What to Do When a Spouse Badmouths During a Divorce

Emotions understandably run high during divorce, and things can be said in the moment that are hurtful, but not helpful or accurate. While negative comments said to a spouse in private will not directly result in legal consequences, making disparaging remarks to children or others could lead to unintended and unwanted legal repercussions. Children often bear the brunt of divorce, and have a hard time adjusting to a world where they seem to have less stability. Rare is the parent who deliberately makes negative remarks about a soon-to-be ex-spouse with the intent of causing the child emotional pain. However, hearing parents bad mouth each other in the presence of or to the child directly is confusing and hurtful for the child, and often leaves them unsure about which parent deserves loyalty and respect. Obviously, this situation is not optimal for the child, and can have lasting effects on him/her if the negative talk is continual. In some instances, courts will take action to curb and/or eliminate this propensity. In addition to bad mouthing a spouse to a child, making damaging comments publicly to friends, family and mutual acquaintances also brings the potential for serious legal consequences. A discussion of how courts can react to parents subjecting their child to negative talk about the other parent, and the legal options a spouse has when negative comments are made public, will follow below.

Comments to Children

Judges generally do not take a kind view to displays of high emotion during a divorce hearing/trial, and this stance extends to exposing children to similar scenes of negative behavior. Courts must always keep the best interests of the child in mind when making decisions about custody, and if a judge discovers a parent is bad mouthing the other to the child, that fact will factor into his/her final decision on how parenting responsibility will be divided. Further, this behavior could be used as a basis for requesting a modification of custody post-divorce if a parent can show it substantially damaged the parent/child relationship. When courts examine what is in the best interests of the child, Florida law has a number of factors they are directed to use, and two relate to fostering healthy communication with the child. These are:

• the demonstrated ability of each parent to promote close parent/child relationships, which would be compromised if one or both parents bad mouths the other; and
• the capacity for each parent to put the needs of the child before his/her own needs and desires.

While these are just two factors among a much longer list, potentially interfering with the other parent’s relationship with the child goes against the State’s policy of encouraging and supporting the parent/child connection. Consequently, a court could decide to take a harsh position on this issue and give one parent more time with and control over the child. Thus, restraining from making these remarks, despite what a parent may personally believe, is the best way to guard against any challenges to custody brought by the other parent.

Comments to Others

In addition to repercussions for child custody, publicizing disparaging remarks about an ex-spouse could result in a reduction of the marital property award and/or a lawsuit for defamation if the negative comments damaged the other party’s reputation. A New York divorcee learned this lesson the hard way when an appeals court further reduced her divorce award for making public remarks about her ex-husband that allegedly cost him clients and income. While Florida courts are not supposed to take a party’s bad behavior into consideration when deciding how to divide assets, deliberate actions by a spouse that diminish the financial resources of the other could motivate a judge to give a greater share to that party in the interests of fairness.

Consult a Divorce Attorney

Divorce is a difficult process, but you do not have to go through it alone. Support for an experienced divorce attorney can make a substantial difference in obtaining a favorable outcome and keeping stress levels as low as possible. The Tampa Bay law firm All Family Law Group, P.A. is ready to walk you through the legal ramifications of this decision, and to craft a customized solution to meet the needs of your family.  Contact the Tampa divorce attorneys and family 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+

Property Distribution by Courts Must Be Equitable

Finances are frequently a major concern for someone going through divorce, either as a worry about walking away with enough to cover the costs of daily living, or as anxiety related to the possibility of being required to relinquish a substantial amount. The finances of divorce revolve around the division of marital assets and the payment of support. While both types of financial resources are integral to a person’s security, property division is particularly important to a person’s long-term ability for self-support. Because of the monetary value, and in some cases, an emotional attachment to a particular item, in a couple’s marital estate, this issue can become heated during the divorce process. Parties typically feel better about the outcome of property division if they are able to negotiate a private settlement because of the control they were able to exert over the terms. However, forming an agreement over the division of marital assets is not always possible for a variety of reasons, and a court must sometimes step-in to settle the matter. Further, even if a settlement agreement is reached, a court will still review the terms to ensure fairness, as property settlements are considered final and rarely modifiable. A discussion of how courts assess the division of property, including a recent case where the trial court’s analysis was incorrect, will follow below.

Equitable Distribution

Equitable distribution is the standard courts use to evaluate what the appropriate division of property should be, and rests on what division would be most fair. While the starting point for this analysis is a presumption for equal division, courts can favor one party if circumstances indicate this is necessary. Due to the importance of this issue, a court’s analysis of what is equitable is the central focus of many divorce cases, because if improperly conducted, the decision can give a party grounds to appeal the divorce judgment. A recent decision by a Florida appeals court highlights the effect a judge’s failure to follow the rules for determining a fair division can have on the value of a party’s settlement. The major issue in the case was the value of a property the parties owned in the U.S. Virgin Islands, with each party providing conflicting numbers. The appeals court sent the case back for reconsideration because the trial court did not factually support why its decision was equitable, a requirement of Florida law. These factual findings must relate to a list of factors courts are required to use when evaluating the fairness of an equal division of property; otherwise, there is no way to know if the law was correctly applied, or if the court’s decision was arbitrary.

Factors to Evaluate Distribution

To direct the court’s analysis, the law provides for a number of factors a judge must consider when deciding how to divide property that specifically delve into the parties’ financial needs and the economic circumstances of the marriage. Some of the pivotal factors on that list include:

• each party’s contribution to the marriage, including childcare and services as a stay-at-home spouse;
• the financial resources of each party;
• halting or passing on educational or career opportunities by either party;
• the length of the marriage;
• how much each party contributed to the enhancement of marital assets or the accumulation of debt;
• a desire to keep the marital home for the sake of a minor child; and
• the intentional waste or depletion of marital assets after filing for divorce, or within the previous two years.

