Mary A. Cosmo, Florida Supreme Court Certified Mediator for Circuit Civil Cases

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Mary A Cosmo, Florida Supreme Court Certified Circuit Civil Mediator

Mary A. Cosmo, Esq., is a Florida Supreme Court Certified Circuit Civil Mediator.  This means that Mary A. Cosmo, may be appointed  in cases where the dispute exceeds $15,000.  The parties share the cost of mediation on an equal basis.

What is Mediation 

Mediation is a way to settle disputes and lawsuits instead of going through an expensive trial. It allows you to control decisions affecting your family, finances, business, divorce, custody problems and other aspects of life. A trained neutral professional, Supreme Court Certified Mediator, helps the parties negotiate a settlement. At the conclusion of your mediation, if you reach a settlement, it will be written into a contract signed by both parties. The Goal of mediation is to assist people in conflict find a “win – win” solution to their legal problems without a costly courtroom battle.

What are the Possible Outcomes of Mediation?

  • A complete settlement.
  • A a partial settlement, wherein you narrow or limit the issues for a trail court.
  • Impasse, which means no agreement was reached and the parties will continue to trial.

What to expect?

The Mediator is NOT a Judge and will not decide the outcome of your case.  In mediation the Parties have complete control over their dispute.  However, a mediator will meet and talk with all parties together and, if necessary, separately.  The mediator will discuss settlement options designed to meet each party’s goals and interests.  The process is confidential.  Confidentiality of mediation is essential to an open discussion to assist the parties movement towards a resolution.   This mean that settlement discussions cannot be used against you if no settlement is reached.  Typically, what is said in a mediation stays confidential throughout the remainder of your case with a very few limited exceptions required by law for disclosure.   Mediation is concluded when the parties sign an agreement or when they cannot agree on any solution, wherein they will continue with the court process. In the majority of cases parties are able to settle all issues and future litigation is not necessary.

PLEASE NOTE–When Mary A. Cosmo, is appointed as a mediator and although she is an attorney she is prohibited from providing any legal advise to either party.  Therefore, you must seek separate legal counsel, if you are not already represented. 

Florida’s Best Interest of the Child, 61.13(3) Factors

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Photo by Di Lewis on Pexels.com

The Best Interest of the child in Florida has a statutory definition, which the Florida Family Courts are required to use to determine parental responsibility and timesharing between separating parents.   This means that when you are making decisions for your children and your decision is based on your opinion alone, it may not necessarily be the same as what a Court would do when the Court is requested to decide the same question.

Section 61.13(3), Florida Statutes.  The best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and
to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the
extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and
act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of
either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient
intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends,
teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent
routine for the child, such as discipline, and daily schedules for homework, meals, and
bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other
parent informed of issues and activities regarding the minor child, and the willingness
of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or
child neglect, regardless of whether a prior or pending action relating to those issues
has been brought. If the court accepts evidence of prior or pending actions regarding
domestic violence, sexual violence, child abuse, child abandonment, or child neglect,
the court must specifically acknowledge in writing that such evidence was considered
when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court
regarding any prior or pending action regarding domestic violence, sexual violence,
child abuse, child abandonment, or child neglect.

o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending
litigation, including the extent to which parenting responsibilities were undertaken by
third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved
in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment
for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing
litigation as demonstrated by not discussing the litigation with the child, not sharing
documents or electronic media related to the litigation with the child, and refraining
from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and
disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan,
including the time-sharing schedule.

***This article is not intended to replace legal advise from an attorney.  Every case and Family is different.  If you are facing the same or similar legal question, seek the advise of a martial and family law attorney in your area.

***

What happens to the marital residence in a divorce when parties have minor children?  Then and Now

houseDivorcing is a difficult time, specifically when you have minor children and the marital home is now part of the equation.  Where will you and your children live?  Which Party will ultimately get the house?  Can the other Party get excessive use and possession of the home?  Can either of you afford to maintain the home?  Who pays the mortgage?

