As more and more couples are forgoing marriage and deciding instead to live together, one of the things I am constantly ask is, what are the biological father’s rights with regard to a child born outside of a marriage? Now granted the question is usually not framed as just written, usually it is much more traumatic such as “My girlfriend and I have lived together for 10 years and she recently left with our 6 year old and won’t let me see the child, can she do that?”
The answer, unfortunately, is a resounding YES. Which is usually followed by a jaw dropping look from the gentleman asking the question and the exasperated response of “how is that possible”? It is possible because it’s the law in Florida. Florida Statute 744.301 provides as follows:
(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.
After this revelation sets in I will sometimes hear “but I’m listed as the father on the child’s birth certificate.” While it is nice to be officially recognized as the father on a document recorded with the state and doing so creates the establishment of paternity, actually just a presumption within the first 60 days after the document is signed by both parents, it does not provide the unwed father with any parental rights. It does however, allow the mother or the child’s legal representative, the Florida Department of Revenue, the right to seek child support from the father without having to first establish the father’s paternity of the child in question.
So after all this, what is it that a biological father must do to see or share time with his child when the mother will not voluntarily allow the same? The answer is to file a Petition to Establish Paternity and Related Rights. Through that action the biological father can obtain parental rights equal to and shared by the mother and if circumstances dictate he may even obtain parental rights exceeding that of the mother. However, unless and until such a Petition is filed the biological father sees and shares time with his child/ren at the whim of the mother.
That old adage is as true today as the day it was coined and unfortunately for one Former Husband he learned, the hard and expensive way, how relevant that saying can be.
Our subject is Mr. Christensen who at one time or another was married to Mrs. Christensen but at the time of these unfortunate circumstances was divorced from Mrs. Christensen. However, just prior to their divorce the Christensen’s purchased a new car that was titled to both of them as co-owners. At the time of their divorce and as part of their divorce agreement Mrs. Christensen retained that car, used it as her own and parked it in her garage as one would do with a car they owned.
Not quite two years after the Christensen’s divorce Mrs. Christensen, while driving that very same car, struck and killed a pedestrian. The car, at the time of the accident, remained titled to both Mr. Christensen and his Former Wife as neither had applied to the Department of Motor Vehicles for a new title indicating that the car now legally belonged to Mrs. Christensen. As one might expect the pedestrian’s family sued the Former Wife under an allegation that she was negligently operating the vehicle at the time she hit the pedestrian. In addition, they also sued Mr. Christensen under the two interconnected legal theorys of Vicarious Liability and the Dangerous Instrumentality Doctrine. In their simplest forms Vicarious Liability is the imputation of liability upon one person for the actions of another and the Dangerous Instrumentality Doctrine serves to ensure financial recourse to members of the public who are injured by the negligent operation of a motor vehicle by imposing strict vicarious liability on those with an identifiable property ownership interest in the vehicle (ie. being a titled owner of the vehicle).
Of course Mr. Christensen argued that he should not be held liable or responsible for the actions of his Former Wife as he was not the true owner of the car, had no control over its use and in fact had no keys to the car after his divorce from the Former Wife. The jury at the Trial Court level agreed with Mr. Christensen and absolved him of any liability in the pedestrian’s death.
However, as is sometimes the case, the pedestrian’s family filed an appeal regarding the jury’s decision in the Trial Court asserting that because Mr. Christensen was a titled owner of the vehicle he was in fact liable under the legal theories of Vicarious Liability and the Dangerous Instrumentality Doctrine. The Appellate Court after reviewing the case agreed with the pedestrian’s family but, also due to what the Appellate Court believed to be a question of great public importance, certified the matter to the Supreme Court of Florida asking:
MAY A PERSON WHOSE NAME IS ON THE CERTIFICATE OF TITLE OF A VEHICLE AS CO–OWNER AVOID VICARIOUS LIABILITY UNDER AN EXCEPTION TO THE DANGEROUS INSTRUMENTALITY DOCTRINE BY ASSERTING THAT HE NEVER INTENDED TO BE THE OWNER OF THE VEHICLE AND FURTHER CLAIMING THAT HE RELINQUISHED CONTROL TO A CO–OWNER OF THE VEHICLE?