Looking at the list above, the court requires a lot of detailed and personal information to decide the division of property, which illustrates the need to have an experienced divorce attorney to advise on the best and most persuasive way to present this information.

Seek Legal Advice

No one knows the story of what led to your divorce better than you, but an experienced divorce attorney will know how to best use that information to your advantage. An attorney will also know how to protect your rights, and look out for your interests and those of your family. The Tampa Bay law firm All Family Law Group, P.A. knows how straining divorce can be, and is prepared to take over the legal burden so you can focus on supporting your family.  Contact the Tampa divorce attorneys and family 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+

What Happens to Health Insurance When Couples Divorce?

Medical care is known to be one of the more expensive, but necessary, items to hit a person’s budget. Most people seek medical insurance through an employer, if available, to defray the costs of obtaining coverage, and most families are covered under one spouse’s insurance – usually the one that offers the best coverage at an affordable price. Medical insurance is a valuable asset in today’s world, and when couples decide to divorce, one party will be left with the dilemma of how to replace it. If a person is lucky, his/her employer could offer health insurance, but it may not be a good policy, and even if it is, the cost could be too high to contemplate joining the plan. However, the worst situation a divorcing spouse could find him/herself facing is having no option to purchase employer-sponsored health insurance and trying to manage a number of pre-existing medical conditions that are expensive to treat. Does a person, who is reliant on the other spouse for health insurance, have any ability to maintain that coverage post-divorce? Additionally, there is the issue of who will provide health insurance for the children, and how that expense will be divided between each parent. A discussion of an individual’s options for health insurance after divorce, and how health insurance for children is handled in this situation, will be explored below.

Insurance Options for a Divorcing Spouse

Anyone facing a serious and/or chronic health condition is understandably anxious when it comes to securing sufficient health insurance coverage so they may receive necessary treatment. Serious health concerns can force a person to reduce time at work, change careers into a less demanding and lower-paying field, or stop working entirely. This presents a real problem in the context of divorce. Federal law requires health insurance providers that contract with companies that employ 20 or more employees to provide the same level of temporary coverage, known as COBRA, to an ex-spouse for 36 months after a divorce is finalized. Divorce is one of several qualifying events that obligate an insurance company to offer enrollment in a plan or the continuation of coverage – marriage, birth of a child, and loss of employment are examples of other qualifying events. Thus, divorce waives enrollment restrictions, and allows the spouse losing coverage to obtain previously-declined insurance with an employer or buy coverage in the marketplace. Note that ex-spouses have 60 days after the divorce decree is issued to contact the insurance company and elect to enroll in the COBRA program. However, the big issue with COBRA is the high cost. Most group health plans are subsidized (or partially subsidized) by the employer, which is lost when the legal relationship with the employee is severed by divorce. Further, health insurance companies are permitted to add an additional premium above what the employer is paying that only adds to the high cost. This situation often results in monthly premiums of over $1,000 for one person.

The law does not require an ex-spouse to cover the cost of health insurance, but this issue may be negotiated as part of a divorce settlement. In addition, courts will scrutinize divorces that could leave one party indigent due to serious health issues, and lead a judge to give the spouse with lesser means a greater share of the marital property, or order the other spouse to pay alimony.

Health Insurance for Children

Typically, health insurance for children will remain the responsibility of the primary provider, as it is the easiest way to resolve this matter. But, in any event, Florida law requires one parent, typically the one ordered to pay child support, provide health insurance for a child following divorce, as long as the cost is reasonable and the coverage is accessible. The cost is considered reasonable if the additional amount does not exceed five percent of the obligated parent’s gross monthly income. Coverage is considered accessible if the policy includes the county where the child primarily lives, or another county if agreed to by the parent with the greater share of parenting time. If the parent receiving support provides health insurance for the child, the other parent may be required to reimburse this cost.

Talk to a Florida Divorce Attorney

Maintaining health insurance coverage after divorce is a serious concern for many people, and if you have questions about the effect divorce has your rights and benefits, talk to a divorce attorney about what you should expect. The Tampa Bay law firm All Family Law Group, P.A. has a team of dedicated attorneys ready to help you with your case.  Contact the Tampa divorce attorneys and family 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+

When Will Courts Hear Child Testimony in Family Law Cases?

Numerous studies have supported the finding that divorcenegatively affects many children. Certainly, the degree of the impact is likely related to the age of the child when the divorce occurs and the child’s ability to understand the situation, though it is hard to handle a parent divorcing at any age. However, once a child is old enough to have some capacity to grasp that his/her parents are no longer together, many will express an opinion about which parent they would prefer to live with primarily. There is no denying children are a central issue in divorce, and the outcome will unavoidably directly affect their life. Based on this situation, some parents, and sometimes the child him/herself, want the judge to take the child’s wishes into consideration. While a child’s input could provide the court with some valuable information, most judges tend to shy away from this situation because of the potential for a parent to influence the child’s statement, as well the possible detriment of being exposed to the legal process. However, children are permitted to testify in some cases, and teenagers, in particular, are more likely to be given a voice in child custody matters. Judges have complete discretion in deciding this matter, but there are some guidelines courts can use to assess whether child testimony is advisable. An overview of the circumstances that would make a court more likely to permit a child’s testimony, and a review of the guidelines courts can use to determine if a child’s testimony is appropriate, will follow below.

Allowing Child Testimony

Generally, courts will only seriously consider hearing a child’s testimony if it is the only way to get important evidence into the case. However, even with that standard, unless the child is at least 12 or 13 years old, the likelihood the court will allow the testimony is extremely small. Courts have a legitimate worry about the competency of the child to testify, which requires the child be of sufficient age and maturity to make independent decisions and understand the implications of what he/she is saying. Further, even if the child is viewed as sufficiently mature, situations of domestic violence where the child is the only witness are one of the few circumstances where a child’s testimony would be given due consideration. Older teenagers, though, are given more leeway to testify about custody issues since they usually have the ability to understand the legal process and separate themselves from the dynamics of their parent’s marriage.

