Legal Issues Related to Domestic Violence and Divorce

Violence in the home is a serious issue that should not be ignored, but usually requires advance planning by the victim to avoid further harm. For married spouses looking to divorce, domestic violence complicates an already emotional process and often alters procedural aspects of a divorce case, as well as the application of the law. Event planning and initiating a divorce is more complex as victims are frequently forced to keep their actions secret until safely out of the home. With over 100,000 reports of domestic violence made in Florida in 2014, the state has a legitimate interest in stopping and preventing further abuse. Because of the sensitive nature of domestic violence, victims considering divorce need to know about the impact of this issue before the formal legal process starts. This information will give domestic violence victims valuable information they can use to protect themselves and their families, as well as what to expect once the divorce is granted.

What Qualifies as Domestic Violence According to the Law?

Living for years with the daily fear of violence from a spouse or partner can make such behavior seem normal, and understanding what is considered domestic violence may not be easy. Florida views any act that causes physical injury or death to a family member or other person in the household to be domestic violence. In addition to physical acts that cause injury or death, the following are specifically recognized as domestic violence:

• assault/aggravated assault;
• sexual assault;
• battery/aggravated battery;
• kidnapping;
• stalking; and
• false imprisonment.

Is a Domestic Violence Injunction (Restraining Order) Necessary?

If the person seeking divorce is in fear for his/her safety or that of a child, asking for a domestic violence injunction may be a good choice. A restraining order is an order of protection issued by a court that prohibits a party that poses a danger to another from communicating or making any contact with the other party in hopes of preventing additional violence. Note that threats of violence are enough justification for a court to issue an injunction. Typical restrictions found in domestic violence injunctions include:

• blocking the abuser from occupying or visiting the marital home, which is important for a spouse seeking divorce that has limited housing options;
• prohibiting the abuser from going to places routinely frequented by the victim, such as the child’s school and his/her workplace; and
• granting the victim temporary sole custody of the child, which could become permanent depending on the outcome of the divorce case.

What Is the Impact on Child Custody?

Florida specifically looks at evidence of domestic violence when making child custody determinations. Typically, courts seek to grant shared custody of a child equally between the parents, unless such an arrangement would create a detriment to the child. The best interests of the child is always the primary factor in any child custody decision, and if the court believes a parent accused of domestic violence could pose a risk to the child or the other parent, it has the option of awarding sole custody to the victimized party. Conviction of a domestic violence offense is automatically viewed as being detrimental to the child, and the guilty parent must rebut this presumption to avoid limited or no rights over the child. Without a conviction, evidence of domestic violence will still factor into the evaluation of the best interests of the child, and should impact the judge’s decision on the division of parental responsibility.

Get Legal Help

If you are dealing with domestic violence issues and think that divorce may be your way out, talk to a divorce attorney about how to initiate this process in as safe a manner as possible. The All Family Law Group, P.A. represents clients in the Tampa Bay area in a variety of divorce and family law matters, and can help you take the necessary steps to getting your life in order.  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+

Divorcing Later in Life

With approximately 44 percent of Americans going through a divorce at some point, millions of people in this country must make the often difficult transition from married to single. This adjustment is rarely easy, and the longer a couple is married, the more alien it will seem to live without the presence and support of a spouse. However, the rate of divorce for those 50 and older is on the increase, compared with the number of divorces among this group in 1990. The legal issues that typically impact divorces among older couples differ from those among younger couples. Conflicts around child support and child custody is a non-starter since the vast majority have adult children that no longer need support or care. However, couples married for decades often have much larger and more complex property holdings than someone earlier in life and career development. Retirement benefits are particularly important at this stage, especially if one spouse has been the primary or sole breadwinner for the duration of the marriage. In addition, alimony is more likely to be requested, and property division generally is more apt to generate conflict.

