Things a Judge Cannot Do…

Judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the law. The job of a judge is to apply the law.  Justice Sonia Sotomayor

Throughout the years that I have been practicing in Family Law, I have had a few clients who refused to negotiate and would instead demand to have “their day in court”.  Their theory was always that, once the judge heard their story, the judge would be so moved that my client would get whatever it was they wanted.  I often had to inform my clients that, no matter how moving their story was, the judge just could not give them what they wanted.  In most cases this was because the law did not provide the relief they expected or thought was fair.  Here are a few of the things that the law in Florida does not provide for:

Visitation or “shared parenting” of pets.  Under Florida law, Fluffy is just a piece of property to be distributed to one party or the other.  I love my dog and I love my cat and I have even loved my daughter’s snake, rats and other various creatures that have filled our house with love.  If I found myself in a situation of a divorce, I would want to make sure that my daughter and I could continue to have regular interaction with our pets (although I admit, some more than others).  However, under the equitable distribution laws, the pet is given a value and that value is placed in the column of the party receiving the beloved pet.  The judge simply cannot order that the other party have visitation or any other “contact” with the pet after it is “distributed”.

College tuition or child support past high school.  Except in the most extreme situations of continued dependency, Florida law provides that child support ends when the child turns 18 years of age unless then child remains enrolled in high school with an expectation of graduation prior to their 19^th birthday.  Even if the child remains enrolled in high school but will not graduate until after their 19^th birthday, child support does not normally continue.  This is different in some other states, but Florida does not provide for college support or support past 18 years of age in most cases.

Continued joint ownership of a family business.  Florida law states that once you get divorced the idea is to separate such things as ownership of property and businesses.  Therefore, if the parties are not in agreement, the court will not order that they remain co-owners of the family business.  This means that one party is more than likely going to have to buy out the other party.

This is just a sample.  There are many more examples of things a judge cannot order because the law does not provide the option.  There may be exceptions to any one of these rules (after all, every good rule has an exception).  However, in most cases, Judges are not going to create new law or make a special exception for your family.  The one way to ensure that you achieve these and other creative solutions that meet your family’s needs is to come to an agreement through negotiations.  The best way to increase the chances of a negotiated settlement is to start from a non-adversarial process such as mediation or collaborative law.  With the skilled assistance of a good mediator or collaborative team, your family can come up with very creative solutions that meet all of your family’s needs and desires.  This is why alternative ways to resolve these disputes is often referred to as the way to find “win-win” solutions.