Legal Guidelines

Florida does not have an established age range judges can use to guide their decisions on child testimony, but it does have a statute about evaluating motions for child involvement in civil cases. Any party or court-appointed advocate can make such a request, and the court is directed to look at:

• the child’s age;
• the type of case;
• the child’s relationship to the parties in the case, e., a child of parents involved in a family law matter; and
• how the child would be affected by providing testimony.

To minimize stress on the child, many judges will speak with the child directly and out of the presence of his/her parents, known as in camera, in hopes of reducing any pressure the child may feel to favor one parent over the other.

The best option, though, is to keep children out of family law cases as much as possible. Guardians ad litem or other court-appointed advocates can usually provide the same information, and save the child from the trauma of having to appear at a court proceeding, an option judges would likely support. The best stance to take on this issue is to assume the judge will not allow child involvement, which is by and large the case, and instead work with an attorney to find alternatives that can convey the same evidence.

Get Legal Advice

Divorce brings up a lot of emotions for everyone involved, and it is easy to become overwhelmed by the complexity of the legal process to end a marriage. Finding an experienced family law attorney that will listen and strongly advocate for your interests is the most effective way to move through the divorce process efficiently and reduce unnecessary stress. The Tampa Bay law firm All Family Law Group, P.A. strives to settle divorce cases amicably, but are well-prepared to present your interests in court.  Contact the Tampa divorce attorneys and family 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+

Divorced Parents and Relocating

The logistics involved with adhering to a parenting time schedule is bound to challenge any parent at some point. Divorced parents do have an interest in ensuring their child has regular contact with an ex-spouse, but the realities of transporting the child between both households can, and probably will, create difficulties from time-to-time. This issue exists even when parents live in close proximity to one another, but are greatly compounded if a parent later decides to relocate to a distant city or state. Because of the significant ramifications relocation has on a parent’s child custody rights, any time a parent wants to relocate with a child, approval must first be obtained from the other parent and/or a court. Moving a child far away from the other parent without prior authorization can bring serious consequences, including criminal charges and restrictions on child custody.

In a real-world example of how serious it is to move a child without permission, a man was recently sentenced to 14-months in jail after he left Oregon against a court order, and hid is daughter in the Orlando area for over two months. Any time a parent unreasonably interferes with the custody rights of the other parent, he/she risks serious legal consequences, and unauthorized long-distance relocations fall into this category. An overview of the procedure to legally move a child when custody is shared with another parent will follow below.

When Relocation Authorization Is Required

Understandably, the law is not interested in regulating every move a parent, who shares custody, makes with a child. The law is only interested in intervening when the move would impact how often the other parent would be able to see the child. Thus, when a move would take the child 50 or more miles away from the child’s principal residence as of the last time a custody order was issued by a court, the consent of the other parent and/or approval by a court is necessary prior to the relocation.

Relocation by Agreement vs. Petition

As noted above, relocation is permitted if the parent moving with the child first obtains the other parent’s written consent or court permission. Valid relocation agreements between the parents must contain:

• consent to the relocation;
• access or a time-sharing schedule for the non-relocating parent; and
• transportation arrangements related to access or time-sharing.

Absent written consent, the relocating parent must petition a court to approve the relocation, and the petition must include the reason behind the relocation, including a copy of a job offer, if applicable.

Objections

When a parent seeking relocation with a child petitions a court for approval, the other parent must receive a copy of the petition, and has 20 days to file an objection to the request, which must include the basis for the objection. In this situation, the court makes the final determination on whether to allow the relocation, and bases its decision on the evaluation of certain factors, including:

• the nature and quality of the child’s relationship with each parent;
• the age and needs of the child, and how the relocation would likely affect the child’s physical, emotional and educational development;
• how feasible it is to preserve the child’s relationship with the non-relocating parent under a different time-sharing arrangement;
• the child’s preference, if the child is of sufficient age and understanding to make a reasoned decision;
• if the relocation would improve the child’s and relocating parent’s quality of life; and
• if the relocation request was made in good faith, and if the objecting parent is current on financial obligations to the other parent.

Consult a Family Law Attorney

Relocation with a child is a substantial issue for both parents, and the services of a family law attorney should be sought to ensure all potential issues are addressed to avoid unnecessary future conflicts. The Tampa Bay law firm All Family Law Group, P.A. is well-versed on the laws related to relocation, and is available to answer your questions on this issue.  Contact the Tampa divorce attorneys and family 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+

Undoing Paternity

Becoming a parent is no small event, and while most couples happily welcome a new child, the same amount of joy may be lacking for men unsure of the child’s paternity. Paternity, from a legal standpoint, typically refers to establishing a legal father for children born out of wedlock. Children born to married couples are automatically assumed to be fathered by the husband, so paternity is not normally questioned. Further, men in good relationships, both married and unmarried, rarely question the paternity of the child. A declaration of paternity brings with it two consequences: it creates an ongoing obligation to financially support the child, and grants the man the right to visitation. This designation can become problematic if the relationship later ends and the purported father learns the child is not really his. This knowledge does not automatically end the man’s legal rights and obligations towards the child. Rather, to be relieved of this status, the man must file a petition in court to disestablish paternity so he is no longer considered to be the legal father. Because courts are primarily concerned with maintaining the well being of a child, disestablishing paternity is not particularly easy, but it will be done if certain conditions are met. An overview of what a man must prove before a court will consider severing paternity of a child, and common factors that derail petitions for disestablishing paternity, will follow below.

