Author: Sharon O'Day

COLLABORATIVE LAW TRAINING COMING TO SARASOTA & BRADENTON, FLORIDA

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Next Generation Divorce of Sarasota & Manatee proudly presents “Interdisciplinary Family Law Collaborative Training”

If you believe, like many of your fellow professionals, that there must be a way to help people through the divorce process without all of the anxiety, stress and emotional turmoil of litigation, then you should join the forward thinking group of professionals practicing in Collaborative Law.

We are happy to announce that we are bringing Collaborative Law Training to Sarasota and Bradenton, Florida through a training being offered by Next Generation Divorce, our local Collaborative Law Group.

This training is for Attorneys, Psychiatrists, Psychologists, Social workers and LMHC Professionals,

Financial Planners & Accountants Interested in helping clients who want to have a divorce without litigation

At this unique training you will learn:

¨ The basics of the collaborative process

¨ The Skills to begin a collaborative case

¨ The Protocols developed for Family Law Cases

¨ The ethical considerations when working in the collaborative model

¨ The skills to work as a Collaborative Team

¨ The most powerful ways to deal with challenging situations

¨ The best ways to assist clients through collaborative process

Where: Holiday Inn, Lakewood Ranch

6231 Lake Osprey Drive,

Sarasota, FL 34240

Discounted Rooms available for out of town participants ($99 / night)

When:     Friday May 16 & Saturday May 17, 2014

8:30 a.m. to 5:00 p.m.

Registration begins 8:00 a.m.

Cost:        $495 if registered before April 25, 2014 / $545 if registered after April 25, 2014

Includes continental breakfast, lunch and afternoon snacks each day

Trainers: Collaborative Law Training Associates, Inc. of Atlanta, GA.

Seats are limited so please respond early!  We know this will be a sold out event.

Pending approval of Florida Legal, Mediation, Mental Health and Financial Professional Continuing Education units.  This training meets the requirements for membership in local Collaborative Law Group.

For a registration form or further information, please contact me directly: Sharon O’Day, soday@odayresolutions.com / (941) 228-8571

 

 

A Cautionary Tail

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Lawsuit: A machine which you go into as a pig and come out of as a sausage.

Ambrose Bierce

The front page of the Sunday Sarasota Herald-Tribune was filled with an extremely sad story entitled Love & Lawsuits, by Barbara Peters-Smith.  (http://www.heraldtribune.com/article/20140406/ARTICLE/140409778/2416/NEWS?Title=First-came-love-Then-the-litigation-)  The subtitle says it is the story of “a Longboat Key couple found true love late in life.  But what might have been a happy ending has instead morphed into an epic lawsuit with millions of dollars on the line, and long, bitter legal arguments made mostly by strangers.”    The story covers much of the front page and two full interior pages and I highly recommend that it be read in full to have a complete understanding of the facts and issues.  For purposes of this brief post, the important facts are that after many happy years of marriage, allegations have been made that the elderly couple suffered from dementia and that relatives began to take advantage of them financially.  Both the Husband and Wife had attained some level of wealth, although the Wife was substantially better off than the Husband.  The allegations are that the Husband’s family members then began to take advantage of the couple and had transferred millions of dollars from the Wife, through the Husband to the Husband’s relatives.

For purposes of this post, the cautionary tail that I see is how the internal problems of this blended family have turned into a very public and very expensive legal battle, destroying any hope that the couple had to live out their final years in happiness together.  The family members have now divided the couple and each lives near relatives but apart from each other.

On one side it is easy to say that this couple had done everything right as befitting their wealth.  They had a prenuptial agreement and estate planning documents.  They reviewed and updated these documents as needed.  However, the allegations are that by 2005 the Wife and perhaps the Husband were suffering from early stages of dementia and some relatives began to take advantage of them.  My first concern from this is why did it then take six years for any relative to realize what was going on and intervene.  I do not mean this to be as judgmental as this may sound.  I realize that every individual and every family is different in how they address financial issues, but in this case perhaps the long costly court battles could have been avoided had there been more direct involvement and conversations when concerns were first noticed of the couple’s failing health.

My second concern is that mediation did not take place in this case until after it had been pending for over two and half years.  The mediator in this case is extremely professional and one of the best around.  Unfortunately the case did not settle.  The timing of a mediation is a careful balancing act.  Often if the mediation is set too early the parties may not understand the full ramifications of the case and be unwilling to settle.  However, if it is set too late, after each side has become cemented in their positions and invested vast amounts of money in the litigation, they may be too entrenched to consider settlement.  However, mediation can begin early and continue throughout litigation.  Much of the issues provided to the judge can be resolved through careful mediation.  There does not appear to be other forms of alternative dispute resolution services employed in this case.  The end result is a legal battle played out in public and the concerns for the elderly couple seems to have been lost in the process.

The law suite was filed in May 2011 and now has 1,675 docket entries (that is documents filed, orders issues, or notices of court hearings, etc.)  There are fifteen lawyers involved in representing parties to this case.  The case will have taken over three years from start to finish and that does not include possible appeals from the final decision.  Two of the defendants have died and one of the previous attorneys is now allegedly suffering from dementia as well.  Ours is a wonderful legal system but this case shines a bright light on the deficiencies of the system.  I have seen divorces take on a life of their own and spiral out of control.  It appears that this very sad guardianship case has done the same.