Retirement

Retirement benefits can easily form a substantial part of a person’s net worth, and the closer one is to retiring, the more pressing this issue becomes if divorce enters the picture. Florida law designates retirement benefits earned during the marriage as marital property and subject to equitable (fair) division. Retirement accounts that contain funds earned or contributed both before and after marriage are divided on a percentage basis, with only the amount collected after marriage subject to division. Further, if any of the retirement accounts are subject to ERISA, including pensions and 401ks, there are special rules that must be followed in order for an ex-spouse to receive a distribution as part of a divorce settlement. A judge must issue a Qualified Domestic Relations Order to permit an alternate payee to collect from a retirement account. Serious tax consequences come into play if this process is mishandled, so an attorney should be consulted to avoid potential penalties.

Alimony

Spousal support or alimony is more commonly requested among older divorcing couples in light of the economic disparity many of these marriages have. Women were less likely to work or have earned substantially less than their spouse. Thus, post-divorce these women are likely to struggle financially if assistance is not provided. Florida has four types of alimony, but the one particularly applicable to these situations is permanent alimony. The law permits courts to award permanent alimony in marriages of 17 years or more if there is a need for such support, and the examination of certain factors justifies the result, including:

• the couple’s standard of living;
• the length of the marriage;
• the age and mental/physical condition of each party; and
• each party’s financial resources.

Changing Beneficiaries

In addition to the immediate impact divorce has on the property rights of each party, older couples are more apt to have estate plans that include policies with the spouse listed as the primary beneficiary. While the law will automatically disinherit an ex-spouse in certain instances, the law’s effect depends on the type of estate plan in place. Some death benefits remain payable to the designated beneficiary regardless of divorce unless the beneficiary is specifically changed. Thus, all estate plan documents should be reviewed and revised to ensure an ex-spouse does not ascend to any unwanted rights.

Get Help

Divorce at any age is a difficult process, but divorce later in life brings unique considerations that should be taken into account. The Tampa Bay law firm All Family Law Group, P.A. will fully evaluate your situation, and advise you on the best course to achieve your goals, while also protecting your rights.  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 Is Supervised Visitation and When Is It Used?

When parents separate or divorce, a priority for many is making sure they see their children on a regular basis. Frequent parent/child contact is essential for a healthy relationship and the child’s overall development. Consequently, securing sufficient visitation, often called parenting time, is of particular importance to the parent that does not have primary custody. Florida law favors awarding parenting responsibility to both parties equally, but parenting time can quickly become a hotly-disputed issue if a party claims the other parent poses a risk to the child’s safety or health. The best interests of the child is always the pivotal concern and driving factor behind custody and visitation decisions, and evidence of domestic violence, child abuse, child neglect, child abandonment or sexual violence is likely to result in limited, if not a denial of, visitation with the child. One mechanism courts use when they want to allow some contact between a parent, but need to ensure the environment is safe, is to impose supervised visitation. A recent news story out of Pasco County illustrates another situation that could persuade a court to restrict visitation. An Amber Alert was issued when a father embroiled in a custody dispute drove up and snatched his two-year-old away from the mother. The man took this action after emergency efforts to see his son via court order were denied. A discussion of how supervised visitation works will follow below.

The Purpose of Supervised Visitation and Basic Setup

As noted above, supervised visitation is designed to give a parent viewed as posing a risk to the child and/or the other parent an opportunity to exercise some degree of visitation with his/her child. It also offers the child the important benefit having two parents in his/her life. In addition, this structure is used if there is a concern about possible parental kidnapping, and to prevent improper interaction between the parent and child. This kind of visitation involves conducting the interaction between the parent and child at a neutral site and in the presence of a visit monitor who is tasked with ensuring the contact remains safe for the child.

The Process/Programs

Typically, parents are ordered into these programs in connection with divorce/child custody proceedings, domestic violence cases and criminal cases. While in-person supervised visitation is an integral component of these programs, other types of monitoring are also possible, including:

• monitored parental exchanges of the child;
• telephone monitoring; and
• therapeutic monitoring.

The monitor is present first and foremost to protect the child, but also to perform the following duties:

• keep the nature and content of the visits confidential and remain neutral;
• check that all instructions from the court are followed;
• pass on information between the custodial and non-custodial parent related to the child’s welfare;
• keep records of observations from every visit;
• provide instruction and feedback to the parties when necessary; and
• suspend or end a session if the safety of all participants cannot be guaranteed.