Conditions to Disestablish Paternity

The mother and child have an important interest in keeping the purported father in their lives – the mother likely needs the financial support, and the child benefits from having two parents. As a result, a man must initiate a petition to disestablish paternity within two years of the child’s birth or of learning the child may not be his. Additional requirements include:

• the father must submit an affidavit stating that he discovered evidence that put paternity into question after it was established;
• genetic testing must be performed, either voluntarily or by court order, to determine if the man is biologically related to the child;
• the man must be current on child support, if he is obligated to pay;
• the man did not adopt the child; and
• the child was not conceived by artificial insemination while the man and the mother were married. In this instance, the law says the man becomes the legal father at the time of conception, instead of when the child is born, the point used to determine paternity in natural pregnancies.

Issues Prompting Denial

However, a father can meet all of the requirements listed above and still have his petition to disestablish paternity denied. A court may reject a petition if any of the following are proven to be true:

• the legal father blocked the biological father from asserting his parental rights;
• the man married the mother, if unmarried at the time of the child’s birth, and held himself out as the child’s father;
• the man permitted his name to be listed as the father on child’s birth certificate;
• the man acknowledged paternity in a sworn statement;
• the man signed a voluntary acknowledgement of paternity; or
• the man ignored a notice from a court or State agency that asked him to submit to genetic testing.

Get Legal Advice

Being a child’s parent is a big responsibility, and if you have questions about the paternity of your child, talking to a family law attorney is the most direct route to getting the information you need. Courts take paternity very seriously because of what is at stake – the child’s well being, and will highly scrutinize requests to take that stability away. The Tampa Bay law firm All Family Law Group, P.A. has experience in paternity matters, and will diligently work to achieve the best possible result.  Contact the Tampa divorce attorneys and family 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+

The Basics of Filing for Divorce in Florida

Taking that final step, and deciding to proceed with divorce, is often difficult and fraught with emotion. But, this moment is just the start of a process that could last for months, and potentially involve a lot of tension and conflict over issues like child custody and property division. Florida, in particular, has one of the highest divorce rates in the country, coming in at number three in a recent study, which was supported by the overall finding that most Floridians are highly stressed by work, finances, family responsibilities and health concerns.

Entering the legal process is a daunting experience for anyone unfamiliar with its structure, and divorce may be the one and only time many people have to deal with the courts. Before initiating a divorce, understanding the components of the legal procedure should make the experience a little less scary, and hopefully reduce some of stress this event provokes in the majority of spouses. An overview of what a person needs to file for divorce in Florida, and the matters that must be decided in the average divorce case, will follow below.

Residency

In order to file for divorce in front of a Florida court, at least one spouse must be a state resident. Residency is established by living in Florida for the six months preceding the divorce petition. This means it is not necessary to file for divorce in the State where the marriage took place. Rather, where a spouse is considered a resident is the controlling factor. If someone does not meet the residency requirements, but the case is filed anyway, the court will dismiss it. Thus, it may be best to wait until residency is established before formally seeking to initiate divorce. If waiting is not an option, a person could file in a state where he/she meets the residency requirements, or ask the other spouse, if he/she is a Florida resident, to file the divorce petition.

Grounds

Like most states, Florida has “no fault” divorce. This means it is not necessary to prove the other party is at fault to justify the dissolution of the marriage. All a spouse needs to do is claim the marriage is irretrievably broken, which refers to a marriage that has disputes that cannot be settled, and a complete breakdown of the relationship has occurred as a result.

Child Custody

Any couple that has children will have to settle child custody issues. Divorce cases involving children are scrutinized more closely, and additional time is typically needed before a court will issue the final divorce order. Florida favors awarding shared parental responsibility, which includes decision-making authority and parenting time. All divorcing couples will be asked to submit provisional parenting plans to the court for approval, and the proposed plans are weighed against the best interests of the child to determine if they are acceptable.

Property Division

All marital property is subject to division in Florida divorces. Marital assets generally include any property acquired during the marriage, which courts are directed to divide equitably. The starting point for property division is an equal split, but courts look at a number of factors to ascertain if a different arrangement is fairer under the circumstances of the marriage.

Alimony

Alimony or spousal support may also be an issue in a divorce. This type of support is not automatically considered by the court, and the party seeking this financial assistance will need to ask for it. Florida has several different types of alimony awards that vary by the needs of the party receiving support and the length of the marriage. Most alimony is temporary, and paid only until a party is able to achieve self-support.

Timeline to Dissolution

Absent extraordinary circumstances, courts will not grant a divorce until at least 20 days have passed since the petition was filed. However, even uncontested divorces take about three months to complete, and divorces with highly disputed issues can take well over a year to finalize.

Contact a Florida Divorce Attorney

The complexity of any divorce is case specific, and even simple divorces can have complicated issues hovering in the background. An experienced divorce attorney can evaluate the circumstances of your case, and identify potential issues you may not have considered. The Tampa Bay law firm All Family Law Group, P.A. guides their clients through the entire divorce process, and customizes its approach to the needs of each client.  Contact the Tampa divorce attorneys and family 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+

Regrouping if Divorce Mediation Fails

Divorce often leaves both parties with a lot of anger and other negative emotions that can be difficult to overcome during the dissolution process. In order to reduce the amount of conflict, which is important to many spouses with children, the parties enter mediation to settle unresolved issues, such as child custody and property division. Mediation is designed to be a less contentious forum where the spouses have an opportunity to discuss their positions, with the assistance of their attorneys, as the mediator tries to deflect any points of disagreement so the process can continue. Mediation is frequently used in family law cases as a starting point before court intervention, and some judges automatically order divorcing spouses to attend mediation before they will schedule a case for a hearing. Court-ordered mediation is especially likely if the unresolved issues are child-related. Divorced parents cannot completely cut off contact with one another, and those that find a way to cooperate offer a better situation for the child. Sometimes, however, mediation is not the best forum to resolve conflicts between parties, and conversations do break down. Knowing what the available options are if mediation does not work out can help divorcing spouses maintain a more open perspective about the dissolution process, and avoid jumping to the worst-case scenario of protracted litigation.

