Recent Blog Posts in April 2010

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.