The economy did not do as well as most of us had hoped, we lost some great people, the divorce rate did not go down… where does that leave us?  We might not be able to do too much about the economy, other than continue to push along, work hard and work intelligently; we certainly don’t have any control over whose life will come to an end, but we can appreciate those we do have around us; we can’t do too much either about the divorce rate, as we all know it takes two to tango and if half of the couple is not willing to do what it takes to keep the relationship alive, then that is doomed to fail; however, we can minimize both direct and collateral damage with the manner in which we handle the end of a relationship, whether there are children involved or not.

             Break up, separation and divorce all have in common that things went wrong somewhere.  For the most part, as individuals we feel that we have been wronged.  Often times, quire rightfully so.  Animosity, retaliation, pay backs all feel legitimate under those circumstances.  Beware… That is a very high price to pay for a very short lived satisfaction.  As difficult as it may be, try forgiveness; intelligent forgiveness (more on that later).  You will feel much lighter and if you have children, they won’t feel the burden of the separation so much.  Although very difficult to do, it is a worthy cause.  People around you, not just your children, will thank you, whether you realize it or not.  

             Like most of you, I have no idea what 2011 has in store for us.  I can only hope… But hope I do.  I can only wish…But wish I do.  I wish you all a very happy, peaceful, healthy and prosperous year. 

Thank you USF…   It is going to be great.  I encourage you to visit the website, which can be found at www. www.sarasota.usf.edu/academics/CAS/DuvallConference.php and seriously consider attending.  Am I a little biased?  You bet!  I will be the keynote speaker.  I am very excited and look forward to this great event. 

This conference is going to be a great step at bridging the gap that exists between the different fields addressing family issues.  While we use the services of dedicated professionals in the world of separation, divorce, domestic violence, custody of children and other related situations, for the most part we don’t seem to know each other’s world.  Wouldn’t it be fantastic if the mental health professional was fully aware of what happens in the brutal world of litigation?  If the attorney, during a consultation on a domestic violence matter, had full knowledge of the social impact his/her handling of the situation it was likely to create?  Sociology, criminology and psychology all interact with the legal field in one way or another.  Yet, we don’t spend a whole lot of time together. 

In addition, the academic is about to have a date with the practical!  So much research is done, so many reports are written, yet the practitioner is often times too busy to put time aside on the schedule to read, absorb, understand and implement those programs that would be based on solid evidence. 

It is true that attendance at a conference is costly, in that time is money.  In my opinion, this will be worth the time; not to mention the great location!   Come and get the “reader’s digest” version of great research.  Come and interact with a group of dedicated people.  Together, we can make a difference for the foundation of our society:  the family.

When it comes to their own children, a lot of parents see something close to perfection.  No such thing; there is always room for improvement.  Most people would agree that raising children when the parents are together and love each other is… challenging.  Raising children when the parents no longer are together and no longer love each other makes it a lot more challenging.

The differences in parenting styles that used to be just annoying become serious issues and in high conflict cases become weapons against each other.  Does this really cause damage?  You bet.  Is there collateral damage?  Oh, yes…the children.

Well, at that point, the union may not be intact anymore and it may very well be that all bets are off for the parents, which is their choice, but the children have a right to be protected from the fallout.  So, here is a compilation (created by Debra K. Carter, Ph.D., owner and clinical director of The National Cooperative Parenting Center) of children’s rights.

They have the right to:

1-                  Develop and maintain an independent relationship with each parent.

2-                  Be free of the conflict between the parents.

3-                  Be free from having to take over the parental responsibility for making residential care/time-sharing decisions.

4-                  Be free from having to take sides with, defend or downgrade either parent.

5-                  Be guided, taught, supervised, disciplined and nurtured by each parent, without interference from the other parent.

6-                  Be financially supported by both parents, regardless of how much time is spent with each parent.

7-                  Spend time with each parent, regardless of whether or not financial support is provided.

8-                  A personal sleeping area and space for possessions in each parent’s home.

9-                  Be physically safe and adequately supervised when in care of each parent.

10-              A stable, consistent and responsible child care arrangement when not supervised by the parents.

11-              Develop and maintain meaningful relationships with other significant adults, as long as these relationships do not interfere with or replace the children’s primary relationship with the parents.

12-              Expect that both parents will follow through with the child care plan, honoring specific commitments for scheduled time with the children.