Reporting to the Court

Assuming mediation is a waste of time if it does not lead to a resolution is a natural reaction, but cases commonly settle before trial, even after earlier attempts have failed. Mediation is non-binding, so either party can walk away at any time and for any reason. If mediation does fail, the parties must report their inability to form an agreement to the court. Depending on how far apart the spouses are, the court may ask the couple to try again. Alternatively, the court could look to put the case on the judge’s schedule, which moves the case into litigation mode, and require the parties to start preparing for trial.

Reassessing Positions

Prior to attending a mediation session, parties and their attorneys gather information and prepare a list of things they wish to discuss. During the session itself, new information may emerge that changes how a party views a certain issue. In order for mediation to work, both parties must be willing to compromise, and part of the process is reevaluating one’s interests after each session. This analysis could lead a spouse to relinquish an interest in property, for example, or decide to be more flexible over the time-sharing schedule. The key to successful mediation often rests on how willing each party is to reconsider their positions following each session.

Trying Again

As mentioned above, attempts at settlement do not always occur on the first try. It may be fruitful to go through mediation again or try another alternative dispute resolution option, such as collaborative divorce or arbitration. Having gone through mediation once, each party is more prepared for future negotiations, which may simplify the discussions. While mediation is not free, the cost is typically much less than a party can expect to pay if court intervention is required, and the timeline to divorce is much shorter.

Litigation and Information Revealed in Mediation

Finally, all information revealed during a mediation session is considered confidential, and cannot be used against the other party at trial unless the information is also available through another source. Gaining important information through a mediation session prior to trial is helpful, but searching for alternate sources is likely to add costs, and can be frustrating if other options cannot be found. Thus, both parties are better off if an agreement can be reached outside of the courtroom.

Get Legal Advice

Finding the right lawyer to take you through the difficult process of divorce is important to having the most productive and satisfying experience possible. The lawyers at All Family Law Group, P.A. serve clients in the Tampa Bay area, and provide a compassionate approach to divorce that is tailored to your unique needs.  Contact the Tampa divorce attorneys and family 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+

Weighing Annulment vs. Divorce

When couples contemplate ending a marriage, rarely does the thought of asking for annulment, instead of divorce, occur to them. While most people have some vague idea of what annulment means, many associate it with a religious procedure intended to erase the marriage. Religious-based annulments certainly exist, but are wholly separate from the civil process that goes under the same name. The key difference between divorce and annulment is that an annulled marriage is treated as if it never existed, and a divorce simply dissolves a legally-valid union. People do opt for a civil annulment for religious reasons, but also seek this alternative to divorce to avoid extending certain benefits that former spouses are entitled to in divorce, such as property distribution. Compared to divorce, annulment is a complicated and more costly procedure that brings no guarantee a court will grant it. That being said, it may be the right choice in certain situations, and understanding how the law and courts treat these kinds of requests will allow individuals considering whether to end their relationship to make an informed decision.

Grounds for Annulment

One important point to understand about annulment is that, unlike divorce, there are no statutes addressing this subject. Thus, all the law on this issue is based on past court decisions, which means judges have wide discretion in deciding annulment cases, and the outcomes are very uncertain. However, looking at past judicial trends, certain claims for annulment are more likely to be accepted than others, including:

• The marriage was a sham or fraudulent. This occurs if one party agrees to marry to gain a certain benefit, such as immigration status, public benefits, health insurance or greed. To claim a marriage is fraudulent requires one spouse to be innocent of the other party’s motives, and usually requires the marriage to fail shortly after its creation.
• There was no consummation. If consummation of the marriage did not occur, courts have accepted this reason to justify annulment, but it must be sought relatively early to have any chance of succeeding. Waiting years to annul a marriage is likely to preclude this option.
• The marriage was illegal from the start. Illegality of a marriage can be based on age, one party being already married, or the incapacity of a spouse at the time of the marriage. In this situation, courts are likely to grant an annulment because the marriage was never valid. The more compelling the evidence, the easier it is to convince a judge the marriage should never have taken place.

Spousal Rights

Marriage confers specific rights on both spouses that make a significant difference in divorce. The rights of a party in a divorce are spelled out in Florida statutory law, but annulment, as mentioned above, has no set laws governing its application. From a practical standpoint, courts can and will divide property in an annulment proceeding since there is likely to be some commingling of property, but the court is not required to use a particular standard to decide which party gets what. Consequently, if possible, it is best for the parties to form an agreement on property division privately so there is more control over the outcome. In addition, Florida law automatically dissolves certain trusts, insurance beneficiary designations, and provisions in wills as an aftereffect of divorce. Annulment typically brings the same type of effect, but an experienced family law attorney should be consulted to ensure the financial aspects of the annulment are handled properly.

Talk to a Florida Family Law Attorney

Making the decision to end your marriage is never easy, but working with a family law/divorce attorney can make the process more manageable. The Tampa Bay law firm All Family Law Group, P.A. understands how overwhelming this transition can be, and will work to keep you informed about the legal process and options.  Contact the Tampa divorce attorneys and family 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+

Navigating Summer Vacations and Shared Custody of Your Child

Children impatiently wait for summer vacation most the year, as they dream about being free from the strictures of school and schedules. For parents, however, this time of year can bring a lot of stress, especially if they share custody of a child. Planning summer getaways and figuring out child care when school is out of session can create tension with the parenting schedule, sparking disputes that can quickly escalate. Before disagreements about parenting time and activities get out of hand, and potentially require the intervention of a court to resolve, there are steps parents can take to minimize the possibility of contentious issues. When parents argue over child-related issues, the child is usually the one most affected, which is rarely a parent’s desire or intent. An overview of several methods that could reduce the chance of a dispute with the other parent over summer vacation plans will be discussed below.

