The desired outcome of the mediation process is a complete Marital Settlement Agreement (MSA). Your Marital Settlement Agreement will act as a guide for your family during this time of financial and familial restructuring as well as in the future. We will draft your customized agreement and you can then decide to have an attorney or CPA review the agreement, or not. Ultimately you and your spouse will sign the agreement and it will be presented to the court for inclusion in the final judgment dissolving your marriage.
Typically, five specific topics are discussed during divorce mediation and then incorporated into the Marital Settlement Agreement. These topics are often presented and explained using the acronym P.E.A.C.E.
P is for Parenting Plan – Your parenting plan will cover both parental responsibility/decision making and time-sharing with your children.
We no longer use terms like “custody,” “primary residential parent,” or “visitation” in Florida. Instead, the focus on designing a customized parenting plan that can guide co-parents into the future. These plans act as back-ups in the case of a future disagreement. Of course, as long as you and your spouse agree you can do anything that works for you both BUT in the event of a disagreement your Parenting Plan will determine your actions.
The Florida Supreme Court has approved a standard Parenting Plan form. You can find Form 12.995(a) here http://www.flcourts.org/gen_public/family/forms_rules/995a.pdf.
Parental responsibility. Chapter 61 of the Florida Statutes describes two possible parenting arrangements, shared parental responsibility and sole parental responsibility.
Shared parental responsibility is a court-ordered relationship in which both parents retain full parental rights and responsibilities and confer with each other when making major decisions that affect the welfare of their child. Under shared parental responsibility both parents have access to their child’s records and information, such as medical, dental, and school records. The parents may decide that one parent will be responsible for a certain aspect of the child’s life, such as education, and the other parent will be in charge of religion or health, etc.
Sole Parental Responsibility means that one of the parents will have unilateral decision-making authority for the child. It would be very unusual for a couple to decide that one of them will have sole parental responsibility.
Time sharing. Sometimes time-sharing is called visitation, but that implies that a child visits with his/her parent. Instead we prefer the terms “time-sharing” or “parenting schedule.”
Ideally, you will want to create a parenting schedule that allows each of you some “work” time (homework, doctor’s appointments, transporting the children, etc.) and some “play” time. Your schedule should also address holidays, special days and needs, potential conflicts, sick-days, and vacations.
You may choose a rotating schedule that has your child living equal times (or close to equal) with each parent. This may mean that the child rotates between the parents every 2-3 days, every week, two weeks, month, quarter, or year. You may choose a schedule that has the child living with one parent during the week and the other parent on weekends and school vacations. In helping you arrive at a time-sharing schedule, the mediator will encourage you to consider your child’s needs, your work schedules, and your family’s special circumstances.
Since it is often difficult to schedule weeks or months ahead, you may want to define your schedule as “open and flexible time-sharing.” However, in addition you will need to create a back-up plan, so that you have an agreed upon plan is in the event that a future disagreement or scheduling conflict arises.
Remember, a schedule that works with a two year old may not work with an eight year old. So, it’s important that you are able to alter your time-sharing schedule – which you can readily do, as long as you both agree.
Geographic relocation. Geographic relocation is a common issue in divorce and post-dissolution cases. This issue may be addressed in a couple’s marital settlement agreement or not. Currently, the Florida Statutes addresses relocation in Chapter 61.13001.
Geographic relocation is often a difficult issue for a family to resolve. So, when one parent wants to relocate with the children, the other parent often turns to the courts in an attempt to stop the move. A skilled mediator may be able to help a family find a creative solution to their relocation dilemma and enable the parties to avoid a legal battle.
Finally, before your divorce is final you will both be required to attend a four hour parenting for divorce course. The list of course providers can be found here http://www.myfloridafamilies.com/docs/ParentEducationFamilyStabilizationCourseProvidersList.pdf.
E is for Equitable Distribution – You will have to decide how to divide or distribute all of your assets and debts so that you can achieve a financial divorce. The section of the MSA addresses this division.
You and your spouse will decide how to divide what you have and what you owe. The discussion of your assets will include your home, retirement accounts, bank accounts, possessions, businesses, insurance policies, cars, etc. Your liabilities will include debts – such as your student loans, credit card debts, car loans, mortgage debt, etc.
FULL financial disclosure is key during this part of the mediation process. In order to negotiate and participate meaningfully in the mediation process both spouses must be aware of what you own, what you owe, what was owned previous to the marriage, and what has been acquired since the marriage. Before your divorce is final you will need to fill out a Family Law Financial Affidavit which will outline the financial details you discussed in mediation. (If you want to see this form prior to mediation, copies can be found on the FL Supreme Court’s website in both PDF and RDF formats – www.flcourts.org. There are two forms, Family Law Financial Affidavit (Short Form) 12.902(b), which should be used when an individual’s gross income is under $50,000 per year and a Family Law Financial Affidavit 12.902(c) which should be used when an individual’s gross income is $50,000 or more per year.
The mediator will encourage you to consult with your accountant before you decide how to divide your assets so that you and your spouse can consider future tax liabilities and other concerns.
A is for Alimony/Spousal Support – If you and your spouse agree to an alimony provision in your agreement you will also need negotiate if this alimony will be modifiable or non-modifiable and how it will be structured – as a temporary, lump sum, bridge-the-gap, rehabilitative, durational, or permanent periodic payment.
You and your spouse may decide that one of you will pay the other alimony. Alimony payments may be temporary, permanent, or in a lump sum. When discussing this issue the mediator may ask you to consider the needs of the spouse requesting the alimony as well as the ability of the other spouse to pay the alimony. Additionally, you will want to consider things like the standard of living established during your marriage, the length of your marriage, the contributions each of you made to the marriage, your ages, your physical and emotional conditions, and your financial resources.
You may decide on a lump sum, temporary, “bridge-the-gap,” durational, permanent, or rehabilitative alimony plan. You and your spouse will want to consider what circumstances would warrant a change in the plan.
The mediator may encourage you to consult with other professionals before making any decisions about alimony. Alimony payments may be modifiable later on so deciding to pay or receive alimony can have long-term consequences. Additionally, the IRS has rules and regulations that determine whether alimony is tax deductible or taxable so you should consult with your accountant before deciding what to do.
C is for Child Support – Child support is calculated using a prescribed formula based on your net incomes and the number of overnights the children spend with each of you.
Your mediator will calculate child support for you using your incomes, the cost of each parent’s health insurance, the cost of your children’s health insurance, the cost of work related child-care, and the number of nights that your children will spend with each parent.
Child support is based on the parents’ net income. For purposes of child support, net income is calculated by subtracting the following from the parents’ gross incomes:
· Federal, FICA and Medicare taxes
· mandatory retirement and union dues
·health insurance coverage – for the parent only
· alimony payments; and court ordered child support from prior cases.
The parents’ combined net incomes and each parent’s percentage share of that income is then calculated. The child support guideline chart provides the minimum amount of child support, using the parent’s combined net monthly income and number of children in the family. Then child support is calculated based on the number of overnights the child spends with each parent.
The calculation of child support is outlined in Florida Statutes 61.30. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0061/ch0061.htm. Scroll down to 61.30.
E is for Everything Else – You will be able to include anything else that you and your spouse agree is relevant in this section of your agreement. This may include something related to the dependency exemption for your children, legal expenses, the purchase of life insurance, or visits with the family dog.