The Marks Law Firm Blog and New Updates

How to be a Great Family Law Client

Meeting with and hiring an attorney can be a scary and difficult process. Most people (thankfully) don’t have much experience with lawyers and legal issues, and your first experience can be intimidating.

Taking these things to heart will make your lawyer’s job easier and will enhance your overall experience with the legal system.

  • Maintain Reasonable Expectations: Despite what you hear on some commercials or in the movies, your attorney is not able to leap tall buildings in a single bound!
  • Remember that your lawyer can only operate within the law in your State, and is constrained by that law and the Court in which you find yourself. Also, always keep in mind that each case is fact specific. There’s nothing more frustrating for a lawyer than having to explain why the outcome of your cousin’s neighbor’s sister’s friend’s case doesn’t apply to your situation. Let your attorney help set your expectations based on their knowledge and experience, and trust them when they give you the range of possible resolutions.
  • Keep an Open Line of Communication: When it comes to the facts of your situation, your attorney only knows what you tell him or her. Make sure that you’re communicating regularly and keeping your attorney apprised of any incidents or exchanges that might be relevant to your case. Sticking your head in the sand will only hurt your case and make it harder for your attorney to protect you.
  • Always Be Honest: Similar to keeping an open line of communication, your attorney will be able to most effectively protect you if you tell the truth. Don’t withhold information from your attorney and don’t try to strategically keep secrets from him. When in doubt, always err on the side of telling your attorney something rather than keeping it to yourself. If we know all relevant facts, we can prepare for and address them. If not, we can’t provide you with complete counsel and you’re likely to suffer as a result.
  • Be Organized: Make sure that you keep emails, invoices, and other documents that might be related to your case. Send copies to your attorney regularly as well. Family law cases can involve a lot of “he said/she said” and the Court appreciates when there is documentary evidence to support your position. It also makes the attorney’s presentation a lot easier and more compelling.
  • Accept Counsel’s Advice: Your attorney has been through a good amount of school and training to get to where she is. Trust that she is looking out for your best interests and providing appropriate counsel. Family law cases can be difficult and emotional, but you shouldn’t make emotional decisions. Instead, follow your attorney’s lead and trust her counsel. If you can’t do that, it’s a sign you may need a new attorney!

While this list isn’t exhaustive, following these guidelines will help your attorney do his best job and will make your experience with the legal system go much more smoothly. Family law litigation may not be fun, but by working with your attorney as a team you can help minimize the pain and get a fair result more quickly.

Family Law and Attorney Leadership

By Family Law Attorney Tom Marks

I read a great book while on vacation last week on the topic of leadership. You might ask what does leadership have to do with a family law practice. Don’t family law attorneys just deal with divorce, timesharing, children’s issues, equitable distribution, alimony and the like?

Well actually, good family law attorneys are all about leadership. If the divorce attorney is open to new ideas and ways of helping others, then he or she is able to influence, teach and mentor others in the process. When the client arrives in an emotionally and financially vulnerable place, the attorney can exercise integrity and leadership to help the client navigate through the divorce, modification, enforcement or other any other type of family law case.

Good family law attorneys, as leaders, need to have a vision and be able to communicate that to the client. They also need to have good communication skills and to be highly competent in their profession. Great leaders, who happen to be family law attorneys, need to have great people skills and be able to coach their clients through a very difficult process. They need to be open to doing what is in the best interest of the client, even if that means helping them reconcile their marriage and keep their family together. That is called integrity.

I have read a lot of books on leadership and have always tried to exercise the principles I’ve learned not only in my personal and family life but also in my professional life as a family law attorney.

Can’t Afford Your Support Obligation? Don’t Sell a Kidney Just Yet.

“If I don’t have the income, do I have to sell my assets or borrow money to pay my support obligations?” And the answer usually is “No.” Under Florida law, a Court generally cannot require a party to liquidate assets or incur debt to meet his or her support obligations.