Check the Parenting Plan

Parenting plans often include provisions regarding any changes to the parenting time schedule during school vacations, but parents sometimes forget to refer to this document and inadvertently violate the terms when planning family events. Thus, this document should be the first place parents look to when planning summer events. If the parenting plan is silent on school vacations, or the provisions no longer work for the parent and child, it may be time to attempt to work privately with the other parent on a reasonable plan for the summer season. Any negotiations or agreements between the parents should be in writing in case court involvement is needed in the future to formally change or enforce parenting time.

Early Planning

One of the easiest and best strategies a parent can use to reduce conflict is to plan as early as possible, and keep the other parent informed about the plans and any potential disruptions to the parenting time schedule. If the other parent is kept in the dark about when and where the child will be, the likelihood of legal action is much higher. Any deviations from the established parenting schedule should also be written in the event a petition must be filed to enforce custody rights and to defend against allegations of violations of the parenting plan by the other parent.

Notifications

To further encourage cooperation by the other parent, send reminders in the days and weeks leading up to the trip. This effort will ward off accusations by the other parent that he/she was not kept informed, and hopefully prevent the parent from making conflicting plans with the child over the same period of time.

Modify the Parenting Plan if Necessary

If it appears that the other parent is unwilling to consider accommodating summer plans or actively seeks to interfere with custody rights, the only option left may be to ask a court to modify the parenting plan. Court-ordered modifications to a parenting plan will be granted if there is a “substantial, material and unanticipated change in circumstances,” and the modification is in the best interests of the child. In addition, depending on the circumstances, a parent can also ask for additional parenting time and/or the payment of costs related to the other parent’s interfering actions.

Contact a Family Law Attorney

Child custody disputes can quickly turn into nasty affairs that call for legal action. The Tampa Bay law firm All Family Law Group, P.A. focuses on all areas of family law, including child custody, and will fight to protect your rights as a parent. Contact the Tampa divorce attorneys and family 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+

How Courts Treat Spousal Gifts in Divorce

Exchanging gifts with friends and family is a traditional way to show how much one cares, and even before marriage, exchanging gifts between spouses is common, even expected to some extent. When the relationship is good, the effort and expense of obtaining and sharing gifts between spouses are not given a second thought. However, when the marriage is no longer viable, and one or both spouses seek to divorce, items given as gifts take on new significance in the division of property. One could reasonably assume that gifts would not be considered a marital asset since they are freely given and nothing is typically expected in return. However, the law does not view gifts between spouses in this manner, and considers all gifts exchanged during the marriage as marital assets. The difficulty comes when some assets are not easily labeled as marital or non-marital. The Florida Supreme Court recently weighed in on how courts should assess whether particular properties are spousal gifts for purposes of property distribution, and found that two properties owned by the husband, but used only as the family’s residence, count as gifts to the wife.

Marital vs. Non-Marital Property

Assuming the spouses cannot mutually decide how to divide property, Florida law calls for the court to determine an equitable/equal division of all marital assets and liabilities. Judges are permitted to deviate from the equal division standard if such a result would be unfair, but divorcing couples should generally expect to split everything with the other spouse down the middle. In order to distribute the assets and liabilities between the parties, it is first necessary to identify what qualifies as marital and non-marital property. Marital property includes:

• any asset or liability obtained during the marriage by either spouse individually or jointly;
• non-marital assets that increased in value due to the efforts of the spouses or from the expenditure of marital funds/assets;
• gifts between spouses; and
• any interest in vested and non-vested pension funds, retirement accounts, insurance policies, annuities or other deferred compensation program.

In addition, any real or personal property jointly owned by the spouses, regardless of when it was acquired, is automatically considered marital property. This assumption may be rebutted with strong evidence to convince a court to classify it as non-marital.

By comparison, non-marital property includes any of the following:

• assets or liabilities acquired before the marriage by either spouse;
• assets acquired by a spouse individually through inheritance or via gift from a non-spouse;
• income earned from non-marital assets unless the income was treated as a marital asset; and
• assets and liabilities excluded from the marital estate under the terms of a prenuptial or nuptial agreement.

Spousal Gifts

When considering what items could count as a spousal, it is necessary to look at everything from jewelry given on an anniversary to the car bought to mark a milestone birthday. The key issue with spousal gifts is figuring out if the item actually qualifies as a gift. It is does not, it could potentially be classified as non-marital property, and thus, not subject to division in divorce. Legally speaking, for an item to meet the criteria for a gift, the transfer by a spouse must:

• be intentional;
• be immediate;
• relinquish all control over the property to the receiver; and
• be accepted by the other spouse.

If any of these elements are missing, an argument could be made the property was not a gift, and instead, should be considered a non-marital asset.

Get Legal Advice

Your financial future is tied to the property distribution settlement in your divorce, so you want to make sure it is fair and that your rights are properly represented. The Tampa Bay law firm, All Family Law Group, P.A., understands how complicated property division can be, and are ready to answer your questions and concerns.  Contact the Tampa divorce attorneys and family 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+

How Will the New Rules in Family Court Cases Affect You?

Entering the legal process to resolve disputes is a stressful and overwhelming situation for most people. Many of the procedures and terms used by court officials and attorneys sound foreign and intimidating to the participants. Divorce is one of the most common ways people interact with the legal system, and any matter concerning family issues (domestic violence, divorce, or guardianship), or children is handled through the family court system. Because of the sensitive nature and amount of people needing resolution of domestic issues, the family court system is designed to work faster, more efficiently, and with less complexity. This structure does not eliminate the need for an attorney, but ideally facilitates easier access to the court and resolution of pressing issues. Most courts, from civil to criminal, have their own set of rules that govern how cases proceed. While these rules function behind the scenes for most parties, they can profoundly affect the process and ultimate result. Florida’s family court recently created its own set of rules and procedures that are supposed to further streamline the process. Previously, family court cases were handled under the general rules that apply to all civil suits, which are more complex and cumbersome. An overview of the new family court rules, and how they may affect family law cases going forward, will follow below.

