Understanding the Problem of Domestic Violence

I personally hate the word “victim.”  It connotes a feeling of “I cannot control what is happening to me” or general helplessness.  Yet, as a society, we cannot seem to escape the word “victim” when it comes to discussing domestic violence.  Rather, I would like to think of people who have suffered—but lived after a domestic violence episode—as people who have “survived domestic violence.”  Once a person has finally broken free of the cycle of domestic violence, then I like to say that the person has “thrived after a life of domestic violence.”  But, enough of my opinion.

Domestic violence includes physical abuse, psychological abuse, emotional abuse, verbal abuse, and sexual abuse of a family or household member with whom you reside.   Section 741.28(2) of the Florida Statutes literally defines: “‘Domestic violence’ [as] mean[ing] any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”

Historically, women have comprised the majority of people suffering or surviving domestic violence.  However, recently, men have suffered domestic violence, as well.  Moreover, people who survive, and ultimately thrive, after domestic violence are not only in heterosexual couples.  They are also involved in same sex couples.  In fact, there are reports that same sex couples display the same rate of domestic violence as heterosexual couples.  Furthermore, people of different races and classes are not exempt from abuse.

One of the most extensive studies on explaining the mechanisms of domestic violence was produced by Dr. Lenore Walker in 1979, where she coined the concept of the Battered Woman’s Syndrome.  Although the syndrome may seem to pertain to only women, the symptoms of victimization through domestic violence seem to apply to all types of people who survive domestic violence.  I find her explanation to be very helpful in understanding the “why” of the dynamic between the person who abuses and the person who endures the abuse (AKA: the survivor).

The four identifying characteristics of Battered Woman’s Syndrome are:

(1)[T]he woman believes that the violence was her fault; (2) the woman has an inability to place the responsibility for the violence           elsewhere; (3) the woman fears for her life and/or her children’s lives; (4) the woman has an irrational belief that he abuser is omnipresent (that he is everywhere) and omniscient (that he knows all and everything).

Domestic violence is characterized by three cycles, or phases: (1) a “tension-building phase,” (2) the “acute battering incident,” (3) and the honeymoon phase.

During the tension-building phase, the person who abuses threatens or oppresses the survivor with minor battering incidents.  As a result, the survivor learns to survive the abuse by becoming vigilant of cues of his or her partner’s edginess and prospective impending abuse.  It is as though he or she can “sense” when the abuse may be coming.  Hence, the survivor may become overly compliant, agreeable, nurturing, or may altogether avoid the partner just to avoid the impending abuse.  The partner who abuses may even interpret the survivor’s silence or avoidance as plans to leave him or her.  Here, it is not uncommon for the survivor to receive harmful threats that “if you leave, I will….”  The tension builds, and builds, and builds until the acute battering incident occurs.  Finally, the honeymoon phase is defined by apologies, denial, hopes, and promises that the abuse will not happen again.

During the honeymoon phase, the survivor may see the side of the person that he or she fell in love with and may not want to leave the situation.   Or, the survivor may not want to leave because there is a sense of responsibility for breaking up the family and home.  With time, the honeymoon phase comes to end and yields itself to, again, the tension-building phase, where the cycle has resumed.  Once the cycle resumes, threats to the survivor’s life and children usually occur during the “tension-building phase,” as the abuser may make manipulative attempts to prevent the survivor from seeking shelter.

The problem with domestic violence is the feeling and perception that there is no choice.

But, there is always a choice.  That is what is most important to remember; especially in the depths of that feeling of helplessness, that feeling of no control, and that horrible feeling of being a victim.

In Florida, there are numerous shelters for people to go to if they find themselves trying to survive an incident of domestic violence.

After calling 911, try going to one of these shelters located all over Florida.  This is just in case you need a place to go during the Holidays.

In my next entry, I will give some helpful information on your legal resources in Florida to protect you from current and future domestic violence in the home.

Finding and Taking Florida’s Mandatory Parenting Course Before Splitting Up

If you have children, filing for divorce or splitting up from your partner just makes things a little more difficult, both emotionally and legally. Florida requires that parents seeking divorce and unmarried parents filing paternity and parental responsibility actions must complete a parenting course dubbed the “Parent Education and Family Stabilization Course” as a way to educate parents on the best interests of children during the legal process of separation.  (Fla. Stat. 61.21).  

Generally, it is advised that the parents complete the course as soon as possible.  For dissolution of marriage actions (divorce), the petitioner (the one who filed the petition for dissolution and asked for the divorce in the first place) must complete the course within 45 days after the filing of the petition.  The respondent (the spouse who was served the petition) must complete the course within 45 days after service of the petition.  For paternity actions, the petitioner must complete the course within 45 days after filing the petition, and any other party must complete the course within 45 days after an acknowledgment of paternity by that party, an adjudication of paternity of that party, or an order granting time-sharing to or support from that party. Each party to a dissolution or paternity action needs to show proof that they completed the course prior to entry of the final judgment of dissolution or paternity action.  If either party doesn’t complete the course, then the court may deny shared timesharing or enter sanctions at the court’s discretion.  (Fla. Stat. 61.21).

