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Scars Of Divorce Linger

December 14, 2017 by pgd1

In 2013 the Tampa Bay Times wrote about Terry Power whose divorce took five years and more than $400,000 to resolve.  When the case was finally over, Power had declared bankruptcy and his kids had been put through an ordeal.

Recently, the newspaper gave an update of his situation.  Power is running for political office, the Florida House of Representatives.  He says he made the decision after spending years trying to change family law in Florida.1

Although Power has rebuilt his business, his children are still scarred from the divorce. His 19 year old son – who was 10 when the divorce was filed – has struggled.  Power said that his son moved out about a year ago, and he hasn’t spoken with him in eight or nine months.

In the updated article, Power acknowledged that the divorce brought out the worst in him. Having practiced family law in Clearwater, Florida, for over thirty years, I see how negative and destructive the process can be.  Lawyers talk about the difference between representing clients in criminal matters and representing clients in family law matters.  In criminal defense, you see bad people on their best behavior.  In family law, you see good people on their worst behavior.

Terry Power went through a bad experience.  Power acknowledges that he was not acting on his best behavior.

Those of us in the legal profession might rightfully ask:  how do we prevent having such a disastrous experience for our clients?  How do we do a thoroughly professional job and avoid having a dissatisfied client?

For starters, it is appropriate to treat all persons related to the case with dignity.  In the past, Power admits to calling his wife “psycho” or a “greedy bi—”.   In so doing, he only made it more difficult on himself.

The parties who actually want to avoid Power’s experience might wish to consider a collaborative divorce.  This type of divorce is designed to give the parties the highest quality of representation, while keeping the process confidential, and out of court.  It is designed to bring out the highest qualities of the parties with dignity and transparency.

Collaborative divorce was not as well known when Power went through his divorce.  If he had chosen Collaborative divorce, his experience would not have been the same.  In choosing this path however, he would have been required to accept the principle of full cooperation with regard to financial matters.

The tragedy of the Power family is a lesson for those who wish to avoid the destructive effects of divorce, upon themselves and upon their children.

divorce lawyer clearwater

by Patrick Gaffney


1 Anton, Leonora Lapeter.  “Scars of Painful Divorce Linger.”  December 12, 2017.  The Tampa Bay Times.

Certifiably Young

December 7, 2017 by pgd1

It has been said that we live in a culture that exalts youth and minimizes older people. While this is true, it is inconsistent with the way I look at aging.  It has been my pleasure and privilege to get to know some older people who are truly remarkable.

I was interested to hear about Donald Spero.1  Born in 1931, he received his J.D. in 1962 and practiced in Chicago for 33 years.  In 1995, Mr. Spero came to Florida and passed the Florida Bar Exam.  He was 64.  He wrote an article for The Florida Bar Journal in 2014 when he was 83.

A prolific author, he has authored over 40 articles and more than one book, all while practicing as a mediator with the Florida Mediation Group.  He became Board Certified in Labor and Employment Law in 2001.  This a process whereby the applicant must pass a test and be recommended by lawyers and judges.  To maintain his certification, Mr. Spero obtained 75hours of CLE credit in Labor and Employment Law.  He was recertified in 2016.

“I enjoy writing.”  Spero explains. “I love the law.”  He remarked that he admires Justice Ginsburg, and the vigorous schedule she keeps.  “She’s very impressive,” he quipped, “but she’s also two years younger than me.”

At age 86, Donald Spero has been married to Patricia for 53 years.  They live in North Palm Beach where Mr. Spero continues to practice, write, arbitrate labor and employment matters and work on his recertification application.  “When I recertify in 2021, I will be 90 years old.”

In the time he has been given, Mr. Spero has accomplished much.  He provides a model for those who wish to remain professionally active as they grow older.

by Patrick Gaffney

by Patrick Gaffney


1 Parts of this blog were taken from:  The Capstone, News and resources for board certified attorneys and those seeking certification, Volume 1, No. 1, Fall 2017

When Judges Should be Recused

December 1, 2017 by pgd1

As a family law attorney / divorce attorney in Clearwater Florida, it has sometimes happened that a judge will say something during the course of a hearing that will cause me to ask the question:  should the judge be recused?  This has not happened frequently.

