Located in downtown Fort Myers near the Lee County Justice Center makes the Smith Family Law Center perfectly positioned to offer its clients a base of operations where their family law-related problems can be resolved with any number of different techniques.

The new parenting law is not the panacea we crave

          CS/CS/SB 2532, a/k/a Chapter 2008-61 of the General Laws of the State of Florida, a/k/a the NEW Parenting Law, signed by the Governor in May 2008, became effective on October 1, 2008.  This is the law that we hope will bring fairness to the traditional custody dispute, bring the warring factions to the negotiation table as equals, and force parents to play nice with each other.  If the new law fulfills its promise, parents will no longer be able to clog up the courtrooms with their claimed intentions of good faith toward one another, and instead will focus them on demonstrating how they have done things in the past as a precursor to the future.  Florida family law stakeholders have been craving just such a law for years, and in a largely unexpected move the Legislature and Governor made it happen this year.

          Is this the cure-all, the panacea that has been dreamed about by so many?  Have we turned a corner in family law litigation that spells an end to the divisiveness and downright nastiness that can sometimes develop in all-out custody wars?  In a word: “no”.  I see this new law as a few steps forward and a few steps backward, leaving us largely in the same place that we were before.  We’ve changed some of the terminology that fueled much unnecessary litigation, but there are still areas of the law that are ripe for litigation, and we all know that there are people out there that will litigate no matter how insignificant the benefit.  The newest terminology for such people is “high-conflict,” and we meet them every day, sometimes even when we look in the mirror.

          What the law has created is yet another layer to penetrate before a Circuit Court Judge can be called upon to make a ruling in that subset of cases in which the lawyers simply could not get the litigants to put their heads together (read: “high conflict cases”).  Once upon a time, we had only one barrier to getting a ruling from a judge in Florida, the Judicial Assistant, who would guard the Judge’s calendar like a dragon defending the maiden in the tower.  The Judicial Assistant certainly was a formidable bodyguard, but it was inevitable that a hearing would be granted and a ruling be had.  High conflict people would have a decision that, like it or not, was the last word, and in my opinion that was precisely what was needed because high conflict people who cannot recognize the harm that they cause require unequivocal rulings.  Potential litigants who subscribe to the truism that court-ordered parenting plans are inherently inferior to parent-formulated plans never put themselves in that position in the first place, and those that could not be made to understand needed a firm ruling that put an end to the hand-wringing.  The system worked and cases moved through the courts much more rapidly than is seen today.

          In more recent years, the use of mediation developed as an alternative to divisive family litigation, but in creating a requirement that parties mediate before a hearing, we inadvertently put up another barrier to insulate high-conflict people from the harshness of a ruling.  The use of mandatory mediation has grown over the years to include not only an attempt to reach a global settlement of all issues, but also to deal with temporary relief and enforcement matters, as more and more often Courts are requiring that the parties mediate before a specific motion is heard.  At times I have even found myself being required to mediate a discovery dispute before a hearing would be given, but that practice, at least locally, seems to have fizzled out.  Even more recently we have seen Case Managers adding one additional level to overcome, as in the guise of moving cases more efficiently through the system there has been created a checkpoint scheme that attempts to iron out problems as and before they develop.  This is certainly born of a noble intention, but from a practical standpoint the high-conflict cases, for which clear-cut rules need to be laid that leave little chance for potentially harmful “creativity”, are simply being herded through a switchback that does nothing but delay the inevitable and drive up the already high cost of family law litigation.