 Luckily, the Department of Children of Families (DCF), among other providers, offers various parenting courses in Florida so parents can complete the course within the 45-day deadline.  Also, there is always the option to complete the course off-site or online, if there is a hardship.  DCF divides the courses according to counties that are in Florida’s twenty judicial circuits.  So, if you are in Orange and Osceola counties, you want to look for courses in the 9^th Judicial Circuit. 

 

The Process of Getting Divorced in Florida

When people find out that I am a family and divorce lawyer, I am asked all the time: “How can I get divorced? Can I not pay child support?” And, all sorts of questions follow, such as “My wife cheated on me. Can I use that to my advantage?”  So, I decided to write a blog aiming to cover the basic questions in how to obtain a dissolution of marriage (i.e., divorce).  

As an introduction to Florida Family Law, Florida courts decide family matters through the guidance of the PEACE acronym: Parenting; Equitable Distribution; Alimony; Child Support; and Everything Else, which encompasses matters involving domestic violence and injunctions.  Parenting plans outline parental responsibility and timesharing (custody) of the parents in the best interests of the child/ren.  Florida law is a huge advocate of parents sharing the parental responsibility, i.e., sharing the duties, tasks, and joys of raising children, unless one of the parents is found to be unfit (abusive or neglectful by the State authorities).  Likewise, Florida finds that it is in the best interests of children to share their time with both parents.   Keep in mind that the resolution of family disputes is not only for married couples.  Unmarried couples who have children can also mediate timesharing and child support, as well. However, mediation of alimony and equitable distribution is not available for unmarried couples who live together.

Equitable distribution is the property division of non-marital and marital assets and liabilities.  In Florida, equitable may not always mean “equal.” However, gifts, inheritance, and property that belonged to an individual prior to marriage, for example, are all characterized as “non-marital” and do not fall within the marital estate that is divisible as of the time of the filing for divorce.  

A spouse can request alimony if he or she shows (1) a payee’s need to receive alimony and (2) a payor’s ability to pay alimony.  There are various types of alimony: (1) rehabilitative alimony; (2) bridge the gap alimony; (3) permanent alimony (4) durational alimony.  The type of alimony that is granted really depends on the duration of the marriage and whether the respective spouses can pay and need the alimony.  

Child support is calculated based on the Child Support Guidelines Worksheet.   The parents calculate their combined monthly net income (i.e., gross income less the deductions from child care expenses, taxes, etc.) and the amount of time that each parent spends with the child/ren.  The paying parent’s income is calculated in proportion to the other parent’s income (i.e, if the child support order is $1,000 and one parent pays 60% of the child support because the parent makes the majority of the income, then that amount would be $600 dollars).  No, child support cannot be waived, as it is the child’s statutory right to receive child support.  However, the parents can move to deviate from paying the statutory amount of child support by plus or minus 5%.

Finally, domestic violence injunctions are regulated by Florida Statute Chapter 741.  If there is domestic violence in the home, then the injured person can order a temporary restraining order and have an “Ex Parte” hearing before the judge. This basically means that the judge will hear your side of the story, without the offender in the courtroom, because it is simply too dangerous to have the person in the courtroom. Moreover, the Ex Parte hearing and temporary restraining order makes it so the person cannot go near your home, workplace, car, usually places of business, and the court may grant you temporary exclusive use of your home.  

What Do I Need to Prove to Get a Divorce?  

The couple needs to show that they were married, that one of the parties resided in Florida 6 months prior to the filing of the petition for dissolution, and that either (1) the marriage is “irretrievably broken” or (2) one of the spouses is insane or suffers mental incapacity.

Irretrievably broken means that “for whatever reason or cause, no matter whose fault, the marriage relationship is for all intents and purposes ended, no longer viable, a hollow sham beyond hope of reconciliation or repair.” Ryan v. Ryan, 277 So. 2d 266, 271 (Fla. 1973).  Florida is a “no-fault” divorce state.  This means that a spouse seeking divorce does not need to show that his or her spouse was “at fault” for causing the divorce.  For example, the court will not consider evidence of infidelity in granting a petition for dissolution of marriage.  However, evidence of fault for the dissolution may be considered in the parenting plan, equitable distribution, and alimony. For example, if your wife or husband cheated on you, I can’t argue to the judge that infidelity is the reason the marriage ended.  But, if your husband or wife used marital funds on the lover, then I can introduce that evidence to show that your ex used part of the marital estate (during a love affair).