13-              Both parents being informed about medical, dental, educational and legal matters concerning the child, unless such disclosure would prove harmful to the children.

14-              Expect that their parents will consider any special needs (developmental, mental, emotional or physical) they might have when arranging a child care plan.

15-              Participate in age-appropriate activities so long as these activities do not significantly impair their relationship with either parent.

There is no doubt implementing and/or enforcing these rights can’t be easy.  Of course, nobody said it would be easy.  The fact remains that it is the responsibility of the parents to help children adjust to the new relationship, the new family unit.

•      Go out of your way, take extra steps to reassure your children that they are not to blame for the divorce.

Children, especially the young ones, have a tendency to internalize everything.  They see a situation such as divorce and they start looking for answers inside of them:  What did I do wrong?  If I had behaved better, would this have happened?  What if I behave better from now on?  Children proceed with trying, in their own way, to please the parents so that the divorce can “go away”.  It is important to make sure the children don’t have that misconception.

•      Explain the divorce to your children periodically.

One explanation at the onset is not enough.  As time goes by, the children’s ability to understand changes; it hopefully increases.  In addition, when you initially explain the situation to the children, you are in a different emotional state.  With a bit of luck, things have gotten better emotionally and as the process moves along, such as creating and implementing a parenting plan with a schedule of time-sharing, the children should be given explanations and reassurances. 

•     Don’t relax the boundaries.

Your children will be going through difficult times.  There is no doubt about that.  During those times, resist the temptation to relax the rules.  Children need consistency and stability.  The very fact that you feel guilty of disrupting their lives in that way is not a reason to fall for that.  Discipline is part of consistency and stability.  It is also part of love.  Children need to know that they are loved and having the scrutiny of their parents at times when they push to see how far they can go is imperative.

•      Discourage the children from taking sides.

This starts with you refraining from making disparaging comments about the other parent in the presence of the children or in an environment where the comments could get back to the children in some form.  You must remember that your children are a combination of both parents.  Criticizing their other parent is tantamount to criticizing them.  Because children internalize and because they already think it is their fault, criticizing them is one of the worst things you can do. 

•      Don’t confide in your children. 

They might feel grown-up or important for a short while, but short is the operative word here.  Find adult confidants.  A professional is the safest avenue for this.  In the end, when they start understanding what is going on, they are likely to feel resentment, rather than pride. 

•       Don’t make your children feel guilty about enjoying themselves while with the other parent.

The differences between parenting styles become more pronounced during separation and divorce.  As annoyed as you may get when the other parent “spoils” the children or, in your opinion relaxes the rules, you should not make the children feel as though they can’t enjoy what is natural for them to enjoy. 

•       Encourage your children to love the other parent.

The children just can’t wait to tell you about feeling loved by the other parent.  Especially in light of the fact that, often times, parents who might not have always paid that much attention to the children, now are paying special attention to them.  While you may feel that this is wrong, the children don’t know anything other than they love the attention and they want to share that with you.  You should celebrate that feeling as well.  Water seeks its level and in time, things should go back to where they need to be.

          Such an approach allows for parties to a divorce to fully participate in their own proceedings and while they avoid costly legal battles, they still have the safety derived from their own legal representation, a neutral financial expert and the soothing effects of a mental health professional. 

          What happens if the process fails?  Then, the attorneys can’t continue to represent their respective parties because of the collaborative contract and the commitments made to the process only.  Because of the dynamics of the collaborative divorce model, all involved share information that potential litigating people would not share.  In and of itself, somewhat strange concept, as the discovery process in litigation as well as in collaborative divorce should basically be the same.  True, during settlement negotiations parties and attorneys would divulge what they are willing to settle for.  That would be something that only a mediator would know.  As a mediator, I share the information I am given permission to give and nothing more.  The idea of having the financial expert and the mental health professional is a great one. 

          I still believe that the role of the mediator cannot be overemphazised.  With the help of a mediator, parties and their respective attorneys are at liberty to say whatever without the fear of having to restart the process.  Not only could that, in and of itself, become costly, but once something is said, you can’t un-ring the bell.  The  parties may sign a contract wherein they agree not to disclose or use any information gathered during the collaborative process, it does not erase the information.

          Each case is different.  Everyone needs to assess their situation and proceed accordingly.  It is imperative to make that assessment, honestly.