For the most part, I resist the temptation to recuse a judge.  First of all, the comments made by a judge must be viewed in context, and it may be that the judge did not say something that reveals a prejudice or pre-judgment of the case to the detriment of a client.  However, given the emotional nature of many divorce and family law proceedings, sometimes clients, lawyers and judges make remarks that, in hindsight, were better left unsaid.

Take the case of Governor Rick Scott.  His term is coming to an end and he would like to appoint three justices to the Florida Supreme Court before his term expires.

There is a pending lawsuit on this topic.  The issue in the case is whether Scott or his successor will have the power to make the appointments — an issue that could shape the balance of the court for years, if not decades.  Scott’s lawyers have maintained that Scott has the authority to appoint replacements for the justices before he leaves office on January 8, 2019.  But the League of Women Voters of Florida and Common Cause, which filed the lawsuit in June, contend that Scott’s successor holds the privilege of naming the new justices.

To add some drama to this situation, in a motion filed recently, Scott’s lawyers requested the disqualification of Justice Barbara Pariente because of comments she made that were caught on a “hot mike” after oral arguments in the appointments case this month.

Scott’s lawyers also pointed to remarks Pariente made in 2012, urging voters to keep her — along with Justices Quince and Lewis in office because a vote against retention “will give Gov. (Rick) Scott the right to make his appointments, which will result in partisan political appointments.”

Pariente’s public comments “are reasonably perceived as expressing a bias against Governor Scott on the question of whether he should be prohibited from appointing her successor,” the governor’s lawyers argued.

As lawyers and judges, it is of utmost importance to choose our words carefully and mindfully.  The Florida Supreme Court now will determine whether the comments made by Justice Pariente should lead to her recusal.1

family law

by Patrick Gaffney

Family Law Attorney in Clearwater Florida

The Law Office of Peacock, Gaffney & Damianakis, P.A. is a full service law firm. The attorneys provide a variety of services with a focus on Marital and Family Law, Real Estate, Estate Planning, Wills and Trusts and Civil Litigation. Please contact us if can be of help.


1 Facts for this blog were taken from:  Kam, Dara.  “Gov. Scott wants Supreme Court Justice Pariente off appointments case.”  Tuesday, Nov. 21, 2017.  Retrieved from:  http://www.palmbeachpost.com/news/state–regional-govt–politics/gov-scott-wants-supreme-court-justice-pariente-off-appointments-case/srDEN4KqxP6xBvDsez3WBP/

When Older People Get Married

November 22, 2017 by pgd1

When the couple married, they were senior citizens. They thought they had made adequate preparations.  There was a prenuptial. It was specifically drawn.  However, something happened that they did not plan for:  the husband suffered from dementia after the marriage.  As sometimes happens, the children of the husband came into conflict with the wife. In fact they had the wife removed from the couples’ condominium alleging that she was abusive.

In this actual case that arose in South Florida a settlement was eventually reached. This occurred after much litigation and cost.1  This situation illuminates problems that family lawyers and attorneys experience when representing older couples who decide to marry.

When older couples marry, they should consider what happens not only when one of them dies but also when one of them becomes incapacitated. Legal documents such as durable powers of attorney should be considered.  Issues such as who will be in charge of finances and medical decisions should be discussed.

With adequate planning there is no reason why marrying older couples should not experience happiness, without the stress of potential conflict between their spouses and their children. We specialize in Family Law in the Clearwater, Tampa, Palm Harbor area, and can help you with this planning.

by Patrick Gaffney

by Patrick Gaffney


1 Musgrave, Jane.  “Palm Beach divorce case ends with warnings to older couples”.  November 29, 2015.  The Palm Beach Post.

Transformative Experiences in Family Law

November 16, 2017 by pgd1

Father Greg Boyle has spent 30 years working in LA with gang members and young people transitioning out of prison.  He is the founder and Executive Director of Homeboy Industries.

