Three things about the above quote from the late Justice Scalia: First, it is good advice. Second, candor toward the tribunal is a requirement under the Rules Regulating the Florida Bar.1 Third, Justice Scalia never wrote any of it in his Liteky opinion.
Hardly a day goes by without news that a lawyer – and increasingly a client – has been sanctioned for using AI for legal research which contain hallucinations. Do programs like LexisNexis and Westlaw entirely solve the hallucination risk, or are family law researchers at risk?
Being a lawyer today means relying on artificial intelligence the same way we rely on human staff. AI helps with analyzing documents and discovery, as well as performing core legal tasks, from researching caselaw to document drafting. But make no mistake, AI models can hallucinate fake results. And, as any fan of the Terminator movies knows, AI may also lead to human extinction.
However, courts are dealing more with the hallucination issue, and the misuse of AI in court filings. Most of these cases, if not all of them, deal with citations to non-existent legal authority or the attribution of quotes to cases that do not contain the quoted material — produced as a result of what has come to be termed “AI hallucinations.” A legal AI hallucination occurs when a generative AI model gives you information that appears plausible but is in fact wrong, fabricated, or unsupported by the citation.
Clients are getting in trouble too. A recent federal case is a little different take on hallucinations. In the recent federal case it appears that AI was used not to hallucinate the law, but to hallucinate the facts. If an hallucination is an answer by an AI with made up cases, inventing facts would be a huge new risk in a high-stakes divorce.
In a recent case, the plaintiff filed a sworn declaration opposing a motion for summary judgment which contained multiple fabricated quotations, along with manufactured citations to deposition transcripts, as if they came from sworn testimony.
However, the declaration grossly mischaracterized the testimony and other facts in the record. At oral argument, the lawyers used some of these fabricated “facts” to argue to the Court that this case contained genuine issues in factual dispute.
More interesting, the client and his former counsel refused to accept responsibility for creating and submitting the declaration despite having had multiple opportunities to do so. The court ultimately ordered attorneys’ fees be paid by the lawyer and the client thousands of dollars to the other side as a sanction.
I recently wrote an article about the new players in AI, “Retrieval-Augmented Generation, or RAGs.” The leading AI legal research tools are RAGS. Empirical analysis of the leading AI legal research RAGS — like those offered by LexisNexis and Thomson Reuters — may still generate hallucinations in a non-trivial number of cases.
The Commentator article found that some studies have shown that RAG AI research models may still hallucinate. But it may be getting worse. An even newer claim has come to light. They call it “Semantic Collapse.” Supposedly, once your AI platform hits about 10,000 documents, the AI system starts treating valuable data like random noise.
In one recent study, four document sets contained around 300 pages of documents which answered test questions. However, each set of documents contained different numbers of additional, irrelevant pages, ranging from 1,000 pages to 100,000. An ideal RAG system should behave identically across all document sets.
But in practice, the added irrelevant pages tricked the RAG system into retrieving the wrong answer for a given query. And the more documents that were introduced, the more a wrong answer was likely to happen. The conclusion reached was that RAG performance tends to degrade as the number of documents increases.
There are some fair and unfair observations about the purported new study. True, a vector search may become less sharp at distinguishing highly relevant versus non-relevant documents as the volume of documents increases. But at the same time, the study was done by a competitor maker of a RAG system, which introduces the problem of bias.
More importantly, there is an inherent paradox when we use AI. It is called the AI trust paradox, and it is a phenomenon in which the more confident and human-sounding an AI chatbot becomes, the more we trust it. The problem is we can’t trust it. All AI systems, event the ones that seem reliable can get it wrong. While AI can increase our efficiency, we need to think of them as inexperienced assistants that need our guidance.
The U.S. District Court case is here.
My Florida Bar Commentator article on AI is here.
Forbes magazine is currently reporting on what’s become a standard topic to start the new year: is January really the “divorce month.” Why does January even have this reputation? Is it because January is when there is a big increase in couples filing for divorce and child custody?
While the new year brings on resolutions including diets, going “dry” in January, and an uptick in gym memberships, New Year’s resolutions can often include divorce. Some lawyers think that the first working Monday of the year is “Divorce Day.” In 2026, “Divorce Day” is Monday, January 5th.