The Supreme Court answered the question with a resounding “NO” holding that Mr. Christensen, as a joint titleholder, had a legal right to encumber, sell, or take possession of the vehicle. Had he wished, he could have done any of the above, and the mere fact that he did not act on these legal rights does not alter or diminish their existence. Further, had the Former Mrs. Christensen died, Mr. Christensen would have inherited the vehicle because of his joint ownership interest. Therefore, he indisputably was in a position to exercise dominion and control over the vehicle and was a beneficial owner of the vehicle. Mr. Christensen could not avoid his liability and ultimately the money damages that where awarded to the pedestrian’s family for the loss of their loved one.
Unfortunately for Mr. Christensen the initial cost of protecting himself from this outcome was somewhere in the area of $75.00, the fee the Department of Motor Vehicles charges a person to transfer a title, a cost far outweighed by the thousands if not tens of thousands of dollars he paid to litigate his case up through the Supreme Court level. Hmmm, that reminds me of another saying: Penny Wise and Pound Foolish.
What’s that you say, you don’t have a Pre-nuptial Agreement. Sure you do you just didn’t negotiate it, write it or sign it. You didn’t do these things because the State of Florida wrote it for you and as far as your assets and liabilities; home, bank accounts, vehicles, businesses, retirement accounts, credit card debt, loans, taxes etc… ; are concerned the agreement goes something like this:
At the time the parties seek to end their marriage, regardless of the reason, they must first determine what assets and liabilities are marital and non-marital and then they shall set apart to each spouse that spouse's non-marital assets and liabilities.
But what are the marital and non-marital assets you ask. Not to worry, the State has taken care of that for you too: Paraphrasing from Florida Statue 61.075 with examples and comments italicized, marital assets and liabilities include:
1. Assets acquired and liabilities incurred during the marriage, by one spouse alone or by both of them together. That’s right, even if your spouse has a credit card in his or her name only and you didn’t know about it, your responsible for some portion of it.
2. The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. Ok, so lets assume you owned a business before you got married and you’ve continued to work and expand that business for the past ten years since you got married, well your spouse also equitably owns a portion of that business.
3. Spouse to spouse gifts during the marriage. Yep, that beautiful gold watch your spouse bought you for your last birthday, he of she is entitled to some portion of its value.
4. All vested and non-vested benefits obtained during the marriage in retirement and insurance plans. Yes, this would include your company 401K retirement plan and similar types of accounts.
5. All real-estate tilted in both parties’ names, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If you owned a home before the marriage and then changed the deed to reflect both you and your spouse are owners of the home it is presumed that you made a gift of one half of your interest in the home to your spouse. In addition, if you purchased a home during the marriage and paid for it with only funds obtained from your employment, obtained a mortgage in only your name and titled only in your name, your spouse is still entitled to a equitable share of the home’s value at the time of divorce.
6. All personal property titled in both parties names, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. Received an inheritance and placed it into a joint bank account you hold together with your spouse you just turned that non-marital asset into a marital asset that your spouse can receive a share of.
OK, so now we know what your State of Florida provided Pre-nuptial Agreement defines as a marital asset and liability what are the non-marital assets that you may, not necessarily will, get to keep after your divorce and what liabilities may you avoid. Again paraphrasing from Florida Statue 61.075(a) with examples and comments italicized, non-marital assets and liabilities include:
1. Assets acquired and liabilities incurred by either party prior to the marriage. But see number six above, if you change the title of those assets to reflect joint ownership or commingle non-marital liabilities with marital liabilities they may not remain non-marital assets and liabilities. Take for example Bob and Sue, at the time they got married Bob had $10,000 of non-marital debt (more appropriately referred to as pre-marital debt) on credit card A. During the course of the parties marriage Bob obtains credit card B and due to the great new lower interest rates Bob transfers the remainder of his balance from credit card A to credit card B and Bob and Sue continue to utilize credit card B for other purchases and make monthly payments toward the entire balance during the course of their marriage. At the time of Bob and Sue’s divorce credit card B has a balance of $8,000 but Sue remembers Bob’s $10,000 transfer of his pre-marital debt to that card and feels she should not be responsible for the same. Sue of course is correct, however, Bob’s pre-marital debt has now become so commingled with the marital debt that a court is more likely than not to rule that all debt associated with credit card B is marital debt.