When calculating alimony or child support, the Court looks at your actual income. That means that your assets normally only become an issue if they are generating regular income for you. So if you’ve fallen on hard times, or your income has changed substantially, in a way that makes your current support obligations impractical, take heart.
Florida law allows you to seek a modification of your obligations, and usually your assets are protected through that process. So make sure you know your legal rights before you go in the hole financially or have a garage sale to pay your support—there may be a better option available to you!

The (Veto) Pen Is Mightier!

Thanks to a 24 hour news cycle and the mass communication available via the internet, most of you have been aware of the progress of Senate Bill 718 as it made its way through the Florida legislature. The bill would have ended permanent alimony in Florida and would have changed the analysis a Court employs when determining time-sharing with children.

Specifically, it would have legislated that a Court start from the presumption that 50/50 time sharing is in the best interest of children. The Bill had the potential to dramatically change how divorce cases are handled, and to wreak havoc on children who have grown accustomed to a particular schedule.

After passing the House and Senate by wide margins, the bill was vetoed by Governor Rick Scott.

His primary reason for pulling out the veto pen was a provision in the Bill that made it retroactive. That means it would have applied to alimony awards and time sharing schedules entered long ago. According to the Governor, under the new law’s retroactive application would have been too disruptive to families and former spouses who have spent years operating the previous structure.
So for now the veto pen is mightier than the legislature’s vote. But don’t get too comfortable! Considering the Governor’s clearly stated concern about the law applying retroactively, it is likely State lawmakers will start work on a revised version of the law, which applies only prospectively, very soon. In the meantime, we hope everyone is ready for Summer and wish you all a blessed end to the school year.

What Kind of Family Law Attorney Are You Looking For?

By Family Law Attorney Tom Marks

Some people want an experienced, more expensive Family Law Attorney and some people want a newer, less expensive Family Law Attorney. Some people want their attorney to be a “bulldog” and some people want someone who cares about them and their future.  Is it possible to get all of these in one Family Law firm? Let’s explore this question.

The Marks Law Firm has several attorneys, with professional rates ranging from $275 to $450 per hour. We also have attorneys with experience levels from 3 to 44 years. The Firm has an experienced team of paralegals with rates of $125 per hour.

So how do you put all of those fees and costs together in the most cost effective, efficient and strategic way? The answer is that we work as a team. The paralegals support the attorneys and do whatever they can under the supervision of the attorneys to keep costs down.

For those looking for a more cost effective source of representation, we pair the paralegals with the more entry-level attorney(s). On bigger more complex cases we utilize the more experienced attorneys along with the paralegals and if necessary the more cost effective younger lawyers.

Of course we have administrative support staff including our Receptionist, Office Manager and Marketing Director.  This provides administrative support that includes having non-legal client questions answered without charging the client. In addition, we bring the client on as part of the team with the paralegals, attorneys and support staff.

The client knows the facts as to what has occurred in the marriage and leading up to the Dissolution of the Marriage, Paternity action or any other family law matter we might be handling for them. I like to say we “row the boat together” or we “plow the field together”. That way the client, as part of the team, works in unison with the paralegals and attorneys in a very collaborative and synergistic way. I have found this team effort to be a great way to be on the same page with the client in presenting our case in Mediation, to Opposing Counsel or to the Court.

We make every effort to resolve each client’s case in an amicable and an uncontested fashion. However, when we find the other side being completely unreasonable and unwilling to resolve the family law matter in a positive realistic way, we are experienced enough and ready to litigate our clients case to the fullest.

You might call that, “being a bulldog,” we would call that “representing our clients zealously”. So we are able to provide the whole range of family law services and competencies to the Client, bringing the Client on to the team of Attorneys, Paralegals, Legal Assistants, and Administrative support staff. Simply put, we care deeply about our Clients. We want to see them better off for having been represented by The Marks Law Firm. We strive to represent our clients with integrity, excellence and devotion. Our clients are our mission.

Family Law Mediation in Orlando, Florida

What is Family Law Mediation?