New Rules Generally

The purpose behind the issuance of a separate set of rules specifically for family law cases was to simplify and condense how these cases are conducted for the sake of litigants who decide to represent themselves. This was accomplished by standardizing the title of various petitions and motions (requests for a court to act on a specific issue) so that only one format is now acceptable. Further, the necessary content of the documents filed with the court is now much simpler and the description of the required information is plainly laid out for the average person to understand. For example, when a spouse files a petition for divorce, the other spouse is obligated to file a response, called an answer. An answer allows a party to deny or admit the allegations made in the original petition. Under the new rules, the content of an answer must be “short and in plain terms,” and the new rule explicitly explains when an allegation must be denied or admitted. Now that the structures of family court rules are crafted with the self-represented party in mind, it may be very tempting to forego hiring an attorney. However, it is important to consider that doing so could result in the unknowing loss of rights to property, child custody, or remedies that would better address their circumstances.

One Big Omission

One big difference between the previous rules used in family court cases and the revised set is the absence of any provision for alternative dispute resolution. Before the rule change, parties in a divorce could be ordered to attend arbitration to work out disputes. Arbitration is a less formal process to resolve legal disputes that is faster and cheaper compared to traditional litigation. Further, this alternative could be particularly beneficial for couples that do not have child-related issues to work out. State law permits mediation for certain child-related disputes since it is not binding, unlike arbitration. Excluding arbitration from the new rules, limits a valuable option for parties to resolve family law cases, which hopefully will be added at later date.

Get Legal Advice

Engaging with the court system on any matter, family-related or otherwise, is always a complex endeavor. If you are contemplating divorce, or have child custody issues, working with an experienced family law attorneys can have a huge impact on the final outcome. Trained attorneys understand the law behind the rules, and can best adapt his/her approach to obtain your desired outcome. The lawyers at All Family Law Group, P.A. in Tampa Bay understand how important family law cases are, and will take the time educate you on every step of the process.  Contact the Tampa divorce attorneys and family 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+

Does Florida Permit Relatives to Adopt a Child?

The notion of adoption is usually associated with a couple working with an adoption agency to add a baby or young child to their family. Certainly, this type of adoption does happen on a regular basis, but as recently discussed on this blog, there are other kinds of adoption that do not involve strangers taking an unknown child into their home. Stepparents and relatives also seek to adopt in certain circumstances. Why a stepparent would wish to adopt a stepchild is easy to understand since he/she is already functioning in a parental capacity, but why a relative would want to adopt a child might not seem so clear. Society and the law prefer and expect parents to take the primary role in raising their children, with friends and relatives only providing limited support as necessary. However, circumstances can arise, especially if a child has only one parent, that requires another family member to assume the role of parent. Examples of when relative adoption could be a good choice include the death of the parent(s), a seriously debilitating injury or illness, or child abandonment. Florida promotes placing children in stable and permanent homes with relatives over unrelated and unknown adults. As a result, adoption procedures for relatives are simplified compared to a standard adoption. A discussion of who qualifies to petition for a relative adoption, and how it differs from the standard adoption procedure, will follow below.

Who Can Petition for a Relative Adoption?

While any adult is generally permitted to adopt another person, because of the special status afforded to relatives in the adoption process, only certain individuals qualify as a “relative” for this purpose. Under Florida adoption law, to qualify as a relative the adult must be related to the child within the “third degree of consanguinity.” This means the adult must be biologically related to the child, and not merely through marriage, and includes the following relations:

• grandparents;
• aunts and uncles;
• first cousins;
• great grandparents;
• nieces and nephews; and
• siblings.

Most relative adoptions involve grandparents or aunts and uncles, all of whom easily qualify as a relative according to Florida law. More distant relatives wishing to adopt would have to follow the standard adoption procedure.

Relative vs. Standard Adoption

The two biggest differences between a standard and relative adoption is the need for a home study and two separate proceedings to terminate parental rights and finalize the adoption. A home study is an assessment the adoption agency must conduct prior to the termination of the biological parents’ rights that verifies whether the home is suitable, and if the placement is in the best interests of the child. Stepparent and relative adoptions are specifically excluded from this requirement, though a court has the option of ordering a home study for good cause, such as a history of violence in the relative’s home. In addition, standard adoptions require the adoptive family to petition separately to terminate parental rights and to finalize the adoption. This staggered process adds a lot of time and expense to the adoption process. Relative adoptions are not subject this requirement, and relatives can file one petition to both terminate parental rights and finalize the adoption. This shortened process makes the entire procedure take a few months instead of a year or more. Note that one crucial difference between stepparent and relative adoptions is the need to terminate the parental rights of both, and not just one, parent.

Once the adoption is complete, the relative becomes the child’s parent for legal purposes with all the rights and obligations granted and imposed on a child’s natural parents.