2. Assets acquired separately by either party through inheritance. Again see the example under number six above. Understand now why I said you “may” get to keep these assets.
3. All income derived from non-marital assets during the marriage unless that income is used on a regular basis to pay for martial liabilities. Again were back to the “may” get to keep issue.
4. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a non-marital liability only of the party having committed the forgery or having affixed the unauthorized signature.
5. Assets and liabilities excluded from marital assets and liabilities by valid written agreement made by the parties. What? “valid written agreement”. You guessed it, the State allows you to avoid the pre-nuptial agreement it has made for you if you’d like to make your own pre-nuptial or post nuptial agreement with terms you and spouse agree to, as long as it is validly written and executed.
Continuing on with our State of Florida provided pre-nuptial agreement, once the parties determine what assets are martial and non-marital the marital assets and liabilities should be equitably distributed to each party with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
1. The contribution to the marriage by each spouse, including contributions as a parent and homemaker.
2. The current economic circumstances of each party.
3. The length of the marriage.
4. Any interruption of personal careers or educational opportunities of either party.
5. The contribution of one spouse to the personal career or educational opportunity of the other spouse.
6. The desirability of retaining any asset, such as a business, intact and free from any claim or interference by the other party.
7. The contribution of each spouse to the parties’ financial betterment or demise. As an interesting note to this factor, during a recent divorce involving a professional race car driver it was put forth by the Husband/driver that he should be entitled to retain a larger portion of the martial assets due to the inherent dangerousness of his occupation and the income realized by the parties due to his personally risky employment. The case was settled without the court ruling on the Husband’s novel pleading.
8. The desirability of keeping the marital home as a residence for any dependent child, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to do so until the child is emancipated or some other time.
9. The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition. We’ve all heard the urban legends of one spouse selling the other spouse’s expensive collector car for pennies on the dollar. This covers that situation assuming there are other marital assets available to balance the scornful sale.
10. And finally the all encompassing: any other factors necessary to do equity and justice between the parties.
Now you might be reading this and saying to yourself that most of this sounds fair, or not, but wait there’s more. Not only did the State of Florida write this pre-nuptial agreement for you but it also from time to time will modify the agreement without any direct notification to you. Case in point, lets assume you owned a home before you got married and on the day you got married the home was worth $250,000 with an outstanding mortgage of $100,000. Let’s further assume that you continued to pay down your mortgage after the day you got married from income you received from your employment.
Some 15 years later you find yourself in the middle of a divorce and now that same home is worth $300,000 and the mortgage has been paid down to $50.000. If you had gotten divorced a few years ago your spouse’s share of that home would be $25,000. An amount equal to 50% of the amount the home’s mortgage was reduced by during the marriage and nothing was given to your spouse just because the homes market value increased $50,000 over the 15 year period.
However, if you were getting divorced today your spouse’s share would have increased by another $25,000 to account for one half of the increased market value of the home realized over the 15 year period of the marriage for a total marital share of $50,000. So now your spouse receives both ½ the value the mortgage was reduced by, as well as ½ of the increase in the market value of the home that was realized during the marriage.
So even assuming you were aware at the time of your marriage what Florida was doing with regard to valuing marital shares of pre-marital homes and you were fine with that calculation. I think we can safely say that you wouldn’t be fine with the change in that calculation that was put into place without your consent or consultation.
Think a pre-nuptial or post-nuptial agreement might be in order for you and your prospective or current spouse? No wait, don’t answer that yet. Wait for our next newsletter to see what the State has to say about the alimony component of your State of Florida provide pre-nuptial agreement.
Having discussed what your State of Florida provided Pre-nuptial Agreement provides with regard to assets and debts incurred by the parties during the marriage in Part I of this article let’s take a look at the provisions for alimony. Again, what’s that you say, you don’t have a Pre-nuptial Agreement and again, sure you do you just didn’t negotiate it, write it or sign it. You didn’t do these things because the State of Florida wrote it for you and as far as your responsibility to support your spouse or right to receive such support after the end of the marriage is concerned the agreement goes something like this:
But wait I’m getting a little ahead of myself here. I should point out that the Florida provided Pre-nuptial Agreement that we are about to review only came into existence, in its current form, on July 1, 2010. Before that date the state had a previous version of these requirements that were modified by statutory amendment. Some of the changes were subtle and some were substantial and the relative degree of those changes would, of course, depend upon which side of the equation you were sitting. Suffice to say however, if you entered into a marriage prior to July 1, 2010 and had read the alimony provisions provided for under the then existing statute and decided that it was fine for your situation you may not be of the same opinion after the July 2010 amendments.
