Recent Blog Posts in 2010

A recent long-term study involving over 12,000 people by scholars Rose McDermott of Brown, James Fowlers of UC San Diego and Nicholas Christakis of Harvard has found that divorce may in fact be contagious. In their paper titled "Breaking Up Is Hard To Do, Unless Everyone Else Is Doing It, Too," they reported that divorces tend to occur together, the relationships within a couple's social networking having a direct impact on their future decisions of commitment.

Close friends, coworkers and family all influence couples when it comes to their marriages, the study shows, and distance often does not play a large role in it. If the relative or friend is on the other side of the country, the ramifications are usually the same as if they were around the corner.

If you or a loved one are currently considering filing for divorce, it is imperative that you enlist the help of an experienced Jacksonville divorce lawyer as soon as possible. By contacting the Law Office of Wesley H. Owens, you are giving yourself the support and guidance you need to move through the divorce as painless as feasible. We understand that divorce is often emotionally, financially and mentally exhausting; we want you to know that you don't have to undergo it alone. With the right legal support, we can help you through the divorce process so that you can move forward into the next chapter of your life as easily as possible.

During any divorce proceeding, the Court has the power to divide marital property and marital debt.  In order to understand how the Court will achieve that goal, there are a few fundamental things you need to understand.

"Marital property" is anything you and your spouse acquired from the date of your marriage until the date a petition for divorce is filed.  It does not matter in whose name the debt or property is titled.  If you and your spouse bought something during the marriage, then it is marital property subject to distribution by the Court.  The only exceptions are (1) inheritances given to one spouse only and (2) gifts from third parties, such as friends and family members.  Those two exceptions are non-marital property and the Court has no power to divide them between the spouses.

Florida is an "equitable distribution" state, which means that the Court has the power to equitably, or fairly, distribute marital assets and liabilities.  Although the term "equitable" means "fair," the starting point is a presumption that an equal (50/50) distribution of marital assets and liabilities is what's fair.  Whether your particular case might involve an unequal distribution of assets and liabilities depends upon the facts of your case and a list of statutory factors which the judge must consider.

In many cases the spouses will agree to a simple division of property and debt.  The Husband keeps stuff titled in his name and pays debts in his name, and the wife does the same.  Other cases, however, involve substantial assets and debts.  Those are the more complicated cases which require a rather large amount of effort to determine what a fair distribution would be.

If you are facing issues where the division of marital property and debt are contested, it is imperative that you contact a qualified matrimonial lawyer who is is competent to deal with property and debt issues.  If your property and debt issues are complex, then you certainly need to contact someone who is qualified to deal with high income and high net worth divorces.  At the Law Office of Wesley H. Owens , we are able to assist you with all these matters.

I am not a fan of horror movies, but earlier today I watched what turned out to be the scariest movie I have ever seen:  Father of the Bride.  Not the original 1950 film with Spencer Tracy, Joan Bennett, and Elizabeth Taylor, but the 1991 remake with Steve Martin.  Although I had seen the film many times before, it wasn't until today that a tremendous fear settled over me, like hearing Jack Nicholson say, "Here's Johnny!" as he breaks down a door with an axe in The Shining.

My little girl will turn eleven soon.  Her mom and I spent the first five years of her life fighting over her before we realized how futile our battles were.  We were so concerned with our own agendas that we were missing out on just being Mom and Dad, sharing our daughter as she grew older.

My daughter and I have a bedtime ritual.  When it's time to turn in, she asks me, "Camel ride?"  That's where I get on my hands and knees, get mounted like a camel, and she slaps my rear end and says, "Hut hut."  I then slowly, arthritically, transport her to her bedroom as our unreasonably large German Shepherd follows.  But just last night my former wife emailed me a picture of our daughter on top of an actual camel at the fair taken just hours earlier.  "Finally, a real camel ride," I thought to myself.  I missed the fair because I was working, but at least I got to see my kid smiling atop an actual camel.

So as I'm watching Father of the Bride, I realized just how quickly our little girl is growing up.  It won't be too long before I'm in Steve Martin's position, when my kid comes home one day and says, "Daddy, I've met someone and we want to get married!"  I'm saving an expensive bottle of Scotch for that day.  Please excuse my language, but it quite frankly scares the shit out of me.

