Knowing the Difference Between a Divorce and Paternity Action
Do you have a divorce action or a paternity action on your hands?
Matthew Brickman and Sydney Mitchell discuss the difference between a divorce mediation and a paternity mediation and how you can come out on other side of either one much better.
As discussed in previous episodes Matthew Brickman and Sydney Mitchell have told their separate personal stories and experiences with divorce and conflict. Both unique and completely different. If you have a matter, disagreement, or dispute you need professional help with then visit iMediate.com – Email mbrickman@ichatmediation or Call (877) 822-1479
The Mediate This! divorce & paternity podcast is hosted by Matthew Brickman and Sydney Mitchell
Their advice will help you deal with:
• Divorce (contested/uncontested with/without children, property, assets, debts)
• Parental Rights
• Paternity Cases and Rights
• Parenting
• Child Custody (Timesharing)
• Alimony and Spousal Support
• Child Support and Arrears
• Document Assistance
• Visitation
• Prenuptial & Postnuptial Agreements
• Post-judgement Modifications
• Family Disputes
• Business & Contract Disputes
• Employment: Employer/Employee Disputes
• Real Estate: Landlord – Tenant Disputes
• In-person Mediation
• Online Virtual Mediation
If you have a matter, disagreement, or dispute you need professional help with then visit iMediate.com – Email mbrickman@ichatmediation or Call (877) 822-1479
Download Matthew’s book on iTunes for FREE:
You’re Not the Only One – The Agony of Divorce: The Joy of Peaceful Resolution
Matthew Brickman
President iMediate Inc.
Mediator 20836CFA
iMediateInc.com
Sydney Mitchell:
Hi. My name is Sydney Mitchell.
Matthew Brickman:
Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.
Sydney Mitchell (00:13):
In previous episodes, we’ve laid the foundation for viewing and resolving conflict. And we also began looking at the entire mediation process as a whole. And in our last episode, particularly how can somebody preparing for mediation, get all of their ducks in a row? And so today, listeners Matthew and I are going to be having a conversation, really a 30,000 foot view of the two main types of issues that he mediates every single day. And so Matthew help differentiate for us the difference between paternity and divorce.
Matthew Brickman (00:46):
All right. So in family law, like you mentioned, there are two categories, either divorce action or a paternity action, paternity doesn’t necessarily mean determining who the father is based on the DNA test. That’s where a lot of people go to.
Sydney Mitchell (01:00):
I was going to say the very first time I heard you say that, that’s exactly what I thought. And then over time I put the pieces together, but I’m glad you made that distinction for those people that are listening.
Matthew Brickman (01:08):
Yeah. So if they were never married, then you’ve got a paternity divorce is of course when two people get married and then decide to end the marriage, that’s, you know, everybody knows what a divorce is. Like I said, with paternity, you’ve got two people, not married, they have a child, and then they decided don’t want to be together as a family unit. So the two main differences between divorce and paternity is that in a divorce, unlike a paternity action, we are dividing up property in a divorce. We are addressing any potential alimony or spousal support requests. Of course there’s no alimony and a paternity action. Cause they were never married. When it comes to the child though, in a paternity action, there is a legal presumption that the mother is the mother of the child because of course she gave birth to the child, but there is no legal presumption that the father is the father until the mother consents that the father is or a DNA test proves that the father is the father.
Matthew Brickman (02:00):
This is important because until the action is filed, the father has no rights to the child, no decision making authority. So you want a story? Yes. Okay. So here’s a story. I had a friend and we’re going to call him John. Okay. And his girlfriend who we’re going to call Kate. So we’ve got Kate and John, right? They lived in Orlando together and Kate got pregnant. They were struggling with their relationship. Not sure if they were going to stay together, but they worked on some things and they ended up staying together throughout the pregnancy. And even for the first year of the child’s life, they, for all intents and purposes acted and looked, felt like a regular family. Kate worked, John worked, they had a joint bank account where they put their paycheck and paid their bills from, they were both on the lease for the apartment.