          In the midst of litigation, lawyers become very interested in what people have to say on Facebook; they also become very interested in the pictures that are posted on Facebook.  Case on point:  I was involved in a case where the wife had requestedemergency  permission to relocate to another state with the parties’ minor child.  At the hearing, the court denied her request, stating that she had the constitutional right to move about the country all she wanted, but she could not take the child with her.  She needed to make sure the child remained within the jurisdiction of the court and set it for full hearing.  Within a few days, she was on Facebook, telling her “friends” that she did not really care what the judge said, she was moving…with the child.  That is exactly what she proceeded to do.  Unfortunately, in this case, the court did not do anything about it.  However, most times, it is fair to say that judges don’t appreciate this and take action.  What makes it even worse for the non-compliant party is the Facebook posts that are defiant, demean the judge and the process in general.  Talk about wilfull behavior. 

          Many cases involve “he says, she says” and the judges are often just powerless to discern the truth, when, during a short hearing, both parties are on their best behavior.  Although the judges know that one of them is lying, often times, they can’t tell which one is telling the truth and which one is not.  Add to that very eloquent lawyers who can “spin” anything and you get a very difficult situation; one that can prove to be nothing less than dangerous for the children.  Take for example a case where a spouse alleges that the other parent drinks to excess and drives around, with the children in the car on a regular basis.  The defending parent’s attorney screams “manipulation” and “alienation”.  Clearly, the attorney claims, that complaining parent is attempting to prevent the formation of a bond with the children.  What is a judge to do?  There is no official record of such behavior, no DUI, no arrest, not rehabilitation center stays, nothing, but one spouse’s allegations.  During a hearing in a case like that, often times, the accused parent testifies under oath and denies the allegations.   It is likely the judge will warn the parent and take no other action, perhaps other than putting in an order that “neither” parent shall drink alcohol within 24 hours of picking up the children, during their time-sharing, including transportation for drop offs. 

          But, add to that pictures of the several parties that the defending parent has attended the weeks and months before the hearing, including the postings giving explanations about when the parties were, where they took place, who were present (including the children) and you have a completely different result.  I have seen posts where a person actually not only admits, but describes a “black out” period of time…the time when that person come home.  Obviously, a person cannot deny that it is their picture.  Nor can theydeny they wrote on their own pages. 

          Evidence of that nature is, in my opinion, very powerful and its effects can be felt deeply and for a long time.

THE P.E.A.C.E. PROCESS

            This is a brief outline of the issues raised in most divorces.  When a case goes to trial, the P.E.A.C.E. acronym is what I use to make sure I address all that needs to be addressed and in the order that they need to be presented.  

               Parental issues

               Equitable distribution

               Alimony

               Child support

               Everything else

PARENTAL ISSUES

“Parental issues” has to be broken down into 2 categories:

 1-     Parental responsibility

2-     Residential care

Parental responsibility

             In Florida, the Court will grant shared parental responsibility, unless it determines that shared parental responsibility would be detrimental for the children.  In the case where a determination of detriment is made, then the Court will order sole parental responsibility. 

             The concept of shared parental responsibility rests on having parents who can and will put aside their differences for the best interest of the children.  It requires communication between the parents, an ability to resolve disputes, flexibility and  and overall understanding that the ultimate goal they must share is to not only protect the children from high conflict, but to foster an environment that will promote physical, intellectual and emotional health for the children. 

             With the new parenting plans, the parents can more easily chose certain aspects of co-parenting and designate which parent will be the ultimate decision maker for any of them.  For instance, the parents can agree as to which one of them will have the last word on specific decisions, such as education/academic, non-emergency health care, religion, extra curricular activities and any other aspect they may choose.    

            In the event sole parental responsibility is ordered, only one parent makes the decisions, without having to confer with the co-parent.  That parent can basically go ahead and make whatever decision needs to be made and inform the co-parent of the decision. 

 Residential care

            Fairly recently, the law changed with respect to residential care.  Whereas we used to have a designation of “primary” residential care and “secondary” residential care, we no longer have designations at all.  Whereas we used to have a schedule of “visitation” for the “secondary” parent, we now have a schedule of time-sharing.  The goal is to have true co-parenting of the children, even after the family unit is no longer intact. 

            There is no longer a presumption against equal time-sharing, which used to be referred to as rotating custody.  In fact, the word “custody” is no longer appropriate in the setting of evaluations or overall concepts of parenting related legal matters.