When parents are constantly battling each other over their children, they are missing out on the joys of being parents.  Trust me, there will come a day when you will look back and ask, "Where did the time go?"  You will remember the court hearings, depositions, and (probably) large unpaid bills for attorney's fees, but you won't be able to remember your child's first sleepover with a friend or the songs your child sang in a school play.  Why not?  Because litigation takes your focus off your child and puts it on the court process.

Don't miss out on the best years of your life by fighting pointless court battles over your kids.  Take your time and choose a child-focused family lawyer to help you resolve your conflicts and get on with being a good co-parent.

Although a parenting plan consists of many different things, the most frequent area of conflict between parents will be in the area of custody and visitation, or what we now call "timesharing."  Although the terminology has changed, mothers and fathers will still disagree about how much time the kids will spend with Mom and Dad.

Almost everyone who has been divorced or known someone who has been divorced is familiar with the "traditional" every-other weekend timesharing arrangement that has been popular since the early 1970s.  As Dr. Joan Kelly wrote:

"For reasons not entirely clear, the specific visiting pattern of every other weekend with the nonresidential parent, usually the father, became the favored and traditional arrangement for children following separation.  This alternating weekend pattern may have gained favor because it was easy to apply, requiring no judicial or psychological analysis.  It simply divided the child's leisure time during the school year between parents, assigning divorced  mothers all the work of raising children, including discipline, homework, and childcare, and typically excluding fathers from these normal parenting responsibilities and opportunities."

Joan B. Kelly, Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce, 19 Journal of the American Academy of Matrimonial Lawyers 237, 239 (2005).  In the same article, Dr. Kelly went on to say as follows:

"Such guidelines are inherently flawed because of the one-size fits-all standard, and because they do not, in fact, address the best interests of the children.  They failed to consider children's ages, gender, and developmental needs and achievements, the history and quality of parenting, and family situations requiring special attention.  Rigid and mindless adherence to such prescriptive guidelines  most often resulted in those children with a warm and supportive relationship with their nonresidential fathers restricted to seeing their fathers only four out of each twenty-eight days, because of the default use of the guidelines, the same amount of time as for chidlren with a self-absorbed, disinterested, or emotionally abusive father."

The point Dr. Kelly and her peers are getting at is this:  each family is different.  When deciding timesharing issues upon separation of the parents, the portion of your parenting plan that addresses timesharing issues must take into account your individual circumstances. 

Above all, when you separate or divorce, the presiding judge should not care about what you or your partner want.  The judge is only concerned with what is in your child's best interests.

That brings up another question.  Who is in the best position to decide what is in your child's best interests?  A judge, who will most likely have very limited contact with you, as a parent, and extremely limited contact, if any, with your child?  Or you, as a parent, who is in a better position to determine what is best for your child?

The answers to these questions are best addressed by a qualified child custody and visitation lawyer who can find creative solutions to timesharing issues between parents.

A parenting plan is simply a written document, whether agreed to by the parents or imposed by the Court, setting forth how parties will raise their children.  Sophisticated family lawyers have been using parenting plans for years, even though parenting plans were not always required.  However, with the changes to Florida Statute section 61.13, parenting plans are now mandatory.

When the legislative changes went into effect, I received numerous telephone calls from other lawyers asking, "Do you have a parenting plan form that I can use?"  My answer was, and remains, the same.  "I have about thirty of them."  The entire point of a parenting plan is to avoid a "one size fits all" model, which has been discredited over the years by empirical research by child development experts.  Every family is different, so each parenting plan should be customized to address the dynamics of any given family.

Some parents want to be more involved in the lives of their children, some less.  Some parents have individual strengths in certain areas of a child's live, while others have different contributions to make.  In developing an appropriate parenting plan, both parents should try to take an objective look at what they have to offer for the benefit of the children.  This is not an easy task because both parents usually have their own agendas and have a difficult time seeing things through the eyes of their children.  This is the reason why both parents should seek a qualified child custody lawyer to determine what is in the best interests of their children.

