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Since 1997 we are Tampa attorneys practicing exclusively in Divorce, Family, Adoption, Bankruptcy & Mediation Services: practicing in Tampa, Riverview, Brandon, Valrico, Lithia and all of Hillsborough County as well as for bankruptcy in all counties in the Tampa Division of the Middle District of Florda: Hillsborough, Pinellas, Manatee, Sarasota, Hardee, Hernando, Polk, and Pasco Counties. Our lawyers have experience practicing in contested and uncontested divorces, including military divorces, and family law, child support, child custody and visitation, relocation of children, alimony, domestic violence, distribution of assets and debts, retirement/pensions (military and private), enforcement and modification of final judgments, paternity actions, adoptions, and name changes. We offer a free consultation and we are happy to discuss your case. Call or email to schedule a consult. Our representation of our clients reflects our dedication to them.

Sunday, October 4, 2015

Supreme Court of Florida Weighs in on Waivers in Hahamovitch v. Hahamovitch - Pre Nuptial Agreements

A prenuptial agreement can be an effective tool for two people to settle the division of assets upon the dissolution of the marriage. Prenuptial agreements can be complex agreements that should be approached with great care and diligence. Both parties to the agreement should have a full understanding of the subject of the agreement and retain counsel to advocate for their interests. One common element of prenuptial agreements is a waiver and release of claims, which can vary in specificity. In Hahamovitch v. Hahamovitch, the Supreme Court of Florida determined the validity of general waivers as they relate to certain marital property and claims.
Issue of the Case
In Hahamovitch v. Hahamovitch, the husband and wife executed a prenuptial agreement before marriage, which lasted for 22 years and produced two children. The prenuptial agreement contained:
  • a general waiver and release that barred the wife from asserting any claim to the husband’s property, and to any rights she otherwise accrued as a result of the marriage, such as alimony, support and maintenance, equitable distribution, division of property, or attorneys’ fees;
  • a provision that each spouse shall keep sole ownership of their respective property that was acquired before or after the marriage, and that each waived all right to the other’s assets; and
  • a presumption that property titled in one spouse’s name was deemed to be that spouse’s property.
Upon their divorce, the wife claimed that the general waiver did not apply to her right to her share of her husband’s earnings, assets purchased with those earnings, or any appreciation or enhanced value of her husband’s assets as a result of marital efforts. Before the Hahamovitch decision, Florida courts were split as to whether a general waiver as described above is a valid means to waive a spouse’s right to such assets.
The Court’s Ruling
In a unanimous decision, the Supreme Court of Florida settled an important legal issue in Florida divorce law. The court held that prenuptial agreements that contain a general waiver that provides that each spouse:
  1. disclaims all interest in the other spouse’s property;
  2. will be the sole owner of property purchased in their own name; and
  3. waives all claims that they may have as a result of the marriage, e.g., alimony;
…are valid and will prevent each spouse from claiming a share of property owned and titled in the other spouse’s name, regardless if that property was purchased with marital assets or appreciated in value because of efforts by the non-owner spouse.
Impact on Prenuptial Agreements
Before Hahamovitch, Florida courts varied on the specificity required for waivers for certain marital assets, such as a spouse’s earnings. The court’s decision brings clarity in that a properly drafted waiver can serve to preclude claims otherwise allowed under Florida law.
Considering or Need Help with a Prenuptial Agreement?
Prenuptial agreements are complex and require careful consideration, especially when they contain a broad waiver and release of claims. The divorce attorneys at All Family Law Group, P.A. have the knowledge and skill necessary to protect your interest in entering and exiting a marriage. If you need help or have questions about your divorce or prenuptial agreement, contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.
By Lynette Silon-Laguna Google+

Timing of Marriage and Baby Doesn’t Affect Divorce Rate

In the past, research showed that cohabitating couples who had a baby prior to getting married consistently faced a higher divorce rate than those who married first and had a baby later. In fact, a study by the National Survey of Family Growth (NSFG) claims that there was no increased risk of divorce for those who chose to marry first, as opposed to those who chose to have a baby first and then get married.
The study analyzed data from couples who had their first child between 1985 and 1995 and those who did so between 1997 and 2010. Researchers found that unmarried couples in the first group were 60% more likely to divorce than those couples who married before having their first child. Only 10 years later, however, this difference disappeared. Couples from the second group who remained unmarried before the birth of their first child were no more likely to divorce than those who were married first.
Why is This the Case?
Researchers attribute this drastic change in statistics to a number of different factors. On the whole, American society, as well as that of other industrialized countries, is more accepting of unmarried couples who live together. These days, there is little societal pressure to immediately marry if a pregnancy occurs. Children born of out wedlock are commonplace in most areas of the country, and the stigmas that were attached to unmarried couples sharing a household and children born outside of marriage no longer really exist. Rather, couples who share a child take their time in deciding whether and when they will marry.
In fact, the only group who had a significantly higher chance of splitting up after their first child was comprised of those couples who never married. Thirty percent of those cohabitating couples who never married split up within five years. However, this statistic may have been skewed by the fact that cohabitating couples tend to have less income and education that those who marry, which may contribute to an eventual split.
Whether parents are married or not, however, a separation is likely to increase the need for court orders regarding custody, visitation, and child support. These options are equally available to children born during marriages and those who are not. While some separations occur amicably, and parents are able to compromise and reach an agreement on these important issues, others are much more complex, and may require extensive litigation.
It is in these situations that an experienced Tampa family law attorney can be most helpful to you. When you are going through the emotional struggle that often accompanies a bitter break-up, the last thing you need is to try and navigate the minefield of child custody and visitation on your own. This is where we can be of assistance to you. Contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.
By Lynette Silon-Laguna Google+