Many couples stay together – with all the stress the holidays bring – “for the children.” But once New Year’s Day arrives, couples are free to think about fresh starts. Many law firms around the country have begun to call January the “Divorce Month”.
According to some research, divorce filings have peaked in late summer and early spring. Some experts believe that divorce is most likely driven by a domestic ritual calendar that governs family behavior. Often, August is the month for divorce filings following family vacations and right before school starts. The seasonal change of weather in the spring has also been said to cause people to act.
Interestingly, many people see a drop in divorce filings from Thanksgiving until the start of the New Year. Problems that already exist between couples become exacerbated during the Christmas holidays. The stress of spending time with relatives, cooking large elaborate meals, and the expense of buying presents can all be sources of stress and friction between couples.
New Years, under this theory, marks the final straw in an already tumultuous relationship and the resolution that they will not spend another unhappy year together. Inquiries of divorce lawyers can peak during January, but is it really just a comparison to the two months prior that saw a drop in divorce filings?
I’ve written about no fault divorce and statistics about divorce – such as the January divorce month phenomenon – before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. Instead, you just need to state under oath that your marriage is “irretrievably broken.”
The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.
No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.
If you have reached the conclusion that you can’t spend another minute in your marriage, is January the best time for you to file for divorce? Filing for a divorce impacts your children emotionally and psychologically and creates financial stressors.
Living in two separate households is more expensive than living in one home together, and the more children in your marriage, the more costly the two households will be.
A two-bedroom apartment in Miami can range from around $1,900 – $2,500 in some parts of Miami Lakes/West Kendall to as high as $3,500 in the Brickell area. Three bedroom will naturally be more costly and harder to find than a two-bedroom apartment.
In Florida, there is an initial temporary order issued when filing for divorce designed to preserve the status quo. Realistically however, people separating households into two homes is a division which can leave both households with less than the combined previous married household.
So, is January the best month of the year to file? Possibly. Children are often starting the new school term in the new year. They are still home from school and will have enjoyed a holiday with both parents, and are still excited with their presents. Additionally, bonuses are often paid in the beginning of the year. January is here. Happy new year and new you.
The Forbes article is here.
Family lawyers are becoming early adopters of Artificial Intelligence, and we are facing new challenges to our professional responsibility. My new article in the Florida Bar Commentator examines how generative AI forces lawyers to expand the traditional duties of candor, confidentiality, and competence to include this new relationship we have with our non-human assistants.
Generative AI is a subset of a much broader world of AI, which focuses on creating the text, images, and music we use in our practice and personal lives. Generative AI systems, like Claude and ChatGPT, are the best-known subset of Artificial Intelligence.
AI is evolving rapidly. In February 2019, when OpenAI released GPT-2, it could barely count to five, and threw insults at users. A mere four years later, Stanford Law School administered the Uniform Bar Exam to GPT-4, and it passed the multiple-choice portion of the exam, the written portion, and scored in the 90th percentile overall.
The 2023 Future Ready Lawyer Report showed that seventy-six percent of legal professionals in corporate legal departments and sixty-eight percent of law firms use generative AI at least once a week.
Along those lines, eighty-five percent of law firm lawyers and eighty-four percent of in-house lawyers say they expect to make greater use of technology to improve productivity. So what could go wrong?
A lot can go wrong with AI. So much can go wrong that the Florida Bar has issued Ethics Opinion 24-1. An easy mistake to make is with confidentiality. Before uploading your clients’ confidential information into an AI chatbot, review your AI system’s privacy policies. Avoid uploading any client information unless the AI platform encrypts your data.
Lawyers who rely on generative AI for research, drafting, communication, and client intake have the same responsibilities, and face many of the same risks, when relying on paralegals and assistants. A 2024 study of general-purpose chatbots found that AI models hallucinated as much as eighty-two percent of the time on legal queries.
Ultimately, a lawyer is responsible for the work product that their nonlawyer assistants and AI programs create. This is true regardless of whether that work product was originally drafted or researched by a nonlawyer or an AI program.
The Federal Reserve Bank of Dallas recently published a paper hoping to alleviate concerns that AI will become our evil overlords. Unfortunately, the Federal Reserve Bank’s paper admitted that, under some scenarios:
“AI eventually surpasses human intelligence, the machines become malevolent, and this eventually leads to human extinction.”
