Not Your Typical Divorce Stories

Discovery Methods Part I

2011-05-07T13:11:00.002-04:00

In any legal proceeding in Family & Marital law, be it a Divorce action, Paternity action, Modification of Child Support and/or Modification of Contact with of Children, both litigants are equipped with the ability to discover information from the other prior to any hearing, mediation, trial or any other proceeding in the case. Normally, this process called “Discovery” immediately follows the filing of pleadings in the case. The acquisition of information is vital to the proper preparation of a case.

Discovery affords each party not only the ability to determine the financial status of the other party but also extends to questions pertaining to the other party’s interests in sharing time with the minor children, the employment by the other party of a private investigator and/or other experts which the other party may intend to use in the proceedings.

The questions put forth in discovery are not limited to information which is admissible at future proceedings. In fact, the requests need only seek to obtain information which may reasonably lead to the discovery of admissible evidence. There are several different forms of discovery which include the following:

1. Request to Produce Documents

In this request, a party normally seeks to obtain financial documents from the other party for the purpose of determining their income, assets and debts. Such information is essential to a determination of child support, alimony and the equitable distribution of the marital estate. Typical documents sought in a request to produce are filed personal income tax returns, W-2s, 1099s, K-1s, etc; corporate or business tax returns including all attachments filed therewith, recent pay stubs (if the party is employed) or the ledgers and accounts of any business owned in whole or in part by the other party. Loan applications over the past several years may reveal that a party may state inflated income under oath to secure the loan which raises serious questions regarding that party’s actual income. In such an instance, a deposition or request for admissions (discussed below) may be necessary to follow up on a discrepancy. Monthly credit card statements, bank statements, retirement account statements, pension information, etc. are also commonly sought.

2. Interrogatories

Interrogatories are written questions propounded on the opposing party which most often seek information which augment the production of documents and also provide additional information. While interrogatories are limited to the scope of written questions, the answers to the questions must be answered under oath and notarized. One major benefit of using interrogatories as opposed to taking a deposition is the additional substantial expense of a deposition. Once the written responses are received and reviewed, further sets of interrogatories may be propounded to follow up on the initial responses.

3. Depositions

The taking of a deposition is normally employed after receiving documents produced and the answers to interrogatories. My policy is normally to wait until the parties have had at least one opportunity to reach an agreement at mediation (a mandatory process before noticing a case for trial) before scheduling a deposition, but this will depend on the thoroughness of production and the frankness with which the interrogatories were answered.

Depositions are taken before a Court Reporter who records everything stated on the record. Both parties will typically have their counsel with them at a deposition. The party taking the deposition will spend several hours with counsel preparing questions for a deposition and will also determine if additional documents be produced at the deposition. If a party wishes to request additional documents, a subpoena duces tecum will be sent with the notice of deposition requiring the party being deposed to bring specific documents with them to the deposition. Depositions normally last several hours and with the cost of the court reporter and two attorneys may be financially prohibitive in some circumstances.

4. Requests for Admissions

This method of discovery is normally employed when a party has a suspicion that the other party may be holding back certain specific information relevant to the issues in the case. Before going to the expense of investigating such a suspicion, a party may send a request for admission to the other party asking them to admit to the authenticity or existence of certain information/documentation. The party receiving such a request must be very careful to honestly respond to these requests under oath because if they deny a request which is honesty should be admitted, and the party thereafter discovers evidence showing the request should have been admitted, the party sending the request will be entitled to recovery the attorney’s fees and costs associated with investigating and acquiring evidence that the request should have been admitted. In as much as this expense may be prohibitive, the responding party will normally make a proper admission rather than take the risk of incurring the expense.

In Part II, coming next week, I will explore the ramifications of failing to deal thoroughly in discovery matters, the procedure and the approximate time involved in moving through this process to mediation and beyond.