Homeboy is a series of businesses including a restaurant, a bakery, cafés, and farmers markets created for the purpose of hiring these young people so that they may have on the job training.  The employees come from rival gangs so they must put aside their rivalry and hatred of each other.

In addition to working in this unique area, Father Greg has known his own personal suffering, being diagnosed with a chronic form of leukemia about 15 years ago.  One could say that Father Greg Boyle knows something about suffering.1

I have found this man to be a source of inspiration in the practice of family law.  The young people that Father Greg helps have all been through a form of suffering or trauma.  He has found that just providing them a job is not enough.  According to Father Greg suffering people must go through a process of healing.  Likewise many people who go through the process of divorce suffer.  They too must go through a process of healing.  The traditional litigation approach to family law does not afford people this opportunity.  In fact, it leads one in the opposite direction.

According to actor Jim Carrey, a supporter of Homeboy Industries, suffering leads to salvation – – in fact it is the only way.  He further suggests that once we accept our suffering we have to make one of two decisions.  We either go through the gate of resentment which leads to vengeance, which leads to self harm, which leads to harm to others.  Alternatively, we go through the gate forgiveness which leads to Grace.2

When a participant in a divorce makes the decision to take the path of collaborative law, they have made the choice that can lead to personal transformation.  I acknowledge that not every divorce is appropriate for collaborative law.  Certain personality types will not fit this model.  However, I would suggest that most situations would benefit from a collaborative approach.

My experience of representing clients in collaborative law is quite different from my litigation practice.  I do not witness people taking the path of vengeance.  The courthouse is full of individuals on that path.  The path of collaboration is a path where each participant inhabits his or her own sovereignty.

According to Father Greg to heal you have to be initiated into your true self.  The false self falls away. You embrace your newborn nobility and become the truth of who you are.

Here is a unique aspect of collaborative law.  It is not just the parties who benefit from this healing process, it is the professionals as well.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from NPR Fresh Air. November 13, 2017.  “Priest helps former gang members start new lives.”  Retrieved from:  https://www.npr.org/podcasts/381444908/fresh-air.

2 YouTube:  Homeboy Industries.  “Thought for the day: Jim Carrey September 9, 2017: This room is filled with God.  Retrieved from: https://www.youtube.com/watch?v=MzyaQ0H5D74.

Patterns Of Irrationality

November 9, 2017 by pgd1

One of the most rewarding aspects of having the privilege to practice family law is to observe human irrationality.  When I listen to the predicaments that people find themselves in I am struck with the sentiment that truth is stranger than fiction.

In his book, The Undoing Project: A Friendship That Changed Our Minds, author Michael Lewis tells the story of two psychologists, Amos Tversky and Daniel Kahneman.

The work of these two men reveals previously undiscovered patterns of human irrationality.  Their efforts show the ways that our minds consistently fool us and the steps we can take to avoid being fooled.  They use the word “heuristic” to describe the rules of thumb that often lead people astray.  One such rule is the “halo effect”, in which thinking about one positive attribute of a person or thing causes observers to perceive other’s strengths that aren’t really there.

Another rule is “representativeness,” which leads people to see cause and effect – to see a “narrative” – where they should instead accept uncertainty or randomness.

The findings of these two men are full of practical ideas. “No one ever made a decision because of a number” Kahneman has said.  “They need a story.”  Or Tversky’s theory of socializing: because stinginess and generosity are both contagious, and because behaving generously makes you happier, surround yourself with generous people.

One of the reasons that I find the field of family law fascinating is that one can draw from many different fields to assist the client in the problem-solving exercise.  This is most clearly experienced in a collaborative setting.