How to save money on your divorce.

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$“Civility costs nothing and buys everything” Lady Mary Wortley Montagu

“Be prepared and be honest” John Wooden

One of the most common questions I am asked during an initial consultation with a new client is “how much is this divorce going to cost me?”  I completely understand the concern that most clients have about the financial costs involved in a divorce including the costs of the attorney, other professionals, and the court fees.  There are other costs that you should consider as well, such as the time away from work or family, as well as the emotional and psychological costs to you and your family.  So, the proper question to ask is how can you minimize all of these costs associated with divorce?  Here are my top five suggestions:

♦     Prepare!  The number one thing that anyone can do before beginning the divorce process is research and prepare.  You want to learn all that you can about the process and your options.  You want to learn about options such as mediation and collaborative divorce.  You also will want to also know as much as can about your family’s finances.  A good list of documents that you should have available can be found here.  These are the Mandatory Disclosure documents in Florida and are a comprehensive list of documents that will give you a good picture of your family’s income and expenses.  In addition, preparing a family budget will give you a good idea of your family’s income and support needs after the divorce. You will also want to prepare a list of your family’s assets and their net worth as well as a list of the outstanding debts and liabilities owed by your family.  A good way to consider all of these issues is to prepare a Financial Affidavit form which asks you to consider your income, expenses, assets and liabilities.  (A Florida Financial Affidavit can be found here.)

♦     Fix your priorities.  Everything does not have to be a battle.  If you have children, your first priority should be to shield the children from the litigation and emotional strain of the divorce.  Your next priority should be to move through this process with as little emotional and financial suffering as possible.  It is often easy to let your emotions take control over the process and make decisions out of anger or frustration.  This can often be a costly mistake.  With the goals of shielding the children and obtaining a smooth divorce you can then prioritize the issues of your case easier.  Remember, the less you disagree about, the less the divorce will cost you.  If you find setting your emotions aside as you negotiate difficult, you may want to consider a hiring a counselor or coach to help you through the divorce process.

♦     Negotiate!  The costs involved in a litigated divorce can be staggering.  It is not unusual for a litigated divorce to cost tens of thousands of dollars for each side.  And this does not consider the destructive emotional costs involved in litigation.  The most efficient way to avoid the extreme costs of litigation is to negotiate early and often.  As you negotiate keep in mind your priorities so that you don’t become embroiled in a fight over certain issues simply because your spouse “pushed your buttons”.  It is also important to keep in mind that the research you conducted early will allow you to have a stronger position in the negotiations as you will be well informed about the reality of your family’s financial situation.

♦     Consider alternative forms of resolving the case.  If you and your spouse are able to negotiate effectively alone then this can result in an extremely low cost divorce with the attorneys only involved in drafting and reviewing the agreement and filing it with the court.  If you need more help with the negotiations consider hiring a qualified mediator or collaborative attorney to assist you with the negotiations.   By avoiding litigation, you are eliminating the high costs of depositions, court hearings, expert witness fees, and other fees associated with litigation.

♦     Be conservative with your professional’s time.  If you hire a professional mediator or attorney to assist you with your divorce, you must first ensure that you enter into contract with the professional that outlines exactly how you will be charged.  In almost all cases the contract will detail hourly billing for the professional’s services.  You now have control over how much the professional charges by how much you require of their office.  If your attorney requests you provide documentation required to provide to the other side, then gather the information requested, organize it and provide it to the attorney in an efficient manner.  The same goes for forms that your attorney requests you fill out.  Also, if you have questions, it is often better to keep a list and once a week send an e-mail with the list of questions and a request that you set a time to speak to your attorney to discuss these.  The attorney may be able to answer many by return e-mail or may find that setting an appointment to speak is more efficient.  In either case, your attorney will have an opportunity to properly prepare for the questions and answer them in the most efficient manner.   Also, be aware that many attorneys have paralegals that can assist you with basic work at a much lower hourly rate.

There is no “standard fees” for a divorce in most cases.  And there may be aspects of the costs your divorce over which you do not have control.  In some cases one spouse may be unwilling to negotiate in good faith and want to force the case to a trial.  However, the more responsibility you can take over the aspects of your divorce, the less the overall cost will be.

Things a Judge Cannot Do…

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sonia sotomayorJudges 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 19th birthday.  Even if the child remains enrolled in high school but will not graduate until after their 19th 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.

Best Lawyer Quote

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young gandhi“My joy was boundless.  I had learnt the true practice of law.  I had learnt to find out the better side of human nature and to enter men’s hearts.  I realized that the true function of a lawyer was to unite parties riven asunder.  The lesson was so indelibly burnt into me that a large part of my time during the next twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.  I lost nothing thereby — not even money, certainly not my soul.”

Mohandas K. Gandhi, 1957 from “An Autobiography: The Story of My Experiments with the Truth”

Although there are many quotes from great lawyers that remind us of our calling to serve and assist our clients, this is my favorite.  At a time when lawyers are too often the punch line in jokes, it is, I believe, helpful to remember the true good that the vast majority of our profession does on a daily basis.  I aspire to be a peacemaker for those who have hired me as a professional and to serve them in finding resolution to conflict.