Quasi-Contested Cases & Mediation

2010-05-07T08:52:00.001-04:00

I have been out of town attending to an ill family member, and apologize for the delay in bringing this topic to you.

Many clients who consult with me about an impending divorce inform me that they believe their matter can be handled in an uncontested manner. I always suggest that handling an emotionally charged matter such as a divorce in this way is recommended, but I caution that it must be done carefully and thoughtfully. If minor children are involved it may be more complicated, but it is well worth exploring.

The first thing that is required is for both parties to complete a Family Law Financial Affidavit which is executed under oath. The parties then share this information. These documents are carefully reviewed, and if any information is questioned, an informal request for supporting documentation is sent to the other party or their counsel. By requiring each party to file this affidavit, the other party is protected in the event that misinformation is contained therein. Consequently, if a party discovers after the entry of a Final Judgment dissolving the marriage that the other party misstated facts, the case may be reopened and the Court will be able to redistribute the distribution of assets and debts as well as support awards and fee awards. By filing the affidavit under oath, the party doing so is also subject to sanctions for perjury.

Once all vital information is gathered, a Marital Settlement Agreement is drafted and then sent to the other party or their counsel for review. Many times the terms contained in the agreement are renegotiated. It does not take long to determine whether or not a truly uncontested case is viable.

If the parties are unable to agree after counter-offers are presented, the case will be considered a contested one to the extent that additional discovery is required and mediation is set with a certified mediator. Parties have the option to use County Mediation or to agree on a private mediator. Although private mediators cost substantially more than the County process, it is my experience that private mediators are more likely to obtain results.

If the parties are able to reach an agreement at mediation, (mediation may be continued and a second mediation held if the parties are making progress,) then the case is essentially over. The Mediated Agreement is incorporated into a Final Judgment and a Final Hearing is held when the Court dissolves the marriage. However, if mediation results in an impasse, the case is noticed for trial, which is an expensive and time-consuming process. The good news is that, in Florida, approximately 85% of cases taken to mediation are resolved at that point in the process.

The next blog will address the various forms of discovery available to litigants, and later I will discuss the use of expert witnesses in the process, including experts who limit their analysis to a proper parenting plan for minor children.

The Procedure of Dissolving a Marriage

2010-02-01T09:19:00.000-05:00

Part I. The Uncontested Divorce

I prefer to personally speak to any prospective client who contacts my office seeking to dissolve a marriage. Invariably, these prospective clients have several questions which they consider extremely important. Once I have determined that they are seeking counsel for a marital/family law matter, we speak for about 5-10 minutes before setting a time for the initial consultation. In 28 years, the most asked question is: “How much will this cost and how long will it take?” Although such a question seems straightforward, there is no simple answer. The reason? Divorces may take several different courses and time and cost are directly related to procedure.

I first try to determine the level of communication between the parties. If I am informed that the parties discuss their problems and work to cooperate in resolving their problems, I suggest that they may be able to proceed amicably through an “uncontested” dissolution process. In this way, they will save both time and money. On its face, this seems to be the best method for resolving a dispute; however, there are obstacles which may impede such a process. Whether or not a party may proceed uncontested (or through the process of collaborative law) depends largely on communication. It requires both parties to be forthcoming in the disclosure of all information relevant to the proceedings. Beyond communication, both parties must disclose all financial information requested by the other. This is accomplished by the filing of a notarized Family Law Financial Affidavit and supporting financial documentation. Without getting into great detail, this requires the sharing of the past 3-5 years of federal tax returns (W-2s, 1099s and K-1s), pay stubs (or the ledgers for businesses owned by either party, retirement benefit statements, credit card statements, loan applications, bank statements, etc. If a party refuses to provide such requested information, the requesting party will be unable to ascertain the equity of proposed settlement agreement.

However, if the parties concur that they both understand the extent and nature of their assets and debts, there is no purpose in proceeding beyond the mandatory financial affidavit.

