There's nothing more expensive than NOT having a lawyer

"There's nothing more expensive than NOT having a lawyer."

I say this more often than anything else, yet people still don't believe me. Every once in a while, I like to post examples of why this is true. Here's a scenario I hear about once a week or so:

"When we got a divorce, I [or she] was pregant with another man's baby."

Well, okay, as good a reason as any to get a divorce, I suppose, and I've heard every reason there is. No problem. But that isn't why the person is coming to see me. They're coming to see me because:

"We didn't use a lawyer."

Big problem. It's a big problem because they didn't deal with the child's father in the divorce. If the divorce judgment doesn't mention that the husband isn't the biological father then, guess what, biology suddenly becomes irrelevant. Once the judge signs the divorce paper, husband just gained a child that isn't biologically his.

Many men are okay with this, and I admire them for it. They'll exercise visitation (maybe even assume custody), pay support, maybe become more of a father than the biological father would. Of course, we're ignoring the rights of the biological father here, who may want a shot at custody. We're also ignoring the rights of the child, who may want to know who his or her real father is sometime before he or she suddenly needs a blood transfusion. But this discussion is a little off the topic.

What about the ex-husband who now realizes he's on the hook for child support for a child who isn't his? What about the biological father who suddenly finds out he gets no visitation because he's not the "legal" father of his own child? What about the mother who wants child support from the "real" farther? What about the child who needs a kidney and needs to know who the biological father is? Those are the people who end up in my office. Big mess, huh? Maybe even an emergency? Many lives completely screwed up? Can it be fixed? Absolutely! How can it be fixed? The same way any of these messes can be fixed: hire a lawyer and pay the lawyer great big gobs of money.

However, had the couple just hired a lawyer in the first place for the original divorce, the paperwork would have been done correctly, the real father would have been declared the legal father in a paternity suit, and everyone could have gotten on with their lives at a fraction of the legal expense. But the couple didn't use a lawyer for the divorce. Why not? They wanted to save money. Yeah, how'd that work out?

We lawyers all know that we are a necessary evil. But we also know that we don't have to be an incredibly expensive necessary evil. It just usually works out that way because people try to do things without us first. The do-it-yourselfers are the people who end up paying us big fees, and they're the reason we lawyers always drive expensive German and Italian sports cars (mine's German). You don't have to be one of those people. Save the money and hire us from the beginning. I'd be perfectly happy driving a Ford.

Is the settlement good if we get back together then split up again?

Q.
My Husband and I entered into a Separation Agreement last year when he moved out and we were going to get divorced. Since then, we tried to reconcile and moved back in together for a few months. Now my Husband has filed for divorce and he wants to use the original Separation Agreement. I don’t agree with any of the terms, am I stuck with them?

A.
Good news- you are not stuck to the terms of the original separation agreement. Once you reconcile and rekindle the marital relationship, even if it is for a very short period of time, the separation agreement is no good. At this point you may want to consider hiring an attorney to protect your interests in the upcoming divorce.

The other parent won't give you visitation

There's something I like about both the NRA and the ACLU. I know they're such different organizations. One is considered very liberal, the other very conservative. But they have one thing in common: they don't sit back and expect their rights to simply be handed to them. They fight for their rights. If they think their rights are being abridged or abused, they take charge. They go public. They get angry. They sue.

I get upset when someone says, "My ex won't give me visitation!" Well, why do you expect your ex to give you your visitation. Do you think the NRA or the ACLU expects the government to just give them their rights? Visitation is a right. Sometimes rights have to be demanded. Sometimes you have to get angry. Sometimes you have to sue.

No, it's not that the other parent didn't give you visitation. You just didn't take it. You are as much a parent as the other person is. You have a right to visitation. The law is pretty simple: the other parent can't deny you visitation. If he or she does deny you visitation, you file an action to have your visitation determined by the court. And if the other parent still won't give you visitation after a judge orders it? Watch how quickly custody changes. Maybe you agree with NRA and/or the ACLU and maybe you don't, but there is something to be learned from them. Don't expect your rights to just be handed to you. Go to court and demand them.

What happens to the rings?

Weddings rings and the engagement ring are like anything else in a divorce: you need to know how they get "split."

As a practical matter, unless the are extremely valuable, rings don't come up very often when we settle divorce cases. But, if the issue of who gets the rings does come up in your divorce, here's what most judges will probably do.

Remember that Florida is something like a community property state. All items acquired by either spouse belong to the "marriage." That is, the value of the items gets evenly split. Since the wedding rings are acquired during the marriage--right at the time the marriage begins--the value of the rings is split. Both wedding rings belong to both parties. Maybe they get sold and the money is split. Maybe each party keeps his or her own ring if the rings are of equal value. Maybe something else. But the point is, the wedding rings belong to the "marriage."

The engagement ring, however, is usually a gift from the man to the woman given before the marriage begins. It's not "marital property." It's "pre-marital" property which belongs to the wife. The woman keeps it, and its value is not split during the divorce.

Sorry, guys.

Financial and dating considerations during the divorce

Two questions generally come up after a couple has separated but during the time a divorce is pending:

1) Can I date?
2) Can I buy things?