Matthew Brickman (02:49):
They were renting. John was on the child’s birth certificate and both parents regularly attended doctor’s appointments. You know, everything like a normal family would act like Kate’s mom who divorced, lived in Atlanta and really, really wanted Kate to be closer to her. So she could see her grandbaby more often, Kate and John had discussed maybe moving to Atlanta, but John’s family was in Orlando. And the company that John worked for didn’t have offices in Atlanta. So they decided to stay put, okay, following us one day though, John and Kate had a huge disagreement, then Kate allowed her mom to get into her head as it sometimes does. And so one day when John came home from work, Kate and the baby were just gone, they were gone. John was frantic. He called Kate, left her multiple voice messages. He called her job and he was told that Kate put in her two weeks, two weeks ago and long story short.
Sydney Mitchell (03:49):
So this is like a premeditated claim
Matthew Brickman (03:52):
Meditated. Yeah. Kate drove to Atlanta with the baby while John was at work and moved in with her mom,
Sydney Mitchell (03:58):
Is this a, is this a couple that you mediated for? But hypothetically,
Matthew Brickman (04:03):
Yes. John found out and tried to get Kate to come back from Orlando. But Kate’s mom had gotten to, into her head and convinced her to stay. So what does John do? John calls the police claiming that Kate kidnapped their kid called an attorney. And unfortunately found out that since him and Kate were never married, Kate had full rights and control of the child and there was nothing he could do, even though his name was on the birth certificate matter, didn’t matter, which is why it’s dangerous to play house. I call it plain house because you’re not married. You, you, you pretend like you’re married. You’re not married. And in Florida, you’re either married or you’re not, there is no plain house. There’s no legal separation. You’re either married or you’re not. So with John, he immediately filed a paternity action here in the state of Florida.
Matthew Brickman (04:48):
Kate consented, the job who was the father. Like she didn’t say no, John’s not the father consented the job as a father, but she refused to come back. And since Kate left prior, this is the important piece. Prior to John filing his paternity case, she had full rights. There was no presumption that John was the father and she was allowed to go and stay. Now as for their kid, John ended up with a parenting plan that gave him shared parental responsibility. But for time sharing, he ended up with an out of state sharing plan, which unfortunately went from seeing his child every day when they were playing house and living together to now, he only gets to see his kid 20% of the year. And that’s it. John also had to pay child support based on limited time sharing, which meant it was a higher child support.
Matthew Brickman (05:38):
And as for all of their things, the cars, the apartment leaves, the bank account, all the stuff. Well, the family court had no power to deal with these things since John and Kate were not married. And that was either then for John and Kate to figure out amongst themselves or for a civil court, not a family court. Now you’re in another type of a courtroom. Another action being filed. That was for a civil court to decide. Now had John and Kate been married and then Kate left the child, not Kate, but the child would have to be returned back to Florida. And Kate could come if she wanted or if she could stay if she wanted, but the child would have to come back to Florida. And so when I add had actually met John and Kate, that was when we ended up setting up this out of state parenting plan for John. And so all of the background and everything was what happened prior to me getting involved. But I was the mediator who then set up John’s out of state parenting plan.
Sydney Mitchell (06:39):
I was going to say, what else would have been different? Had they had this been a divorce instead of a fraternity?
Matthew Brickman (06:46):
Yeah, I mean, so, so if this was a divorce, she, the biggest thing is number one, all of their stuff would be dealt with in a family court. So we’d have to divide up all of their assets and deaths and stuff in a family court. Um, and she would not have been allowed to leave. And I’ve actually had mediations where, um, it is a divorce and where mom has, you know, same fact pattern. It’s so weird and Sydney, same fact pattern where they’re married. Dad comes home and mom has just left. I had, I had, I’ll just tell you a quick story. I had one where dad actually went to work, came home mom, and the two kids were gone. He did the same thing that John did. He called the police. He’s like, I don’t know where my kids had filed a missing persons report.