When parents separate or divorce, the issues of child custody and visitation are usually one of the most contentious issues.  Each parent, of course, usually wants to maintain a close and continuing relationship with their children.  The fundamental question is, "How do we go about doing that under our particular circumstances?"  The answer to that question is best decided by the parents, who intimately know their children.  If the parents cannot agree, then a judge, who does not know either parent or the children, must make a decision based upon the evidence presented and the law, which is set forth in Florida Statute section 61.13.

In most cases, a court will order that parents "share parental responsibility."  That simply means that both parents have the same rights when it comes to making decisions about their children.  Neither parent has greater authority over the other in making decisions about their children.

Prior to October 1, 2008, when a judge ordered that parents share parental responsibility, the judge usually designated one parent as the "primary residential parent."  The primary residential parent was the parent with whom the children spent the most time.  That parent had "custody" of the children.  The other parent was designated as the "secondary residential parent."  The secondary residential parent had "visitation" with the children.  However, changes in Florida law have abolished the concepts of primary residential parents, secondary residential parents, custody, and visitation.

Under current Florida law, judges will still order shared parental responsibility for the children.  However, instead of  primary and secondary residential parents, custody and visitation, the law has been simplified to reflect that there is Mom and Dad, both of whom are entitled to "time-sharing" with the children.  The parents, or the judge, must then decide how much time each parent should spend with the children.

The allocation of time-sharing is set forth in a "parenting plan," which is required by Florida Statute section 61.13.  In the next entry of this series on child custody and visitation, I will discuss the requirements and benefits of parenting plans.  In the meantime, if you have any questions about child custody and visitation, you should contact a qualified Jacksonville area child custody and visitation lawyer to answer your questions.

Let's face it.  Divorces can be expensive.  Most lawyers charge by the hour, so the more time your lawyer has to spend on your case, the more it will cost you.  If you and your spouse cannot agree on certain issues, then your lawyer will have to deal with those issues and charge you for the time spent.  By the same token, the more you and your spouse can agree, the less time your lawyer will have to spend.  That results in a cost savings to both you and your spouse.

An uncontested divorce is one where you and your spouse have already agreed on all the issues, such as child custody, visitation, child support, alimony, and the division of property and debts.  When you hire a lawyer to handle an uncontested divorce, you present your agreement to the lawyer, who then drafts all the documents you and your spouse need to sign, usually for one flat fee.  Keep in mind, though, that the lawyer can only give you legal advice while drafting the documents.  He or she cannot act as an attorney for both you and your spouse.

The cost of an uncontested divorce can vary depending on the number and types of documents the lawyer will need to draft.  For example, an uncontested divorce involving children will be slightly more expensive than an uncontested divorce not involving children.  Why?  Because the lawyer will have to draft a "parenting plan," calculate child support, and most likely draft an "income deduction order" for the payment of child support.  Similarly, if you and your spouse have agreed to divide retirement plans, the lawyer will have to draft special orders to divide the plans.

If you and your spouse have come to a complete agreement on all issues, please feel free to contact me, a Jacksonville uncontested divorce lawyer, to discuss how I can help you at a minimal cost.

So now you have decided to retain a divorce lawyer.  The next question is, "Whom should I hire?"

Choosing a family law attorney is a bit like choosing an auto mechanic.  Unless you have some experience in auto mechanics, you probably don't know know where to begin.  When choosing your lawyer, the foremost questions in your mind should be: (1) is this lawyer truly qualified to handle my case; and (2) can I trust this lawyer?

Before you go searching for divorce lawyers, you need to do some homework.  I will break this down into two sections:  (1) what not to do and (2) what to do.

Keep in mind that there are many lawyers who practice in the area of family law.  However, they may have other practice areas as well, such as personal injury, criminal defense, and real estate.  Lawyers who diversify their practices into many areas of the law cannot devote their entire attention into one area of law, so they are more likely to be less informed than lawyers who devote their practices into a single area of the law.

What Not to Do:

Telephone Book Directories.  If you look in a telephone book directory, you will probably find a specific section for family lawyers.  But just because those lawyers have a listing in the directory doesn't mean that they are qualified to assist you with your family law problem.  Even a lawyer who devotes only one percent of his or her practice to family law can take out an add in a telephone book directory.  In fact, if you look around any given directory, you will probably find the same lawyer has taken out advertisements in other legal areas as well.

