision.

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