Matthew Brickman (07:29):
Whole nine yards finds out that his wife met some guy on the internet gaming. They were gaming buddies and moved to Fort worth with this guy and took their two kids. Well, being that it was a divorce he had immediately filed, um, for return of the children and the court forced the children to come back. And the mother stayed with the boyfriend that she met gaming. So we just discussed a couple, not being married and then having a child. And as I stated in this story, Kate and John, if they had been married and Kate left, it would have been a totally different outcome. Like I just told you about the lady who was gaming. Um, so in a divorce, a child born during the marriage, which is defined as the couple signs, their marriage certificate. And then until one of them files for divorce, that’s within the confines of the marriage.
Matthew Brickman (08:23):
Uh, the child is presumed to be the child of the married couple. Even if the mother, and this is this isn’t, this is another, even if the mother had an affair and gets pregnant with someone else’s child, there’s still a presumption that her husband is actually the father. So now let’s discuss Dave and Cindy. Okay. So another mediation I had Dave and Cindy, they were married names, right? Hypothetical names. Real mediation. Yeah. So Dave and Cindy, they were married. They have two kids. They’re four and six. Okay. Cindy has an affair with Tom and gets pregnant. There’s a legal presumption that Dave is the dad because Dave and Cindy are married. Now, Dave, her husband is pissed when he finds out that Cindy had an affair. And so he files for divorce, but technically there are three children born of the marriage and we’ve got to do a parenting plan for these kids.
Matthew Brickman (09:23):
But after doing the DNA test, it’s found that yes, in fact, the baby is not Dave’s, but as tops. So I’m now doing the divorce mediation between Dave and Cindy to set up a parenting plan for their two children. And those are the ones from inside the, the marriage and their divorce agreement. But we have to do what they call a disestablishment of paternity for the baby stating that this child, even though born of the marriage is not of the marriage. And the Dave is not the father. I mean, it gets really, really confusing, a little confidence, but this is where things get tricky and seem to go sideways. Tom being divorced prior and going through the family court system already knows that he has no rights to the baby until he files a paternity action. So as soon as Cindy gives birth to the baby, Tom immediately filed a paternity actually action, claiming that he was the father.
Matthew Brickman (10:23):
Okay. Now of course a DNA test has to be done. And it does in fact, say that Tom is the father. And in this particular case, remember, we had talked about like paternity, automatically think of paternity tasks, right? In this particular case, Tom knew that he needed to do one. And Cindy probably knew that one was necessary because Cindy was sleeping with two guys at the same time. And we, and had to figure out who, of course the child was, um, uh, belonged to it. Right? So now Cindy not only has to go through a divorce mediation with Dave, but now has to do a paternity mediation with Tom. Now I was not the mediator between Tom and Cindy.
Sydney Mitchell (11:04):
Let’s see, were these both happening at the same time?
Matthew Brickman (11:06):
No, no, no. Not, not happening at the same time, because here’s the deal we had to do the disestablishment of the baby, born of the marriage so that Tom could proceed with his paternity action. So Tom, unlike John in our previous story, knew the law. And so he made sure that he had full rights from the very beginning. And that’s why he filed immediately. So Cindy and Tom never ended up together. They ended up not, not, not ever getting married or, or anything. And of course, Cindy and Dave got divorced. So Cindy now as a mother of three kids divorced mother of two and a paternity mom of one.
Sydney Mitchell (11:51):
And so I would imagine that, so there’s two kids that are from the marriage and then one that’s from this other guy, Tom I’m like my mind is finally wrapped around all these different people. We’ve got John, Kate, Cindy, Tom, and John. Um, okay. So I’m sure their real names are, would make it even more confusing because we’ve got some really like general answer. Um, okay. So anyway, back to my question, I would imagine that the two kids from the marriage and then the one kid that Cindy and Tom had, are they on different parenting plans? I would imagine they would be. And how does all of that tend to work itself out? Like when you’ve got children from different sets of people?
Matthew Brickman (12:33):
Yeah. So, so I don’t know what Tom, um, ended up doing with Cindy for their time sharing plan. Sometimes people will bring, I mean, and let’s just say hypothetically, I was the mediator, right. Tom might bring in and this is where it gets confused. And Tom, I bring in his time sharing plan with, um, um, that he wants. And Cindy may bring in her divorce decree, which has a parenting plan. And Cindy may say, I want that with all the kids to be on the same plan. Right? Sometimes, sometimes, um, I run into that. Sometimes they say, no, they don’t want them on the same plan because they want to have like, like for example, Cindy might say, and I don’t know what she did with Tom, but she may say, no, I don’t want to keep all the three kids on the plan because I want my two kids separate than my one kid.
