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Orlando Collaborative Family Law and Professionalism

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By Orlando Collaborative Family Law Attorney Tom Marks

I believe that the vast majority of attorneys are caring and professional in their behavior and advocacy for their clients. In our adversarial system it is only natural though that by the end of the case, at least one of the parties will feel like they lost. That is especially true in Family Law, the area I practice in.

Of course, it doesn’t have to be that way and that is one of the reasons I have developed a Collaborative Family Law Practice where husbands and wives agree to work together to resolve the issues without having to take the case to Court.

Not only are both parties winners in Collaborative Law, because they avoided acrimonious Litigation, but also because both parents together have focused on their kids’ best interests.

I have actually participated in Collaborative Law Cases where both parties have felt like they are not only happy with the final results but that they believe they have done everything they can mutually to protect their children and to ensure that their children thrive even after the Dissolution of Marriage. They have chosen to love their children the most and to continue to be friends in order to co-parent their children in the most healthy and productive way possible.

A Word About “Collaborative” Family Law Attorneys

Attorneys who practice Collaborative Family Law are some of the most professional, ethical and caring lawyers I have ever met. The focus is no longer on litigation and winning at no small expense, financially, emotionally, psychologically and spiritually to the clients. And in  addition to the Collaborative Family Law Attorneys, there are highly professional Neutral Collaborative Professionals like the Financial Collaborative Professional and the Mental Health Collaborative Professional. They assist the clients and attorneys in putting together Equitable Distribution Worksheets and other financial documents as well as the Parenting Plan and other important documents in the case.

I am not saying that Family Law Attorneys involved in the Litigation aspects of Family Law are not for the most part Professional. There certainly are many. But those Attorneys who have decided to focus on Collaborative Family Law, do it I believe, because they care about the process of helping clients resolve their cases in the healthiest and most productive way possible.

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

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 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.

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Frequently Asked Questions

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Divorce Questions for Orlando Divorce Lawyer – General Dissolution of Marriage (Divorce):

Questions I should ask my divorce lawyer about my case and questions about divorce to Orlando Divorce Attorneys

What is the difference between Divorce and Legal Separation?”
In addition to ending your Marriage, a Divorce (or “Dissolution of Marriage”) addresses all issues within the Marriage, including property, finances, and child-related issues.  This is the most common way to deal with marital issues, as Florida does not recognize “Legal Separation.” However, if you prefer a less permanent route, there are options available to obtain financial support or address concerns related to minor child(ren) without filing for Divorce.  For example, Florida law allows a married party to pursue an action for support and maintenance without Dissolution of Marriage.  That allows for a time of Separation and the chance to consider the circumstance without the prospect of a full Divorce hanging over you.  If you would like to discuss these options in more detail, contact one of the Orlando Family Law Attorneys at The Marks Law Firm, P.A. – Family Law & Divorce Attorneys to schedule a Consultation at your convenience.

Why should I have a Lawyer representing me during my Divorce?
While many individuals proceed through the Divorce process, having the help of an Attorney with Family Law experience can go a long way toward protecting your interests. Florida’s Family Laws have developed over many decades and are often nuanced and complicated.  An experienced Orlando Divorce Attorney will understand these laws and be able to help you avoid the mistakes or unfavorable results that can arise from not knowing all of your rights.  For example, pro se litigants (those who represent themselves) often do recognize or include important considerations such as ensuring adequate financial protections in the event a spouse passes away, the tax implications of paying spousal or child support, practical ways to avoid future conflict, and significant children’s issues that pro se parties don’t often consider.  Our Orlando Attorneys at The Marks Law Firm, P.A. – Family Law & Divorce Attorneys are also advocates for the Collaborative Law and have the experience to support you with these difficult issues.

How can I find out which decision-making option would be best for my situation?
The presumption in Florida is what is called “Shared Parental Responsibility,” which starts from the position that each parent is considered an equal in parenting the child(ren). When the Florida Legislature changed the “Custody” verbiage in 2008, the intent was to ensure that neither parent was considered superior to the other and that each parent should have as much time with the child(ren) possible, unless very particular circumstances (i.e. child abuse, substance abuse etc.) indicate otherwise. There are accommodations that can be made for “shared parental responsibility with ultimate decision making” and “sole parental responsibility” when appropriate, although these are exceptions and must be justified by the significant evidence. The family law attorneys at The Marks Law Firm can educate and guide you as part of your team to make informed and well thought through decisions that can positively impact you and your children for years.

My spouse refuses to give a Divorce. What are my options?
Florida is a “no-fault” divorce state, which means that either party may pursue a divorce without the consent of the other.  That means that even if your spouse refuses to cooperate, you can file and pursue a Divorce proceeding on your own.  The Marks Law Firm is focused on Family Law and knows how to effectively assist spouses who face this frustrating situation.

