How Is Child Support Calculated In Florida?

When making decisions on child support during a divorce case, there is no one fixed number a judge will use. Instead, many different factors are considered when the amount of support is being decided. Below, our Tampa child support attorney explains some of the main factors a judge will consider when trying to resolve a dispute.  In essence, Florida uses a worksheet to determine the amount of child support for which each parent will be responsible.  It is called the Florida Child Support Guidelines Worksheet.  It incorporates many of the aspects listed below and normally the Worksheet will control how much child support is paid.

The Income of Each Parent

One of the main deciding factors in any child support case is the income each parent earns. The court will consider the gross income of each parent, including wages, salaries, bonuses, commissions, and overtime pay. Profits from a corporation or partnership, disability payments, and social security income can all be used to determine the income each parent earns. When one parent is unemployed, or underemployed, the court may use the current minimum wage to impute, or accurately evaluate, the income for that party.

The Child’s Standard of Living During the Marriage

The standard of living the child enjoyed during the marriage and prior to the divorce is another factor considered by the courts when determining child support. The court will try to award enough support to ensure the child’s standard of living before the divorce is maintained afterward, too.

The Needs of the Custodial Parent

The court will start with the presumption that the parent who spends more time with the child will incur additional expenses for their needs. If the non-custodial parent earns a higher income than the parent with the majority of parenting time, the non-custodial parent will likely be ordered to pay more to cover the child’s expenses.

The Amount of Overnight Visits

The number of overnight visits each parent spends with the child is also a factor considered when determining the amount of overnight visits. When a child is in one parent’s custody, that parent is financially responsible for them. If the non-custodial parent spends one overnight visit with the child and the other parent spends the rest of overnights with the child during the week, the court may award the parent with a larger amount of child support.

Special Needs Children

A very common factor considered when determining the amount of child support are any special needs the child may have. For example, if the child has special educational needs or medical needs, it is not uncommon for the court to require the higher-income earner to pay more in child support payments.

How Our Child Support Attorneys in Tampa Can Help with Your Case

If you are going through a divorce that involves children, determining the amount of support, as well as the parent who will pay it, will be a very big factor in your divorce. At All Family Law Group, P.A., our Tampa child support attorney can answer your questions, and help you determine how much you may receive or be ordered to pay. Call us now at 813-672-1900 or contact us online to schedule a free consultation of your case and to learn more about how we can help.  Se habla Español.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/0061.html

flsenate.gov/laws/statutes/2012/61.30

What Things You Must Do Before You File for Divorce?

Filing for divorce is much more than simply filing a complaint with the court. Before filing for divorce, it is important that the spouse filing takes certain steps before the courts are even made aware of the divorce. The six steps below will ensure that a divorce proceeds as smoothly as possible, and that the terms you receive are most favorable to you.

Decide if You Want to Get Divorced
Although this may sound obvious, some people think that they want to file for divorce when really they are just angry at their spouse. Eventually cooler heads prevail and the spouse that filed may not want to proceed. However, in Florida only one spouse needs to want a divorce and by that time, that spouse may determine that they do want to get a divorce. To save yourself headache and heartache, make sure you and your spouse really will not reconcile before filing for divorce.

Collect All Financial Documents
After deciding that you want to go ahead with the divorce, you should gather all of the financial documents that pertain to your marriage. These can include your banking records, phone records, mortgages, and lease agreements for vehicles. Once you file for divorce these documents are sometimes more difficult to obtain, so it is best to gather these before filing.

Consider Your Custody Goals
Child custody is one of the most contentious issues in divorce because each parent wants to continue having a fair amount of time with their child. Still, it is important to determine what your goals are. Except for in extreme circumstances, a judge will likely award each parent time with the child. When considering what your own goals are, remain realistic to avoid disappointment, and to present a fair case to the judge.

Make Necessary Sales or Purchases
As soon as your divorce proceedings start, a judge will issue an order barring you and your spouse from purchasing or selling any of your assets. This is so that property can be fairly divided. If you have wanted to upgrade your vehicle for a while, or you want to sell a rental property, it is best to do it before you even file for divorce so a judge does not view the purchase or sale negatively.