Mediation is the process by which a trained and independent third-party assists the parties in resolving their dispute dispute.  Your mediation may resolve all issues in your case, but does not have to. Often parties will reach a partial agreement at mediation, narrowing the issues that need to be presented to the Court.

During your mediation, you have the chance to present your goals to the mediator who will then facilitate a conversation between you and the other party.  It is a lower pressure alternative to litigation that lets the parties control the resolution.

Do I have to attend Mediation?

In Florida, most Family Law Courts will require the you to attend mediation before allowing you set a hearing and seek relief from the Court.

What happens if I decide not to attend mediation after I have received notice?

Unless you physically unable, you should not skip a schedule mediation.  If you fail to appear at a properly noticed mediation, and you don’t have a good reason for not showing up, the other party can seek sanctions against you.  These sanctions can include an award of mediator and attorneys’ fees, other costs against you, and you will also have really upset your Judge!

What does mediation cost?

The cost of mediation (excluding the Parties’ own attorney’s fees) depends on whether you attend private mediation with a private mediator, or take advantage of mediation at your County Courthouse.  The cost of private mediation is based on the mediator’s hourly rate, which is generally determined by the mediator’s experience, reputation, and training. If private mediation is too costly, many counties allow you to attend mediation at the Courthouse, with a Court-approved mediator, at a significant discount.  The cost when mediating at the Courthouse depends on the income of the parties. For example, in Orange and Osceola Counties, the costs are determined as follows:

  • If the combined gross income of the Parties is less than $50,000, the fee is $60.00 per Party, for up to one 3 hour session.
  • If the combined gross income of two Parties is less than $100,000, but more than $50,000, the fee is $120.00 per Party for up to one 3 hour session.
  • If the combined gross income of the Parties exceeds $100,000 the Parties can select a private mediator or the Court can provide a list of mediators from which you can choose. If the Parties can’t agree on a mediator, the court will appoint one on from the list.
  • If you cannot afford to pay any cost for mediation, you have the opportunity to apply for indigent status.  For those the Court deems indigent, the fee is waived.

Does the Mediator render a decision that is binding?

No.  In fact, the mediator doesn’t render any decisions.  Instead, the parties steer the ship in mediation.  Unlike arbitration, where an arbitrator issues a decision that normally binds the parties, the goal of the mediator is to facilitate the Parties, through negotiation, to reach an agreement.  If you do not like the options discussed at mediation, you are under no obligation to agree to them.  Remember, in a mediation the parties are in charge!

What happens if we can’t come to an agreement?

If you can’t reach an agreement at mediation, the mediator will file a report stating the parties are at an “impasse.”  Thereafter, you can pursue further mediation, negotiate informally, or put your dispute before the Court.

Do we have to resolve all issues at mediation?

No.  You are free to resolve any, all, or none of the issues involved.  If you reach a partial agreement, the mediator will notify the Court and you will have reduced the time and money that will be necessary going forward.   Keep in mind, however, that if whether you reach a full or partial agreement, once the Court ratifies the agreement, you will be bound to honor it.

We’re Outta Here!!! Maybe…

In a place populated by displaced northerners and others escaping bad weather or starting over in the “Sunshine State,” a common issue in family law cases is one party’s desire to grab the children, leave Florida, and head “back home” when his marriage hits the skids.

We often meet parents who either want to take the kids and leave, or who are afraid the other parent is on the verge of doing so herself. Fortunately, Florida’s Statutes (specifically Section 61.13001) provide some guidance for parties in this situation.

Let me first talk to the parent who is lying awake at night in fear that his spouse or significant other is going to disappear out of town with the minor children. According to Florida Statute 61.13001, a parent cannot relocate, with a child, more than 50 miles from the residence, unless that parent has a court order or the written consent of the other parent.

While the Statute’s definition of “Relocate” does allow for brief periods of travel for certain purposes (i.e. vacation or health care for the child), it does not allow your spouse or significant other to pack up the kids and “move” to any location more than 50 miles from the residence. If you wake up to find that this has happened to you, the Statute allows the court to facilitate the quick return of the child, although you will want to counsel with an experienced family law attorney to ensure you and your child are protected.

