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Ask Asad Rahman Your Own Question
Asad Rahman
Asad Rahman, Lawyer
Category: Legal
Satisfied Customers: 2017
Experience:  Practicing Attorney with 10 years experience
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I'm not sure if you can. It related to family law and

Customer Question

I'm not sure if you can. It related to family law and modification of time-sharing. I divorced in March 2015 via MSA. My MSA contained a provision in it that stipulated that if my ex-husband "continuously and timely exercised his time sharing for a period of six consecutive months" he could step up to 50/50 time-sharing. During that period he missed 46 percent of his time, and he (a year later) filed a motion for contempt, claiming that he had complied with the MSA and I had denied 50/50.
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: Florida
JA: Has anything been filed or reported?
Customer: Yes. I had a hearing on Thursday. The judge decided that, even though he missed 46 percent of his time, that he had "substantially complied" with the MSA, and that he did not need to consider the statute 61.13 because "we had a contract," and that I had breached the contract. He ordered that we switch time sharing despite the statute, despite the contract stipulating expressly "no misses except in case of emergencies," and despite stating that the change might be detrimental to the child.
JA: Anything else you want the lawyer to know before I connect you?
Customer: I'm trying to find out if a provision in a divorce decree that contradicts the statute can be enforced, and whether I have the ability to appeal.
Submitted: 2 months ago.
Category: Legal
Expert:  Asad Rahman replied 2 months ago.

You do have an ability to appeal but a statute can overrule a contract. Your appeal would be based on the judge enforcing the provision even though your ex did not fulfill the condition precedent.

Customer: replied 2 months ago.
In my case, the statute says that best interests of the child must be considered any time that time-sharing is modified (61.13). It's the basis for the statute. The judge stated on the record that he did not need to consider the statute because we had signed a contract that allowed my ex husband to increase his time-sharing without a review of best interests. The judge stated on the record that the provision was poorly thought out, poorly worded, and that the change would be detrimental to the child (he even questioned my ex-husband about whether he truly thought that the change was best for our young child now that he's about to start school, and since he moved and now works so far away). I'm looking more to ask, do the appellate courts typically rule that statutes trump private agreements, or do agreements overrule statutes. I am essentially destitute because of the legal fees I've racked up fighting this and this finding, along with the judge ruling a blank check on legal fees for my ex-husband's $450 per hour attorney, will bankrupt me.
Expert:  Asad Rahman replied 2 months ago.

Aah, so he actually discussed how he was ignoring the statute? That is clear grounds for appeal.

Expert:  Asad Rahman replied 2 months ago.

Typically the courts must enforce a statute over a contract unless the statute itself allows for the parties to deviate.

Customer: replied 2 months ago.
Thank you. Do you know of any services that would provide any pro bono legal help in Florida? I qualify for legal aid but they won't work with me because it's a post-dissolution motion.
Expert:  Asad Rahman replied 2 months ago.

Unfortunately i do not. Talk to the Florida state Bar. they have various programs to assign pro bono attorneys.

Customer: replied 2 months ago.
Thank you for your help.
Expert:  Asad Rahman replied 2 months ago.

Sure. Good luck to you. I hope it all works out for you. If you have no further questions, a positive rating of 5 stars would be greatly appreciated as we only get credit for ratings of 3 stars or more.

Expert:  Asad Rahman replied 2 months ago.

Thanks again for using our service.

Expert:  Asad Rahman replied 2 months ago.

Let me know if you have any additional questions otherwise a positive rating would be greatly appreciated.