            Because under certain circumstances, child support can be linked to time-sharing and number of overnights, residential care and time-sharing have been known to drive the push for more or less time, depending on which side a party may have been:  payor or payee.  The child support guidelines were drastically affected once a time-sharing schedule reached 40%, 143 overnights a year, which was considered to be substantial.  Sometimes, parents were establishing schedules in accordance with that number, rather than what would truly be in the children’s best interest.  Now, the law has changed again and the 40% threshold has been reduced to 20%, approximately 73 overnights a year.  This should remove the incentive of some parents to establish schedule with that ulterior motive.  See Child Support below.

EQUITABLE DISTRIBUTION

            In Florida, under normal circumstances, the parties to a divorce will share equally the assets and liabilities they have accumulated during the course of the marriage.  The Court has to determine what the marital estate consists of before it can proceed with its distribution.  In order to make such a determination, first, the Court must carve out the assets and liabilities that are pre-marital and non-marital. 

            A pre-marital asset/liability is easily defined.  It was acquired prior to the marriage.  This can become difficult for the couples who have lived together for years prior to getting married.  Perhaps a more difficult situation is when an asset/liability loses its “pre-marital” nature by virtue of what the parties did with the asset/liability during the course of the marriage.  Comingling is a good example.  Using marital funds to pay for a pre-marital asset is another.  Prenuptial agreements are a way to delineate under what circumstances a pre-marital asset/liability retains or loses its nature.

            A non-marital asset/liability is defined by statute.  For instance, inheritance is a non-marital asset as well as a gift specifically made to one of the parties by someone other than the other spouse.  Once again, what a spouse does with a non-marital asset can become an important factor in the determination that the nature of the asset remains the same.  A good example would be for one spouse to take a check received from an estate and depositing it into a joint account with the other spouse.  Once the money is commingled, it may not be possible to identify. 

            One of the reasons why equitable distribution has to be determined at this stage of the process is because before making a determination of alimony, the Court must ascertain if and/or how much income a spouse can derive from the assets received in the distribution.  Prior to the economy going rogue on us, it was fairly usual to assess a rate of return of 5% on financial accounts received.  Now, anyone’s guess is as good as any.  As another example, if a spouse receives income producing real property that income has to be taken into consideration in order to determine the actual “income” of a spouse before any discussion can take place about alimony.

ALIMONY

            There are various forms of alimony.  In June 2010 the Governor signed a bill into law that modified the statute with respect to alimony.  The new law lists the forms of alimony, which may be granted by the Court, that is bridge-the-gap, rehabilitative, durational (which is a form created by this law) or permanent.  In addition, the Court may grant a combination of those.  The determination of whether granting alimony is appropriate must be based on a factual finding of need and ability to pay.  Once the Court has made a finding that one spouse has the need and the other has the ability to pay, it must then consider the following factors:

1-     The standard of living established during the marriage (usually the last full year of the intact marriage).

2-     The length of the marriage (the period of time between the date of marriage and the date of filing of the action for dissolution).

                  a-      Rebuttable presumption that a “short-term” marriage is less than 7 years.

                  b-     Rebuttable presumption that a “moderate-term” marriage is greater than 7 years but less than 17 years.

                  c-      Rebuttable presumption that a “long-term” marriage is more than 17 years.

3-     The age and the physical and emotional condition of each party.

4-     The earning capacities, educational levels, vocational skills and employability of the parties.  When applicable the time necessary to acquire sufficient education or training.

5-     The contribution of each party to the marriage. This includes services rendered in homemaking, child care, education and career building of the other party.

6-     The responsibilities each party will have with regard to minor children they have in common.

7-     The tax treatment and consequences to both parties of any alimony award.

8-     All sources available to each party (as discussed above).

9-     Any other factor necessary to do justice and equity. 

             The Court may require a party with an alimony obligation to obtain and/or maintain life insurance to secure the alimony in the event of that party’s death. 

 CHILD SUPPORT

            Child support has also seen several revisions.  Effective October 1, 2010, all orders pertaining to child support must address termination of the obligation.  It establishes that the child support guidelines are meant to encourage fair and efficient settlement of support issues between parents and minimize the need for litigation.

            It requires the Court to impute full time minimum wage to a party who is determined to be voluntarily unemployed or underemployed.  It prohibits the Court from using wages older than 5 years.  It further prohibits the Court from using wages that the party has never earned before. 