The production of Tversky and Kahneman reveals to the family law attorney how irrationality can be predictable.1  When we can predict a client’s irrational behavior, we are in a better position to advise and counsel.  To practice family law is to become familiar with and to predict patterns of irrationality.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from Leonhardt, David. “From Michael Lewis, The Story of Two Friends Who Changed How We Think About the Way We Think.” December 6, 2016.  Retrieved from:  https://www.nytimes.com/2016/12/06/books/review/michael-lewis-undoing-project.html

Behavioral Economics & Family Law: The Problem of Dividing Personal Property

November 2, 2017 by pgd1

Human behavior is a funny thing.  People don’t always act in predictable ways.  You could confirm this by discussing the subject with just about any lawyer who has worked in the field of family law.  Recently, Richard Thaler won the Nobel Prize in Economics.  His work helps demonstrate how human reasoning diverges from the expected.

Thaler’s book “Nudge”, co-written with Cass Sunstein, drew on years of work identifying oddities in human behavior.  Setting out to explore why people feel losses more keenly than gains, he helped uncover the endowment effect:  a tendency to value something more highly just because you own it.

Family lawyers know this, as clients tend to be attached to pieces of personal property that have relatively little value.  To detect this behavior, Thaler distributed coffee mugs at random to half of a group of test subjects, who were then invited to sell the mugs, if they wished, to the other, mugless half.  Theory would predict that those with and without mugs should value them the same, on average, so about half of the mugs should change hands.  In fact, those with mugs valued them more than those without.  Relatively few transactions took place.

In a divorce, both parties have an ownership interest in their “stuff”, and getting them to agree on who gets what can be a frustrating enterprise.

For family lawyers, this part of Thaler’s work can be summarized as follows: the way choices are framed can influence how people respond.

This has meaning for the family lawyer.  When dealing with personal property issues in the context of a divorce negotiation, how we frame the issue matters.  I like to remind clients and participants in mediation, that the personal property items that might hold sentimental value are not worth anywhere close to what they paid for them.  It usually makes sense to compromise on these items and to save time and money to consider items of greater value—such as 401k’s and home equity.1

by Patrick Gaffney

by Patrick Gaffney


1 Much of the content of this blog was taken from:  “Richard Thaler wins the Nobel prize for economic sciences.” October 14th, 2017.  The Economist.

The Problem of Child Marriage

October 26, 2017 by pgd1

More than 167,000 young people age 17 and under married in 38 states between 2000 and 2010, according to a search of available marriage license data by a group called Unchained at Last, which aims to ban child marriage.  The search turned up cases of 12-year-old girls married in Alaska, Louisiana and South Carolina, while other states simply had categories of “14 and younger.”

It has been extrapolated that in the entire country, there were almost 250,000 child marriages between 2000 and 2010.  Some backing for that estimate comes from the U.S. Census Bureau, which says that at least 57,800 Americans age 15 to 17 reported being in marriages in 2014.

Globally, a girl marries before the age of 15 every seven seconds, according to estimates by Save the Children.  As in Africa and Asia, the reasons for such marriages in the U.S. are often cultural or religious; the American families follow conservative Christian, Muslim or Jewish traditions, and judges sometimes feel that they shouldn’t intrude on other cultures.

When she was a scrawny 11-year-old, Sherry Johnson found out one day that she was about to be married to a 20-year-old member of her church who had raped her.  “It was forced on me,” she recalls. She had become pregnant, she says, and child welfare authorities were investigating — so her family and church officials decided the simplest way to avoid a messy criminal case was to organize a wedding.

“My mom asked me if I wanted to get married, and I said, ‘I don’t know, what is marriage, how do I act like a wife?’” Johnson remembers today, many years later.  “She said, ‘Well, I guess you’re just going to get married.’”  So she was.  A government clerk in Tampa, Florida, refused to marry an 11-year-old, even though this was legal in the state, so the wedding party went to nearby Pinellas County, where the clerk issued a marriage license.  The license lists her birth date, so officials were aware of her age.

Not surprisingly, the marriage didn’t work out — two-thirds of marriages of underage girls don’t last, one study found — but it did interrupt Johnson’s attendance at elementary school.  Today she is campaigning for a state law to curb underage marriages, part of a nationwide movement to end child marriage in America.  Meanwhile, children 16 and under are still being married in Florida at a rate of one every few days.