And to the parent who truly believes it is best for the child to “relocate” out of the area or the State, the Statute gives you the process for trying to make that happen. If you file a Petition for Relocation you will have the chance to explain to the Court all of the reasons it is better for the child to move to the new location. But make sure the focus truly is on the best interests of your child(ren). A court is not going to let you move away just because you don’t want to be around your soon-to-be former spouse, or because you miss your family back home. So before you say “We’re outta here!” make sure you’ve consulted with an attorney and followed the law. Otherwise you could find yourself on the business end of a very unhappy family law judge!”

Help! My Divorce Case Was Referred to the General Magistrate?

 I JUST RECEIVED NOTICE THAT MY CASE IS BEING REFERRED TO THE GENERAL MAGISTRATE.

WHAT DOES THAT MEAN?

Why was my case referred to a General Magistrate?

Most Judges’ dockets are very congested.  In an effort expedite the resolution of the thousands of cases filed every year, cases often are referred to General Magistrates.

Is the General Magistrate the same as a Judge? The short answer is “no.”

General Magistrates are attorneys and, similar to judges, they wear black robes, hear testimony, and rule on objections and evidentiary matters.  However, because General Magistrates do not have the power to issue Final Orders requiring a party or parties to act (or refrain from acting), they differ from judges.

Instead of issuing a Final Order, the General Magistrate submits her report and recommendation to the Circuit Court Judge who assigned to your case.  The report and recommendation must contain findings of fact, conclusions of law, and recommendations.  Additionally, the General Magistrate must give notice to the parties that she has submitted the report and recommendation to the Circuit Court Judge.  This notice usually comes by mail to the parties or their attorneys.

Do I have to submit my case to the General Magistrate?

No.  Any party can object to the referral to a General Magistrate, so long as he does so within 10 days after service of the referral upon that party. Otherwise, the law assumes you consent to the referral.  Additionally, a Party can object before the time a responsive pleading is due, if the referral occurred within 20 days of when action filed.  A party waives the right to object to a referral actually made if the party participates in the hearing, but the party does not waive objection if there is a total lack of any referral order.

What does the Notice of referral to the General Magistrate have to tell me?

The notice of referral must state with specificity what the Court is referring to the General Magistrate .   If the General Magistrate makes recommendations or findings of fact on issues that weren’t included in the notice of referral, those recommendations or findings have no effect.  Every referral also must include other dry, standard language per Florida Statutes.  If you’ve received a referral and want to know if it complies with Florida law, contact one of the family law attorneys at The Marks Law Firm for review of your documents.

If the General Magistrate’s Report and Recommendation get it wrong, am I stuck with them?

No! If a party disagrees with the report and recommendations, that party may serve “exceptions” (objections) to them.  The party must serve these objections within 10 days of being served with the report and recommendation.  It is important to timely file any exceptions— the failure to file exceptions on time will preclude further review of the report and recommendations. Furthermore, you have to explain your exceptions with specificity.  Once the exceptions have been timely filed, the court may not enter the order or take action until after the hearing on the exceptions.

If I file exceptions to the general magistrates report and recommendation, will the Judge re-hear the entire matter?

No.  The purpose of a hearing on exceptions is for the Judge to review the record to determine whether competent evidence. Supports the report and recommendations.  If specific findings are not supported by competent evidence, the Judge may rule solely on those specific issues.  It is important to remember the party filing the exceptions is required to file a record of the hearing, so if you are concerned about having a hearing before a General Magistrate, make sure to bring a Court Report to record what happens in front of the Magistrate.  Of course, the best way to ensure your rights are protected, whether in front of a General Magistrate or Circuit Court Judge, is to bring qualified legal counsel to your hearing.  The family lawyers at The Marks Law Firm have extensive experience in such matters and would be glad to talk with you about your case.