These are questions that we may be seeing a change in the near future.  The times are changing, and the Courts are slow to progress with the times.  Currently, as was recently quoted by the 2nd District Court of Appeal, “[t]he general rule is a trial court should award the ‘primary residential parent’ exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances.”[1] Special circumstances include the ability of the parties to meet their debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.  In most cases, the exception swallows the rule because it presumes that there is a primary residential parent when parties divorce.  Florida no longer has a typical primary residential parent, wherein the Court would decide that one parent’s home was better than the other parent’s home, and typically that would be the marital home if the parties combined income was sufficient to support such a ruling.

The law now in Florida awards “parental responsibility” to the parents as “shared parenting responsibility unless shared parenting responsibility is a detriment to the child.  Prior to the enactment of “parental responsibility” Florida Courts would award “custody” to a “primary residential parent” and the other parent received a visitation schedule.  Now the general rule is to award both parents timesharing based on the best interest factors enumerated in 61.13 (3).  Therefore, instead of choosing one parent over the other, the Court must make specific findings based on competent substantial evidence to limit one parent’s timesharing over the other parent’s timesharing as both parents have an equal opportunity of parenting, if you will.

This brings me back to the general rule of awarding primary residential parent exclusive use and possession of the marital home until the youngest child emancipates (turns 18).  Yes, in those instances where there is substantial competent evidence to limit one’s timesharing to that which was typically regarded as the primary residential parent then this rule would be typical.  However, the aforementioned questions are not so simply answered, as not only would the Court have to determine (based on competent substantial evidence) that it is in the best interest of the children (which requires considerations of all the factors under 61.13(3)) to limit one parent’s timesharing but the Court must also determine the debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.

If timesharing is awarded to a party equal to that which used to called primary residential parent, and the Parties’ combined finances are such that they can afford to meet all their financial obligations including child support, and all other obligations under the final judgement then yes this general rule still stands.  However, it may be more the exception to the rule than a general rule because more so than not the Courts (at least here in the 20th circuit) typically start the timesharing analysis at shared parental responsibility and equal sharing of timesharing. Then, the Courts balance both sides, by moving time from one parent to the other based on the factors in 61.13(3).

In today’s world in which we live, it is more typical than not, that both parents are equal caregivers and providers during the marriage and therefore should be equal parents under the law.  After all, parenting is a constitutional right.  Therefore, in order to get exclusive uses and possession of the martial home, you would also have to get an award of timesharing that is equal to that which used to be termed as a primary residential parent.  If the Parties’ timesharing is anything less than what used to be termed as the primary residential parent, then you may be ordered to sell the martial home.  Also, if the both parties cannot afford to maintain the martial home, regardless if the Parties have children, you will likely be ordered to sell.

[1] Coristine v Coristine, 53 So. 3rd 1204 (Fla. 2nd DCA 2011).

***Every case is different this article is not intended to be used as legal advise.  If you are faced with a similar legal issue, please seek the advise of an experience martial law attorney who can provide the legal advise you need.***

Relocation with Child After Divorce; How long does it take to get the Court’s decision to move?

If your matter is contested, the other parent can make you miss moving deadlines, and even lose that job offer you worked so hard to get.  Well, the Court will provide priority in setting your temporary and/or your final trial.

An evidentiary hearing or non-jury trial on a pleading seeking temporary or permanent relief filed under this section shall be accorded priority on the court’s calendar. If a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. If a notice to set the matter for a non-jury trial is filed, absent good cause, the non-jury trial must occur no later than 90 days after the notice is filed.

TIP:  When requesting your hearing time, you need to make sure to tell the judicial assistant that your hearing is a “relocation hearing” so they will provide you with priority.  It is also important to request enough time.  If you run out of time before you are about to present your evidence, you will lose precious time for your relocation because you will have to reschedule your hearing based on the Court’s schedule.

Relocation After Divorce; Parental relocation with a child by Agreement.

racine-family-law-300x199So, you have discussed with the other parent that you want to relocate with your child and to your surprise they are in agreement with your move.  What do you do next?  Do you move.  Will the Court accept your verbal agreement? 