So with that said let’s see what the state has provided for you in its newest rendition of the alimony portions of your Pre-nuptial Agreement. First and foremost and regardless of the length of your marriage the parties must first determine whether or not one of the parties has need for alimony and if so, whether the other party has the ability to pay it. This by the way is a new provision. So what does this mean exactly? Does it mean that if the economically challenged spouse has enough income to meet his or her basic needs; housing, utilities, food, etc...; even though the other spouse has an income that far exceeds his or her basic needs that alimony is not available? Well, maybe and the courts have struggled with that question as well.
Nevertheless, let’s assume that we have a need and ability. Thereafter, because there is no set amount or duration for the alimony the parties must consider some factors of the marriage to determine the amount and the duration for the alimony. But what factors are relevant? Paraphrasing from Florida Statue 61.08 with examples and comments italicized, the relevant factors are:
(a) How the parties lived, financially speaking, during the marriage. Wait a minute doesn’t this seem to contradict the first thing that needed to be determined regarding need and ability. So what if the economically disadvantaged spouse can afford all his or her basic needs and take a weeklong vacation to Europe each year but during the marriage the parties took two weeklong vacations to Europe each year. Does that mean that the economically disadvantaged spouse is entitled to alimony? Well, again, maybe.
(b) The length of the marriage. This will become even more important under later language of your Florida provided Pre-Nuptial Agreement.
(c) The age, physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each. Ok, so assume the economically disadvantaged spouse receives an inheritance that provides him or her with a decent income from the stock portfolio included in the inheritance, could that prevent him or her from receiving alimony even though they would be entitled to the same if there was no inheritance? Possibly, and it would seem to be logical but let’s look at it from the other side of the equation. But for the divorce, the spouse receiving the inheritance income would be able to utilize that income for some of the luxury items available in life not just his or her basic needs. Doesn’t it seem that the economically advantaged spouse is being relieved or his or her duty at the cost of the other.
(e) The earning ability, education of the parties and, when applicable, the time necessary for either party to acquire sufficient skills to enable such party to find appropriate employment. Wow, that’s a lot in one factor. So one spouse is going to argue that the other could return to work making such and such amount of money and therefore has no need for alimony and the other is going to argue that he or she could never make the amount of money the other spouse makes and even if he or she could that earning ability has been decreased by such and such amount of years and as such their retirement years have been affected and they should be compensated for the same. Plausible arguments? Maybe.
(f) The contribution of each party to the marriage, including, but not limited to, homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common. Umm, I hear you say, I thought child support was supposed to cover that? Maybe.
(h) The tax treatment and consequences any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment. Are you thinking right now, “Hold on we’re not tax experts how on earth are we supposed to figure that out” Well, you may not be, but you’re probably going to have to hire one.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party. Kind of a repeat and combination of (d) and (e) above but just stated more concisely in case you didn’t think this was included in (d) or (e).
and, of course, the all encompassing:
(j) Any other factor necessary to do equity and justice between the parties.
Ok so now we know what factors we have to examine to determine the amount and duration of any alimony obligation or right created during your marriage, right? Not quite. Your Florida provided Pre-nuptial Agreement also includes some rules based upon the length of your marriage, what types of alimony may or may not be available based upon the length of your marriage and how even the type of alimony may be limited based upon the length of your marriage.
Let’s start with the types of alimony available again paraphrasing from Florida Statue 61.08 with examples and comments italicized, the available types of alimony are:
1. Bridge-the-gap alimony: is designed to assist one party by providing financial support to allow the party to make a transition from being married to being single. It must be for legitimate identifiable short-term needs, the length of the support cannot exceed 2 years, it terminates automatically upon the death of either party or remarriage of the receiving party and it cannot be modified in duration or amount. Think paying your spouse’s moving expenses and rent or mortgage payment for a while.