Determine Where You Will Live
You may not want to remain in the marital home with your spouse after you have filed for divorce. However, moving out may also mean you risk losing the home as part of the divorce proceedings. Determine where you want to live after the divorce, and remain living there during the divorce process.

Speak to a Florida Divorce Lawyer
Even in the most amicable of situations, you should never try to go through the process without the help of a Tampa divorce lawyer. At All Family Law Group, we can advise you on your legal options during your divorce, and help you throughout the entire process. We will handle all the paperwork, and work hard to get you the fair settlement you deserve. Call us today at (813) 672-1900 to schedule your free consultation to meet with one of our attorneys. Financing available. Se habla espanol.

Resource:
leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/0061.html

New App Aims to Help Parents Post-Divorce

Navigating how to co-parent during and after divorce is one of the biggest stresses single parents have.  There is a lot of information that parents need to stay in compliance with the parenting plan and as a preventative measure in case a dispute arises about parenting time or financial contributions.  The current structure of child custody, which is now referred to as parenting time, is encapsulated in a parenting plan and requires much more cooperation between divorced parents than in the past.  Click here to read more.

Evaluating the Different Options to Get Divorced

Obtaining a divorce requires a couple to make a series of important decisions that will have long-term impacts on their future, including selecting which process to use to end the marriage. It may seem like the path chosen to arrive at divorce is an incidental factor, but it can have substantial implications for the settlement that is ultimately reached. Most couples are aware and have some notion of the traditional process of getting divorce – litigation, and many even assume this is their only option for ending the marriage. However, two other options that couples may want to consider if they are looking for a less contentious way to work out their issues, namely alternative dispute resolution – usually mediation, and collaborative divorce. A discussion of how each process works, including the positive and negative features of each, will follow below.

Traditional Divorce

Traditional divorce is the type one sees depicted on television, and involves a judge making all the decisions for the couple. This is the most adversarial method of ending a marriage, and parties generally have less contact with one another and use lawyers to prepare and present all aspects of the case. Further, due to the demands on court systems generally, the time and expense of a traditional divorce is much lengthier and higher. However, a traditional divorce provides an important service to some couples. The matters at issue in divorce are sensitive and complicated, and parties are not always able to come to an agreement because their points of view are too far apart. In this situation, a court can step in to resolve the couple’s outstanding issues, and bring closure to the case. Further, in divorces where is there are issues of violence or wasting of assets by a spouse, court supervision is usually necessary to secure the other spouse’s safety and rights. Thus, a traditional divorce does provide important protections and direction that are needed in some cases.

Mediation

Mediation is a form of alternative dispute resolution routinely used in family courts to resolve issues. Mediation is a less adversarial method of resolving divorce-related issues, and is led by a mediator who facilitates negotiations between the parties. The mediator is a neutral third party who cannot make decisions for the couple, but can offer suggestions and help them find ways to compromise on points of contention. Mediation sessions may be conducted with both parties in one room, or in separate rooms with the mediator going back and forth with each party’s demands until agreement is reached, or an impasse halts the process. This process allows the parties to have control over the outcome, and is typically cheaper and faster than a standard divorce case. Mediation is voluntary, and if the parties cannot settle all relevant matters, they can return to court to continue the divorce. Importantly, mediation participants often have attorneys present at mediation sessions, or at least to review any divorce settlement before signing, to advise them on the legal implications of any agreement.

Collaborative Divorce

Finally, a relatively new divorce option is collaborative divorce. This is a completely non-adversarial process that is designed to preserve a civil and working relationship between the parties, which is important if they plan to co-parent. Additionally, the parties must agree at the outset to suspend or opt out of court involvement during the collaborative process. Collaborative divorce involves attorneys specially trained in the collaborative law process to handle the legalities of drafting a settlement and explaining what the agreement means long-term and mental health and financial professionals to help the parties resolve child custody issues and property division. The parties communicate directly with one another, and have full control over the outcome, which typically lessens the likelihood of going to court resolve issues in the future.

Get Help

How you choose to get divorced is often as important as the decision to end the marriage. Every divorce case is unique, and an experienced divorce attorney can advise on the method that best serves your needs and desires. The Tampa law firm All Family Law Group, P.A. understands how overwhelming the divorce can be and can provide the guidance you need to start the next phase of your life.  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+

Is Posting Information about Your Divorce on Social Media a Good Idea?