The article is available from the Florida Bar Family Law Section Website here.
The intersection of child custody, religion, and haircuts is under review after a California a family court weighed the religious convictions of a father who, as a practicing Sikh, wants his children’s hair left uncut. Who has the power to decide whether to give a simple haircut when religious rights are involved?
The parents of two children, a girl aged 7, and a boy aged 5 went to trial over child custody. The Father practices the Sikh faith, whose primary tenets are uncut hair from birth (kesh), as well as use of a bracelet (kara), a small comb (kanga), undergarment (kacha) and a small dagger (kirpan).
When their first child was conceived, he and the mother discussed raising her in the Sikh faith. The children wear a bracelet to remind them not to do wrong. The son started wearing a head covering, called a patka, before he was two years old, and has continued doing so without objections.
The Mother argued the Father harasses her with requests to not cut the children’s hair despite the children having had haircuts beginning as early as four months old; despite the children’s preference and standard to have their hair groomed to their liking, hygiene, and social standards. Besides, there is no court order prohibiting the children having their hair cut.
The trial court found it in the best interest of the children to leave the haircut decision to the children themselves. If the children express a desire to have their hair cut, that was okay, but no buzz cuts for the son. Additionally, the daughter’s hair cannot be cut shorter than shoulder length so the father will be able to braid her hair. The Father appealed.
I’ve written about the intersection of religion and divorce. However, the issue of religion and haircuts is not a common complaint in family court. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.
Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes has grown over time in various cases. Why?
Because placing restrictions on a parent’s right to expose his or her child to religious beliefs has consistently been overturned by courts in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.
Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent. Religious practices can be restricted, however, when there is a clear, affirmative showing that they “will be harmful to the child.”
The California appeals court noted that parents have a constitutional right to direct the inculcation of moral standards, religious beliefs, and elements of good citizenship. In California, a court will not stop a parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.
The trial court failed to determine whether the mother showed that if the children adhered to the father’s Sikh faith regarding haircuts, patka and bracelets, they would be harmed. Harm to a child from conflicting religious instructions or practices cannot be simply assumed, it must be demonstrated in detail.
The family judge also erred when he subordinated the father’s constitutional rights to the children’s wishes by allowing the children themselves to decide if they wanted to wear bracelets and cut their hair. The family judge deferred to the children without first determining if the children were mature enough to understand the religious observances.
The appellate court reversed the ruling permitting the child’s hair to be cut and deferring to their wishes and directed the family judge to decide if the children’s adherence to father’s religion would be harmful to the children.
The California opinion is here.
A recent Pew Research Center report about divorce in the United States is showing that most adults who have divorced have gone on to remarry. Remarriage to future spouses, adult children and blended families raise interesting issues about the need for prenuptial agreements.
The Pew researchers report that in 2023, over 1.8 million Americans divorced. Additionally, a third of Americans who have ever been married have also experienced divorce. While divorce has been declining in the US since the early 1980s, divorce still shapes a large part of U.S. culture.
One reason the divorce rate declined has to do with who is most likely to get married these days. Over time, the married population has shifted toward adults with higher levels of education. Adults with more education are less likely to divorce, and these shifts have driven down the divorce rate. People with lower levels of education have become less likely to marry. However, there is not a strong link between education and remarriage among Americans who have divorced.
A big exception to this is the gray divorce. In 1990, the divorce rate was 3.9 divorces per 1,000 married women ages 50 and older. By 2008, the divorce rate for this group had risen to 11.0. This stayed relatively stable through 2023, when the divorce rate among older adults was 10.3. In contrast, the divorce rate for those ages 15 to 49 remained stable from 1990 to 2008 and fell between 2008 and 2023.
Roughly two-thirds of Americans who have divorced have gone on to remarry. Divorced men are slightly more likely than women to remarry (68% vs. 64%).
For those who do remarry, the economic benefits can greatly outweigh the single life. Pew found that the median household wealth, or net worth, of divorced working adults was $98,700 in 2023, while those in their first marriage had a median household wealth of $326,900. Remarried people had a slightly higher net worth of $329,100, Pew researchers found. That is where prenuptial agreements can be helpful.
I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just resolving uncertainty in a second or third marriage.
A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important in second marriages.