What is the difference between an uncontested and contested Dissolution of Marriage?
An uncontested Dissolution of Marriage occurs when the spouses agree on all issues, including Timesharing and Child Support, property distribution, and spousal support.  The benefit of an uncontested proceeding is that it minimizes conflict and allows the parties to maintain control over the outcome.  However, if the spouses cannot agree on any of these issues, the matter becomes contested and requires the Court to make the decisions for the parties.  The Attorneys at The Marks Law Firm in Orlando have over 75 years of combined experience helping families in both contested and uncontested Family Law litigation.

Can I get my Marriage dissolved without a Lawyer?
Yes, you can obtain a Dissolution of Marriage without the help of Legal counsel.  However, there are a number of steps to the process and before you decide to do it alone, you should consider whether you are comfortable with the following questions:

  • What do I need to file to start the Divorce process?
  • Where do I file the necessary documents?
  • Do I know and understand all of the applicable statutes and time limits?
  • What am I allowed to legally ask for during my Divorce (i.e. Alimony, Child Support etc…)?
  • Do I know all of my legal rights and how to avoid waiving them?
  • What are my obligations to my spouse and child(ren) during the case and how might those obligations change when we are finished?
  • How are Child Support and Alimony determined?
  • How does the Court determine property division in a Family Law case?

These are only some of the issues that may come up during your Divorce case, and the outcome of these issues will affect you for years to come.  At The Marks Law Firm, our Family Law Attorneys know the answers to these questions and have the training and experience to ensure your rights are protected.

Won’t a Lawyer turn our Dissolution of Marriage into a battleground?”
It’s true that sometimes Attorneys can add to the dissension and make matters harder, but normally the opposite happens.  The emotions and personal feelings associated with a Dissolution of Marriage can be overwhelming.  It’s often difficult for spouses to be objective during the Divorce and work together to reach a reasonable and proper result.  While the goal of your Lawyer is to fight for you and to protect you and your child(ren), an experienced Family Lawyer will also help you understand the Legal and practical issues involved in your case and avoid unnecessary costs and headaches.  Involving an Attorney early on also gives you a better chance for an early resolution, which allows you to move on with your life more quickly.

How long do I have to live in Florida before I can file a Divorce action?
A person seeking a Divorce in Florida must have resided in the state for at least 6 months prior to filing the Divorce.  This means you must have lived in Florida with the intent to remain here for at least the 6 months leading up to the beginning of your Divorce case.  If you are unsure about which state has jurisdiction over your Divorce case, you can contact the Orlando Family Law Attorneys at The Marks Law Firm to discuss your concerns.

In Florida is there a waiting period before my Divorce becomes final?
There is no waiting period or cooling off period in Florida. If you and your spouse agree on all issues that need to be resolved, and your paperwork is in order and properly completed, your Divorce can be finished as quickly as the Court’s schedule allows for you to attend a final hearing.

Why is the date of separation important?
The date of Separation can be important because it is one of the dates a Court can use to determine the value of property to be distributed during a Divorce, and can set the date for determining back Child support or spousal support.  The Court also often uses the date the Petition is filed, as it can be difficult to nail down a specific date of Separation, especially when the parties have been growing distant over a period of months or even years.  Determining the proper date, and applying that date to the calculations involved, can be tricky, and if you have questions about this issue it is a good idea to contact one of the Attorneys at The Marks Law Firm for a consultation. We are Orlando Divorce lawyers.

How is the date of separation determined?
As mentioned above, it can be difficult to determine the Separation date. If you know the exact date on which one of the parties left the marital home, that is likely the best way to calculate the date of Separation.  If you don’t recall that date, or if you are still living together, it is hard to pinpoint a date of Separation and the Court may use the date of the Petition instead.  If you have questions about determining your date of Separation, or regarding the best date to use for valuing your property for legal purposes, you can call The Marks Law Firm and discuss your questions with one of our experienced Family Lawyers.

Divorce Initial Consultation:

How can I get the most out of my Initial Consultation?
You should come to your Initial Consult as prepared and organized as possible. That means it will help save time if you have at least some basic financial documents like your most recent paystub, savings, checking and brokerage statements. It will also be very helpful to fill out our Initial Consult forms as completely as possible prior to coming in for your consult to give to the Attorney when you meet.  You should also think of any questions you may want to ask and write those down or even E-mail them to the Firm prior to the day of the Initial Consult. The Orlando Attorneys at The Marks Law Firm work hard to combine excellent counsel with cost effective representation, and anything you can do to save the Attorney time will ultimately save you money.

If I request a Consultation, does that mean I have to hire you?
No, you are under no obligation to hire the Attorney or the Firm because you have set an Initial Consult. You should take the time to make sure the firm is a good fit for you before you retain the Attorney.

Do you give Consultations over the telephone?
Yes, this can be an effective way to get started especially with time constraints and perhaps geographical distances. Ultimately is usually is a good idea for the Client and the Attorney to meet in person, but as long as the Client completes the Initial Consult forms and emails them back with some basic financial documents, (see below) a telephonic Initial Consult can be very effective.