Tuesday, September 22, 2015

Re-Establishing Contact with Your Children after a Divorce

In some circumstances, divorce also means a temporary severance between a child and one parent. The reasons for separation are many, including isolation due to a physical or mental condition, substance abuse, maltreatment, relocation, or other breakdown in the parental relationship. Unfortunately, along with a divorce, the affected parent will be restricted from time-sharing or visitation with the child. Regardless of the circumstances surrounding the divorce, and the reasons for separation from the child, it is important to ensure a path to reunification as part of your divorce case, and the terms of your final decree of dissolution. In Niekamp v. Niekamp, No. 2D14-728, Fla. 2nd DCA 2015, Mr. Niekamp challenged several issues related to the final judgement in his divorce case, including how the divorce court handled the potential for reunification with his children.
Facts of the Case: Being Separated from Your Children
The Niekamps were married for 22 years and had two children within the marriage. In the 10 years preceding their separation, Mr. Niekamp worked in the home and assumed child care responsibilities while Ms. Niekamp operated a business. Based on the facts provided by the appellate court, Mr. Niekamp suffered from mental health issues, which, among other facts, provided an obstacle to shared parental responsibility. Ms. Niekamp was awarded sole parental responsibility after the court determined that shared responsibility and timesharing would be detrimental to the children. Like many individuals facing these circumstances, Mr. Niekamp was prohibited from contact with his children and, as the appellate court noted, was even denied the opportunity to speak to his children over the telephone. Although Mr. Niekamp was to be separated from his children for the time being, the court did grant Mr. Niekamp’s request for therapeutic reunification with his children.
Reunification: Protecting Your Rights as a Parent During Separation
The judge in Mr. Niekamp’s case designated a therapist to oversee the reunification process, which is designed to re-establish a supportive parent-child relationship. The problem with the court’s initial judgment, and one of the reasons for Mr. Niekamp’s appeal, was that the court neglected to provide any insight as to how Mr. Niekamp could advance the reunification with his children, other than participate in the therapy as dictated by the therapist. The appellate court agreed with Mr. Niekamp, and affirmed the fact that as part of any judgment that suspends a parent’s right to see their child subject to reunification, the court must specifically identify the steps the separated parent can take to re-establish timesharing of the children. If you are facing the suspension of your rights and separation from your children as part of your divorce, you need to ensure that the court provides specific expectations and steps you can take to regain contact with your children beyond the general requirement that you participate in therapeutic reunification.
Need Help?
The divorce attorneys at All Family Law Group, P.A. have the experience necessary to protect your interest during your divorce. If you need help or have questions about your divorce, contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.
By Lynette Silon-Laguna Google+

Monday, September 21, 2015

When Your House is No Longer Your Home

After years of marriage, your home may be one of, if not the most, significant assets owned by you and your spouse. When facing a divorce, the disposition of the marital home will be a critical issue and dependent upon a variety of circumstances. Under Florida law, the judge presiding over the divorce will distribute marital assets and liabilities between the spouses. Unless otherwise justified under the circumstances of the particular case, this division should be equal between each individual.

Marital vs. Nonmarital Property
With some exceptions, nonmarital assets include property acquired by either spouse prior to the marriage. On the other hand, marital property generally includes property acquired during the marriage, without regard as to whose name the property was titled in. For example, after two years of marriage, Suzy and Tom purchase a house. This house would be marital property under Florida law. Marital property can also include an enhancement in value of nonmarital assets that occur during the marriage. For example, Gene purchased a house 10 years before marrying Sam. Sam is a contractor and did substantial work to the home during the marriage using marital funds. The appreciation may be considered a marital asset even though the home was purchased before the marriage by Gene.
Equitable Distribution
During a divorce proceeding the presiding judge will first set aside each spouse’s nonmarital property, and then consider the marital property for distribution between the parties. The judge will distribute the marital property equally, unless fairness requires otherwise based upon the following factors:
  • each party’s contribution to the marriage and/or to the acquisition or appreciation of the asset;
  • the duration of the marriage and relative economic position of the parties;
  • any sacrifice made by a party with regard to their career or education for the sake of the other party;
  • the need of such asset for use in a business or profession;
  • any intentional impairment of the asset by a party after the filing for divorce or within the preceding two-year period; and
  • any other factor necessary to do substantial justice.
Disposition of the Marital Home
Division of the home creates an obvious problem in a divorce. Many times neither party can support the mortgage payment due on the family residence, which will require its sale and distribution of the proceeds based on the factors listed above. On the other side of the spectrum, in situations where there is substantial equity, neither party may have the resources to buy the other party’s share of the equity, which will also necessitate a sale and distribution of the proceeds as outlined above. Other factors may drive the judge’s decision outside of the relative economics of the property. If the marital home is a residence for a younger child of the parties, the court may find that in the best interest of that child the custodial parent should remain in the home if financially feasible.
Get the Assistance You Need
The distribution of marital assets is a fact specific analysis that requires knowledge and experience. The attorneys of All Family Law Group, P.A. are knowledgeable Tampa divorce attorneys who have experience in the identification and distribution of marital and nonmarital assets and liabilities. If you are faced with divorce, we can help protect and assert your rights under Florida law. Contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.
By Lynette Silon-Laguna Google+