Florida Law


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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/

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.

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

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.

The Art of Drafting

October 5, 2017 by pgd1

One of the aspects of the practice of family law that gets little attention is the drafting of legal documents. We know that most family law disputes are resolved by agreement.

Some of the most important work that lawyers do comes in the form of drafting.  It often happens that parties reach an agreement in principal. However, during the drafting phase, details emerge that were never discussed.  As the saying goes, the devil is in the details.

Given the importance of words, it is not unusual for lawyers to disagree about the wording of an agreement.  A recent case out of the state of Maine turned on how the court would interpret a statute.  The interpretation turned on the placement of a comma.  The case is illustrative of the type of problems that can arise from writings drafted lawyers—whether it is a statute or an agreement.

It all came down to a missing comma, and not just any one.  And it’s reignited a longstanding debate over whether the punctuation is necessary.  A federal appeals court decided to keep alive a lawsuit by dairy drivers seeking more than $10 million in an overtime pay dispute.

It concerned Maine’s overtime law, which doesn’t apply to the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” foods.

There’s no Oxford, or serial, comma in the “packing for shipment or distribution” part. The drivers said the words referred to the single activity of packing, which the drivers don’t do. The defendant, Oakhurst Dairy, said the words referenced two different activities and drivers fall within the exemption.

Circuit Judge David Barron wrote: “For want of a comma, we have this case.” The court sided with the drivers.

The Associated Press Stylebook advises against the use of the Oxford comma, except when it’s needed for clarity.  In this case, someone following AP’s guidance would include a comma if the packing and distribution were intended to be separate activities.

Other authorities are more enthusiastic about the serial comma — notably Oxford University Press, from which the mark draws its popular name.  The Oxford style guide, published as New Hart’s Rules, states that it is Oxford style “to retain or impose this last comma consistently.”1

Thus, the placement of a comma made a ten million dollar difference in result.  This case emphasizes the importance of the correct use of language and grammar.

by Patrick Gaffney

by Patrick Gaffney

1 Portions of this blog were taken from Whittle, Patrick.  Associated Press.  March 17, 2017.  Retrieved from:  https://www.usnews.com/news/best-states/maine/articles/2017-03-17/court-ruling-hinging-on-comma-ignites-grammarian-style-war

Florida Legislature Seeks Term Limits on Judges

April 20, 2017 by pgd1

The Florida house has passed a constitutional amendment that would ask voters to impose term limits on appellate judges and state Supreme Court justices.  The state Senate has yet to act on this amendment and it has been suggested that the Senate should reject this measure as a blatant assault on the courts.1

This measure would be the first of its kind in the country to force appellate judges and justices out of office after 12 years.  For judicial term limits to become part of the Florida constitution, the amendment would have to pass the Senate and then win at least 60% of the vote in the November 2018 general election.

There is no doubt that this is a partisan attack on a nonpartisan branch of government, and the rhetoric about state judges serving for life glosses over the truth.  Long term appointments bring stability, consistency, and institutional knowledge to the highest levels of the courts.

Recent state court rulings have invalidated laws covering Worker’s Compensation, abortion rights, capital punishment, and redistricting.

The legislature is wanting to get even.  However the Florida bar, business interests, and lawyers on the right and left oppose term limits for appellate judges and justices.  They convincingly argue that the brightest trial judges and lawyers will not seek appointments to the appellate bench if they could be pushed out before age 60 and have to start over with no clients or law practice.  There would also be a constant turning over of appellate judges because of term limits.  This makes no sense.

by Patrick Gaffney

by Patrick Gaffney

1 This blog contains excerpts from an editorial of the Tampa Bay Times republished by the Miami Herald on April 5, 2017.

Retired Judges

November 17, 2016 by pgd1

From time to time, I will appear to a scheduled hearing expecting to see the judge assigned to that section of court, and, instead, a retired judge appears.

Florida’s constitution permits the assignment of retired judges.  However, it specifies that these assignments are to be temporary.  In a 2003 opinion, the state Supreme Court upheld the constitutionality of the senior judge system.

However, in a partial dissent, Justice R. Fred Lewis wrote, “In reaching its decision, the majority must engage in a ‘judicial wink’ as it considers the true definition of ‘temporary’.”

In recent times, courts have increasingly relied on senior judges to deal with the backlog of foreclosure cases stemming from the 2008 housing crisis.1

In order to become a senior judge, the Chief Justice of the Florida Supreme Court must approve an application for senior status. It is required that the proposed senior judge must not have been defeated for re-election, nor failed to win a merit retention vote.

Attorney Matt Weidner has a problem with the system of utilization of senior judges.2  Generally, judges are prohibited from serving after age seventy. Yet, many retired judges serve beyond that age. Also, the constitution requires that judges live “in the territorial jurisdiction of the court”.   However, senior judges often live in circuits other than where they work.

The utilization of senior judges raises interesting questions. The use of senior judges is indicative of a larger problem—an underfunded judiciary.  The Legislature has turned down numerous requests to fund new courts.

by Patrick Gaffney

by Patrick Gaffney

1 Sullivan, Dan.  “Widespread use of senior judges questioned.”  October 28, 2016.  Retrieved from:  http://www.tampabay.com/news/courts/widespread-use-of-senior-judges-in-foreclosure-cases-questioned/2300416

2 Id.

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