If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.
Prospective second spouses may limit or expand state laws by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce. Prenups can be a reliable guide for anyone contemplating remarriage after divorce.
Previous research has shown that men are more likely to remarry than women, but estimates of remarriage typically look at both widowed and divorced adults. Because widows are less likely than divorced adults to remarry and women are much more likely than men to be widowed, previously married women are less likely to remarry than men. The gender difference isn’t as large when looking only at divorced women and men.
Some divorced adults who have not remarried live with an unmarried (or cohabiting) partner. In 2023, 15% of divorced women and 19% of divorced men lived with an unmarried partner. The researchers at Pew also discovered that divorced adults have lower household incomes and less wealth than married adults. Perhaps this drives people to remarry.
Working-age adults who are currently divorced also have less median household wealth ($98,700) than those in their first marriage ($326,900) and those who are remarried ($329,100). However, divorced adults have more household wealth than never-married adults ($98,700 vs. $32,600).
The CBS News article is here.
After a mother wrongfully retains a child in Brazil, the father in New Jersey files a Hague Abduction Convention petition in Brazil, and an international custody case under the UCCJEA in Pennsylvania. But is New Jersey the home state if the child has never been there? An appellate court answers that question.
The child, G.O. was born in September 2020, and lived with his parents in Pennsylvania until April 2021. Then, just before G.O. turned six months old, the parents took their child to Brazil in May 2021 for a one month vacation to see the Mother’s family.
The Father returned to the U.S, but the Mother refused to return with the child, and remained in Brazil with G.O. In July 2021, the Father filed an Emergency Petition to return G.O. from Brazil in Philadelphia. The Mother argued that she had filed for custody in Brazil.
In January 2022, the Mother filed an Emergency Petition for Custody in Pennsylvania, where they used to live, but the Father had moved to New Jersey, and had been residing there for over four months. The Pennsylvania court ruled in December 2024 that Pennsylvania no longer had exclusive, continuing jurisdiction under the UCCJEA to consider custody. The Father appealed.
I’ve written and spoken about international child custody cases under the Hague Convention and the UCCJEA before. The Hague Convention seeks to deter abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”
When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”
The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.
Another important aspect of the UCCJEA is the concept of continuing exclusive jurisdiction. Under the UCCJEA, the state originally making a custody determination retains exclusive continuing jurisdiction until it determines that the child, the child’s parents, and any person acting as a parent no longer have a significant connection with the state, or until any state determines that the child, the child’s parents, and any person acting as a parent no longer reside in the decree-granting state.
On appeal, the Father argued the trial court erred when it divested itself of jurisdiction without properly considering its own prior orders affirming jurisdiction, and by disregarding the Brazilian court’s Hague Convention ruling, which determined that the U.S. is the habitual residence and the Mother’s retention in Brazil unlawful.
The purpose of the UCCJEA, the appellate court noted, is to avoid jurisdictional competition, promote cooperation between courts, deter child abductions and facilitate the enforcement of custody orders of other states.
Jurisdiction under the UCCJEA is based on the home state of the child, where the child lived with a parent for at least six consecutive months immediately before the commencement of a child custody case. When a child is six months of age or younger, home state means the state in which the child lived from birth with a parent.
Here, having found the Pennsylvania court was the home state and properly had jurisdiction, the question became did Pennsylvania lose exclusive continuing jurisdiction when the Mother, child and Father had all left the state.
However, the family court incorrectly held that Brazil had not determined a court of the United States would be the more appropriate forum. In fact, the Brazilian found that the U.S. courts were the more appropriate forum for deciding custody than Brazil.
Additionally, even if Brazil had home state jurisdiction to decide custody, under the Hague Convention, the courts in Brazil are not permitted to decide on the merits of rights of custody until it has been determined that the child should not be returned under the Convention.
Finally, if Pennsylvania had allowed the Mother to wrongfully retain G.O. in Brazil to create exclusive jurisdiction, the appellate court reasoned it would be rewarding the Mother for forum shopping and unjustified behavior.
The opinion is here.
A foreign couple that married and lived in Indiana received an international divorce from their home country of Bosnia and Herzegovina. After they returned to the U.S., the Wife filed for divorce a second time in Indiana. An appellate court in Indiana now has to determine if the one divorce is enough for a couple.