Many people view their online social media accounts as an extension of themselves, and sometimes without thinking, post information about personal matters that is best left private. Posting about major life events online, and providing all the details, is not necessarily prudent. Divorce is one those areas where information should be kept to a minimum to avoid it affecting the outcome of the case and inflicting unintentional harm on other people, especially children. Emotions tend to run high around the issue of divorce, and those going through it understandably want to vent about frustrations and other unresolved issues. However, posting information about one’s divorce, including why/how the divorce happened, is not a good idea. Unlike relaying information to a trusted friend or family member, things posted online are available for others to see, including the other spouse and his/her attorney. The husband of the R&B singer, Keke Wyatt, recently posted a video on social media explaining his decision to divorce, including remarks about living in a “toxic environment.” While he may have made the statements with no ill intent, one could view his comments as references to behavior that creates an unsafe environment for their children. This example of one possible interpretation of his comments illustrates how online posts have the potential to affect issues like child custody and property division. An exploration of how social media can impact divorce cases, and the most effective method of mitigating this risk, will follow below.

How Social Media Posts Influence Divorce Settlements/Decrees

One crucial point divorcing spouses need to understand about social media is that such information is admissible as evidence in their case. Even if an account is set to private, a court may allow the other party to gain access to posts as part of the discovery process (procedure that permits parties to gather evidence). Thus, using social media during an active divorce should at least involve some thought on how it may be construed. Specifically, if spouses are in a dispute over finances, posts indicating monetary expenditures, such as going out for dinner or attending a show, no matter how innocuous, can be used to argue for a greater share of the marital assets or more alimony. Further, social media can have particularly damaging effects on child custody disputes. Courts look at the best interests of the child when deciding how to divide parental responsibilities, and parties that post negative comments about the child or other parent could be viewed by the court as signaling the parent will not be willing or capable of cooperating on child custody matters. This inference could lead to the court to give the other parent greater decision-making authority and the majority of the parenting time.

Limiting the Impact

As alluded to above, social media should be used sparingly, if at all, while the divorce is pending. While it may be difficult to refrain from using this communication medium, the potential for negative consequences is typically greater than the benefit social media confers. If abstaining is not possible, taking pains to keep posts as neutral as possible is critical to minimizing their impact. An experienced divorce attorney can advise how to handle social media in divorce and other family law matters, which is especially important if negative content is already posted.

Contact a Florida Divorce Attorney

Putting together a divorce case requires more than merely filing certain documents with the court. An experienced divorce attorney can help you gather and present the information you need to get a fair and appropriate result. Tampa Bay’s All Family Law Group, P.A. understands the stresses of divorce, and is available to help you negotiate a settlement, or litigate the case 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+

Who Pays for the Divorce?

In addition to the emotional challenges of divorce, there is the very concerning issue of how to handle the financial fallout of this decision. Finances play a huge role in people’s lives, and can force couples to stay together for fear of financial collapse. Once the wheels are put in motion to form separate lives, each spouse must figure out how to support him/herself independently, before any court orders are issued regarding alimony or property division. Even the process of divorce itself can cause concern, especially if litigation is necessary to resolve points of dispute. Parties in divorce usually do not want to cut corners on legal representation or pursuing legal action, but such efforts do come with a cost. Further, even if alternative dispute resolutions options are explored, such as mediation, which are less expensive than a traditional divorce, this process has an associated cost as well. While parties are generally expected to cover these expenses on their own, it is possible to ask a court to order the other spouse to pay for legal fees and court costs in certain circumstances. Costs for family law mediations are handled somewhat differently. A discussion of how costs for traditionally litigated divorce cases and divorce mediation can be shifted will follow below.

Mediation Costs

Couples entering into divorce, especially if children are involved, are becoming more open to the possibility of alternative processes to work out unresolved issues. Mediation in family law and divorce cases is one frequently chosen option due to its brevity, lower cost and control it gives to the parties. Further, ordering divorcing spouses to attempt mediation before formally beginning the legal process of divorce is a standard requirement. Thus, most divorcing couples will have some exposure to mediation. The cost will depend on the provider chosen for this service, but it is generally shared between the parties. If the parties’ combined annual income is $100,000 or less, the cost may be based on Florida statute, which sets a flat rate, though the court can waive the fee if circumstances justify it. Further, a point of negotiation could be who will bear the fees if there is a concern about paying, and a court could order one party to cover any associated costs of mediation if there is an ability to pay.

