Author: Sharon O'Day

2013 Florida Case Law Update

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Law is Order and Good Law is Good Order.  Aristotle

I am honored to be presenting the 2013 Florida Case Law Update at the Family Court Professional Collaborative meeting this year.  There are over 130 appellate cases that have an impact on Family Law in the state of Florida decided by our Courts this year.

While I am a firm believer that the law should not be the sole determinant, or in some cases even the prime consideration, in deciding how a dissolution of marriage should be resolved, knowledge of the law is often a helpful starting point.  To know what is possible, sometimes it is important to know what is not possible, at least as determined by the law.

I have attached a link to this years Case Law Update here.

Find Your Calling!

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2013-10-12 10.01.10

“The two most important days in your life are the day you are born and the day you find out why.”  Mark Twain

You know you have found a calling when…

Today I got up before the crack of dawn to walk the dog and feed the dog and cat.  This is normal most days but on Saturdays I can usually sleep in a bit.  At least until 7:30 when I have to get up and walk the dog before yoga.  But today, I was up at my normal weekday time of 6:00 to walk the dog and get busy.  This Saturday was a bit different because I had to be downtown for the annual Walk to End Alzheimer’s Disease.  It was what I used to think of as “marketing”.  I was sponsoring a table and talking to people about what I do.  But today was not about “marketing”.  It was about meeting new people, working together for a good cause and spreading the word of an opportunity that few people know about — my work as a mediator.

Last week I walked in the Bradenton walk.  This week I was honored to be a sponsor for the Sarasota walk.  I was also able to join hundreds of people out raising money and awareness as we walked and talked and laughed together.  This evening I wanted to share the joy I felt to be out today and the joy I feel in my life.  I have found my calling and it makes me happy.

So, what are some of the signs that you have found your calling?  These are mine:

“Pleasure in the job puts perfection in the work.”  Aristotle

Things that are usually thought of as hard work come easily.  Getting up early, working late, working seven days a week and wishing there was one more day for you to work.   Time flies when you are having fun.  It also flies, perhaps faster, when you are driven, dedicated and committed to your path.

“Don’t give up trying to do what you really want to do.  Where there is love and inspiration I don’t think you can go wrong.”  Ella Fitzgerald

Good things happen and you don’t even know how.  Since closing my litigation practice and committing to peacemaking through mediation, I have been so blessed to have good things happen.  I have been invited to speak at several conferences.  I have two more speaking engagements coming before the end of the year.  I have been inspired to write and spread my knowledge.  I have been honored to be a chosen as the mediator and facilitator by many new clients.  Good things happen when you are on the right path.

“The only way to do great work is to love what you do.”   Steve Jobs

When you stray from the path it is easy to find your way back.  Just because you have found a calling doesn’t mean that the path is always clear.  It is just as easy to stray from the path.  There are obstacles and bumps in the road.   But, you sense the shift in the terrain much easier and find your way back to the path, the place that feels right, so much easier when you are on the “right path”.

Things come to you as you need them.    Mentors, money, opportunity… All of these have come to me more easily and in great abundance since I changed my path.   Also, smiles, sleep and health.  It is not magic, although sometimes it feels that way.  It is the energy that we produce when we do what we love and the confidence that we exude when we know we have chosen well.  This is not to say that I don’t worry.  After all, who starts a new business and doesn’t loose a few nights sleep.  But now when I can’t sleep it is because I have things to do and I want to do them.

 “Your work is to discover your work and then with all your heart to give yourself to it.”  Buddha

Work isn’t work.  When I was a litigator I hated “marketing”, spreading the word of what I did and seeking out clients.  Now, I love every opportunity to tell people what I do. I look for any chance to help people find solutions to the troubles they have in their lives and in their families.  Even the mundane tasks that face every business woman are easier when it is part of a bigger picture.

My career has been very circuitous.  I heard recently that a child coming of age now will have fourteen careers in their adult life.  Not jobs but careers.  I have had at least six.  I have been an administrator, a researcher, an advocate, a diplomat, a lawyer and a mediator.   Each has been appropriate for a time in my life.  Each has somehow built upon the last.  Each has filled a need.  But the place I find myself now feels like a pinnacle.  This path feels right.  I finally know what I want to be when I grow up.  The trip has been fun, but I am glad that I have arrived.

PEACEful Divorce: A checklist for dissolving a marriage

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sito_Peace_Flowers“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.

Knowledge is the Key to Great Negotiations

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In less enlightened times, the best way to impress women was to own a hot car. But women wised up and realized it was better to buy their own hot cars so they wouldn’t have to ride around with jerks.  

Scott Adams, American cartoonist

I am thrilled to be facilitating a workshop at the 21st Annual Conference for ADR Professionals: “Expanding Our Horizons” on August 9-10, 2013, at the JW Marriott Grande Lakes in Orlando, Florida.  My Workshop is “Diversity: Delights and Downfalls”, a session that will explore in particular age and gender issues in mediation.  In preparing for the session, I have been reading a lot of articles and research papers about women in negotiations.