In order to fulfill this role, visit monitors receive specialized training on how to respond, recognize and control interactions that involve families dealing with domestic violence, child maltreatment and post-traumatic stress disorders.

Talk to a Family Law Attorney

There are few issues more important than seeing your child, and if you have questions or concerns about visitation or custody issues, talk to a family law attorney about your rights. The Tampa Bay law firm All Family Law Group, P.A. focuses on family law matters, and can assist you with obtaining the best possible resolution in 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+

Pregnancy and Divorce

When couples find out the woman is pregnant, there is typically cause for celebration and greater intimacy in the relationship. However, this news is not always a good thing. Couples who are struggling with relationship issues may find a pregnancy pushes them farther apart, and becomes the catalyst for divorce. The combined emotions of pregnancy and divorce is a lot for any woman to process, and making the right decisions for herself and the new child may not be easily discerned. Further, adding an unborn child into the divorce process creates additional legal considerations that need to be addressed. These extra concerns revolve around the particular needs of newborn children that impact issues such as parenting plans, medical costs and alimony. Balancing the needs of the child and interests of both parents can be tricky during the first stages of a child’s life. A discussion of the legal aspects, as well as the practical matters, of navigating divorce during this time of great change will follow below.

Parenting Time

To the extent possible, courts look to grant shared parental responsibility in child custody matters, and to give each parent “frequent and continuing” contact with a child to promote healthy parent/child relationships. Parenting plans lay out the responsibilities each parent has for the child, and most importantly, include a time-sharing schedule to establish how often the child will stay with each parent. Newborns present challenges to organizing a parenting plan that is fair to the father, but also workable for the mother and infant. Newborns require constant care that depends considerably on the presence of the mother, especially if she is breast feeding the infant. While carving out bonding time for the father is important, in the first months of a child’s life overnight stays may not be possible. This means, for all intents and purposes, usually the mother has sole physical custody during this period of time. Instead, both parents should be flexible, and try to work in a few hours every week for the father to visit with the child. Once the child is no longer dependent on breast milk, overnight stays can and should be integrated into the time-sharing schedule.

Health Care

Pregnancy and childbirth are well-known to bring a large amount of additional medical costs that can easily run into the thousands of dollars. Generally, spouses are not required to cover the health care costs of the other following divorce. However, in the case of pregnancy the court may order the husband to contribute toward the costs of the mother’s health care until the child is born. If the woman receives health insurance through her husband’s employer, she would be able to continue on the same plan under COBRA after divorce, which would allow her to keep the same doctors, a priority for most during pregnancy. In this situation, the husband could be ordered to pay at least part of the monthly premium, which is typically substantially more than the employer-subsidized monthly cost.

Alimony

Alimony is generally awarded on a temporary basis until a party becomes financially independent, and if a woman chose to stay home with the baby for the first few months, courts would likely be amenable to ordering some amount of alimony if the other party is able to pay. However, extended periods of absence from work, especially if the woman was employed before pregnancy, could face increased scrutiny from a court about how long alimony should last.

Consult a Divorce Attorney

Most people facing divorce have to juggle the emotional and practical changes that come with the end of a marriage. Adding a pregnancy to this burden is a lot for anyone to handle. A divorce attorney, like those at All Family Law Group, P.A., can take some the of stress away, and help make decisions that best for you and your family. All Family Law Group, P.A. represents clients in the Tampa Bay area, and can help you move forward.  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 to Expect at Your First Meeting with a Divorce Lawyer

Making the decision to get divorced is hard, and the next step may not be so obvious in the wake of all the emotions divorce typically provokes. But, at some point, most people end up talking with a divorce lawyer. The time leading up to the first meeting is often full of fear and anxiety for the potential client as they ponder the personal information they must reveal, and confront the many stereotypes attributed to lawyers. In addition, meeting with a lawyer to discuss divorce may be the first time the person has ever consulted an attorney, which can feel overwhelming and intimidating. Divorce is one of the most stressful events a person can experience, but working with an experienced divorce attorney can help to dispel some of the constant worry. Thus, instead of the trepidation that comes from entering this setting blind, a discussion on what to expect and the types of information to prepare before such a meeting will be offered in hopes of soothing some of these worries and facilitating a more productive discussion.