          The new law has spawned yet another barrier to a judge’s ruling, the requirement of a licensed psychologist to assist the parties in creating a parenting plan.  The new law calls for the creation of a parenting plan in every case involving minor children, which plan must include a timesharing schedule.  This really is nothing new, as it is just giving a different name to the visitation schedules and rulings that micromanage parenting that we have become used to for years.  What is new, though, is the required involvement of a licensed professional when the parties cannot work out something on their own.  Once again, in those cases involving intelligent and child-centric individuals, the use of a professional to assist them in difficult situations is a prudent and worthwhile exercise, and one that such individuals would likely seek out without the imprimatur of a legal requirement.  But for high-conflict individuals, aren’t we just creating one more forum for them to demonstrate their inability to cope with the concept of putting their children ahead of themselves?  Personality traits of high conflict people are easily recognized by mental health professionals, and when they make a recommendation that is meant to protect the children from being harmed by those traits it is rarely one that the high-conflict person can accept, thus leading them inevitably to a judge’s ruling.  For such cases, what has really been created is an expense that has no benefit to the plan of reducing divisiveness, and so bad mannered people will display bad behavior with no consequences.  I fail to see any real benefit to mandating professional involvement as an intermediate stage for high-conflict cases.

          As an experienced family law litigator I will, as I have in the past before the new parenting law, help my clients develop parenting plans pre- and immediately post-suit, I will steer them toward mental health professionals when they need some assistance, and I will recommend mediation when I recognize that that tool might have some value.  But there will always be those clients and opposing lawyers, who will make such measures unproductive, the high-conflict people.  For those of them that cannot be made to see how their destructiveness is negatively affecting everyone, especially the children, the best method available to resolving conflicts is the Circuit Court Judge exercising all of his or her constitutionally and statutorily granted powers to make things happen.  It is important that we do all that we can to have such cases resolved before they jam up court dockets, but by the same token we should not be insulating the courts from dealing with difficult cases, as that is what we expect judges to do.  Inevitably there will be bad results and hurt feelings, but I submit that in high-conflict cases such bad results and hurt feelings were going to occur nonetheless.  Taking away the barriers to getting to the judge will have the benefit of reducing the time such cases can clog up the system, and the cost of litigation should drop as a result.  I am disappointed in the new law because it does not really fix the problem of unnecessary litigation, but rather it inherently draws it out.

          There is much to be happy with the new law.  Most notably, the § 61.13(3) factors that emphasized subjective beliefs of future good faith have been largely replaced with requirements that the parties demonstrate past actions as a herald of the future.  This newer scheme puts to work the often-quoted truism that the past is the best predictor of the future, and for that it brings more certainty into the system.  The ones that will be negatively affected by this change will be the sincere and honest Johnny-come-lately parents, those who have been “poor” parents in the past but who truly would become better and more attentive when the family splits up.  We have all had clients who made the claim that they would mend their past errors.  I believe that we can safely say that such individuals actually exist in about 10% of the cases where it is claimed.  But even for those who fit that category, the new law really does not change very much at all.  If Johnny-come-lately does not have a high-conflict person as their co-parent then it is likely that he/she will be given an opportunity to showcase their previously hidden talents because the intermediate steps are geared toward giving such “second chances”.  But the presence of at least one high-conflict individual in the mix does not bode well for a benevolent resolution.

          Practically speaking, the new law changes very little.  Before October 1, the Court had three available options for parental responsibility (shared, shared with ultimate decision-making authority, or sole), three labeling alternatives (primary/secondary residential parents, co- or rotating primary, or sole), and an infinite number of timesharing schemes.  After October 1, the Court has the same three options for parental responsibility and the same infinite number of timesharing schemes, but no labels.  We will still be fighting over days, when all is said and done, but we just won’t have anything to call the parent that gets the lion’s share of the time with the kids, if any.  The smart litigants will recognize this and avoid the fight, while the high-conflict folks will stay true to form and fight for the sake of fighting or whatever other twisted motivation they may have.  Claims of abuse and bad faith will still abound, claims of lying and manufactured evidence will still be made, and claims of alienation and manipulation will still be put forth.

          I am not convinced that the new parenting law will bring about any real change in the way in which we practice.  As I mentioned before some terminology has changed, but for all that has changed there is much that has remained the same.  I would personally like to see us return to a time when the path to a judge’s harsh (for some) rulings was not studded with fences, ravines and obstacles, so that the truly high-conflict people would have fewer opportunities to play the system.  It is true that some high-conflict people just don’t get it and won’t get it even when judges send them harsh rebukes, but giving such people hope that they may be able to get something they want simply because they make it difficult for the other side to get through all of the barriers does not help the situation either.  The definitive rulings that Circuit Court Judges are mandated to make bring closure in one way or another, while the intermediate methods that we now employ often only delay the inevitable and create additional tensions and costs than would otherwise appear.