If the parties have minor children, and I am informed that the parties have agreed to a specific Parenting Plan (setting forth the specific time sharing of minor children), many times I am asked if they may agree to a reduced child support award. I point out that the Court will require that child support must conform to the guidelines set forth in the statute. Financial support for a minor child(ren) can not be negotiated away by the primary time sharing parent. It is the child who is entitled to the support. A 5% variance is permitted, but most questions seek a substantial variation in the guideline amount. Child support in Florida is primarily driven by the following factors: {A} the income of the Mother, {B} the income of the Father, {C} the cost of day care, before school care and/or after school care and {D} the cost of health insurance premiums specifically identified for the minor children.

Even in an uncontested matter, the Court will require that a Child Support Guideline Worksheet be filed at the final hearing (required in most judicial districts including Orange County, Florida) and which the Judge will cross match with the provision in the Marital Settlement Agreement/Final Judgment before entering an order dissolving the marriage.

Although I encourage clients to attempt to resolve their problems without the need for Court intervention and/or protracted litigation, caution must be used in long term marriages and ones involving minor children. Unless my client is absolutely certain of all of the financial resources of the marriage, it is best to acquire this information prior to entering into an agreement. While the financial affidavit is mandatory, the exchange of financial documents may be pared down to just the questionable aspects of the marriage. It is always best to be prudent and acquire necessary information rather than entering into an agreement which one may regret in the future.

NEXT IN THIS SERIES: Quasi-Contested Cases & Mediation

A History of the Custody of Children, Part Two

2009-12-15T14:02:00.000-05:00

I apologize for the delay in finishing the article on the custody of children from the 1960s through the mid to late 1990s. I have been busy traveling to Pennsylvania to visit my Father who was recently diagnosed with cancer and, given my workload, my time here in Orlando has been consumed with tending to my case load.

We left off with a review of the expansion of time sharing for the secondary residential parent and the increasing role the psychiatric experts play in making recommendations. These recommendations carry much weight with the Courts as they are trained to evaluate the parents and children and, based on their psychiatric testing determine, what arrangement is in the best interests of the children. Judges and lawyers have increasingly relied on these opinions. As I related, the trend of the recommendations tended to expand the role of both parents' involvement in the lives of the children.

From the late 1990s through the present, judges acknowledged that a stigma existed whereby the secondary parent felt that such a classification put them in an inferior position. Simply applying the term "secondary" in and of itself was causing stress for that parent. As a consequence, the secondary parent was defensive when discussing the interests of the children with the primary parent, and in some cases, the primary parent would talk down to the other parent. Obviously, this tension was counter-productive to the free exchange of essential information which would benefit children.

In Florida, the Family Law attorneys made recommendations to the legislature which included the abolishment of the terms "Primary and Secondary" parents. In October 2008, new legislation effectively abolished these terms. In place thereof, the statutes now require Courts to establish a "Parenting Plan" which does not classify either parent. Rather, the "Plan" simply establishes the times when each parent will have overnight contact with their children. This declassification places the parents on more of an equal footing and allows them to communicate more as equals regarding their discussions so that they are more likely to work together for the best interests of the children which, of course, is the ultimate goal.

Recommendations made by psychiatrists and/or Guardian Ad Litems now place the parents in a more comfortable position and allows them to have meaningful discussions which promotes the best interests of the children which is, most certainly, the goal of any arrangement that will permit the children to grow through their minority without concern that their parents are continually at odds. It also promotes the ultimate goal: that the parents will put aside their differences, bite their tongues, and work together to promote love and affection for the other parent.

Despite the differences which resulted in their divorce, parents must realize that by virtue of having children together, they will forever be involved with each other. They will both participate in the child's first prom, they will see each other at graduation from high school, and hopefully college. They will see each other at the child's wedding and certainly meet at the hospital to witness the birth of their grandchildren.