2. Rehabilitative alimony: is designed to help a party obtain skills or credentials that will help the party become self supporting. The parties must develop a specific stated plan of rehabilitation for the economically challenged spouse and this type of alimony may be modified or terminated earlier than initially anticipated; based upon a substantial change in circumstances, noncompliance with the plan or completion of the plan. Assume your spouse has always wanted to become a Dolphin Trainer (the mammal not the football player), or something else you always thought was ridiculous well you may be helping him or her financially obtain the training to become one after your marriage has ended. I personally don’t think Dolphin training is ridiculous but you might.
3. Durational alimony: is designed to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration where permanent alimony is inappropriate. It terminates upon the death of either party or upon the remarriage of the receiving party. It may be modified in amount or terminated early based upon a substantial change in circumstances but it cannot exceed the length of the marriage except under exceptional circumstances. You may have figured this out already, but let’s assume you are receiving durational alimony of $1,500 a month for a period of 10 years, the length of your marriage, and it was anticipated at the time you agreed to that amount that you would continue working in your present job earning $4,500 per month. Nine years and eleven months later your employer shuts it doors and your unemployed. Can you go back and renegotiate the alimony? Not likely. Why? Because the Florida legislature said so, that’s why.
4. Permanent alimony: is designed to provide for the needs and necessities of life as they were established during the marriage for a party who lacks the financial ability to meet his or her needs and necessities of life. It can be established following a marriage of long duration if appropriate after consideration of the factors mentioned above. It can be established following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors mentioned above, or following a marriage of short duration if there are exceptional circumstances. Before awarding this type of alimony it must be determined that no other form of alimony is fair and reasonable under the circumstances of the parties. It terminates upon the death of either party or upon the remarriage of the party receiving alimony. It may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship of the receiving party. Terminated due to supportive relationship? Yes, basically a relationship with a third party, not necessarily an intimate relationship, in which the alimony receiving party and the third party are sharing living expenses, holding joint financial accounts or otherwise financially supporting one another or the third party is financially supporting the alimony receiving spouse.
So now you know the factors relevant to determining alimony and what types of alimony are available under your Florida provided Pre-Nuptial Agreement. But, your saying “wait” what was all that talk about short, moderate, and long duration marriages that was mentioned above. Not to worry the state has figured that out for you as well. A short duration marriage is one less than 7 years in length, a moderate duration marriage is greater than 7 years but less than 17 years, and long duration marriage is a marriage having a duration of 17 years or greater. But what about the situations where the parties were together for numerous years before getting married and the marriage really only represents a small portion of the parties total relationship. Simply stated it doesn’t matter and this Florida provided Pre-nuptial Agreement doesn’t address it.
Having read through this article and Part I preceding it you may have noticed that your Florida provided Pre-nuptial Agreement requires numerous questions to be decided and more appropriately stated argued and you would be absolutely right. So when you hear comments like “I can’t believe how much time it took for me to get divorced and the unbelievable costs” from friends, neighbors and co-workers, now you should have some idea as to why and we haven’t even touched upon the issues of child/parent time sharing and parental responsibility.
So I’ll ask the question again, do you think a pre-nuptial or post-nuptial agreement might be in order for you and your prospective or current spouse?
We’ve all heard the urban legends about one spouse selling the other spouse’s prized possession, usually a most sought after vehicle like an original 1966 Shelby Cobra 427 Super Snake or something similar, for pennies on the dollar through a local classified add that a friend of a friend of a third removed cousin’s brother saw one Saturday morning, called and ended up getting the deal of the century. All because the spouse selling the car was upset at the other and usually in the middle of, or maybe as a precursor to, a nasty divorce.
Can this happen? Well I’m sure at sometime, somewhere such a sale took place. But, does that mean the spouse that did the dastardly deal got away with it? Not likely, at least not if the injured spouse was our client. Florida is an equitable distribution state and that term is used to describe how the marital assets and debts of a divorcing couple are divided between the parties at the time of the divorce. Notice that it is not referred to as equal distribution, this is because the particular equities of a particular divorce case may not require or rather may not justify an equal division of all assets and debts between the parties. One example of such an outcome could be to balance the asset equities of a couple where one of them completed a sale as mentioned above.