I don’t even know if I need an Attorney.  Is there just a packet of forms I can use?
If you have no minor children, and you and your spouse can agree on everything and feel comfortable enough that you know what you are doing, there are forms for a “Simplified Dissolution of Marriage” available. You can also get forms if you have minor children, but we do not recommend it because of the added complexities. In fact if you have any significant assets or minor children, you should take the completed forms in to meet with an Attorney to look at them before you sign them. That way you may only have to pay an Attorney for one hour of time and then the rest yourself. Our Orlando Divorce Law Firm, Marks Law Firm regularly does this type of consultation and would be glad to answer any questions you have about the process before you file your paperwork.

Will I be involved in my own case?
Absolutely! At The Marks Law Firm in Orlando, FL our approach is that the Client and the Firm are a “Team.”  The Client knows the facts of the case better than the Attorney ever will, because the Client has lived through it, so the only way the Team can succeed is if we work together toward a common goal. When the Attorney/Paralegal and Client working collaboratively and with great communication, we can reach the best possible resolution for you and your family.

Modification / Enforcement

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Modification / Enforcement

When parties reach an agreement to settle, or a Court at trial orders a resolution to a family law dispute, those decisions are based on the parties’ circumstances at the time of the agreement or order.  When those circumstances change, however, the agreement or court order may need to change as well.  The Orlando family law attorneys at The Marks Law Firm can help you in seeking to obtain that necessary change.

In Florida, a party that has experience a “substantial change” in its circumstances may be entitled to a modification of their agreement or the Court’s order so that party’s rights and obligations reflect their current reality.  For instance, if a husband who is paying alimony to his former wife learns that the former wife, who was previously unemployed, now has a job and earns more money and perhaps more than he does, the husband may be entitled to a reduction or elimination of his alimony obligations.

Likewise, if a father paying child support to his former wife suddenly loses his job, he may be entitled to a reduction or elimination of those payments as well.  If you believe your circumstances have “substantially changed” since the end of your family law matter, you may be entitled to a change in your rights or obligations.  Contact the Orlando Family Law Attorneys at The Marks Law Firm for a one-on-one consultation to ensure you are protected.  If you would like more information about modification in Central Florida, contact the family law attorneys at The Marks Law Firm in Orlando to schedule a consultation.

Contempt or Enforcement

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Contempt or Enforcement

When a parent or former spouse refuses to comply with a Court Order, it may be appropriate to ask the Court to hold him or her in Contempt of court or Enforce the Order or Final Judgment.  The Court has the authority to act to ensure compliance with the Order and may even impose sanctions on the non-compliant party and award you attorney’s fees for your efforts.

To begin the process of Contempt/Enforcement, you should become aware of the steps required by the Court.

Important Points to Keep in Mind:

  • Forms should be typed or completed in black ink
  • Motions should be signed before a notary or deputy clerk
  • Electronic filing procedures are unique to each judicial circuit
  • Specific electronic filing instructions are available for those who are self-represented
  • Once a Hearing has been set by the Court, you will need to complete a Notice of Hearing

If you or your children are the victims of a party who refuses to honor a Court Order, call The Marks Law Firm in Orlando Florida for a one-on-one consultation to receive clear advice to discuss your options.

Alimony

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Alimony

Alimony is provided for in FL Statute 61.08. There are literally hundreds of Appellate cases in Florida significantly impacting how this Statute is interpreted.

When spouses separate or divorce the financial burden on each spouse can be significant. Interestingly, the status of alimony in Florida is currently in a state of flux. There have been substantial changes to the alimony statutes and the corresponding case law over the past several years, and there is a movement affront in Florida to abolish Permanent Periodic Alimony.

Alimony, or Spousal Support, is the payment made by one spouse to the other. Alimony can be court-ordered or agreed to by the parties, however, not every separated or divorcing spouse is entitled to alimony. We can assess your unique situation and clearly and concisely counsel you as to your legal rights.

There are 6 types of alimony in Florida:

1. Permanent Periodic Alimony
2. Rehabilitative Alimony
3. Durational Alimony
4. Bridge the Gap Alimony
5. Lump Sum Alimony
6. Temporary Alimony

The number one and number two factors in all alimony cases are: 1. Does one spouse have a Financial Ability to pay and 2. Does the other spouse have a financial need to receive Alimony? You must meet both criteria for it to be an alimony case.

In Florida, under FL Statute 61.08, there are a number of additional factors to consider when determining whether alimony is appropriate, including the length of the marriage, standard of living, the health, education and age of the parties, non-marital resources available to the parties and other contributions made to the marriage.

The Marks Law Firm Attorneys in Orlando, FL have over 80 years of combined experience in the Family Law Area. Experienced in Florida Alimony Law – Orlando alimony lawyer.