Matthew Brickman (13:30):
Right. Because having three together, maybe overwhelming for her, I don’t know. But so, you know, sometimes I, I have run into that more often I run into, I want to keep all the kids together. I want the siblings together. Um, and I’ve had mediations to where let’s, let’s just say, hypothetically, Tom had kids from a previous marriage and he has a parenting plan. Now Cindy gets a parenting plan. They don’t match, but they’re trying to figure out how to get these to closely resemble or match. It can definitely be a little complicated trying to figure out how everybody wants things structured. Meanwhile, what people fail to realize is they’re little, teeny, innocent human beings that never asked to be put in this situation that are the collateral damage of adult decisions. And that’s hard for me as a mediator because I’m focused on best interests of the children. And here’s something for you. It’s 2020 that we’re recording SN. And so at, in 2019 at the conference I attended, they said this was a startling statistic, never in history has ever been this high of a number, but 40% of the children being born or being born out of wedlock like John and Kate, where they were never married.
Sydney Mitchell (14:40):
And I grew up, um, and I think I mentioned this in previous episodes, but I, I grew up on a parenting plan. Um, my parents were divorced and I had, you know, one of my parents was, was married times after that. And in any way, growing up, like I felt when I was a lot younger, it was very weird for me to get used to life being, you know, my parents divorced when I was very, very young. And so I didn’t know any other way of living other than living on a parenting plan. And when I was a bit younger, I felt like I was the only one who had divorced parents. But honestly I can say, as I’ve gotten older, the more and more either I have the opportunity to share my story with somebody, or I’ve just got talking with somebody and it’s come up, that my parents were divorced.
Sydney Mitchell (15:20):
Honestly, I find that it’s more often than not that people that I meet, their parents are divorced. And like you said, it’s just a staggering statistic and I can attest to that. It is challenging navigating the situation, because like you said, a child has never, obviously it wouldn’t that wouldn’t be the way that they would have it, but what encouragement can you give to a parent husband or wife that may find themselves in a situation that is complex? And maybe there are a couple of children from a couple of different relationships involved, what advice or just encouragement can you give to them? Because it’s probably just a really, it’s not only difficult for the child, but I imagine it’s extremely difficult for the parents as well. What would you have to say to those listeners?
Matthew Brickman (16:03):
Well, so a lot of times it’s interesting because they don’t call it a child plan, right? They call it a parenting plan. Children are resilient and it is true children. How do I put this? It is all how you sell it. Like if I said to my daughter, when she was younger, Cassie, I am going to miss you so much this weekend. I don’t even know what I’m going to do. I’m just going to be so, so sad when you go to your moms, Oh my gosh, I’m going to get my daughter a complex. Right. But if I say, Hey, Cassie, you know what? You’re going to have a great time at your mom’s. If you’re, you know, if you want me call me, I’ll be going to, we can FaceTime. And you know what I’ll say in a couple of days, then, you know, when she’s going to be fine.
Matthew Brickman (16:49):
And so parents really have a harder time than the children, like cutting that umbilical cord that, that, that proverbial umbilical cord usually is more difficult for a parent and a grownup, surprisingly enough, you know, it is harder for a mom or a dad to let go than it is for their child. And so how they sell it will make all the difference in the world. So like in the previous episode, we were talking about preparing for mediation, coming with an open mind to listen and to hear and to be open and have a positive attitude going, you know what? Let’s embrace the conflict. Let’s figure out how to make this a good thing for our child. So we don’t end up destroying our kids. That’s the best advice that I can give is, look, I’m sorry, the suck it up, buttercup. This is, this is your bed.