          I pray that I am wrong.

            Prenuptial agreements are hardly the cure for all of the above, but for those who had the foresight to get a prenuptial agreement and are now facing divorce there is at least some certainty among uncertainty.  For someone in the midst of financial and emotional crisis any bit of certainty can be a blessing.  Prenuptial agreements, when thoughtfully and thoroughly drafted and finalized, can provide a great deal of guidance in a difficult time, and since they are made when the spouses generally have each other’s best interest in mind they can help achieve the most fair result when both spouses are looking out for only themselves.

            Last year the Florida Legislature enacted the Uniform Premarital Agreements Act (the Act), bringing Florida in line with a growing number of states adopting the legislation.  The Act gives more teeth to prenuptial agreements, closing off many of the loopholes that resulted in much litigation over the years.  Prenuptial agreements that are created with the formalities specified in the Act are afforded strong legal presumptions of validity and enforcement.  Specific requirements for financial disclosure are now in place, bringing even more certainty to the process.

            So what can you do with a prenuptial agreement?  The most common uses of a prenuptial agreement include:

• providing for the preservation of wealth by designating what assets and debts are non-marital in nature;
• allowing people with children from prior relationships to make provision for those children upon death, free from claim of their new spouse;
• setting forth the manner in which each spouse will be financially supported, or not, upon the termination of the marriage by divorce.

But this just scratches the surface of what is available for inclusion in prenuptial agreements.  Less traditional uses of a prenuptial agreement include:

• establishing how a family business will be formed, capitalized and run during the marriage, and then laying rules for the continuation or dissolution of the business upon the termination of the marriage;
• setting forth the goals that the family will work together toward achieving and the values that they will maintain in good times and bad;
• determining in advance and at a time of no rancor how the family will raise their future children (religious upbringing, forms of discipline, etc.)
• establishing how and under what circumstances the spouses will jointly own and manage property and investments.

The items that can be included in a prenuptial agreement are generally limited only by the imagination of the parties and the skill of the drafter. 

          The fact that no consideration except the marriage itself is necessary to formalize a prenuptial agreement makes it attractive to the financial secure, and the fact that it is extremely flexible and forward-looking makes the prenuptial agreement attractive to the rest of us.  In the past, when divorce was rare, prenuptial agreements were seen as only appropriate for the super wealthy.  Now they can be seen as prudent for nearly everyone.

          One thing we should learn from this current economic downturn is that such contractions are inevitable on both a global and personal scale.  It is prudent to take into consideration that things will look bleak at some point in the future and to plan accordingly.  Nobody wants to think about the breakup of the marriage before it has even begun, but the benefits of doing so cannot be overstated.  Setting down during good times what your objectives will be in bad times makes too much sense to be ignored.

          If you know of someone who is going to become married in the near future then advising them to consider a prenuptial agreement may be a better gift than the crystal goblets that you were thinking about.  Direct them to a Marital and Family Law Attorney with experience in drafting and formalizing prenuptial agreements.  Most wedding gifts get used in the early years of the marriage and often it is forgotten what the gifts were and who gave them.  But the gift of advising a prenuptial agreement has the benefit of being inexpensive in the short term and tremendously valuable in the long term.

          Fear not, those of you that are lamenting not having entered into a prenuptial agreement before you became married.  There is a way for you to accomplish what should have been done before the marriage.  A postnuptial agreement can be created and formalized which will allow you to set down the same forward-looking goals as with a prenuptial agreement.  The major difference between a prenuptial agreement and a postnuptial agreement, besides the timing of its entry and the inapplicability of the Act, is that the marriage itself is not consideration for a postnuptial agreement.  With a postnuptial agreement some valuable consideration must be given in order to make the contract valid.  Legal consideration can take many forms, though, and a good attorney can help you to fashion a binding postnuptial agreement that protects like a prenuptial agreement.