So how would this work? Let’s assume the vehicle sold by the angered spouse was in fact a marital asset and was worth $50,000 (in reality the Cobra mentioned above was sold at auction for 5.5 Million in 2007, it’s a very special car, to say the least) as such each spouse has an owned equitable value in the vehicle worth $25,000. Let us further assume, according to urban legend, that the spouse selling the vehicle sold it for $50.00. Pursuant to Florida statutes defining and controlling the equitable distribution of marital assets the Court is instructed to review numerous factors, if presented with the proper legal arguments, and one of those factors is the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition for divorce or within 2 years prior to the filing of the petition. Now that factor would seem to cover our urban legend situation and even if it didn’t the Court is also instructed to consider “any other factors necessary to do equity and justice between the parties.” So the Court receives testimony and evidence regarding the sale of the vehicle, its sale price, its actual value on the date of the sale and further evidence that the complaining spouse did not in fact cooperate or otherwise approve of the sale of the vehicle. What is the likely outcome? Well we know from the above facts (urban legend) that the vehicle was worth $50,000 and one spouse sold it for $50.00 when they would have been entitled to receive $25,000 as his or her equitable share of the vehicle with the other spouse receiving $25,000 as their respective share. As such. what would be equitable here, would be for a the Court to rule that the selling spouse gave away $24,950 ($25,000 - $50.00) of his or her equitable share in the ill advised sale and owes to the other spouse $25,000 for that spouse’s equitable share due to the selling spouse’s intentional dissipation, waste, depletion, or destruction of the marital vehicle. Moreover, the Court, to balance the parties’ asset equities, would award the injured spouse $25,000 of equity that would otherwise belong to the selling spouse in some other marital asset be it the marital home, another vehicle and/or a retirement account. Regardless of the actual item used to balance the equities the selling spouse will end up being the only one to actually lose the value due to his or her vindictive actions. Probably not what he or she had hoped to accomplish.
You and your spouse have decided, or have been ordered by the court, to utilize the services of a mediator to help reach a settlement in your divorce. But do you still need an attorney? The short answer is, it certainly can’t hurt to consult with an attorney before beginning the mediation process but it could be devastating if you don’t. What you must realize is regardless of the mediator’s qualifications he or she cannot give you legal advice, cannot advise you of your rights under the specific facts of your case and cannot tell you if the agreement you have just negotiated and about to sign is really in your or your family’s best interest.
Mediation is a fantastic process that allows you and your spouse to control the outcome of your divorce, creating a tailor made solution that considers all members of the family. But if you don’t know your rights and responsibilities under the law that controls divorce proceedings in your state, how can you possibly expect to reach a fair settlement. And please don’t be fooled into thinking that you can avoid your agreement after it is signed just because it is unfair. The court will allow you to enter into a bad agreement and will enforce that agreement against you if requested to do so by your former spouse.
All too often I have met with a prospective client who, after signing a mediated agreement, is seeking some way to avoid the once unrealized consequences of that agreement or seeking to enforce an agreement that is unfortunately written in such a way as to make it unenforceable. The following is just a small sample of some of the mistakes I have seen unrepresented couples make when reaching and drafting mediated divorce settlement agreements:
Agreeing to sell the marital home and distribute the proceeds of the same without addressing the details of what price the home should be listed at,which party shall be responsible for the carrying cost of the home until it is sold, which realtor shall be utilized to sell the home, etc…
One spouse agreeing to give up an asset because that spouse didn’t believe they were entitled to a share of the same or the inverse giving to the other party a share of an asset only to later learn that the other spouse had no legal claim to that asset in the first place. (i.e. not knowing what is and is not a marital asset and each parties’ respective rights regarding the same)
Improperly valuing an asset, more often than not a retirement account and thereby giving up thousands if not, hundreds of thousands of dollars that the party was otherwise entitled to.
Failing to be compensated for a debt held in the name of one of the parties but which represents a marital debt just the same. (i.e. not knowing what is andwhat is not a marital debt and each party’s responsibilities regarding the same.)
One spouse agreeing to pay child support above the state child support guideline amount with the belief that he or she can modify the amount at their whim just because the amount is above the guideline amount.