Recovering Attorney Fees in Divorce Cases

Anytime a court decides a dispute, the costs of seeing the case through to the end quickly multiply. If one party has more financial resources from which to pull, this process can easily become unfair. However, Florida statutes permit a court to order a party to pay the other spouse’s attorney fees or other costs incurred in the divorce case. These awards are authorized to ensure one party does not gain an unfair advantage simply due to having more money. However, a request for attorney fees and costs must be made in the first filing a party makes with court. Requests made a later time are rarely considered. A judge will consider a number of factors when deciding whether to grant such a request, including:

• the financial resources of both parties, which goes beyond looking at income and additionally explores the assets each party owns;
• the scope and history of the case, especially if a relatively simple dispute turns into a complicated case involving multiple issues;
• whether one party is using court procedure to harass the other party or stall progression of the case; and
• the actual need for the award, usually taken to mean a party would have to use resources allocated for basic expenses in order to pay for legal representation.

Talk to a Florida Divorce Attorney

Figuring out how to pay for divorce is a source of significant concern for many people, but know there are options to share costs or shift the burden to the spouse with the greater ability to pay. The Tampa Bay law firm All Family Law Group, P.A. has years of experience counseling clients on their rights in a divorce.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-672-1900 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Who Gets to Stay in Marital Home during a Divorce?

Spouses often have emotional attachments to their marital home, due to the hard work that was needed to purchase it and its likely status as the most valuable asset they possess. The marital home takes on a new and greater significance if a divorce occurs as the parties try to decide present and future living arrangements, and whether the home should be sold. The ultimate treatment of the marital home is an area that can cause contention between divorcing spouses, especially if the mortgage payment is out of reach for one party’s income. Even the issue of who gets to stay in the home while the divorce is pending leads to disputes in some cases and requires court intervention to resolve. Typically, both spouses have a right to remain in the home. However, there are situations where a court might give one spouse an exclusive right to remain in the dwelling. Recently, tennis professional Serena Williams filed an emergency motion in her father’s divorce case requesting the home she owns, and the one in which the couple lived, be limited to her father’s use, and exclude entry to the soon-to-be ex-stepmother/wife. Determining the disposition of the marital home during the pendency of the divorce and following dissolution is a central matter that must be settled. The treatment of the marital home in the divorce process will be explored below.

While the Divorce Is Pending

Once the divorce is initiated, if not earlier, couples will frequently want to change the living arrangement so both parties do not occupy the same space. However, there may be disagreement about who should move out. Financial considerations or child care may be the motivating factor, but if the parties cannot agree, a judge will often be tapped to settle the matter. Regardless of who owns or has a legal right to live in the marital home, a judge can grant one spouse the exclusive right to use and possess the home. The result is the other spouse must move out pending the final divorce judgment, though this right can extend beyond the divorce case. Florida does not clearly establish when an exclusive right to stay in the marital home will be granted, but the parties must have evidence of more than just a desire to live apart. Court orders of this type are most commonly issued in connection with domestic violence, a parent who is the primary caregiver, or if the home is modified to serve a particular need, such as a disability. While the person ordered to vacate the premises does not lose property rights, he/she cannot enter the premises without permission, and the other party has the right to exclude entry.

Following the Divorce Order

Most homes that are owned are considered marital property in divorce, even if just one spouse is listed on the title/mortgage. This result occurs because marital funds are commonly used to pay for and maintain the home, which makes it a marital asset under Florida law. If the parties cannot agree on what to do with this asset, a court will decide and require the parties to do any of the following:

• sell the home if neither party can afford to keep the house on one income. The proceeds of the sale is usually shared, though the percentage each receives will depend on what is most fair under the circumstance, e., short-term marriage or one party greatly contributed to the improvement of the home;
• defer sale of the property to allow the party with most of the childcare responsibilities to remain in the home until the children reach adulthood; or
• order one party to buyout the other if the person wishing to remain can pay an equitable settlement for the other party’s share.