Collaborative Law: An Orlando Divorce Alternative

by Family Law Attorney Tom Marks

Divorce is not always possible to avoid and that we don’t live in a perfect world. It is our goal at The Marks Law Firm to help our clients through what is probably the worst time in their whole lives. We do this so our clients are clearly better off for having been our Client than they would have otherwise been, and they are better off leaving our office than when they came in to see us.So what are some of the options if you and/or your spouse are not able to reconcile or work out your differences?

Of course there is the traditional litigation model which can be very expensive in terms of money, time, emotions and family devastation. This option is sometimes unavoidable because of the issues and perhaps personalities involved. It however, should never be the first choice. If the case goes all the way to Trial it can take months if not more than a year and it can cost tens of thousands of dollars.

I have always practiced law in a collaborative way with what we call a small “c”. By that I mean that I do everything I can to help the parties and counsel work together collaboratively or amicably to save time, money and emotional/psychological trauma. I have been trained now for a number of years in Collaborative Law with what we call a capital “C”.

The difference is in the Collaborative Law with a capital “C”, the Parties sign a Collaborative Agreement that basically says they are willing to pursue a resolution of the case without the expense and trauma of litigation and the Collaboratively trained Attorneys in the case also sign the Collaborative Agreement committing to the Collaborative Process.

The Collaborative Attorneys also commit not to take the matter to Court and through the Litigation Process if the Collaborative Process fails. This removes any and all interest an Attorney might have in the Collaborative Process failing because, 1. They lose a client and 2. They do not get the work to take the case through the Litigation Process.

Essentially the Parties and their Attorneys are all committed to seeing the Collaborative Process be successful because all of them have a vested interest in seeing it succeed. In order to further the prospect of seeing the process succeed, the Collaborative Process also includes a Mental Health Collaborative Professional and a Financial Collaborative Professional. These two “Neutrals” help the team move the process forward within their spheres of expertise.

The Mental Health Collaborative Professional leads the team, insures that the Parties appropriately express their goals and expectations, and moves everyone toward a successful resolution of all issues. The Mental Health Collaborative Professional also meets with the Parties to develop the Parenting Plan if there are minor children.

The Financial Collaborative Professional compiles all of the financial data, drafts Child Support Guideline Worksheets, Equitable Distribution Work Sheets and perhaps Alimony Analyzer Worksheets as options for the Parties and their counsel to consider. Both the Mental Health Collaborative Professional and the Financial Collaborative Professional are “Neutral” and so they do not take sides.

Finally, because the Attorneys are not involved in drafting the Parenting Plan, Child Support Guideline Worksheets, Equitable Distribution Work Sheets, or Alimony Analyzer Worksheets typically, the Attorney Fees in Collaborative Cases can be substantially less than in a traditional Litigation Case.

The Attorney Collaborative Professionals are still actively involved in Providing Legal Input and Advice to their Clients and the Clients still enjoy an Attorney Client privilege with their respective Attorney.

Probably the best thing about the Collaborative Process is that the Husband and Wife are able to express their respective goals in a safe, open and professional environment while receiving both neutral input and legal advice.

They can reach an informed and very personal and specific resolution that meets their overall expectations and family needs. They can walk out of the process knowing they have each been fully heard and their goals have been met. They can move forward without the devastation which so often occurs in standard family law litigation.

Is it Expensive to Consult a Divorce Attorney in Orlando?

No is the answer. In fact, it may be very expensive not to consult a lawyer. And I’m not saying that just because I am one.

Take, for example, a recent case in the state of Kansas. There, a lesbian couple wanted to have a child, and they wanted it to be their own (i.e. sharing their own genes, or at least one set). The design of nature being what it is, they found it necessary to search online for, and eventually locate, a sperm donor. Enter Mr. William Marotta, a strapping 46 year old male, willing, if not eager to participate in the success of the couple’s goal.

The three entered into a written agreement whereby Mr. Marotta would supply the requisite sperm for the ultimate production of a child. The facts of the reports are not specific, but the indication is that an artificial insemination kit was employed and eventually a daughter was born to the couple. The mother of the child applied for state aid for the child’s expenses and did receive funds from the state.

