Parting Ways

The ins and outs of Florida divorce law

Published in 2006 Florida Super Lawyers — June 2006

A divorce lawyer may be the last person couples expect to save their marriage, yet three of Florida’s top divorce attorneys, Marsha Elser, Donald J. Sasser and Michael R. Walsh, say that’s their first priority. But when the marriage is irreparable, these and other family law experts help you get the most out of divorce.
 
Elser of Elser Foster-Morales & Kopco in Miami, Sasser of Sasser Cestero & Sasser in West Palm Beach and Walsh, an Orlando attorney at law, have more than a century of accumulated experience and wisdom. Following are themes that emerge in discussions about divorce.
 
Be sure you really want the divorce: Certain situations, including any form of abuse, warrant a breakup. Others, though upsetting, may not warrant a marital dissolution. A lawyer can help you figure out whether you really want to proceed. “Our first job is to save a marriage,” Sasser says. “And although by the time most people come to us it really is badly broken, we do save a lot.”
 
Realize that divorce is generally highly adversarial: You will need strength to proceed. “You have to be ready to go to trial and you won’t be if you are too emotionally fragile,” says Walsh. He, like the other experts, often refers his clients for much-needed professional counseling.
 
Expect to do your homework and be an active participant: Walsh advises that you draft a detailed marital record, including your work history and an account of your current health. Be specific, he says: “A man may insist that all the assets were created through his hard work, when in fact a loan from her dad got him started.”
 
Be realistic: Each situation is unique. You need to find a good lawyer and then trust that lawyer to do the best he or she can for you. “One problem I often see is that the partner who hasn’t been working or isn’t making as much money, which is usually the woman, doesn’t realize the financial impact that a divorce is going to create,” Elser says. She says people tend to be misinformed about Florida divorce law, which can lead to unnecessary panic.
 
Research carefully before choosing an attorney: Log on, read up and ask around. Be aware that the lawyer who paints the rosiest picture for you is not necessarily the most competent person.
 
 
Marsha Elser
“We try the nice way first. But we’re prepared to flex muscle.” When she sees a new client and it appears that a divorce is likely, Elser considers the client’s priorities — and fears.
 
For nearly everyone, she says, the dissolution of a marriage is devastating. “Usually, marriage is the mainframe, or operating system, of a person’s life,” she says. “For me the primary goal of a matrimonial lawyer is to help that client make it through a tough and emotionally charged situation. There’s always a huge emotional component to divorce. There is anger and sadness as well as familial disruption. I recommend that all of my clients consider some therapy to help them regroup at a difficult time, and to give them some unconditional support. Once you deal with the emotional aspects, then a divorce is a matter of dollars and cents, of divvying up a business and exiting a no-longer-suitable financial arrangement.”
 
The spouses should prepare how to tell their children about the divorce. “How the parents handle this
conversation is the biggest factor in how the kids react,” Elser says. “The parents have to make it clear that this is not a war and that everybody loves the children and will always love them. They have to emphasize that the divorce has nothing to do with what the kids did or didn’t do, that they didn’t do anything wrong.” Elser says the trend now, especially in South Florida, is for both parents to have greater access to their children. “We’re thinking more than we used to in terms of nondesignation of custody or of rotating custody,” she says, “where each parent spends multiple days a week with their children.”
 
Elser is a past president of the American Academy of Matrimonial Lawyers, chairman of the family law section of the Florida Bar and is now a fellow of the American College of Family Law Trial Attorneys. Peers chose Elser as a Super Lawyer.
 
 
Donald J. Sasser
“The advice you get from your lawyer is only as good as the information that you provide.” Sasser considers saving a marriage to be a family lawyer’s first job, but he acknowledges that “by the time they come to us, it’s usually too badly broken” to be salvaged. Come prepared to learn about your rights and responsibilities at the initial meeting, he says. Bring with you any pre- or postnuptial agreements, financial documents including lists of assets and liabilities, documents that list real estate assets, and tax returns for two or three years. Note what you owned when you got married and what you have acquired since, as well as what you and your spouse may have inherited. Be honest about your income.
 
Describe your and your spouse’s economic history, education and other employment qualifications. If you gave up a career to become a homemaker, tell your lawyer. Documents that portray the nature of your family life are especially important if you anticipate a custody battle. “Instances where the spouses just hate each other and can’t speak are really rare,” says Sasser. “I encourage my clients to work with their spouses for the sake of the children.” He says a Florida statute called Shared Parental Responsibility states that both parents must share in decisions about school, religion and other matters. “Under this statute, both parents continue to be parents,” Sasser says. “One is primary and the other is secondary, but the secondary parent has rights.”
 
He advises against discussing details of the case with the children. Even if you hate your spouse, remember that you may not need him or her anymore, but the children do.
 
Sasser is board certified in marital and family law and has handled the divorces of celebrities such as singer Jennifer Lopez and NASCAR driver Jeff Gordon. As chairman of The Family Law Section of the Florida Bar, he helped draft legislation that improved the handling of child support and custody, and the fair distribution of property.
 
 
Michael R. Walsh
“Face up to reality.” Walsh advises people to determine how serious their marital problems are, and then to make a firm decision about whether to divorce or not. Once they have decided to end a marriage, they need to proceed systematically with top-notch counsel, to best secure their own and their children’s future.
 
“You can’t minimize certain difficulties, such as physical or psychological abuse,” he says. “Adultery, alcohol or drugs and pornography issues all count as substantial ones.
 
“List reasons to stay married and reasons to divorce. Children can be a good reason to stay together, but consider how living with constant friction will affect them. And resolve to raise your children as best you can.”
 
Walsh warns against dragging out the divorce.
 
“If you want to proceed, see a qualified psychologist or counselor first to make sure you’re ready,” he says. “You need to be strong. This is a confrontational and adversarial process.”
 
Procrastination can take its toll. “You may know you have a problem but do nothing because you’re in denial or don’t want to spend any money,” he says. “Meanwhile, your spouse is busy moving around financial things, erecting barriers and getting pleadings ready.”
 
He also suggests picking a lawyer with sterling credentials.
 
“Read listings in local magazines,” Walsh says, “but also ask a local judge. Board certification in family law is an especially high mark. Divorce is a highly specialized practice.”
 
Walsh was the first board-certified marital and family law attorney in Central Florida, where he has practiced for more than 40 years. He served on the initial Florida Supreme Court Steering Committee for Certification.

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