5 Common Mistakes to Avoid During a Divorce

Tensions can often be high during a divorce. It’s important to tread carefully and be aware of your rights and responsibilities during this difficult time. Speaking with a family law attorney can help you choose the best course of action and avoid these common pitfalls.

1. Sending Disparaging Texts or Emails:

   Hold the phone! Text messages, emails and social media posts can be used against you in Court by your ex, to attack your credibility and character. Your words and actions are a huge factor in the Court's consideration of the best interests of any child or children involved in a Family Law matter.

2. Going Pro Se:

   Understanding your rights and obligations is key. A Family Law attorney will guide you through this process and ensure you reach a fair separation agreement or court settlement.

3. Not Putting the Kids First:

   In all Family Law matters involving minor children, the Court will look to the best interests of the child in making decisions regarding time sharing and parental responsibility. Making decisions based on resentment toward the other parent is never in the best interests of the child and will not work in your favor in the eyes of the court.

4. Moving Out of The Marital Home:

   While you should not stay in the marital home if you fear for your safety, moving out could complicate your claim to an interest in the home. If possible, before moving out of the home you should consult an attorney and ensure there is a parenting schedule in place, where there are children involved, to make sure you have continuing access to the children.

5. Hiding or Depleting Marital Assets:

   In every dissolution of marriage, the parties to the dissolution will make a full financial disclosure. The court will review and determine the marital and non-marital assets. In doing so the court can look at transactions after filing for dissolution and up to two years prior to the filing, for any intentional dissipation, waste, depletion or destruction of marital assets.

   Contact Cody Law to schedule a consultation if you need help navigating divorce or any Florida family law issue.

What Should a Stellar Parenting Plan Include?

Every paternity action or divorce involving minor children in Florida must establish a Parenting Plan. But what exactly is a Parenting Plan and what should a good one include? A parenting plan is a legally binding document that governs all rules that the parties must follow regarding parental responsibility and time-sharing in all child-related matters. Parties can establish a Parenting Plan through agreement (usually following negotiations or a formal mediation), or by presenting evidence at trial, resulting in a court order by the Judge. All terms and conditions in the resulting Parenting Plan must be in the children’s best interests.

Florida Statute §61.13(2)(b) provides a basis for what a court established or a court approved Parenting Plan must contain:

1) a description in adequate detail of how the parents will share and be responsible for the daily tasks associated with the upbringing of the child.

2) a time-sharing schedule that specifies the time the child will spend with each parent.

3) A designation of which parent (or both) will be responsible for healthcare, school-related matters, and other activities.

4) A detailed description of the methods and technologies each parent will use to communicate with the child.

5) The location of exchange of the child for time-sharing purposes.

These provide what, at a minimum, needs to be included for a valid parenting plan, however it’s important to understand that a parenting plan can be as detailed as the parties want to make it. Often times, having a detail oriented plan can avoid future uncertainty and ambiguity and reduce the risk of parties rushing back to court to litigate issues. Parties should keep in mind that as the children grow, the plan should grow with them. Children may not be school aged at the time the Parenting Plan is prepared, but a stellar parenting plan will plan for and address issues ahead of time. Good parenting plans include specification of how the co-parents will communicate with each other, details regarding travel and transportation, choice of activities and payment for extra-curricular activities, which parent’s address will be used for school zone purposes, detailed holiday time-sharing plans (including holidays and events that may be important to your specific family), and a procedure for vacation travel and planning with the children. You should discuss your family’s specific needs with your attorney to establish a Parenting Plan that works the best for you.

Contact Cody Law in St. Augustine Florida if you’d like help navigating a Florida family law issue and designing a parenting plan that addresses the needs of your family.

Put it on Their Tab: Awards of Attorneys’ Fees and Costs in a Florida Family Law Case

One big question clients ask, when faced with a family law issue; when can the court award fees and costs in a Florida family law case?

There are several situations where a court may award fees and costs to a party, the first is needs-based and the decision is based on a party’s demonstrated need for their fees and costs to be borne by the other party and the other party’s ability to pay those fees and costs. The reasoning here is that both parties should have equal access to legal representation and a party should not be at a disadvantage due to limited financial resources. Needs-based attorney’s fees may be awarded in cases where one spouse is the primary breadwinner. This type of award can also be granted on a temporary basis. With needs-based attorneys’ fees the courts will consider both party’s income, assets, debts and individual financial obligations.

The second situation where a court can award attorneys’ fees and costs to a party is in contempt and enforcement actions. This is where one party needs to litigate because the other party has failed to comply with a court order, such as non-payment of child support, non-payment of alimony, or not following the court-ordered time-sharing schedule).

The third situation is where there is frivolous or bad-faith litigation. The court may award attorneys’ fees and costs to the other party as a sanction for bringing an action or filing a motion in bad faith (this is governed by Florida Statute 57.105). The court will consider whether a party has unnecessarily prolonged the litigation or been unreasonably uncooperative.

Florida statutes which apply to the award of attorneys’ fees in a family law matter:

• Florida Statute 61.16 allows for an award of attorneys’ fees in dissolution of marriage cases, custody cases, alimony cases, and child support cases.

• Florida Statute 742.045 allows for an award of attorneys’ fees in paternity actions.

• Florida Statute 57.105 provides the basis for recovery of attorneys’ fees when a case is found to be frivolous or lacking legal merit.

• Florida Statute 68.093 (Vexatious Litigant Law)

With any award of attorneys’ fees the court must determine is the requested attorneys’ fees are reasonable for the work performed. The court may deny or reduce fees that are deemed excessive.