In the Indiana case, the Husband and Wife are citizens of Bosnia and Herzegovina, a country on the Balkan Peninsula in southeastern Europe. The country is home to medieval villages and the Ottoman-era bridge where Archduke Franz Ferdinand was assassinated, igniting World War I.
In 2017, the couple were married in Indianapolis, where they both lived. In 2022, after the couple returned to Bosnia and Herzegovina, they jointly filed a petition to dissolve their marriage in a court in Tuzla, a small town in the north of Bosnia and Herzegovina.
Their divorce petition did not mention they owned marital property in Indiana. The Bosnian court granted them a dissolution of their marriage, returning them to being single.
But then on 2023, the Wife filed a new petition for dissolution of marriage, this time in and Indiana Superior Court requesting the court to divide their real estate in Indiana. The Husband moved the court in Indiana to dismiss the case under principles of comity, citing the Bosnian proceeding which had already dissolved their marriage.
The trial court granted Husband’s motion to dismiss because of the previous divorce in Bosnia and Herzegovina. But then the trial court reversed itself, and granted the Wife’s Motion to Correct Errors, finding that the foreign final judgment did not address the couple’s property in Indiana.
I have written about comity and international divorce before. As a general rule, the final judgments of courts in foreign countries are subject to recognition and enforcement in this country.
Any foreign divorce decree should be recognized in Florida as a valid judgment, and should be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.
Comity does not require Florida public policy to be supplanted by foreign law. That’s because comity is not technically a law, but a practice for convenience and expediency. If it would be contrary to Florida law or contravene some established and important Florida policy, comity would not be applied. So, before enforcing a foreign judgment, a Florida court has to review the foreign judgment to make sure it complies with the rule of comity.
Additionally, foreign courts generally do not have the jurisdiction to decide issues relating to real property located in Florida. Accordingly, Florida courts have consistently held that foreign judgments affecting Florida real property are not entitled to comity or enforcement.
Back in Indiana, the Husband argued res judicata prevented the Wife from filing a divorce petition in Indiana after receiving a divorce in Bosnia. The Wife countered that res judicata did not apply because the Bosnian judgment was not rendered on the merits regarding the marital property located in Indiana.
The appellate court agreed. While the Bosnian court dissolved the parties’ marriage, it is undisputed that it did not address the division of marital property in Indiana. As such, res judicata did not apply.
Next, the Husband argued the trial court erred in declining to dismiss the case under principles of comity. Comity was found to be important in avoiding conflicting results and in discouraging repeated litigation of the same question.
Generally, where a divorce action concerns the same parties and the same subject matter, comity should require dismissing a subsequent divorce filed in a different jurisdiction. However, in the Indiana case there was no danger the parties would be subject to multiple or inconsistent judgments, since the real estate disposition was not at issue in the Bosnian proceeding.
The Indiana Appellate Court opinion is here.
Divorces are financially draining, often requiring you to deplete your savings or obtain loans during the process to cover lawyer fees, expert witness fees, and other costs. Whether a divorce loan is right for your divorce is making world news after a Chinese businesswoman sued her young employee after loaning him money for his divorce.
A businesswoman named Zhu from Chongqing, a city located in south-western China, is counting her losses after giving a former employee she had an affair with Rs 3,000,000 (US$420,000) to fund his divorce and payoff his wife for child support.
The younger man, known as He, joined Zhu’s company while both were married to other people. Zhu quickly developed feelings for him and the two began an affair. They agreed to divorce their respective spouses and start afresh together.
To help her young lover divorce his wife, Chen, Zhu transferred three million renminbis directly to the wife as settlement. The sum was described as “compensation” for the divorce and as financial support for the upbringing of their child. With the money paid, He finalized his divorce and moved in with Zhu.
About a year after moving in together, Zhu and He decided they were incompatible, and separated. But then Zhu demanded her divorce loan back. Ultimately, Zhu filed a lawsuit against the now divorce coupled, He and Chen, and demanded they both repay her divorce loan to He.
I have written about international divorces and marital debts before. In a dissolution of marriage, whether to classify loans as marital or nonmarital may depend on a few factors. For example, when was the loan given, what was its purpose, and were the purposes marital or nonmarital.