Question one, dating:

The usual legal answer to both questions is yes, but you'll want to check with your lawyer to be sure, because there are a lot of exceptions.

In terms of dating, once you've separated, the marriage is over, and judges don't care if you move on with your life. Once you've split up and aren't living together with your spouse, it's usually not considered adultery to start dating (or have sex with) someone new. Judges don't want you to be trapped in your marriage until the divorce is final. No one wants your life to stagnate while your await your final hearing date.

Be careful about at least two things though: don't have someone spend the night with you when the children are also spending the night or if the children know that someone is spending the night. This could affect your custody case, since someone can say your moral character isn't what it should be. Keep that kind of thing secret from the kids. It's something they just don't need to know about. Also, don't move in with a new boyfriend or girlfriend if alimony is a possibility or you could destroy your alimony case. Living with friends is okay. Living with people you are dating could cause your alimony to be reduced or eliminated.

Question two, financials:

Financially, you are generally free to do as you please after you separate, especially if the divorce has been filed and is pending, but there are a couple of things to consider here as well:

a) Don't sell or get rid of anything that could be considered "marital property" (things you acquired during the marriage or things that are in both spouses' names), like a car, jewelry, a 401(k), etc. You need a judge's permission to sell or encumber (take a loan out on) marital property.

b) Even if you do acquire property after you file for divorce and during the separation, the judge may still declare the property to be "marital," and force you to give half or some other portion of it to your spouse. The law says that a judge can consider property to be "marital" (and therefore divide it up) if it was acquired 1) before the separation date, 2) before the date the divorce was filed, 3) before the trial date, or 4) before any date the judge darn well pleases.

These last two dates should worry you. In other words, if you buy a new car or add money to your IRA, even a year or two after you've moved out and filed for divorce, you still might have to sell it and give your spouse half.

Don't be too worried, though. Most judges agree that the date of separation or the date the divorce was filed is the date on which you can safely buy new stuff and claim it as completely "nonmarital." I can't even remember the last time I saw a judge rule any differently. But, as I said, check with your lawyer first. That's what we're here for.

Custody evaluation? Here's how to screw it up.

More and more, Florida judges are relying on custody evaluations and social investigations to determine who should get custody of the kids.

Both of these methods (and some other ones like Guardians as Litem that aren't used as much any more) involve using professionals to evaluate the parents psychologically, speak with witnesses, talk to the kids, look at school records, that sort of thing. Judge rely on these tools pretty heavily in making custody decisions. In fact, some judges even read the conclusions of the social investigation reports and--bam!--case closed. Winner determined. Even those judges who don't just base their decisions solely on the reports are very heavily influenced by them.

So you think the conclusions in these reports are important to your custody case? Oh, yeah. Majorly.

Wanna lose? Do this. Completely destroy the other parent when you talk to the investigator. Rant and rave about how bad a parent that person is. Talk about how no child should ever be allowed on the same planet as them. Bring up every tiny thing you can think of about how awful a parent the other person is.

Wanna win? Try this. "My spouse (or ex-girlfriend or whatever) is a good parent. I'm proud of the way he/she always makes sure the homework is done. He/she gets along great with the kids, and they love him/her very much. There are some things that concern me, though, and I'd like to share them with you, because I think you'll agree that, even though he/she is overall an excellent parent, the kids are better off having more time with me. These are my concerns..."

Now I'm not saying to downplay child abuse or molestation or something horrific. You know that you'll have to disclose those things. You also know that you'll win those types of cases. I'm only saying that, in the typical case, ripping the other parent apart is only going to make you look bad, not the other parent. Ripping the other person apart is the quickest way to lose.

The myth of the soldier with primary custody

I usually work out of our main office in Tampa, which is very near a major military base. Moreover, our Tampa office is near an area of town where a lot of military servicemembers live. Because of the office location, we represent a lot of soldiers and sailors.

So I was pretty happy last week when the media showed some attention on the fact that deployed servicemembers often lose primary custody. It's an important issue that deserves attention. I was glad to see it discussed.

But it's too bad that everyone missed the point.

The media circulated a series of anecdotes about how deployed soldiers will -- almost automatically -- lose primary custody of their children to their ex-spouses not only during deployment but after they return to the U.S. Divorce judges are reluctant to return children to servicemembers after they've returned from deployment. "Why should the children be bounced around?" judges will ask, "and what if the servicemember is deployed again?" You have to admit, the judges do have a point.

But it's not as much of a problem as you might think.

It's not as much of a problem because the servicemember will probably never get primary custody in the first place. The questions the judge will ask about bouncing the children around and about future deployments are asked long before a servicemember ever gets a chance at primary custody. How is a member of the armed forces supposed to respond when the judge asks, "Can you promise me you won't get deployed? Can you promise me I won't have to change the custody arrangement in a few months? How can you guarantee a stable residence for the children from now on? Will the children have to move? Will they have to change schools when you get deployed?" There are no good answers to these questions, and most of the servicemembers we represent quietly accept the fact that they will never have primary custody so long as they remain in the service and for so long as they may be deployed.

Yet another cost of war.