Can Children Testify In Florida Divorce Cases?

By Robin Roshkind, Esquire, West Palm Beach, Florida

The answer to that question is, it depends.  It depends upon the age of the children;  it depends upon the nature of the judge;  it depends upon what is at issue in the case. 

Normally, judges do not like to put minors in the position of favoring one parent over another, or choosing which parent they want to live with most of the time.  Public policy and Florida Family Laws dictate that children have a strong bond with both parents.   However, in cases where there are older children, say 16 years or older, or where there are allegations of an unfit parent, or child abuse, the divorce court judge may want to dig a little deeper by speaking directly to the minors in chambers.   

Getting a minor child to present to a judge is done upon motion by one of the parents through his/her attorney.  Most often it will be contested by the other party.  The judge will evaluate the reasons for the child to appear and then make a ruling as to whether or not it would be helpful to the court to speak directly to the minor.   If a child is simply too young, the court can appoint a guardian ad litem or a “friend of the child” like a therapist to come into court to testify on behalf of the child and what would be in the child’s best interests.

For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

 

Working the System! Motions for Extension of Time

By Robin Roshkind, Esquire, West Palm Beach, Florida

In my continuing series of articles on how to legally and validly “work the system” in divorce court, there is something under the law called a “Motion for Extension of  Time”.  Lawyers use this as a strategy, to buy themselves or their clients more time in which to file a responsive pleading, or to enlarge the time allowed to produce discovery (financial disclosure) documents. 

Certain events in divorce law have a time frame and deadline.  For example, if a petition for dissolution of marriage is filed and served against a spouse, that spouse by law has 20 calendar days in which to file an answer, after which, technically, they are in default. 

If, on day #19, the spouse decides to hire a divorce lawyer, that lawyer needs more time to fashion an answer to the petition.  So that lawyer will file a motion for extension of time in which to file an answer and perhaps reserve the right to even file a counter petition.  Merely by filing for an extension of time, the lawyer gets an extension of time.  It’s a gimme or a mulligan, if you are a golfer.

The divorce court judge may put a future deadline on the task, but mission accomplished, none the less.  The same tactics are legitimately used with discovery deadlines.  By filing a motion to enlarge time, your lawyer gets an extended deadline and more time for you to comply. 

The danger lies in repeated infractions.  If a second motion dare to be filed, the judge will catch onto these antics and that is sanctionable to the lawyer or the client or both, for game playing and intentionally causing delay.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

Working the System! Playing the “Unavailable” Game

by Robin Roshkind, Esquire, West Palm Beach, Florida

In my continuing series on “working the system” in divorce litigation, we already covered name changes, child support, imputation of income and motions for continuances.   Today’s blog concerns scheduling of depositions, hearings, mediations but the divorce lawyer on the other side of your case seems to continually be “unavailable” to do so.

The divorce lawyer who prepares the motion, or notices the hearing, or sets the mediation, has an obligation to coordinate such an event with opposing counsel.   If opposing counsel, for whatever reason, wants to stall the divorce proceedings, he/she may indicate the unavailability for such an event.  This “unavailable” game can be played to the point of frustrating the attorney trying to get things done, and furthermore, to frustrate the divorce process. 

After several attempts to set a divorce proceeding, to no avail, the recourse is a motion to compel the attorney to schedule whatever it is.  This motion will be heard before the divorce court judge.  If the judge senses shenanigans going on, as in intentional delay, there may be sanctions. 

Why would a divorce lawyer play the unavailable game?  One good example is if a child is living with the mother, and the father is challenging that, the lawyer for the mother might want to keep the litigation going awhile, because his client has what she wants, that being the child living with her.   Another example concerns the marital home.  If the husband is living in the marital home, he might not want to rush to sell the house.  He is living there and the longer he can delay, the better for him.  These are just two examples of how delay can work in a party’s favor.  That is why that attorney might play the unavailable game.

It does work, but only to a point.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

 

Working the System! Motion for Continuance

by Robin Roshkind, Esquire, West Palm Beach, Florida

In my continuing series of blogs on how to “work the system” in divorce litigation, the first blog was about getting your name changed during divorce proceedings so you don’t have to pay extra to do it later.  The second blog was about imputation of income where a spouse is voluntarily under employed or unemployed but has a fruitful work history.  These strategies are perfectly legal and accepted among the Bench and the Bar.

This third blog is how to work the system by using motions for continuance.  Why and when would a divorce court judge in Palm Beach County postpone a legal proceeding?  Here are some examples:

1.  Motion for continuance of mediation.  Mediation is set by court order.  Your spouse and/or his or her attorney does not comply with mandatory disclosure of financial documents which are necessary to go to mediation with, if you are to attempt a settlement of your divorce case.   In addition to doing a motion to compel these documents and information, your divorce lawyer should do a motion to continue mediation to another date.

