Read their lips: new taxes!

We've been telling prosepctive clients that they need to get their cases filed quickly due to the filing fee increases. Divorces already had the highest filing fees of any type of case except adoptions, but as of July 1, they went up even more. It now costs $418 to file for divorce, including the fee for issuing a summons, even if it's an uncontested divorce.

What's worse, you now have to pay to file a counter-petition. That's when you sue someone back for divorce who is suing you for divorce. It's almost a requirement to file a counter-petition because, if you don't file a counter-petition in a contested divorce, you run the risk that the filer will dismiss the petition, knocking the whole divorce out of court. The counter-petition means it takes two to dismiss the divorce, not just one. So the new total cost for a contested divorce (one with a petition and a counter-petition): $713!

You probably don't want me to tell you how mediation costs went up, how process server costs went up, how subpoena costs went up, etc.

You should know that the court system is completely broke. Critically broke. So broke that Florida supreme court justices are quitting because they can't pay their bills. People are getting laid off all over the place in the court system.

So a Tampa legislator had a "great" idea: let the people who use the court system pay for the court system! Sounded good. His bill sailed through the legislature and across the governor's desk with almost no opposition and--boom!--court fees skyrocketed.

My only question is this: if the people who use the courts are the ones paying for the courts, what are we paying taxes for?

Well, I guess I do have one other question: who is going to be able to afford these courts?

Okay, yeah, and one more question: weren't these courts supposed to belong to the people?

Just a happy aside here to let you know that Orsini & Rose hasn't raised it's fees. :-)

In a family law case, who's paying for the lawyers?

The short answer is, probably you.

But there's a lot more to it than that, especially in a Florida family law case.

Many lawmakers have suggested that we have the "loser pays" rule in the U.S., which is where the loser in the lawsuit has to pay the attorney fees and court costs of the winning side. These legislative and congressional bills are usually killed by insurance company lobbyists (that's right, the same ones crying about the "litigation crisis") because they know insurance companies would usually be the losers in the lawsuits. The fact is, we have a number of "loser pays" rules in family law (and general civil) court already without the "loser pays" rule. But, like I said, there's more to it than that.

First, how do you determine who the "loser" is? What if one person wins custody of one child but the other wins custody of another? What if one person wins the house but another wins the 401(k)? "Winning" is difficult to define in family law.

So, in family law, we try not to focus on who is the winner, but who can afford the lawyers. If one person makes $300,000 and the other makes $30,000, the judge may often say that the person making the most money has to pay 90% of the lawyers' fees of the other person. (Why 90% and not all of the fees? The idea is that the 10% will act as a "co-pay", forcing the person receiving attorneys' fees from the other side not to purposely run up attorneys' fees just to harm the other side.) We lawyers call this the Rosen rule, based on the original appellate court case that allowed attorneys' fees to be paid by the party that makes the most money.

But don't get too excited about the Rosen rule. For one thing, judge's don't always grant Rosen fees. Sometimes, judges will say, "Well, this case ought to settle, so I'm not awarding any fees to anyone." Second, lawyers usually want you to pay the fees up front, even though the other side may have to reimburse you based on a Rosen motion. After all, lawyers have expensive rent, expensive employees, expensive furniture, and so on. Our office landlords just don't want to hear, "I'll pay you in a couple of months when the other side pays my fees." You'll probably still have to pay your lawyer up front, then get reimbursed from the other side later. Lastly, it's very, very common for judges put off attorneys' fee motions until after the case--including the trial if there is one--is completed. So, even if you do get reimbursed, it may not be until the case is completely over.

Rosen isn't the only way to get fees paid by the other side. One of my favorites--and one of the least used--is called the Request for Admissions. If, for example, the other side lies on his or her financial affidavit about income (a very common event), you can send out a request in a certain form for the person to admit that he or she makes more. If the other side doesn't respond within 30 days, they've admitted it automatically, which is great for those cases where the other side is constantly delaying. If they deny it, they must pay the cost and fees for your lawyer to prove it up at trial, subpoena the employer's records, take the other person's boss's deposition, etc., and it's almost impossible for a judge to refuse to award the fees and costs.