Talk to a Tampa Florida Adoption Attorney

If you are a stepparent or relative seeking to adopt a child, you need the services of an experienced adoption attorney to ensure the process is handled correctly. While these types of adoptions are simpler, the legal requirements are still somewhat complicated. The Tampa Bay law firm All Family Law Group, P.A. will guide you through this process step-by-step, and help you to walk away with a momentous event to celebrate.  Contact the Tampa divorce attorneys and family 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+

How to Petition for a Stepparent Adoption in Florida

Most depictions of stepparents in the media present callous individuals who detest any children from the first marriage. This image of the cruel stepparent diminishes the many caring and healthy relationships shared between stepchildren and their stepparents. In fact, some stepparents become so attached they petition to adopt the stepchild, thereby assuming all rights of a natural parent. While there is no denying the emotional aspect of adoption, it also grants the adopting adult important rights to make decisions related to the child and petition for custody if the adoptive and biological parents later divorce. The act of adopting a stepchild can have a profound effect on the child’s life, as seen in a news story about a stepfather who surprised his 11 year-old stepson with an adoption certificate last Christmas. The procedure for stepparent adoption is generally easier than a traditional, formal adoption, but certain standards do need to be satisfied before a court will sign-off on the request.

Is the Stepparent Eligible to Adopt?

Any request for adoption must start with an assessment of whether the person seeking to adopt is eligible. In Florida, the spouse of a child’s natural parent is eligible to petition for adoption as long as the other spouse consents, or is excused by the court from consenting. Most adults are generally able to adopt, unless a person has a physical or mental disability that affects the ability to parent. Courts are reluctant to grant legal rights to individuals that cannot fulfill the parent role, and are likely to deny the adoption petition under such circumstances.

Filing a Petition

Once eligibility is determined, a petition is filed with the local circuit court asking permission to grant the adoption. The petition must contain certain information for a court to accept it, and the provisions that are most important include whether consent from the other biological parent was given and why the stepparent wishes to adopt the child. After the petition is submitted, the child’s other parent must be notified about the pending petition request before a court can rule on it.

Consent from Biological Parents

The crucial part of any adoption, stepparent included, is obtaining the consent of both biological parents, or showing why such consent is not necessary. In stepparent adoptions, the consent of at least one parent is basically presumed, but the real issue lies with whether the child’s other biological parent will protest the adoption petition. If the other parent decides not to consent, it is still possible to proceed with the adoption if grounds exist that make consent unnecessary. These include:

• the parent deserted or abandoned the child;
• the parent had his/her parental rights terminated by a court; or
• the parent was determined by a judge to be legally incompetent, and is unlikely to regain competency.

In addition, consent may not be necessary from the child’s father if the man did not establish himself as a legal parent. These exceptions exist because a father is not always presumed to be a child’s legal parent since, absent genetic testing, biological relation to the child is not guaranteed. Consequently, a father’s consent is only needed if one of the following is true:

• the man was married to the child’s mother at the child’s birth;
• the man previously adopted the child;
• a court determined he is the child’s father;
• the man filed an affidavit of paternity; or
• the man acknowledged paternity in accordance with Florida law.

Contact a Florida Adoption Attorney

Adoptions are events worthy of celebration, but the correct procedure must be followed to ensure a court will authorize a petition. Working with an experienced adoption attorney can relieve the stress of wondering if your petition will be accepted, and make the entire process much more perfunctory and simple. All Family Law Group of Tampa Bay knows how to build a strong petition in favor of adoption, and is available to help you complete your family.  Contact the Tampa divorce attorneys and family 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+

Child Custody Concerns for Military Personnel Post-Divorce

Having and raising a family while being an active member of the military is no easy task. Being away from one’s children and spouse during the long periods of deployment is hard because this parent misses out on a lot of childhood milestones and daily life experiences. Deployment is known to put strains on marriages, and unfortunately, leads to divorce in many situations. Navigating child custody issues post-divorce is unavoidably complicated if disputes arise when the military parent is unable to directly deal with situation due to official duties. The restricted availability of military personnel for months and years at a time makes it easier for the non-military parent to deny or restrict access to the child, and has led to parental kidnapping in some cases. A recent decision by a federal district court in Florida that ordered a serviceman to return his son to his mother in Japan highlights the struggle of many military personnel with children born to foreign parents. Florida law recognizes that parents in the military have the same amount of desire to be involved their children’s lives, but need more flexibility in the exercise of time-sharing plans. An overview of the special considerations active military may need to address on child custody following divorce will follow below.

Changes to the Time-Sharing Schedule

A vulnerability all military parents on deployment face is the possibility that the other parent will seek to change the child custody order in his/her favor. Florida law has provisions that specifically address petitions seeking modification of parental responsibility and/or time-sharing while a parent is on active duty. The goal is to prevent the non-military parent from taking advantage of a deployment, and to that end, a court is not permitted to issue or modify a child custody order while a parent is on active duty that greatly impacts his/her ability to exercise his/her parenting time. The order in place at the time of deployment or assignment must remain in effect until the military order expires. However, a court may enter a temporary decision on time-sharing or parental responsibility if the best interests of the child justify it. The grounds for the temporary modification cannot rest solely on the disruption the deployment has on the child’s life. These temporary modifications automatically expire upon the parent’s return from active duty.

In addition, for parents deployed or assigned for more than 90 days, and consequently unable to exercise their parenting time, they can designate someone else to exercise parenting time. The designee must be a family member, stepparent or a relative of the child by marriage. The other parent can only object to the designation on the grounds that it is not in the best interests of the child.

Concurrent Custody

If a deployed or assigned military parent wants to take the designation of parenting time a step further, he/she can consent to concurrent custody with an immediate family member. This arrangement gives the family member the ability to make decisions related to the child in the parent’s absence. This option allows the deployed or assigned parent to have someone near and available to the child to represent the parent’s interests in important matters.

Get Legal Advice

If you or your spouse is in the military and seeking divorce, you need a divorce attorney experienced with the issues unique to this situation. Laws specific to the divorce of military personnel must be satisfied to ensure the terms of the divorce decree are valid and enforceable. The attorneys at the Tampa Bay law firm All Family Law Group, P.A. understand the rules that apply in military divorces, and will strive to give the best possible representation.  Contact the Tampa divorce attorneys and family 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+