Agreeing to pay spousal support or the inverse agreeing to not receive spousal support based upon mistaken assumptions. (i.e. not knowing the laws of the state with regard to spousal support.)
Were these mistakes the result of a poorly trained or inexperienced mediator? No, the mediator may have been excellent in helping the parties draw up a peaceful agreement for their divorce. He or she may have been able to give the parties some basic, relevant information about the divorce laws in their state. But the mediator must at all times during the mediation remain neutral, and as stated above he or she cannot give the parties or either of them legal advice and the only sure way to avoid mistakes in the agreement is to receive the proper legal advice.
So when should an attorney be consulted, before mediation, during mediation, or after? Again the short answer is during all phases. Having an attorney by your side throughout the mediation process is highly recommended but if funding is limited finding a mediation-friendly attorney to assist you prior to attending the mediation is money well spent. At that juncture your attorney can assess the facts of the case, review pertinent financial information and ultimately develop a plan for your mediation. A seasoned family law attorney can identify issues that you may not have been aware of, dispel any misconceptions you may have regarding your rights and responsibilities under the law and provide you with some guidance as to how your judge is likely to rule on the particular issues in your case if in fact the issue is presented for that decision. Why is that important to know how you judge may rule on one particular issue or another if your main goal is to settle the case without court involvement? It’s important because it informs you as to what issues you may wish to hold steadfast upon during the mediation and those that you should be willing to compromise upon.
Is that all you need to assure that you end up with a well written and comprehensive mediation agreement? Absolutely not, but if you can’t retain an attorney to assist you throughout the process at least you can enter into it with some relevant knowledge and a plan for a successful mediation. The only sure way to confirm that you end up with a well written and comprehensive mediation agreement is to have that agreement reviewed by a Family Law attorney BEFORE the settlement agreement is signed. Again a seasoned Family Law attorney is trained and has the experience to recognize issues and deficiencies in agreements that would not generally be recognized by the parties themselves or even the mediator or the mediator may have noticed the issue but due to their roll in the mediation process is ethically restricted for one reason or the other from bring the issue to one or both parties attention. The down side with consulting an attorney after mediation and before the settlement agreement is signed, and only during that phase, is that you may be advised not to sign the agreement due to one deficiency or the other. Now that deficiency could be corrected with a small modification of the agreement language that the parties readily agree to or it could result in the need of a complete redraft of the agreement to which neither party may agree placing them back in the same position as they were before the mediation took place and resulting in a great amount of lost time, money and spent emotions.
So what type of attorney should you be looking for to assist you during, prior to or after the mediation but BEFORE the agreement is signed? Your consulting or reviewing attorney should be mediation friendly, so you may want to avoid the attorney who was referred to you because he or she is a “bulldog litigator”. While battling it out may be lucrative for lawyers, it could result in draining your financial and emotional resources, and likely will not result in the best arrangement for you and your family. Preferably, your attorney should also be mediator or at least be trained in mediation. At a minimum they should understand the mediation process and be clear in what you want to accomplish. You will also want to choose an attorney who specializes in divorce in your state. Family law is very fact specific and decided on case-by-case basis, and you want your attorney to be up to date with the most recent case law that is relevant to your case. Matrimonial law differs state by state and while there are similarities between states there are also some very large differences as well. So advice from the best New York divorce attorney could prove absolutely useless in a Florida case. You should be able to speak freely with your attorney and he or she should be able to explain complicated legal wording in language you can understand. Finally, the attorney should have good reputation in your jurisdiction, ask around, Google him or her, check with his or her respective legal bar and confirm that they are in good standing.
Obtaining independent legal advice from a mediation friendly divorce attorney is an important step in the divorce mediation process. Doing so gives you the best and possibly only chance to ensure that you understand every word of the agreement, that it says what you intend it to, that it is enforceable and that it is fair to you and your family. Hiring an attorney to assist you during your mediation is not without some cost but making that investment should save you time, money and angst in the years to come.
Author: Daniel Bachert
Mr. Bachert is a Matrimonial/Family Law attorney and Florida Supreme Court Certified Family Law mediator practicing within Broward, Palm Beach, Martin and St. Lucie counties of south east Florida.