The new statute by eliminating the stigma of a custody "designation" seems to be helping parents cope with each other. Contact with the children is shared to a larger degree and the parents tend to deal more respectfully with each other.

While there is no perfect cure for the animosity people experience while going through a divorce – one of the most tragic experiences a human may experience in a lifetime – this new approach seems to be having a favorable impact. Anything that will help them communicate for the best interests of a child is another step in the right direction. If parents can learn to respect each other, and the other's new spouse or significant-other post divorce, children of divorce may expect to enjoy a better childhood and grow into happier, healthier, and more productive persons with brighter futures.

A History of the Custody of Children, Part One

2009-10-31T14:09:00.002-04:00

No, no orangutans or ocelots today. Instead, let’s engage in a little historical perspective on the legal process, specifically the maturation of the idea of Child Custody in the arena of divorce. To understand most legal concepts, it is helpful and wise to review the historical transformation of the law. The modern view of Child Custody is likewise best learned by seeing from whence it came.

Prior to the 1960s, there were few divorces and few children born out of wedlock, specifically when compared to present-day. The decade of 1960s brought about a transformation in American society that is unprecedented in American history with regard to marriage and child-rearing. World War II had resulted in the mass enlisting of women in the work force, and the evolution our concept of the “family unit”, propelled by forces such as the women’s liberation movement, anti-war demonstrations and other societal transformations which led to women abandoning the roles assigned by traditional marriage that had existed from the founding of our country. Today, the national divorce rate exceeds 50% as compared to a rate of about 5% in the early 1960s. As a consequence, disputes arose as to which parent would have physical custody of the children and also how major decisions pertaining to the children would be resolved.

In the late 1950s and into the 1960s, the Courts applied what was known as the "Tender Years Doctrine" In effect since the late 19th century, this concept established a presumption that children age eight or younger be placed with their mother. A father challenging such a presumption had a heavy burden of proving that the mother was clearly unfit to care for the children. As a result, very few children spent more than every other weekend with their fathers through the 1960s, and weekday contact for a father was rare unless the mother agreed.

The establishment of Equality of the Sexes in the 1960s established precedent which has evolved through today The number of women working full time increased dramatically, and as a result, even children belonging to solid, intact marriages found that upon their return from school, they either required the care of an adult or (if they were old enough) that they were responsible to care for each other until a parent returned from work. This new breed of youngsters became known as
"Latchkey Kids”; children who came home from school before the parents returned from work. The "Latchkey" group normally consisted of a least one child of age 14-15 or older. The younger ones were greeted by babysitters or a neighbor who agreed to fill the approximate two hour gap in time.

As a consequence of these changes, the legislatures of the states (custody is a state-not federal law) slowly equalized the playing field for the fathers in custody laws. Over time, fathers were afforded the opportunity to challenge for primary custody of the children. Although the law generally changes slowly, the presumption in favor of the mother (a societal as well as legal presumption) began to erode. By the 1980s, the standard for determining a custodial award was no longer “Tender Years”, but became "The Best Interests of the Children". However, as you may expect, the mindset of the judiciary was slower to change than the statutes that were promulgated.

The 1980s ushered in a dramatic increase in the number of divorce filings nationwide. In that decade, more and more fathers were awarded the primary physical care of their children. But the Courts were not as quick to undo hundreds of years of precedent. Consequently, unless there was strong evidence that the mother was unfit to some degree, the scales of justice continued to favor the mother. However, even when the mother was awarded primary physical care of the children, the contact/visitation rights of fathers increased substantially.

As we entered the 1990s, fathers would hire psychiatrists as experts to evaluate both the parents and the children and make recommendations. The use of such experts has increased through this day. Other experts such as psychologists and social workers played a peripheral role, but today, it is the psychiatrists that are the primary source of expert recommendation. Guardian Ad Litems (primarily attorneys appointed by the courts to represent the interests of the children) are another option available to parents embroiled in a custody dispute. The author was appointed in approximately twenty-five such cases in the 1990s in Orange County, Florida.