Preparation

Preparation is important for both reducing anxiety and maximizing the time the person has with the attorney. To start this process, one should envision what he/she wants life to look like post-divorce, and figure out what is needed to make that happen (i.e., property division, support, etc.). In addition, make a list of questions about any practical or legal aspects of divorce that are unclear. Finances are big part of any divorce, and will influence how the attorney approaches this case. Thus, Florida requires both parties to a divorce to file a financial affidavit outlining expenses and income, which is used to calculate child support and to decide the division of property. While it is not necessary to have all the details and documents collected at this stage, having an informed understanding of one’s assets and obligations is very helpful and relevant information the attorney needs. Be prepared to discuss past and current marital problems and issues that are likely to be disputed in the divorce.

What Will Happen at the Meeting?

The most important thing to remember about the initial consultation is that no decision must be made right away. Look at this meeting as a fact-finding opportunity, and keep in mind the purpose is for the attorney to get to know the potential client. Then, both can mutually decide if there is a good fit and take the necessary steps to formalize the attorney/client relationship. The attorney will ask questions about the marriage, children and any unique dynamics affecting the family. In addition, the client will learn about the divorce process, including options on the types of divorce that apply to his/her situation. Finally, while every divorce is unique, there are some commonalities, and the attorney has likely heard a similar story before. Thus, there is no need to feel embarrassed about the specifics of the situation – the attorney is there to help.

Get Legal Advice

The consequences of divorce are far-reaching and permanent, which is why consulting with an experienced divorce attorney is important to protecting your long-term interests. The Tampa Bay law firm All Family Law Group, P.A. strives to resolve divorce cases as amicably as possible, but is prepared to fight for your rights in court if necessary.  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 Can You Do if the Other Parent Ignores the Parenting Plan?

The cornerstones of child custody arrangements in Florida are parenting plans. These documents outline when each parent has physical custody of the child, and the legal authority each holds over important decisions in the child’s life (education, medical care, activities, etc.). In practical terms, both parents must compromise and cooperate with one another in order for parenting plans to work, but unfortunately, not all parents are willing to follow the terms set out in this document. All parenting plans must be approved by a court so they can be legally enforced in case one party decides to violate the terms. Violations can include not returning the child at the appointed time, preventing communication between a parent and child, or taking the child out of the area without the other parent’s knowledge or permission. Florida law, understanding the seriousness of denying a parent lawful access to a child, has civil procedures and criminal penalties to deter this type of conduct.

Risk of Violation

If a parent is lucky enough to realize the other parent is planning to violate the parenting plan, that parent can ask the court to issue orders designed to stop the other parent from following through with his/her intent. However, the type of violation must relate to a parent planning to take the child out of the state or country, or conceal the child’s location. The petition must include considerable evidence demonstrating the parent’s intent (plane tickets, real estate inquiries, contacting schools, closing bank accounts, quitting a job, for example), and cannot be based on a suspicion or unsupported fear. Assuming there is sufficient evidence of a plan to leave with or conceal the child, the court can issue orders limiting the parent’s ability to take action, including:

• requiring the parent to get notarized permission from the other parent or a court order before taking the child out of the State or country;
• requiring the parent to post security or bond as a financial deterrence to taking the child;
• requiring the parent to surrender the child’s passport, or, if the child does not have one, requesting the Passport Service Office not issue a passport until further orders from the court;
• imposing restrictions on visitation, including requiring supervised visitation; or
• prohibiting the parent from picking up the child from school or daycare.

Modification of the Parenting Plan

If violations have occurred, but do not include abducting the child, a parent’s best course of action is to petition the court for a modification of the parenting plan. Parenting plans can be changed if there are substantial, material and unanticipated changes in circumstance, and it is in the best interests of the child. Ongoing efforts to prevent or limit a parent’s access to his/her child in contravention of provisions of the parenting plan would almost certainly persuade a court to modify the parenting plan. The court could give the non-offending parent sole custody or impose limited or supervised visitation for the offending parent to prevent further interference with the parenting plan.