State legislators must understand that child marriage is devastating in Niger and Afghanistan – and also in New York and Florida.  It’s past time to end child marriage right here at home.1

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from:  Kristof, Nicholas.  “11 Years Old, a Mom, and Pushed to Marry her Rapist in Florida”.  MAY 26, 2017.  The New York Times Sunday Review.  Retrieved from:  https://www.nytimes.com/2017/05/26/opinion/sunday/it-was-forced-on-me-child-marriage-in-the-us.html

Death And Prenuptial Agreements

October 19, 2017 by pgd1

Prenuptial agreements are utilized by parties who for various reasons do not wish to be bound by existing Florida law should there be a divorce or death of a party to the marriage.  In a divorce context, these agreements are tools to establish the expectation of the parties as to issues of property and spousal support.  This article deals exclusively with the challenges confronted by the death of a party.

A Last Will & Testament identifies the beneficiaries of an individual’s estate after they have died.  Regardless of whether a person has or has not created a Last Will & Testament, a surviving spouse has specific spousal rights.  Spousal rights include the right to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative in an intestate estate.

Under Florida Statute §732.702, a spouse may waive any or all spousal rights, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.  If the waiver is being signed after marriage, then fair disclosure of the spouse’s estate is required.  A waiver of spousal rights may occur through a Prenuptial Agreement provided the execution of the Prenuptial Agreement complies with Florida Statue §732.702.

Prenuptial Agreements cover several topic areas, with the two pertinent to death being distribution of property and spousal rights.  Unlike a Last Will & Testament, which can be changed by the drafting party at any time prior to death or incapacity, a valid Prenuptial Agreement becomes irrevocable upon execution.  Thus, when a Prenuptial Agreement provides for specific bequests of property to the other party, the Prenuptial Agreement will supersede a Last Will & Testament containing contrary terms.  This is true for Last Will & Testaments executed prior to or subsequent to the execution of the Prenuptial Agreement, unless a surviving spouse can prove that the Prenuptial Agreement was created under fraud, coercion or duress.

However, when a party waives their spousal rights due to death of a spouse, through a valid Prenuptial Agreement, the surviving spouse has no spousal rights against the estate of the deceased spouse, but if the deceased spouse, through their Last Will & Testament, explicitly gave one or more spousal rights to the surviving spouse, then the terms of the Last Will & Testament prevail.

When drafting a Prenuptial Agreement it is extremely important to avoid language that conflicts with a party’s estate planning documents.  The best solution is for the attorney drafting the Prenuptial Agreement to work directly with the party’s estate planning attorney to ensure the cohesion of the documents and to create complete protection over a party’s property. Additionally, it is essential that estate planning attorneys ask to review Prenuptial Agreements previously executed by their clients prior to creating an estate plan.1

If you have any questions, or if we can be of help, please call us at (727) 796-7774.

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from C. Koch and C. Beinhauer, “Does a Prenuptial Agreement Have Precedence Over a Last Will & Testament?” Res Ipsa Loquitur, September-October 2017.

Aspects of Same-Sex Marriage

October 12, 2017 by pgd1

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the issue before the Supreme Court is whether a Christian baker has the right to refuse to create a wedding cake for two men.

Since the Supreme Court of the United States has recognized same-sex marriage, the nuances of this new constitutional protection need to be worked out.  As a family law attorney in Clearwater, Florida, dealing with all types of divorces, including same-sex marriage divorces, I welcome the Supreme Court’s clarification.

In the case before the Court, the couple says Colorado Civil Rights Laws requires businesses to serve gays and straights alike, while Jack Phillips, the baker, complains that this rule forces him to endorse what he believes to be sinful behavior and to express a message he reviles.

If the Court finds for Mr. Phillips, calligraphers, florists, photographers, and tailors who reject gay marriage, may earn a license to discriminate as well.1

In an opinion written in 2015 extending constitutional protections to same-sex marriage, Justice Anthony Kennedy wrote that “Those who adhere to religious doctrines, may continue to advocate with upmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” and they are protected in this mission by the first amendment.

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from “Anthony Kennedy’s Camelot”.  The Economist.  September 30th, 2017.

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