Matthew Brickman (17:37):
You’re going to lie in it. And now you’re in the judicial system. It’s not the justice system. It’s not going to be fair, but you know what? Your child is entitled to rights to have time sharing with both parents. And you know what, unfortunately, children are the collateral damage to our adult decisions. And now it’s time for the parents to then act like the grownups. So many times the kids act more grown up in the parents. The parents are the ones crying and so upset about it. The kids will be fine, but because the parents are crying and upset, they then give their kids a complex. And then they’re like, Oh, my kid doesn’t want to go. Well, you just told your kid that you’re going to be a sad, that they’re gone. You tell a child that there, that you’re going to be sad. They’re going to react to it
Sydney Mitchell (18:21):
Or making it like an option.
Matthew Brickman (18:24):
And so no luck, suck it up. You ended up, you know, out of, you know, and the judge has said, look, you’ve got over a billion people on this planet. You chose to have a child with that person. How bad can I actually be? And so they’re, you know, they’re, they’re very numb to it and just be like, deal with it, you know, and, and look, kids, kids, most of their friends are probably on a parenting plan. Unfortunately, you know, divorce is not so taboo. Even the schools are prepared for this. So when we’re doing time, you gotta take your backpack or your bag schools are prepared for it. They know how to deal with this, this, this, this is unfortunately, this is not a new phenomenon any longer. This has been going on for decades. And the systems are in place to make sure that the children can survive and thrive in it. But so much of it has to do with the parents being able to, I’m just going to say it again, suck it up.
Sydney Mitchell (19:16):
And I think too, taking the opportunity, you know, instead of viewing it as, um, something that they have to do, you know, it’s something that they get to do. They get to set, um, a healthy tone, you know, regardless of how complex or challenging the situation is, they have the opportunity to do with it, what they want. Right. It’s kind of what I hear you saying.
Matthew Brickman (19:35):
And I’m there to give them lots of creative options and create a good, healthy environment for the child to thrive,
Sydney Mitchell (19:42):
Right? When it comes to establishing child support and other child support related issues, whether it’s in a divorce or a fraternity actually are all child support related issues the same.
Matthew Brickman (19:54):
Yes. So whether a divorce or paternity action, child support related issues are identical, just like the parenting.
Sydney Mitchell (20:01):
So in a fraternity, it’s just the parenting plan and the child support and other child support related things in a divorce, you have to address assuming several other things. One of them being like the financial aspects, right?
Matthew Brickman (20:13):
Yes. So with a divorce, there may be two or three more issues to address then the Aternity agreement. So the first one, which is a pretty major one is equitable distribution of marital assets and debt. So unless there’s a prenuptial agreement that the parties have created prior to getting married, then everything that the parties accumulated from the day, they sign their marriage certificate until the day that one of them files for divorce in Florida is split 50 50. So this means that regardless of who actually bought an item or whose name is, or is not on an account, it’s still marital. This also goes for debt as well. So whether you’re on a credit card or alone, or even if you’ve never even knew about it, if it was accumulated during the marriage, it’s now divided equally as well. Is this, you said in Florida, is this just a state of Florida?
Matthew Brickman (21:08):
Is this pretty standard for a lot of other States, a lot of other States, but not all of them. I mean, that is the beauty of family. Law is family law is particular state to state, to state for listeners and other States that may be listening to it, check your state laws. But a lot of them are just split 50, 50 to 70. That’s a great question too, because when it comes to time sharing and the paternity, right, that we were talking about, some States start with either a premise or a presumption of 50 50, where everybody starts at 50 50. Now that’s not the case in Florida, even though there are a lot of judges that, that, that will grant 50, 50, nothing in the statute says that there is a premise or a presumption of 50 50, but in other States there are.
Matthew Brickman (21:52):
So, you know, if there are listeners out there that you know, you’re not in Florida and you’re, and you’re wondering what are the laws in my state just know that every state is different and they may have a little nuances. They may have some overflow. Some States may be identical, but at least in Florida, it is split 50 50. Now with that said, it’s also important that you know, that both people, you know, need to know about the finances, right? Many times in mediation, a party, whether it’s the husband or the wife at times says, Oh, I never knew about that credit card. Or I didn’t know about that loan or whatnot. And the other person says, well, you never asked her even cared to know I’m not giving anybody legal advice. This is humid advice. I would tell you Sidney care, like if you’re in a relationship care, ask, no like that, it doesn’t work out.