In order to request an award of attorneys’ fees and costs, a party must file a motion outlining why the award is necessary and submit supporting financial documents. The party requesting fees must also submit an itemized list of all legal fees and costs incurred, detailing the attorney’s hourly rate. The court will determine whether the fees and costs should be awarded at an evidentiary hearing.

Florida Statute 57.105 Motions

Under Florida Statute 57.105, a party must file a motion alleging that the opposing party or their attorney pursued a claim or defense without any factual or legal basis. Under Florida Statute 57.105 there is a specific notice period required, called a Safety Harbor Notice, which must be served upon the other party, detailing why their claim lacks legal or factual support, to allow correction prior to filing the motion. The opposing party shall be given 21 days from the date of being served with the Safety Harbor Notice to withdraw or amend the baseless claim. If the claim is not withdrawn by the 21-day mark then a motion for sanctions can then be filed with the court. The party seeking relief under 57.105 must prove to the court that the opposing side’s position was frivolous (either not supported by the law or the facts). The Motion must be heard by the judge to determine whether sanctions are warranted against the party, the attorney, or both. If granted, the court can award the winning party’s attorney’s fees and costs as well as imposing sanctions. The court will not award fees and costs under Florida Statute 57.105 if it finds an argument was made in good faith to extend or modify existing law, or if an attornet acted in good faith based on client information.

Florida Statute 68.093 (Vexatious Litigant Law)

Florida Statute 68.093 can also apply in Florida family law matters. This Statute, known as the vexatious litigant law is governed by the Florida Family Law Rules of Procedure. The goal of this section is to prevent individuals from persistently abusing the court system by filing frivolous lawsuits. A “vexatious litigant” is defined as someone who has filed five or more civil actions in Florida within the past five years that were decided against them, or that has been previously found to be a vexatious litigant. Under this statute the court can impose certain restrictions, including issuing pre-filing orders, require a security bond for new cases or even prohibit the filing of new actions without court permission.

Under all of these various statutes, the other party in your family law matter could be responsible for your legal fees. You should discuss your unique situation with a Florida family law attorney, to find out the best course of action and whether your legal fees and costs could be ordered to be paid by the other party. Contact Cody Law in St. Augustine Florida if you’d like help navigating a Florida family law issue.

Double Edged Sword: When a Parent Withholds Time-Sharing

Emotions almost always run high during a divorce or other family law action, especially when child custody is involved. Florida has two elements that make up custody: Parental Responsibility and Time-Sharing. Time-sharing means how many overnights each parent has with the minor children. Recent law changes in Florida mean that the court now starts with the presumption that equal time-sharing is in the best interests of the child. In order to overcome the presumption of “fifty-fifty” a parent must show by a preponderance of the evidence that an equal time-sharing plan would not be in the child’s best interest. But what if there is no court ordered time-sharing in place yet? Can one parent unilaterally withhold a child from the other? Can doing so backfire?

When no time-sharing order exists, typically both parents have equal rights to the child and may both spend time with the child, even if the child is living primarily in the marital home with one parent. While this sounds simple in theory, it often leads to complex and messy situations if both parents are not willing to co-parent pending a formal order. Until a formal order is entered, there is no clear benchmark for who makes decisions, when and where children should be on each day, or what to do if parents disagree. This often leads to one parent withholding the child from the other, sometimes out of retaliation, confusion, or fear. In reality, often one parent has been the primary caretaker and day-to-day decision maker and may, by default, end up making unilateral decisions for the children while the case is pending. Courts often view withholding a child from the other parent as problematic and potentially harmful.

In some circumstances, for instance where there are immediate concerns for a child’s safety, temporary withholding might be defensible. However the actions should be followed by prompt formal legal action. If the witholding is simply based on personal conflict or retaliation by a parent it will likely not be excused by the court. Under Florida’s best interest factors, maintaining ongoing contact with both parents is a priority, absent any serious safety concerns, any interference with that could backfire, leading to various consequences, including:

• Court ordered make-up time

• Loss of credibility in future proceedings

• Court-ordered parenting education

• Court ordered therapy

• Denial of shared parental responsibility

• Potential loss of timesharing on a permanent basis by the withholding parent

Withholding time-sharing is a double edged sword and it is recommended you seek the guidance of an attorney before making a decision to unilaterally withhold time. Obtaining a temporary time-sharing order while your case is pending can protect both parents and offer consistency and stability for the child. Once a formal time-sharing order is entered, both parents have the ability to enforce the order should conflict arise.

What Can I do if the Other Parent is Withholding Our Child?

If the other parent is preventing you from time-sharing, there are several protections available under Florida Law, including:

• Enforcement of an existing parenting plan

• Contempt

• Request for make-up time-sharing

• Petition to establish a permanent or temporary time-sharing plan

• Petition to modify

In the meantime it is important to document all missed time-sharing exchanges, text messages, voicemails or e-mails denying time-sharing, all notes on your attempts to exercise time-sharing, and any other relevant potential evidence.

Having the guidance of counsel is important when it comes to child custody. Your attorney can help you get your message across to the judge, present crucial evidence, negotiate on your behalf and prevent mistakes in judgment while awaiting an order. If you are dealing with the other parent withholding time-sharing from you or if you believe withholding may be necessary, it is important to speak with an attorney right away. Contact Cody Law to discuss your individual situation and see if a legal remedy is available to you.