The testimony of such experts is afforded substantial weight at trial. The introduction of these court appointed experts saved the courts valuable time. These experts are permitted to use hearsay evidence (information acquired through interviews with third parties and the review of documents created and possessed by third parties). With the increase in divorce and related custody cases, the time saved by the use of such experts allowed each judge to handle more cases.

For instance, a custody evaluation is completed prior to trial. If the recommendation of the expert clearly favors one parent, the parent on the short end is more likely to negotiate to acquire expended contact rather than incurring the time and expense of a trial as they realize that the expert will be the primary witness called by the other parent.

As psychiatrists weighed in on what contact schedule is most beneficial to children, it became clear that the recommendation would include a substantial expansion of the traditional alternating weekend schedule applied in the early years. Rather than alternating weekends from Friday evening to Sunday at 6:00 p.m. were expanded to Fridays from after school until the non-custodial parent delivered the child to school on Monday morning.

In addition, the "non-custodial" parent was afforded weekday contact from after school until about 8:00 p.m. on Wednesday or whichever day the parent could make this fit his/her work schedule. Time during the holidays and summer vacation was also expanded. Custody not only evolved as to the time a parent spent with their child, but also came to encompass the involvement of both parents in the decision-making for the children. In Florida, this concept is known as "Shared Parental Responsibility".

My next post will bring us forward from the late 1990s to the present and will extend the discussion to include the concept of Shared Parental Responsibility, the relocation of children and other judicial considerations which include addressing the stigma associated with naming one parent with the title of Primary Residential Parent. Stay tuned.

Custody of Orangutans

2009-10-13T17:02:00.003-04:00

In the winter of 1984, early in my legal career as an associate in my father’s law firm, a walk-in client showed up at the end of the day. We’ll call her Mary. Mary was forlorn and I agreed to stay and consult with her.

Mary and her husband “John” had met and fallen in love in 1974. They were married and planned a life together. But despite their best efforts, they found they could not conceive a child.

A few years of melancholy gave way to an idea: they decided that if they couldn’t conceive, they could adopt. But what happened is that they learned that the costs and the nature of their jobs were prohibitive to adopt. So they did what any couple with more love than the two of them could use would do:

They adopted a baby orangutan.

Mary and John loved their baby orangutan. The named him, dressed him in swaddling clothes, taught him to use the bathroom, fed him at their table, and the three of them lived in joy. It was a happy family. So happy, in fact, that Mary and John decided that their love and furniture were strong enough to expand their family again.

The adopted a second baby orangutan.

The second orangutan, it seemed, followed the lead of his older brother and was even easier to train than the elder! Their “sons” were happy and loving playmates, they were gentle and kind to their parents, and Mary and John were certain their lives were as complete as possible. Until Mary thought, “I would love a daughter…”

They adopted a third baby orangutan.

So now the family was five: John and Mary, the two boys, and a baby girl orangutan. God had truly smiled upon this couple and the children they had been chosen to raise.

But as sometimes happens in life, Mary and John grew apart. After ten years, at the age of thirty-five, Mary and John agreed that their marriage was not as fulfilling and loving as it needed to be. This is when Mary found me, and asked me to help her with her divorce.

Mary told me that their marriage was over, but that her request was to obtain “custody” of the three orangutans. My first thought was that a friend of my father’s, another attorney his age, had set this whole thing up. Custody of an orangutan reminded me of a law school exam question, and this woman and her "custody" smelled like a practical joke.

I quickly discovered that Mary’s story was real and that she truly loved these animals as she would a child. To Mary’s dismay, I explained the orangutans were Property and not subject to custody proceedings. But legal rules or not, she wanted her orangutans.

After we filed the divorce, and against my advice, she offered a settlement giving her husband the family car if he agreed that she could keep her babies, the orangutans.