This prompted the state of Kansas to seek out the father of the child in order to recover those expenses, as well as future child support. At that time the child was three years old and the expenses sought by the state amounted to $6000.00. The state filed an action against Mr. Marotta seeking to recover the expenses and future child support.

Apparently, the couple is siding with Mr. Marotta. However, Kansas must be like Florida, and is a state where if a parent seeks aid from the taxpayers, to wit: the state treasury, the parent automatically assigns their right to child assistance to the state, and the state may pursue whatever remedies are available.

If the state is successful (and from all appearances, it will be), Mr. Marotta will be required to pay the $6000 in expenses, plus child support, plus his attorney’s fees. My guess on the fees would be between $2500 and $5000, let’s call it $3500 (it’s going to require a lot of research to see what other states are doing in these circumstances that might yield a defense).

As to the child support, let’s guess that Mr. Marotta is netting $3000 per month. Again, if Kansas is like Florida, Mr. Marotta will be paying approximately $600 per month plus probably ½ of daycare for a number of years, plus probably ½ of health insurance for the child. So we are looking at roughly $9500 plus retroactive support (depending on Kansas law), and about $1000 per month in child support for 18 years. For those of you who are not math wizards, like me, we are talking some BIG bucks at $12,000 per year.

Now, for the uninformed, including Mr. Marotta, there is a state law in Kansas that covers just these types of situations. It simply provides that in order to effect artificial insemination for a potential parent, you must have a doctor perform the requisite procedures, then the donor is absolved of any parental responsibility.

Which brings us back to the original question. Would it have been expensive for Mr. Marotta to have consulted an attorney? As they say, “expense” is relative. It is also relative. Obviously, Mr. Marotta would have been way ahead of the curve moneywise had he consulted an attorney at the beginning of his adventure. He may even have made a profit. After all, he did not have a great deal invested in bringing his product to market.

One way to look at consultation with an attorney is that it is insurance against the unexpected. We pay approximately $1000 per year on car insurance to protect us against unexpected property loss, or greater still, liability loss. Fortunately, only a few of us have had to call on that insurance for reimbursement despite the sizable sum we have paid over the years.

Likewise (home insurance, the price of which is escalating as you read in this article), is roughly $1000 to $2000 per year. Again, many folks have paid for years, with few reimbursements to come close to equaling their premiums.

So we pay a lot to play it safe. Are we as cautious with our potential legal entanglements? Far too many times a client presents himself or herself with the proverbial ball of twine that has become all tangled up, wanting the attorney to untangle the mess. Wouldn’t it have been much less stressful, to bring in the twine when it could have been wound in a more permanently orderly fashion?

You get my drift. A visit to your friendly attorney for a half hour or hour’s conference for a few hundred dollars is a small premium to pay for what may save you thousands of dollars (and a huge headache!).

For instance, say your ex wants to move with the child back to the grandparents spread far away. You are served with a petition that requires a response in 20 days. You think you are ok because you have talked with him or her, and you are sure you can work it out. The 20 days runs and, unfortunately, you are the only one who is out.

Another scenario, you and a friend purchase a lot in both names from another friend with a quit claim deed. You both think that if one of you dies, the other will automatically own the whole property. Not so, but if you had consulted an attorney beforehand, the desired result could have been achieved inexpensively.

Still more, you and your bride-to-be have discussed a pre-nuptial agreement, but the stigma of a lack of trust scares you away. Now, wouldn’t it be enlightening to at least learn what your rights and responsibilities would be if you entered a marriage without such an agreement, so that you could properly evaluate the decisions that you will make after the marriage.

I can go on and on about how people wind up paying attorneys lots of money because they don’t want to spend what would be a lot less in the beginning, to get an idea of what their rights and responsibilities will be if they followed through on a planned course of action.

Bottom line – if an action you are about to undertake seems like it might involve  legal entanglements, contact your friendly lawyer and let him save you some money and a lot of heartache.