Other Forms of Advertising.  Aside from telephone book directories, lawyers will also market themselves in other forms of media (yes, including the Internet, like I do).  Like telephone book directories, any lawyer can throw up a web site, put on a television commercial, or purchase an advertisement in a local newspaper or magazine.  Yet advertisements do not mean that the lawyer is qualified to handle your family law case.  It just means he or she paid money for an advertisement.

Beware of Fighting Words.  If you see an advertisement, you will frequently see catch phrases like "aggressive."  Catch phrases like that are meant to get you fired up and ready for a fight.  The best family lawyers are usually those who promote a minimization of conflict.  So beware of lawyers who use fighting words.

Friends and Family Members.  Of course we put our trust in friends and family members.  Although you should definitely ask them about potential lawyers, be careful of their comments.  As much as we love and respect them, every family law case is different.  Some of our friends and family members may have had a bad personal experience with a particular lawyer, but that bad experience may be due to a client's unrealistic expectations that didn't materialize into anticipated results.

Free Consultations.  My experience has been that lawyers who offer free consultations are not interested in helping prospective clients.  Rather, they are intent on giving you a sales pitch.  You are likely to walk away from a free consultation with more information about how great the lawyer is rather than any information on how he or she can help you with your family law problem.

What to Do:

Ask Questions.  Without a doubt, asking the right questions is the best way to find a qualified divorce lawyer.  Here are some questions you should be asking:

    1.     What percentage of your practice is devoted to family law?  A qualified divorce lawyer will devote the vast majority of his or her practice to matrimonial and family law.  At the Law Office of Wesley H. Owens, our practice is limited exclusively to matrimonial and family law.

    2.     For how long have you been practicing law?  Although there is no bright line rule as to how long a lawyer has been practicing, a good rule of thumb is "the longer the better."  For example, I have been practicing matrimonial and family law for about fifteen years.

    3.     Are you a member of the Family Law Section of the Florida Bar?  If a lawyer is not a section member, he or she is not likely to be involved in emerging family law issues.  You may also want to ask whether the lawyer serves on any Family Law Section committees to determine his or her active involvement in helping to formulate creative solutions to family law issues.

    4.     Do you represent more men or women?  Unfortunately, some lawyers use catch phrases like "men only"or "women only" as a marketing tool.  It is better for your prospective lawyer to have a balance of experience in representing both men and women.

Do not be afraid to ask questions.  The lawyer you retain is likely to have a tremendous impact on the most vital issues of your life, with consequences that will endure for a lifetime.

"My case seems so simple.  Do I really need to hire a divorce lawyer?"

That is a question I hear over and over again.  Prospective clients often believe their family law case to be simple, so they question the need to spend money on a qualified matrimonial lawyer.  I usually answer that question with a personal story.

A few years ago a small light bulb went out on the dashboard of my car.  Although the car was out of warranty, I took it to the dealership and asked how much it would cost to fix the problem.  "Well, Mr. Owens, it will cost $2 for the light bulb, plus $58 in labor."  To me that sounded outrageous, so I decided to do it on my own.

I typed my problem into Google and found the appropriate technical service bulletin (TSB).  I followed the TSB perfectly and switched out the light bulb.  Then I turned on my dashboard lights, which lit up like a Christmas tree!  I was so proud of myself for saving money by solving the problem myself instead of paying money to a qualified auto mechanic.  But that is where the trouble started.

I started the engine and turned on the air conditioning.  Although the engine started, the air conditioning would not work.  So I went back to Google, typed in the latest problem, and found a supplemental TSB which said, "DO NOT FOLLOW THE ORIGINAL TSB.  OTHERWISE IT MAY BLOW OUT YOUR A/C SYSTEM!"

After a trip to a qualified auto air conditioning mechanic, my dashboard lights still lit up and my air conditioning system worked perfectly.  Total cost?  $1,200.

The point of the story is simple.  Do not try to do what you are not qualifed to do, no matter how simple the problem seems.  You can try to process your divorce on your own, but in the end, you may wind up spending more on a qualified family lawyer than you would have had to spend had you done so in the first place.

If you live in the Jacksonville area, please feel free to contact me and explore some creative options to your current family law matter.