According to Section 61.052 of the Florida Statutes, the court will grant a spouse’s petition for dissolution if: (1) there is no minor child of the marriage and (2) if the responding spouse does not deny that the marriage is irretrievably broken.  However, if there is either a minor child to the marriage or if the other spouse denies that the marriage is irretrievably broken, the court may do one of the following: (1) order either or both parties to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi or any other person deemed qualified by the court and acceptable to the party or parties ordered to seek consultation; or (2) continue the proceedings for a reasonable length of time not to exceed 3 months, to enable the parties themselves to effect a reconciliation; or (3) take such other action as may be in the best interest of the parties and the minor child of the marriage.

 How Do I Get Divorced? How Long Will It Take?

Step 1: Filing and Serving the Petition for Dissolution of Marriage: Wait 20 days to respond

In order to get a divorce, the petitioner spouse (the one seeking a divorce) files the Petition for Dissolution of Marriage with the Clerk of the Circuit Court and then serves the petition on the respondent spouse (the spouse from whom he or she is seeking a divorce).

The respondent spouse has 20 days to respond to the petition. The respondent spouse must file a response to the petition.  However, the respondent spouse can also file a counter petition, where he or she can request different relief from the court (i.e., tell his or her side of the story and ask the court to give him or her what he or she wants).  If the respondent files a counter petition, then the petitioner spouse has 20 days to file a reply to the counter petition.

Step 2: Discovery of Financial Information through Mandatory Disclosure of Family Law Financial Affidavits: Wait 45 days

Unless the couple is filing for a Simplified Dissolution of Marriage, then both parties will need to quickly comply with the mandatory disclosure requirements of Rule 12.285(e) of the Family Law Rules of Procedure as soon as the filing and service of the petition for dissolution of marriage is completed.  Each party has 45 days from the service of the petition for dissolution to fill out and serve onto the other spouse the Family Law Financial Affidavit (Long Form or Short Form).  However, if the petitioner wants to establish child support, then he or she needs to file a Financial Affidavit at the same time as the Petition for Dissolution for Marriage.  The parties have a continuing duty to update and supply all financial information and documents, otherwise the court may issue sanctions or strike the pleadings, which basically means the court could choose not to hear your case.  The purpose of mandatory disclosure is to determine how non-marital and marital assets and liabilities will be divided between the couple after the divorce.

Another timeline to consider is that Florida requires that divorcing couples with minor children must  complete a court approved 4- hour Parent Education and Family Stabilization Course.  The petitioner needs to complete the parenting course within 45 days of the filing of the petition for dissolution and the respondent spouse needs to complete it within 45 days of service (i.e., receiving the petition for dissolution).  If one of the parents fails to attend the course, then the judge may deny shared parental responsibility, timesharing or hold the party in contempt.  (Fla. Stat. § 61.21).

 Step 3: Court Referred Mediation: First Step towards Resolution, Unless There is a History of Domestic Violence

Florida requires that the petitioner and respondent spouses go through mediation in matters of shared parental responsibility, paternity, child support and costs, distribution of property, payment of alimony, parental timesharing and modifications of timesharing. (Admin. Order No. 2004-14-02).  Mediation is a non-adversarial process where a neutral third party encourages the parties to reach a mutually acceptable agreement of these family disputes.  Each person has their attorneys present at the mediation, if they choose.  The benefit of reaching an agreement in mediation, over trial, is that mediation is cost-effective and the Marital Settlement Agreement that comes out of mediation is the law that the spouses have negotiated to govern their case.

In an uncontested divorce, the parties have reached an agreement on all issues at mediation and entered into their written Marital Settlement Agreement on all issues.  In this case, they can proceed to court and request the judge to order their dissolution.  And, then they are officially divorced.

In a contested divorce, the parties may have reached an agreement on some issues at mediation, or have come to “no agreement” on all issues.  In this case, then the parties will need to schedule a trial before the judge to decide the unresolved family issues.

However, some situations advise against mediation, such as a where domestic violence is prevalent in the history of the marriage.  In that case, it would be advisable to have the family issues heard before a judge, instead of attempting mediation.

Step 4 (Optional): Trial: After a failed mediation, or extraordinary circumstances

At trial, a judge will decide how the parenting plan is determined, property division, alimony (if requested), child support, and any other pertinent issues.  Experts need to be consulted prior to scheduling the trial in regards to assigning value to any family businesses, joint ventures, mental health issues affecting the children that may determine timesharing (custody).  Trial is much more time consuming and much more expensive.  Sometimes, however, it is necessary if the opposing side is not willing to mediate any or all of the issues at mediation.

Hopefully, this has helped. As a Latina woman, I know how important family is.  Feel free to call or email me for a free consultation.  I am happy to serve.

Bernice Bird, M.S., Esq.

BerniceBird@thebirdlawgroup.com

895 Outer Road

Orlando, FL 32814

Office: (407) 608-5198