            It allows for the entire costs of day care to be used in the calculations as opposed to the previous 75%.  It provides for factors that could be used by the Court to allow for a deviation of more than 5%.  The Court has to make findings of these factors. One of the factors that need to be taken into consideration is the tax ramifications on the parties. The “substantial” time-sharing is modified from 40% to 20% of the overnights. 

            Effective January 1, 2011, the failure to exercise the time-sharing as ordered shall constitute a substantial change in circumstance for a modification of child support and the modification will be effective retroactive to the date when that parent’s failure to exercise the time-sharing schedule started. 

EVERYTHING ELSE

            In this category, I put attorney’s fees and costs and any other issue that may have come up and not fit into the first categories.  Entitlement of attorney’s fees and costs is based on a few factors, including who is in a superior financial position and, sometimes, whether a party litigated in bad faith.  Once the Court makes a finding that there is entitlement, the Court must make a determination of need and ability to pay.  Based on that determination, the actual fees and costs (not all of which can be recuperated) are scrutinized for reasonableness.  The evidence on the ability of the other party to pay will help the Court determine whether that spouse will pay all or a portion of the fees and costs, the manner in which the sums ordered will be paid. 

            The factors enumerated in this document are not to be construed as complete and exhaustive.  Rather, this is a brief list of some of the factors I consider to be important when addressing these issues.  The order in which I have listed them is the order in which the Court must consider them.

*     It requires the child support orders to address the time at which the obligation for the child will end.  In the event of orders relating to more than one child, then the order must address the amount of remaining child support contemplated at that time. 

*     It provides that partial payments of alimony will be applied in a similar fashion as partial payments for child support payments, which is ongoing support first, arrears second and interest third.

*     It creates a rebuttal presumption that each party can, at a minimum, earn minimum wage on a full time basis. If a parent lives in a different state, the court must use that state’s minimum wage.  If no other state’s minimum wage applies, the federal minimum wage amount must be applied.

*     It provides guidelines for the court in the event it proceeds to impute income higher than minimum wage. 

*     In the child support calculation formula, the court must account for the personal and dependency exemptions, earned income credit, child and dependent care credits and other allowable tax credits.

*     The child support guidelines chart is amended to delete the lower “combined income” number, in which case the court must calculate child support on a case-by-case basis.  It also provides that for incomes higher than $10,000 per month, the result of the percentage calculation may not be used to determine child support that is beyond the need of the child or children.

*     It deletes the provision that required the court to apportion only 75% of the total day care paid in the calculation.  The whole amount will be used instead.

*     The court will be able to take into consideration more than the fact that the child support obligation would be more than 55% of the payor’s gross income.  This will allow the court to take into consideration the fact that a child support obligation would leave a parent with a net income less than the current federal poverty guidelines (for 2009 it was $10,830/year or $902.50/month –  2010 guidelines not established yet).

*     It amends the “substantial” time-sharing from meaning 40% of the overnights to 20% of the overnights. 

*     It requires the court to take into consideration the tax effect of the dependency exemption in the calculation of the child support obligation.

Overall, these changes will stramline the process.  It will help prevent a lot of litigation, which is a good thing!

Time went by.  News were scarse and never really positive.  Still I thought that there had to be something to save this child’s life.  How can any parent survive the loss of a child?  The natural order is to bury your parents, not your children.  Good news did not come, never came.  What can one do in a situation such as this one?   What can one say?  The bottom line is that there is nothing to do or say.  You so want to help, but can’t.   You realize that this is not a movie and it isn’t something that will give you a good cry, then you will feel better. 

Today, I received an email informing me about the details of the funerals.  She is gone.  She has been taken from her parents.  She will not grow old, never become a parent herself.  All those things that we look forward to experience with our children; those life events that we anticipate our children will go through, wont’ happen for her.   The range of emotions is wide.  I read the email while running an errand with my daughter.  I felt guilty at that time.  Guilty of being able to have a child to love and protect; thankful to have the ability at this time to effectively protect her; completely devastated about what those parents are going through.  Guilty, sad, angry, sorry, thankful, devastated, fearful and more.  The bottom line is that I cannot imagine surviving that trauma, that loss. 

Tammy, you have my deepest sympathy and my prayers continue to be with you.  I pray that you can survive this.  To your daughter, Kalen, I want to say that I pray she rests in peace.  The only soothing aspect of this is to know that her suffering has ended. 

May God bless both of you.