There are lots of other ways to have fees paid by the other side in Florida. Believe it or not, we even have the "loser pays" rule. It's just not automatic until you make it automatic. You have to invoke the "loser pays" rule by filing a form which essentially threatens the other side by saying, "If you don't settle for x, you have to pay our costs and fees." We lawyers call it the "OJ" rule (Offer of Judgment, not the O.J. you're thinking of).

Bottom line, there are lots and lots of ways in Florida family court to cause the other side to pay your attorneys' fee and litigation costs. But a lot of them aren't used, some are almost never used, and some, though used, don't get granted until the case is almost finished. So, who's paying the fees? Probably you.

Can stimulus checks be seized for back child support?

Apparently the IRS thinks so. They've decided to seize stimulus checks as if they were tax refunds. Moreover, take this scenario:

Suppose a child support payor has remarried and the payor and the new spouse are both receiving a stimulus payment (let's say $600 for the payor and $600 for the payor's spouse). Do you think the IRS can hold the portion of the check which is due to the payor's spouse? In other words, can they take the whole $1200, or just the $600 that would be coming to the child support payor?

Yeah, that's what I would have said, too, but the IRS disagrees with us. They'll seize the whole $1200. You didn't really expect the IRS to do the right thing, did you?

How can I get a divorce if my spouse won't sign?

In the old movies, you see the spouse shout, "I'll never give you a divorce!" Before 1970, it was true that both spouses had to agree before a divorce could be granted. Or, if they didn't agree, one spouse had to prove grounds for divorce, like abandonment, cruelty, adultery, etc.

None of these grounds matter anymore (though they can sometimes affect alimony and custody). Now every state has some form of "no fault" divorce law. Under Florida's no-fault law, all one spouse has to say in the divorce petition and in court is that there the marriage is "irretrievably broken," which means, essentially, "I don't want to be married to this person anymore." Some states call it "irreconciable differences" (which makes no sense to me since I think spouses can have irreconcilable differences every day yet still remain happily married), but it all means the same thing. It all comes down to not wanting to be married, regardless of fault or, for that matter, regardless of if there even is fault. So the answer to the question, "how can I get a divorce if my spouse won't sign?" is that you just plain can. The spouse's lack of signature can't stop the divorce. The spouse's signature is irrelevant.

(An interesting sidenote is that many organizations exist today to end no-fault divorce, claiming it's a liberal invention by women's rights activists to make it easier for women to get out of marriages. Actually, the first no-fault statute was signed into law by Ronald Reagan.)

Spousal signatures may make a divorce easier, however. There are two types of divorce in Florida: contested and uncontested. In the uncontested divorce, the parties have agreed in writing to all issues, like child support, custody, alimony, division of debts and property, etc. In the contested divorce, the parties can't agree on at least one of the issues.

However, one issue they don't have to agree on in either kind of divorce is whether there will be a divorce. Even if only one person wants the divorce and the other refuses to sign or agree, the divorce will still happen. A divorce is not contested or uncontested based on whether the divorce will happen, it's contested or uncontested based on whether all the other issues are settled.

If both spouses settle and sign, the divorce is easier; it's uncontested. If one spouse won't sign on one or more of the issues, there has to be a trial to resolve the unresolved issue(s). The issue is never whether the divorce is going to happen. It only takes one person to get a divorce. The issues are custody, support, etc.

So here's an interesting thing: a divorce can be uncontested even if one spouse is begging and pleading for the marriage to continue! Remember, the issues are child support, alimony, debt, custody, property, not divorce itself!

When the judge has a divorce trial, the judge (or the lawyers) will ask questions about who should have the kids, how much is in the 401(k), how much is on the credit cards, those types of things. The question, "who broke up this marriage?" probably won't even come up. It's irrelevant.

So how do you get a divorce if your spouse won't sign? You just do. Have the papers served on spouse and try to resolve the issues that matter through a phone call, a mediation, or some other way. If you can't settle custody, support, propoerty division, etc., you'll have to have a trial, but you will get your divorce, spouse's signature or not.

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.