The P.E.A.C.E. Process of Divorce
July 3, 2010
A LEGAL GUIDE TO DIVORCE PROCEEDINGS
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” has to be broken down into 2 categories:
1- Parental responsibility
2- Residential care
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.
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.
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.
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 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.
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.