I took her settlement offer to John’s attorney, and before I could show him the paperwork he told me, “This is a very easy divorce, I think. All my client wants is custody of their orangutans.” No, this was not a trick of my father’s friend; this was indeed an orangutan-custody fight.

John refused Mary’s offer, and instead offered her the same: she could have the family car if she relinquished “custody” of the three orangutans.

Mary refused, and upped her offer. She said John could have the family car and the contents of the apartment they shared, if he would give up the orangutans.

John refused, and made Mary the exact same offer; Mary could have the family car and the entire contents of their apartment, if she would give up the orangutans.

And it went back and forth; neither person was willing to give up custody of their orangutan children. This was going to court, and I prepared my client for it. Over the next few months, several items were added to the list of things the other could have, but in every case, the offer was turned down.

But on the eve of the trial, John had one final offer. His attorney told me that John was prepared to give Mary the family car, the contents of the home, his entire 401k, his retirement benefits, he would pay the rent on her new home for a year, and he would take out a $10,000 personal loan and give the entire amount to Mary, if she would let him keep the three orangutans.

Essentially he was offering cash and property valued in excess of $50k for three animals with a value of $10k, and after nine long months of negotiations, I finally convinced Mary to take his offer. Two weeks later, Mary moved out of the apartment and took the entire contents of the property. John transferred his 401k to her, gave her title to the car, sent her a $10,000 cashier’s check, and the first of twelve checks that would cover Mary’s rent for the following year.

Mary was heartbroken, but her divorce was amicable. Soon she was single again.

A few weeks after the final papers were signed, Mary received a phone call from John. Could she come over and see the orangutans? They were acting a little weird and John thought they missed Mary. Perhaps if she came over they would be return to their traditional calm demeanor. I told Mary that she’d already left her “babies” once and that returning again would just reopen the wounds. She agreed; she did not visit John or the orangutans.

A week later, Mary received another call from John. Could she come over, please? The orangutans were getting a little rambunctious and it was obvious that they missed their mommy. Again, Mary declined, as her heart couldn’t take seeing her kids missing her so.

Two weeks later, I received a call from Mary. The police were at her new apartment and she was despondent. I asked her what happened, and between heavy sighs and crying she said that the orangutans had missed her so much that they turned on John. A neighbor of John’s had heard a massive commotion from the orangutans’ apartment and he called the police.

When the police broke down the door, they saw John, battered and broken against a wall. Later at the hospital, the doctors determined that the orangutans had broken both of John’s legs, hip, one of his arms, his collarbone, and six ribs. They also broke many of John’s facial bones, he was in traction, and it would be six weeks before he was eventually released.

I asked Mary if that was all, and she sobbed no. She cried that the police who broke down the door had been confronted by three agitated and violent orangutans. The authorities had no choice... but to euthanize all three orangutans.

A few years later, I saw Mary at a restaurant. The first thing she mentioned was the orangutans and that she felt truly sorry about what had happened. However, she related that she now owned her own home, purchased a new vehicle, and that her retirement fund would allow her to retire earlier than she could ever had dreamed. On the other hand, John was still living in an apartment and rode a bicycle to work. Unfortunately, after he was released from the hospital, he started drinking and got two DUIs. Apparently, he never fully recovered from the entire episode.

Mary remarried and had two children in college as a result of her second marriage. She still sends me a Christmas card every year, and never fails to mention her first three children.

My First Blog on Family Law starts October 5, 2009

2009-09-21T20:41:00.004-04:00

Ladies and Gentlement: You may expect to see a weekly blog on Florida Family Law each Monday starting October 5, 2009. I will share Florida Law updates, procedure nuances and some of my experiences over the past 28 years. It is an exciting profession and brings some quite interesting stoies about experiences of clients and others that just may surprise.

I look forward to sharing my experiences with all of you amd hope that you will enjoy and be enlightened by reading this column.

Jeffrey A. Sunday, Esquire