You must put your agreement in writing and there are specific statutory terms you must include in your agreement and you must file the agreement with the Court to satisfy the relocation statute, even if you are in agreement.  WARNING: failure to put your agreement in writing and file with the Court can have serious consequences, if later the other parent decides to file for contempt and request return of the child(ren).

61.130001(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that: 1) Reflects consent to the relocation; 2) Defines an access or time-sharing schedule for the non-relocating parent and any other persons who are entitled to access or time-sharing; and 3) Describes, if necessary, any transportation arrangements related to access or time-sharing. (b) you may also need to request a Court to ratify said agreement (this can be done with or without a hearing).

DEFINITIONS

(a) “Child” means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or is the subject of any order granting to a parent or other person any right to time-sharing, residential care, kinship, or custody, as provided under state law.

(b) “Court” means the circuit court in an original proceeding which has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the circuit court in the county in which either parent and the child reside, or the circuit court in which the original action was adjudicated.

(c) “Other person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child.

(d) “Parent” means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child.

(e) “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.

RELOCATION – Can I move with my child?

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The Short answer is: Maybe.  The Relocation Statute 61.13001(e) defines relocation as:

“a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.”

To clarify, there are three factors to consider before triggering the relocation statute.  First, the statute must be triggered by a “relocation after the filing of a petition.” To simplify, you must have had a circuit court case either opened and pending or has the circuit court has issued a final order.   If you are married and move prior to the date of filing for divorce or paternity action (even if the father has signed the birth certificate), you have not triggered the relocation statute.  The date of filing is the triggering factor.  If you move after the date of filing of either a paternity or divorce petition, without permission from the other parent, you may be relocating in violation of the relocation statute.  If you have a court ordered parenting plan (temporary or permanent) and then move, you may be violating the relocation statute.  If you plan to move, contact an experienced relocation attorney for guidance prior to your move.

The other two triggering factors are “the number of miles” away you relocate AND “the amount of time you are gone from your residence.”  For your relocation to trigger the relocation statute, your move MUST be 50 miles from your residence (at the time of your last Court order) AND you are gone for a minimum of 60 days.  So, you would have to be relocated more than 50 miles, as the crow flies (in a straight line) for two (2) months before triggering a violation of the relocation statute.

Relocating is a difficult area of law and you should have an attorney who has experience litigating relocation matters.  Call me, I can help.  Mary A. Cosmo, Esq.

Shared Parenting-The Devil is in the Details

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Mary A. Cosmo, Esq. 239-851-4982

By Mary A. Cosmo, Esquire, Family Law Attorney ©, The enforceability of shared parental responsibility and contempt. ©

Time and again, I will meet with a prospective client who wants to hold the other parent in contempt for refusing to comply with their parenting plan because they cannot get the other parent to comply. Then, they tell me it’s the parenting responsibility part of their parenting plan that they are the most frustrated with because they cannot get the other parent to communicate about the child’s needs, doctor’s appointments, school events, or mental health issues.  Unfortunately, I am the bearer of bad news as I explain to them why contempt is not going to help them because their parenting plan responsibility merely tracks the statute’s wording.

“It is well established that a party cannot be sanctioned for contempt for violating a court directive or order which is not clear and definite as to how a party is to comply with the court’s command.[1]  For that reason, when a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order.”[2]  Moreover, because a finding of contempt must be based upon a violation of the clear terms of a court order, a provision which is merely inherent of a court’s order will not support a finding of contempt.[3]  While acts may have violated the ‘spirit’ or ‘intent’ of the court’s orders, a finding of contempt requires the violation of the letter of the order—not its spirit.  [4]   Cancino v. Cancino (Fla. App., 2019)