Generally, the cut-off date for determining whether a loan is marital or nonmarital is the date of the filing of the petition for dissolution of marriage, unless otherwise agreed by the parties. Accordingly, any loans incurred before the filing date are presumed to be marital liabilities unless proven otherwise. However, loans incurred after the filing date are generally classified as nonmarital liabilities unless they meet specific criteria.
During the first trial, the court sided with Zhu, arguing that the funds violated public order and good customs, thus deeming it an “invalid gift.” Consequently, the court ruled that the money should be refunded.
The divorced couple, Chen and He, then filed an appeal. An upper-level court determined that Zhu had not provided sufficient evidence to prove that she had gifted the money to Chen. Instead, the money was classified as a payment made on behalf of He for divorce compensation and child-rearing expenses, stated the appellate court.
The appellate court said Zhu had failed to prove the payment was a personal gift to Chen. Instead, it was regarded as money He owed his wife as part of the divorce settlement and for child-rearing expenses.
The upper-level court also criticized Zhu’s conduct, observing that she had used her wealth to hasten a divorce, and then sought to undo her gift when the romance faltered. The judges noted her lack of integrity in attempting to reclaim the payment under such circumstances.
The South China Morning Post article is here.
A recent Wall Street Journal article discusses a growing problem. For many couples going through divorce, they bought their house and have a low-interest rate mortgage. Since they are separating, they now have to work out child custody. So, how are divorcing couples managing in this current, high-interest-rate, high-rent market, and minimizing the disruption on their children?
You’re married, have children, and have a home with a mortgage. Lucky for you, you locked in your mortgage rate in 2021, when the average 30-year fixed mortgage rate dipped to an all-time low of 2.68 percent.
These days, the average interest rate on a 30-year fixed mortgage stands at 6.35 percent. As recently as January, the average 30-year fixed mortgage rate exceeded 7 percent.
Each percentage point decrease in a mortgage rate can save thousands or tens of thousands in additional cost each year, depending on the price of the house. For any couple locked in at a historically low interest rate, how do you avoid selling the marital home in a down market when interest rates and the cost of ownership are substantially higher?
The Wall Street Journal recently explored a growing trend for parenting plans among divorcing couples: “nesting”. Nesting is a parenting plan in which children remain in the marital home while the parents timeshare in the marital home. Instead of forcing children to shuttle between two homes, the parents do the shuttling.
I’ve written on Florida’s attempts to legislate the parenting plan concept before, including complex and international custody and other issues.
In Florida, a Parenting Plan is required in all cases involving time-sharing with minor children, even when timesharing is not in dispute.
A “Parenting plan” is a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and the child.
The issues concerning the minor child include the child’s home, education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parents, including their historic relationship, domestic violence, and other factors are taken into consideration.
The Parenting Plan must be developed and agreed to by the parents and approved by the court. If the parties cannot agree to a Parenting Plan or if the parents agreed to a plan that is not approved by the court, a Parenting Plan will be established by the court with or without the use of parenting plan recommendations.
Every family situation in a divorce is different. Nesting may be an option to consider. Some parents rent a small studio or apartment near the marital home, keeping essentials like toiletries, chargers, and even spare glasses to reduce disruptions. The child usually stays only in the family home, not the secondary space.
Many families often reassess whether nesting still works, as it requires significant compromise and coordination. Divorce is already a compromise, and nesting adds more to that complexity. Lawyers note that a “fair” settlement often leaves both parties somewhat dissatisfied.
Selling the marital home may free up the equity in the home, but selling also forces both spouses into today’s high housing costs and high mortgage interest rates. A buyout requires refinancing, often at much higher interest rates. Renting an additional apartment adds to ongoing expenses, and is not cheap in Miami.
Some divorcing families prefer to keep their shared traditions, such as their weekly meals in the main house. Children sometimes frame the arrangement in positive terms, such as “camping out” with one parent. Still, blurred boundaries can create challenges for parents.
Nesting offers stability for children but comes at high emotional and financial costs for parents. It requires constant negotiation, limits your privacy from your ex-spouse, and still brings extra housing expense. For some divorcing couples, nesting is a transitional and temporary arrangement. For other couples, nesting lasts years – provided both parents can tolerate the compromises.
The Wall Street Journal article is here (paywall).