Interference with Child Custody

Finally, if a parent has taken steps to keep a child away from another parent with custody rights, the state classifies this behavior as the crime of interference with custody. The concealment or removal of the child must be with the “malicious intent to deprive another person of his or her right to custody.” This offense is a third degree felony, which could land someone in state prison for up to five years. However, the law does grant defenses to this crime for actions taken to protect the child’s welfare or escape domestic violence.

Get Legal Advice

If you are dealing with an ex- spouse or partner who continually violates the terms of your parenting plan, do not try to fight this battle alone. Being proactive when violations begin reduce the chances of the other parent being able to take your child beyond your reach. The Tampa Bay All Family Law Group, P.A. understands what is at stake and will fight to protect the interests of you and your child.  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+

Do Grandparents Have Any Rights after Their Child Divorces?

Couples with children who decide to divorce face many challenges as they transition to being single parents. Trying to explain that everyone does not live together anymore is a hard concept for young children to grasp. In addition to losing the family unit, children can find themselves disconnected from family and friends as parents adjust school and living arrangements. One family member that is typically very important to a child’s wellbeing and development is a grandparent. Grandparents hold a special place in a child’s life that is difficult, if not impossible, to replace. However, depending on the circumstances of a divorce, a parent may decide it best to limit or deny a grandparent access to a child. This decision can be devastating for the child and grandparent alike, and Florida law recognizes that visitation with a grandparent should be extended some degree of protection. A number of states have laws on grandparent visitation that vary on how extensive the grandparent’s right to see a child is. A woman from Illinois was recently charged with child neglect for violating court-ordered visitation with her daughter’s paternal grandparents. Florida is on the more conservative side when it comes to grandparent visitation rights, and will only grant it under specific circumstances. This stance is reflective of the strong deference given to parents to decide who should have access to their child.

Petitioning for Visitation

A grandparent may only petition for visitation if one of the following is true:

• both parents are missing, deceased or in a permanent vegetative state; or
• one parent is missing, deceased or in a vegetative state, and the other parent has been convicted of a felony or violent crime that shows the parent poses a substantial threat to the child’s health or welfare.

Thus, the parents must be unavailable to care for their child, and, in a practical sense, the grandparent offers the closest opportunity possible to learn about the absent parent. As a preliminary step to considering the petition, the court must first determine if the parents are unfit or pose a substantial threat. Unless one of these options is answered in the affirmative, the petition will not proceed for full consideration. In addition to assessment of the parents, the court also looks at what is in the best interests of the child, and whether visitation with the grandparent would damage the parent/child relationship.

Factors Used to Evaluate the Petition

The best interests of the child is always a paramount consideration in any family court proceeding. In the context of grandparent visitation, the court looks at:

• the emotional ties between the grandparent and child, especially if established when access was previously allowed;
• the length and quality of the grandparent/child relationship, including if the grandparent provided regular care and support;
• the reasons given by the parent for cutting off visitation;
• if the child suffered harm due to the disruption in the grandparent relationship, and if the grandparent’s stability and support could prevent further harm;
• the mental, physical and emotional health the of the grandparent and child; and
• the child’s preference, if mature enough to make a reasoned decision.

When it comes to evaluating the impact of grandparent visitation on the parent/child relationship, the court considers several factors, including:

• previous disputes between the parents and grandparents over childcare;
• if the visitation would compromise or interfere with the parent’s authority;
• whether visitation would expose the child to morals, beliefs or practices that conflict with parent’s wishes; and
• the psychological effect of the visitation disputes on the child.

Consult a Family Law Attorney

If you are struggling with a child visitation dispute, talk to a family law attorney about your rights and obligations. Parents have a lot of leeway to decide who can see their child, outside of the other parent. The All Family Law Group, P.A. helps individuals in the Tampa Bay area resolve a variety of family law issues, including child custody and visitation. 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+