“Give Peace a Chance.” John Lennon
With only a brief review of this blog or my company website (www.professionalresolutioncenter.com) a visitor can tell that I am all about finding peaceful ways to resolve human conflict. My company’s moto is “Peaceful Resolution to Complex Issues”. But in the case of this article, I am not talking so much about the method of dissolving a marriage as I am about the checklist of things to consider when considering a divorce. There is a certain irony to using the acronym P*E*A*C*E to organize and prepare for your divorce. Yet it is actually the tool used to teach new lawyers and judges about the system to process a divorce (at least in Florida). I am a strong proponent of having a peaceful divorce by using either mediation or collaborative representation to avoid the adversarial process of litigation. But regardless of the process you employ, you can use “PEACE” to ensure you have covered your most important issues. The checklist looks like this:
P arental Responsibility
E quitable Distribution
A limony
C hild Support
E verything Else
P is for Parental Responsibility:
The first thing you should consider is Parental Responsibility (unless you don’t have children then you can obviously skip this step). While there are a number of sections of the Florida Statutes that address parenting issues, the section that addresses time sharing is found at Florida Statute 61.13. The two main aspects of parental responsibility are (1) who makes major decisions affecting the children and (2) where do the children go to sleep each night. These are two distinct issues to be considered as the children may sleep the majority of time at Dad’s house, but both Mom and Dad may have an equal say in whether Johnny gets braces or Taylor gets to go to band camp in Georgia. In Florida it is most common for the parties to have “shared parental responsibility” wherein the parents have an equal say in the major life decisions affecting the children. However, in some cases the parties may agree, or the court may order that, in the case the parties cannot agree on a decision after consulting each other, one parent will have ultimate decision making on certain issues like education or medical care. In extreme cases the court may order that one parent have sole decision making, that is they need not consult the other parent when making decisions affecting the children.
The second issue to be addressed is the time sharing schedule for the children. Florida and many states have done away with “custody” and “visitation” and moved to the more realistic and equitable status of time sharing. If a judge is to determine a time sharing schedule they are told to consider twenty factors to decide what schedule is in the best interest of the children. Clearly, the parents, who know the children and the situation of the family are in a better place to determine what schedule will work best for them. Samples of the Florida Supreme Court and Twelfth Judicial Circuit Parenting Plans can be found here.
E is for Equitable Distribution
The next thing to consider is how the parties will divide up their assets and debts. Again several areas of the law address these issues, but the main provisions are to be found in Florida Statute 61.075. If the court is to determine the equitable distribution, then they must first determine what is or is not marital assets and liabilities. There are countless cases that discuss the finer points of what is and what is not marital (i.e. I owned a house before the marriage, but during the marriage you helped me put on a new roof and remodel the kitchen and my pay check was used to pay the mortgage, is any of the appreciation of the property marital?) The statute helps to answer these questions but often, in complicated cases, if the parties cannot agree, then these issues get turned over to the judge for a decision. After there is a determination of what is martial and what is non-marital, then the marital items must be “equitably divided”. The statute says that the law starts with the premise that the division should be equal unless there is a justification for an unequal distribution based upon ten factors, including the catch all “any other factor necessary to do equity and justice between the parties”. You can imagine how this can be fought out if the parties don’t reach an agreement.
A is for Alimony
The third item on our divorce checklist is Alimony or spousal support. The rules for alimony can be found at Florida Statute 61.08. This is probably the most hotly contested area of any divorce. However, with careful consideration and some creative thinking, it is very possible to come to an agreement on spousal support and avoid litigation. Basically, as of July 2013, there are four kinds of alimony in Florida: (1) bridge the gap; (2) rehabilitative; (3) durational and (4) permanent periodic. (If you are reading this after May 2014 this entire section might have changed as there has been considerable pressure to change the alimony statute in Florida for the past several years.) For purposes of determining alimony the marriages are divided into three categories depending on their length: (1) short term marriages are any less than seven years, (2) medium term marriages are any between seven and seventeen years and (3) long term marriages are any longer than seventeen years. First there must be a determination as to whether either party has a need for alimony and then a determination if the other party has an ability to pay alimony. If there is a “need and ability to pay” then there must a determination as the amount and type of alimony. For this the Court considers the length of marriage and ten factors (including again the lovely catch all “any other factor necessary to do equity and justice between the parties”.) There is currently no formula to use to determine how much alimony should be paid and for how long. It is easy to understand why this issue has become perhaps the most litigated issue in any divorce.
C is for Child Support
The determination of child support is one of the more straight forward areas of divorce law as it is based upon “guidelines” found at Florida Statute 61.30. While there may be some dispute about the income of each parent based when a parent is unemployed, under-employed or self-employed., once the actual income is decided, then calculating child support is a matter of filing in a formula and seeing what comes out the other side. The form used to calculate the formula can be found here. While these are guidelines and may be modified by agreement or the court, it is important to remember that the statute is clear that parents have an obligation to support their children and this is the area where the courts exercise the least flexibility. Under child support the parties should also consider such factors as which parent will supply health insurance for the children and how will uncovered medical bills be paid? How will the parties divide the Federal Tax Deduction and Earned Income Credit for the children? Also, the parties may be able to come to agreements about child support issues that the Court does not have authority to consider under the statute such as issues of support of children while attending college, payment of tuition for college, and how the parties will divide the payment of extra-curricular activities.
E is for Everything Else
So, after considering all of these issues, what else is left? The E for everything else. This is where the parties or the Judge can decide which party will pay for the attorney fees (consider Florida Statute 61.16), will the Wife have her name restored to her maiden name, do there have to be additional orders from the court to divide certain retirement plans or to re-title property, etc.
The order of the issues in the PEACE method is also important. Alimony can only be determined after Equitable Distribution because how the assets are divided (family business, investments, rental property) may affect the income that each party has available. Child support can only be determined after Alimony because child support is based upon the proportional share of the family income held by each parent and if alimony is provided then this will shift the proportions of overall income. And clearly “everything else” comes after everything else. So, use the checklist in the order it is provided. Ignore anything that does not apply to your family (no children then no parental responsibility or child support) and consider each factor to come to an equitable resolution of your case.
Hopefully this article will help you, the dear reader, understand some of the basic factors to consider if you are considering a divorce. Hopefully it has also helped you realize why advice from a well qualified attorney can be so valuable if you find yourself in a situation where a divorce is happening. This article is not meant to take the place of the careful advice of an attorney trained in marital and family law. Whether you decide to proceed in a collaborative, mediated or litigated divorce, the PEACE outline provides a short checklist of the issues to be addressed.