One such article, published a while ago but that came back to my attention with this research is a story that ran on NPR in January 2012: Women’s Car-Shopping Tactics Steer Them Toward Better Deals by Dana Farrington.  The main point of the story was that women were often getting better deals than men in the traditionally masculine realm of car buying.  According to the article, the reason that women are doing so much better at getting good deals in the car dealership is because women over research the event before being approached by the salesman.  Women had researched the details of the car, price, and financing terms and were in fact over prepared for the purchase.  By the time they enter the dealership they are not “browsers” but rather well informed buyers.  Because of this, they are prepared to negotiate a reasonable deal for this substantial purchase.

The reason I bring this up is not to further divide the genders.  Rather, the lesson to be learned here is perhaps the most important  lesson in any negotiation or mediation for everyone.  The most critical time of every negotiation occurs before you enter the room.  The most important investment is the time spent preparing.  Every time you enter into a negotiation the importance of the outcome  should be equal to the investment of your time in preparing.  If you are negotiating what movie you will see with your spouse, you may want to investigate the basic synopsis and reviews of the latest blockbusters.  If you are negotiating the terms of your divorce from your spouse you want to do a lot more research on parenting issues, values of assets and liabilities, income potentials of both of you and your partner.  If you are negotiating an international trade agreement, the research will obviously be incredibly complex and detailed.

As a mediator, the greatest downfall I see in mediation conferences is the lack of preparation by the parties.  You cannot expect favorable outcomes if you do not invest the time in detailed preparations.  This is why you should be as well prepared for the informal mediation process as you would be for the formal litigation process.

A New Reality for Elder Care

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“It’s paradoxical that the idea of living a long life appeals to everyone, but the idea of getting old doesn’t appeal to anyone.” Andy Rooney

The Herald Tribune, Sarasota is publishing a three articles series on in-home care for our aging population.  This is a fascinating series and I highly recommend that everyone read it.  http://www.heraldtribune.com/article/20130526/ARTICLE/130529745/2416/NEWS?p=1&tc=pg

The series should help bring awareness that every family needs a plan to meet the needs of our loved ones as they age.  The articles point out how difficult and expensive it can be to find quality in home care.  While surveys have shown that most people wish to live out their lives in their own homes, many cannot afford the care that is necessary to fulfill this wish.  Often, to make ends meet, in home care is provided by family members who may have to make major life changes to meet the needs of their loved ones.

These problems and issues should be addressed head on by all concerned loved ones.  If everyone cannot agree upon the best solutions then they can look to elder mediation as a way to explore all possible ways to address the needs of the elder.  With elder mediation we bring together the interested family members, the caregivers and the experts in the field to ensure that all issues are appropriately addressed and resolved.

Elder Mediation — The Time is Now

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A happy family is but an earlier heaven. George Bernard Shaw

I am often asked “what is elder mediation?” People are familiar with the concept of family mediation in a divorce or contested custody dispute. Mediation is also often used in workplace conflicts or personal injury cases. But not many people have heard of Elder Mediation. This is truly a shame, because with the aging baby boomers and the increase in longevity, the need for elder mediation is growing, even if it is not yet a widely known form of conflict resolution.

The easiest way for me to explain Elder Mediation is with a story:

A graceful widow in her 80s has three adult children whom she loves dearly. Unfortunately, while they love her, the relationship between the three siblings is not close. There is a certain amount of mistrust and antagonism between the three children. Thanksgiving is usually the only time they all get together with their mom. The rest of the time the children are spread around the country, doing their own thing.

One day in early April the eldest child, the son, who lives in New York, calls his two sisters to announce that he has had a conversation with mom and has decided that he will use his Power of Attorney to sell her house and move her to an assisted living. When the two younger sisters resist this decision, he explains that he is very concerned that mom has become too fragile and her memory is slipping. He is worried about the liability if she is driving and her safety if she is home alone.

The second child lives in California and was home to visit mom in Florida in January and protests that, when she was there, mom was perfectly fine. Mom told her she wanted to stay in the house that she lived in with her late husband forever. This daughter says that she knows the son was always too controlling and now just wants to control mom’s money. The siblings reply that the middle child was always a bit of a flake and never really did want to consider the hard truth of mom getting older and frail.

Finally, the youngest daughter pipes up that she has also spoken with mom and the two of them have decided that the youngest should sell her home and move in mom to help her out. This would mean quitting her job but mom would pay her to run errands and fix her meals. Mom even promised she could have the family house after mom passed if she would take care of her in her golden years. The other two protest that the youngest is just plotting to take over the house and that this was not what dad wanted before he passed.

The truth is, that when each child calls mom and talks about their plans to care for her, she is agreeable to each scenario. She usually responds with “your right darling. I will tell your siblings that you are right” but then, when the next call comes she agrees with the plans of that child. Her main concern is to limit conflict in her life and to try to have as many peaceful Thanksgiving as she may have left.