Shared parental responsibility is a “court-ordered relationship,”[5] and the requirements of that relationship must be stated explicitly to support a finding of contempt on the basis of a party’s willful refusal to follow.  The law also imposes upon the court (and those writing the agreements to be adopted by the court) the requirement to be explicit and precise in its commands if strict compliance is to be exacted in the form of a contempt sanction.[6]   Therefore, a vague provision that the parties “shall share parental responsibility for the children consistent with Florida Statute” fails to set forth a sufficiently precise command so as to “put the parties on notice of what they may or may not do.”[7]

We as attorneys and the Court should and can do better for our clients.  The majority of parenting plans that come across my desk focus on a detailed timesharing schedule. Typically, at the time of drafting the parties are more concerned with the child’s time or whose house they will be at. However, we seem to be blowing it big time when it comes to the most fundamental right of them all, the right to parent.  For the most part, the parenting responsibility clause or section is limited to a paragraph, which has no teeth for enforcement.  No enforceability is a major problem.

With a boilerplate clause that tracks the statute for parenting responsibility,[8] one thing is for certain, that filing for contempt will reassure the offending parent’s bad behavior is not contemptible and they are free to continue their bad behavior.   Parental responsibility in Florida is just as important as the timesharing part in the parenting plan, whereas boiler point language is not enough to make sure the other parent will comply.

It is important to discuss with your client the meaning and expectations of parenting responsibility and put clear and precise terms so that the parents know how to govern their relationship.  The Florida Legislature describes parental responsibilities through its public policy statement, “to encourage parents to share the rights and responsibilities, and joys, of childrearing.”[9]  However, it is up to the drafter to craft further defined expectations that are meaningful and can be enforced when noncompliance arises. It is especially important to articulate in a parenting plan how to “confer and jointly make decisions” when the parents already have a difficult time communicating with each other.

 

[1] Ross Dress for Less Va., Inc. v. Castro, 134 So. 3d 511, 523 (Fla. 3d DCA 2014); accord Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007) (“When a finding of contempt is based upon a violation of a court order, that order must be one which clearly and definitely makes the person aware of its command.”); Kranis v. Kranis, 313 So. 2d 135, 139 (Fla. 3d DCA 1975).

[2] Keitel v. Keitel, 716 So. 2d 842, 844 (Fla. 4th DCA 1998).

[3] Id. at 844 (“[I]mplied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.”); see Wilcoxon v Moller, 132 So. 3d at 283 at 287 (A court cannot base contempt upon noncompliance with something an order does not say, and we will not read implications into an order to justify contempt).

[4] Reder v. Miller, 102 So. 3d 742, 744 (Fla. 2d DCA 2012).

[5] Section 61.046(17), Florida Statute.

[6] See Cooley v Moody, 884 So. 2d 144 at 145.

[7] Cancino v. Cancino (Fla. App., 2019).

[8] “It is in the best interests of the child(ren) that the parents confer and jointly make all major decisions affecting the welfare of the child(ren). Major decisions include, but are not limited to, decisions about the child(ren)’s education, healthcare, and other responsibilities unique to this family. Either parent may consent to mental health treatment for the child(ren).”

[9] Section 60.13 (2)(c)1, Florida Statute.

 

What happens to my 401k in a divorce?

cropped-capture.pngWhat happens to your 401k in a divorce depends on when your account was opened.  If your 401k account was in existence prior to the date of your marriage and if you are like most people, continued to contribute to this account during the marriage, your 401k may be part-non-marital and part-marital property.  On the other hand, if you had a 401k or similar account prior to the date of marriage and you never contributed any marital funds to that account, it will remain non-marital funds.  (Paycheck funds and any other funds paid to you from your physical efforts during your marriage is marital property).

How do I know how much of my 401k is marital and how much is non-marital?

To begin this analysis, you will need to gather your account statements.  Specifically, the statement that shows the account balance at on the date of marriage and the statement on the date your divorce was filed.  Once you have these two important documents, you will want to contact an experience divorce attorney to help you with the calculation.  In the end, the balance on the date your marriage is considered non-marital.  You are also entitled to receive any return on that amount based on market activity.  When you have calculated the amount of return on your non-marital portion, then you subtract the non-marital portion from the balance at the time of filing for divorce.