2.  Motion to continue a temporary relief hearing.  Your divorce lawyer wants to take the deposition of your spouse’ accountant.  The lawyer or your spouse play the “unavailable game”.  If your lawyer cannot schedule the depositions, he/she has to ask for a continuance of the temporary relief hearing in addition to a motion to compel the requested depositions.

3.  Motion to continue trial.  A trial date is set by the court.  A discovery cut off date has come and gone while trial is imminent.  If your side does not have the information you are entitled to, like a witness list for example, your divorce lawyer would want to file for a continuance to allow more time to get the other side’s witness list and perhaps even take depositions of those witnesses.

Those are just three examples of when your lawyer might work the system by asking the court to reschedule litigation events via a motion for continuance.  It is perfectly legal.  There are many others, in response to the other lawyer’s “working the system” too.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at www.familylawwpb.com.  

How to “Work the System”…Imputation of Income

by Robin Roshkind, Esquire, West Palm Beach, Florida

In my continuation of “working the system” in divorce court blogs, I must qualify that I am only licensed to practice law in the State of Florida.  Therefore, all my information is based upon Florida law.  Marriage and divorce laws change with each state.

In Florida divorces, there is such a thing as “imputation of income”.   Income of a husband or a wife is especially important when it comes to issues such as child support, alimony and any request for an award of attorneys fees.  PRESENT ability to pay is important for temporary relief hearings pending the actual divorce proceedings.

But at the end of the process, when it comes down to the actual trial, the divorce court judge may look at a party’s earning history over the last three to five years, not just the present day income.  As a result of that employment history, the court may “impute” an income to a spouse, and enter a ruling “as if” the spouse was in fact earning that income, even though in reality they are sitting on the beach waiting for this case to be over.

Often, to impute an income, in addition to any earnings history, the judge might also consider a vocation evaluation.  That is when a party is evaluated as to their age, health, education and marketable skills set, and the evaluator, as expert witness, testifies as to what that spouse could be earning if employed.  The divorce court judge then has the discretion to impute an income to that spouse as if he/she were employed earning that income and enter an order based upon that imputed income.

Vocational evaluations are granted by court order after a motion is made and a hearing is set.  They are helpful tools in imputing an income to an under employed or unemployed spouse for purposes of awarding alimony, child support and attorneys fees. For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

“He Said She Said” Not Enough In Divorce Court

by Robin Roshkind, Esquire, West Palm Beach, Florida
After filing for divorce in Palm Beach County, it is mandatory that the parties exchange financial information by way of proof.  This helps to settle divorce issues like alimony and attorneys fees, child support and division of marital assets and debts.

Each party must provide to the other things like tax returns, bank statements, credit card bills, pay check stubs or income statements, mortgages, investment and retirement accounts and the like.  Both parties are required to disclose this information under Florida Family Law Rule 12.285, which is commonly referred to as the mandatory disclosure rule.  In most cases, the court requires going back one to three years with these statements.

The court views these statements as the back up data to a parties’ sworn financial affidavit, perhaps the most important document in any divorce.  A divorce cannot be granted without one.  Proof of income is used for child support calculation purposes; to show need or ability to pay alimony and attorneys fees.  Credit card and other billing statements show debt.  Investment accounts, mortgages, and deeds to real estate show lifestyle of the marriage and determine equitable distribution schemes.

The paper pile tends to grow but merely standing in court and testifying as to your need, or lifestyle or debt is just not enough for the divorce court judge.  Your allegations must always be backed up by proof.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

Negotiating The Terms Of A Marital Settlement Agreement In Divorce

by Robin Roshkind, Esquire, West Palm Beach, Florida

Generally speaking, the divorce issues that need to be dealt with include as follows: alimony or spousal support, attorneys fees and costs, mediation fees, declaring what property is marital and what is non marital, fairly dividing up what is marital property and personal property, and dividing up marital debt, then declaring what is not marital debt. There is also the issue of the marital home and other real property, as to who will buy out whom, or will the properties be rented, or listed for sale and what happens then.  

Aside from these financial issues, are children’s issues, which include as follows: time sharing to each parent, child support worksheet calculations, shared parental responsibility or sole parental responsibility on certain decision making, (who will do homework), a parenting plan, schooling, religious training, counseling, and whether a parenting coordinator will be beneficial to facilitate the matter between the parties. 

All of these terms go into a 30 or so page document called a marital settlement agreement.  This agreement is agreed to and signed by the parties and becomes part of a final judgment of dissolution of marriage. 

As anyone can imagine, with all that there is to decide, two divorcing people will have a hard time.  That is where lawyers, accountants and shrinks come into the picture.  With knowledge about the possible ruling from a judge under the law, the team of experts guide the parties.  They can either negotiate in good faith and reach a resolution no one likes but everyone can live with, or the judge will decide their futures by enforceable court order.  For more information about this or other divorce topics, call one of the lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.