Matthew Brickman (22:42):
And right now we know, Hey, one end to end in divorce. It’s like, you gotta, you gotta know what you’re marrying into. And once you’re married be an active partner, right. Care ask and know, even if you’re gonna let somebody else deal with the finances care, ask and know, I mean, this is your marriage. So be involved. It’s a partnership. You know, at times it may be 50 50 at other times it may be a hundred zero, you know, like right now with COVID-19 like, look, you know, people are unemployed. It could be, you know, one parent has a job. The other one doesn’t. So it could be a hundred zero, you know, maybe it’s a 70, 30, a 65, 35. And like, you know, a partnership does, isn’t always okay. You know, 50, 50 to the table. And that’s why it’s important to care.
Matthew Brickman (23:26):
Ask and know, because regardless of what stage you are in life, when you’re married, it’s a partnership. And if it ends up falling apart and we know that one and two fall apart, then it’s important to care asking. No, because you don’t want to be sitting at that table going, what do you mean? There’s $50,000 worth debt. What do you mean? What, what happened to the IRA? You cashed it in. Well, okay, well, where’s the tax refund. Oh, we had to pay the taxes on the IRA. That’s like, it’s important to care. Ask and know, you know, life happens. Both people need to be present. They need to be involved regardless of the roles. And you know, you and I talked to previous episodes about the roles that people create in their relationships. Both people need to be involved during that relationship. Quick story. I had a couple come to me, no lie.
Matthew Brickman (24:17):
They were in their seventies and they had been married forever. And they’re both on disability because neither of them working. And they ended up abating the divorce. That means that they canceled, even though they filed, did all the discovery, like we talked about in the last episode and everything. When they came to mediation, we went through everything. They did not make enough money to separate and run two households. But the wife sat there and said, we’re spending $500 a month on cable. And the husband was like, well, yeah, you want this channel and your son wants this pay per view. And you want this particular thing. And she’s like, what? We’re just starting to have this conversation with you. And so they’re having in front of me. And so I’ve got an equal distribution chart. I’ve got their financial affidavits and I looked in the city, you guys don’t have enough money to get divorced.
Matthew Brickman (25:07):
Like there’s not enough money to go around. And unfortunately there wasn’t. And so they ended up abating the divorce and they went away. And I guess they just stayed together because they don’t, I think there was not enough money to run two households, but the wife was sitting there going, we’re spending what on cable we’re spending? What on telephone? How much is our car insurance? Because she didn’t know. She, and, and here’s the deal she didn’t know about all the debt because they didn’t have the money to support this lifestyle. So he was taking out credit cards and he was just going, yes. Ma’am yes. Ma’am. Yes. Ma’am okay, honey. Okay, honey. And she had no idea they were racking up debt that she’s now responsible for. It’s important.
Matthew Brickman (25:48):
I know. You’re, you’re sitting there with a huge smile on your face. Dumbfound is shaking your head going, Oh my gosh. This is true. Yeah. It’s important care. Asking note care asking. No, even if you don’t care care know or care, like you would, if you were getting divorced, that’s really care. Like you would, if you were getting divorced, I’m preaching here. Okay. So you said that they were like two or three different issues to address. I’m assuming one of those is the financials and we just kind of talked about what are the other ones. Okay. So, so to close out this episode, I’ll just talk about the second and third. So real quick, the second issue is alimony or spousal support. So in Florida, we have no calculator to determine alimony. Our statute does outline the factors and explains the types of alimony. But before there can be any type of analysis of the factors, whomever is asking for alimony, they have to prove their need for alimony.
Matthew Brickman (26:46):
And I’ll tell you is a Sydney. I’ve never met anybody that said, no, no, no, no. I got enough money. I don’t need anymore. Of course, everybody can take it then. So Vance easy, like to prove that you need more money is easy, but here’s the hard part. They also have to prove that the other person has the ability to pay the alimony and this hurdle can be overcome. And it’s a pretty high hurdle, but if they can do it, then there are many factors that they have to look at and meet. And then if they still don’t come to an agreement, it is completely discretionary to the judge and the court. If the parties cannot decide. So personally, um, I used to be on the fence about alimony. Um, I saw the necessity for it as well as the downside of it. But after conducting a divorce in Sweden for a Swedish couple and learning Swedish law, um, I’m not really a big fan of alimony of any kind in any situation.