In many families, the son may use the Power of Attorney to list the house and start looking for a way to move mom to an assisted living facility. The sisters may then try to intervene by filing for a guardianship or trying to convince mom to revoke the power of attorney and issue a new one to one of the girls. Lawyers are hired by each side and considerable money is spent fighting between the siblings. Meanwhile the animosity between the children grows to hatred and there are no more Thanksgivings together at all.

The other alternative is to seek out an elder mediator to help. With elder mediation we bring everyone together to examine all of the issues and seek out the best solution that will meet as many of the interests as possible. The participants consult with outside professionals such as estate planning attorneys, geriatric care specialists, community resource professionals and financial planners to have all of the information that is necessary. Elder mediation provides a confidential process to find solutions that are respectful of everyone and considers everyone’s concerns. The mediator is a specially trained neutral professional who does not impose any decisions but rather seeks out alternatives that best meet the needs of the elder and the family.

The elder mediator can address a multitude of issues for families in transition including, caregiver issues, financial management, living arrangements, health care planning, driving and safety issues, family business planning and estate and trust issues. If you think elder mediation can help your family, make sure to look for a professional certified as a mediator, with training in elder issues and experience with the complexities of family dynamics.

Collaborative Law — A Paradigm Shift to a New Beginning

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It is the long history of humankind (and animal kind, too) those who learned to collaborate and improvise most effectively have prevailed. —Charles Darwin

This week I attended the Inaugural Collaborative Family Law Conference of the Collaborative Family Law Council of Florida. It was so exciting to attend a conference with so many professionals dedicated to resolving family conflict in a peaceful and non-litigated way. We had workshops on negotiation techniques, helping clients through collaboration, creative financial solutions in collaborative cases and optimizing the mental health professionals in collaborative law.

But, perhaps my favorite workshops were the ones that addressed ways to spread the word of collaborative law. This is because I so much enjoy bringing this concept to my clients and facing the trauma of divorce and family litigation. After representing so many individuals in family court I have come to the absolute and unshakable belief that our adversarial process is the worst alternative for most families in transition. The decision to get a divorce is already one of the most painful and frightening decisions that a person can make. The husband and wife are already under enormous stress because of the facts that lead them to the lawyers office for the initial consultation. Too often the divorce is precipitated by financial difficulties, disagreements about child rearing, or perhaps the mistrust bred by infidelity. To then force the couple into a rigidly structured judicial system that rewards the best adversary with a “win” is so destructive to the family on many levels.

It is, I believe, common knowledge that litigation is extremely expensive.  The idea that one side should play “hide and seek” with information and only provide it to the other side when ordered to by a court is clearly not cost effective.  As a litigation attorney I have seen how the price of a divorce and continue to climb as we conduct depositions, business valuations, forensic accounting reviews, social investigations, and every expanding legal discovery.  Clearly all of this legal rangling takes a long time to play out while all of the parties lives are on hold.  Perhaps most tragic of all though is the emotional toll the litigated divorce has on the parties and their children.  As animosity is escalated, the children clearly suffer.

So, some professionals that have worked in the system for many years have developed an alternative. The new system, Collaborative Law, allows the participants, the divorcing couples and their lawyers, to work together with trained financial and mental health professionals to find the best solutions to the issues that need to be resolved by the family. The main premise of a Collaborative Divorce is that the clients and the attorneys work together through negotiations to reach a settlement which meets as many of the parties needs as possible. The process is client and child focused. The parties agree to be open and honest in their communication and in providing all necessary documents or information to make informed decisions. The participants all promise to be respectful and honor the dignity of the process and the participants. Everyone involved in the process is committed to working towards healing the parties and the family.  This means that the threats and intimidation are not used and there is never a goal of forcing the other side to prove their case to be successful.

Perhaps the hardest element of the collaborative process for untrained attorneys to grasp and agree to is the participation agreement. This contract, signed by the parties and the attorneys, provides that, should the collaborative process fail, the clients will retain new counsel to begin again. Most lawyers not trained in collaborative law will say, “I will work with the other side, but I will not sign a collaborative contract. I want to represent my client if settlement doesn’t work.” I am all too familiar with this statement because I made it before I understood the Paradigm shift. The shift is what allows the collaborative professional to fully participate in the process. The shift is when the collaborative attorney commits to laying down all the weapons in their litigation arsenal and fully embrace the new way of thinking and speaking that is completely collaborative.

Collaborative Divorce is the new big thing in family law.  It is also working its way into other areas of law when parties want to avoid litigation and find a new way to resolve conflict.  It is important, if you are thinking of seeking a collaborative divorce, that you ask questions of your professional to ensure that they are truly as committed to the process as you are. Ask about their training, their understanding of the process and their willingness to sign a participation agreement. Ask if they have a membership in a collaborative group in their area. There are no state guidelines for collaborative professionals in most states yet. But there are a growing number of professionals committed to this creative idea. Having spent two full days in a conference full of such professionals, I can tell you that you really “know it when you see it”.