These calculations can get tricky so it is important that you speak with an attorney who can guide you through this process.  Remember you are not alone.  We have experienced attorneys that handle 401k, retirement accounts, IRA, investments in divorce matters.  It is a scary process, and nothing should be presumed.

We handle divorce, parenting, timesharing, child support, alimony, and many other related matters.  We have litigation attorneys ready to advocate for your family’s needs.

How to Calculate Child Support in Florida

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Child Support Guidelines

Child Support is based on the Florida Child Support Guidelines established by the Florida legislature.  Basically, your child support amount will be calculated according to Florida law.  To calculate the amount one party pays to the other, you will need both parties’ gross income subtract allowable deductions (Health insurance, daycare, involuntary retirement, and limited other deductions) then then Federal Tax is applied and deducted.  (Attorneys, Department of Revenue for Child Support Enforcement, and Courts have a program that does this tricky part).  Once you have the combined net amount (total combined incomed less allowable deductions and taxes).  You look up the total obligation on the chart provided in Statute 61.30 for the number of children you have.  The legislature has provided a chart that is the presumptive child support amount based on the total combined income of both parties.

Example:

 

Child SUpport snip

 

Your allocated obligation is based on the percentage on income to both parties combined income.  For example, if party A make $200.00 per month and party B makes $600.00 per month, your percentage of support is based on the same percentage: A=25% and B=75% of the total combined income (as if you were still together as a family unit).  If your total support obligation for one child is $190.00 per month, then Party A pays (25% of $800.00) $47.50 per month because their income is 25% of the total combined income of both parties; and, B pays (75% of $800.00) $142.50 per month because party B’s income is 75% of the parties total combined income.

If Party A has the majority timesharing then rather than paying $47.50 to the Party B, this amount is assume that Party A is already paying this amount for the child’s needs.  Party B then pays to Party A the remaining amount of $142.50 as stated in the calculations.

(Other factors added to this calculation are health insurance for the child and daycare expenses, which are also shared according to the parties combined income percentages and added to the support amount).

Florida does allow for another calculation to include timesharing for both parties is over 20%.  In theory, the law presumes both parties are supporting the child according to their respective timesharing allocations and factored into this calculation.  This can get complicated.

For child support questions you should contact an experienced child support attorney who can guide you through the confusing child support guidelines.  Mary A. Cosmo, Esquires, has successfully handled several child support cases.  Mary A. Cosmo, Esq., Ft. Myers Family Law Litigation Attorney.

GUARDIAN AD LITEM IN NON-DEPENDENCY CASES

cropped-orig_34453_080Attorney Mary A. Cosmo is now accepting appointments as a Guardian Ad Litem to your Dissolution/Paternity matter.  Children are often lost in the push-pull of a divorce or parenting plan creation/modification, especially when there is domestic violence or parental alienation.  It is hard to get the evidence of this type in when the Rules of Evidence get in the way.  However, pursuant to Fl. Stat. Sec. 61.401  In an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate

Giving your Party’s children a voice in a dissolution or paternity matter should not be limited by your Client’s Income.

  • Parties with total combined income under 50,000.00, fee will be a onetime $950.00; shall be due upon appointment. May be made in two separate payments of $475.00; the first is due upon appointment the second is due 30 days after the first payment.
  • Parties with a total combined income under 100,000.00, but more than 50,000.00, fee will be 2,298.00; and shall be due upon appointment. May be made in 3 payments of 766.00, with first payment due upon appointment, second payment is due 30 days after appointment; and the third payment is due 60 days after appointment.
  • Parties with a total combined income over 100,000.00, fee will be regularly hourly rate of $275.00; a retainer in the amount of 4,500.00, shall be due upon appointment and place in a trust account, which is drawn upon as incurred.

You may submit your Stipulation and Order to attorneycosmo@outlook.com.  Upon receipt of your Order, you will be contact by guardian to initiate appointment.