Matthew Brickman (27:41):
Now that doesn’t mean that I’m not going to help people mediate the issue with the United States of America, particularly in Florida, because America has alimony. But in Sweden, they have no alimony at all. What’s, what’s different about having it versus not having it. And why is it either better or worse in your opinion? Okay. So yeah, so, so this is why in Sweden, there’s no elementary, right? So since there’s no alimony, people make completely different choices inside their marriage. Remember we talked about the roles that people make and they decide inside their relationship, right? So being that they know that there’s no alimony ever. They make different choices and assign themselves different roles than if there were alimony. Because look, they may not sacrifice during the marriage hoping for a payday later, if they get divorced. So due to not having any alimony, also there is a presumption of 50, 50 time sharing.
Matthew Brickman (28:42):
Now, surprisingly enough, Sweden has the highest rate of the ability to co-parent of any place in the world. And so when parties get divorced, they get, when they get divorced, the kids have 50, 50 time sharing with their parents. They divide up all of their stuff, you know, assets and debt, equable distribution, they divided up equally and then they move on with their lives. No one gave up a career for the other. Now resenting the other person because they made a sacrifice expecting to get paid for their sacrifice in the future. And if a party did sacrifice, if a Swedish couple did sacrifice their career will, then they did so with no expectations or attitudes of future, future entitlement, because there’s no alimony to get. And so we’re going to dig deeper into alimony at an alimony specific episode, but I just want to touch on, uh, the last potential, uh, issue as well to wrap up this episode, which is attorney’s fees.
Sydney Mitchell (29:42):
Okay. So how are the attorney’s fees?
Matthew Brickman (29:44):
Usually attorney’s fees is the same analysis as alimony need versus ability. So the person asking for fees has to prove that they’re in need of it and they have to prove the other person has the ability to pay. The only exception to this is if the attorney’s fees are part of a motion for contempt. So like if somebody violated the agreement and the agreement had an enforcement clause with an attorney’s fees provision, well, this would be because, you know, one of the parties found to abide by the agreement. Now then the other party would have to lawyer up in order to try to get the person to follow the agreement. Well, then they wouldn’t have to show need versus ability. There’s an enforcement clause that says, look, if you screw this thing up, you may have to pay for the other attorney to really come and get you like. So like, you know, you have to pay for the attorney to come and nail you against the wall. Well, it’s there. So they, you follow your agreement because otherwise there’s going to be some financial repercussions, but generally it’s the same analysis as alimony, which is need versus ability.
Sydney Mitchell (30:50):
Well, I’m so glad we talked about each of these things, because this is, these are the types of questions that somebody going into mediation, you know, like I’m just so glad that we’re opening up this conversation for people to listen, because you really don’t understand or know all the parts and pieces and all the different packages that are going to have to be unwrapped when you start this process. So thank you for all that information. And I’m looking forward to digging a little bit deeper into, um, parenting plans, as well as some of those financial issues in future episodes with new copy. Thank you.
Occasionally Sydney and I will be releasing Q&A bonus episodes where we will answer your questions and give you a personal shout out.
Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.
ABOUT
MATTHEW BRICKMAN
Matthew Brickman is a Florida Supreme Court certified family and appellate mediator who has worked in the 15th and 19th Judicial Circuit Courts since 2009 and 2006 respectively.
He was also a county civil and dependency mediator who mediated hundreds of small claims, civil and child-related cases. Matthew was a certified Guardian Ad Litem with the 15th Judicial Circuit. He recently completed the Harvard Law School Negotiation Master Class which is strictly limited to 50 participants and the Harvard Business School’s Negotiation Mastery program as one of the 434 high-level professionals in a student body from across the globe, all with multiple degrees and certifications from the most prestigious institutions.