Speak to a Florida Divorce Attorney

The ownership and possession of the marital home is just one of many issues that come up in divorce. Resolving these issues can often be done privately, with the help of an experienced divorce attorney, but if agreement is not possible, you need a dedicated divorce attorney to represent your interests in court. Tampa Bay’s All Family Law Group, P.A. handles all aspects of divorce, and can help negotiate a settlement or advocate for your rights 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+

Figuring Out Where to File for Divorce

Many people think the hardest part of getting divorced is making the decision to end the relationship, but this step is just the first in a complicated and technical process to legally sever ties with a spouse. To initiate a divorce, a petition must be filed with a court that has jurisdiction, or authority, to hear the case. Deciding which courthouse is the appropriate location depends on a combination of residency and venue. To file for divorce in Florida, at least one of the parties must be a resident of the state for at least six months. What counts as residency is not always straightforward, especially if a couple only lives here part time or recently moved to another area following separation. Further, once residency is settled, a person must then determine in which county courthouse to file the petition. Filing it in the wrong place can cause the case to be dismissed, and require the person petitioning for divorce to accrue additional expenses associated with re-filing in the correct county. As an example of the potential complications of jurisdiction, a professional baseball player in the middle of a stalled divorce case, due in part to competing petitions filed in two different states, is seeking to move the divorce to Florida, his home state and where his wife and child currently live. These issues may seem like technical rules that have little effect on the outcome on the case, but they can be important if another state has the right to grant the divorce, as laws differ, or the parties live in different counties or ends of the state. Some of the complications that can arise with residency and venue will be explored below.

What Makes Someone a Resident?

Courts do not want to make decisions in cases where a party lives far away because the interests and property underlying the case are distant, making it more difficult for the court to hear all relevant evidence and enforce any orders issued. Thus, a prerequisite to divorce is at least a six month residency of one or both spouses during the time period immediately preceding filing for divorce, and this requirement cannot be waived by agreement. However, residency is more than just where a person is physically located – there must also be intent to remain in Florida as a resident. However, a party to divorce does not have to be in the State during the prior six months if he/she is temporarily living elsewhere. If there is a dispute over where a person’s principal place of residence is, such as in the case of “snowbirds,” a fact-based analysis must be used to decide where a person’s chief place of household interests or affairs is located. To make this determination courts will look at:

• how many months during the year a party lives in a particular state;
• where the party holds a valid driver’s license;
• where the party is registered to vote;
• where taxes are paid; and
• where cars are registered.

If a court decides neither party qualifies as a Florida resident, the matter will be dismissed, and the party petitioning for divorce will need to re-file in his/her home state.

Choosing the Right County

Venue, or which county to file the petition, can be another tricky issue. Florida law says that venue is determined by the county in which the couple last lived together. The problem comes when spouses disagree over where that place is, which can happen if there were frequent moves. For example, if a couple owned a home in Hillsborough County for 10 years, but then separated, sold the house, and moved to different counties, under the law, the appropriate venue is in Hillsborough regardless of the fact neither party lives there any longer. However, the parties can agree to a particular venue that is more agreeable, as long as the court will accept the case.

Talk to a Florida Divorce Attorney

Divorces are often more complicated than they seem at first, which is why an experienced divorce attorney is the best resource you can use to obtain the results you want. The Tampa Bay law firm All Family Law Group, P.A. is dedicated to promoting your rights, and tailoring their approach to your 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+

Drawn Out Divorce Case Illustrates Importance of Prenuptial Agreements

When a couple is in the throes of celebrating an engagement and planning a wedding, thoughts about the possibility of divorce are the farthest thing from their minds. Consequently, many couples skip the talk about the benefits of a prenuptial agreement, and assume that everything will work out. Sidestepping this issue when young is easier to understand because the parties are less likely to have valuable assets, but when marrying at an older age, and especially in instances of second (or subsequent) marriages, prenuptial agreements are important to safeguarding assets that have been built over a lifetime. A former Clerk of Courts for Broward County is learning this lesson the hard way as he battles his second wife in a divorce case over a share of his deferred income from the state’s retirement program and Social Security benefits. It may seem pessimistic to dwell on the potential for divorce, but for those with a lot at stake financially, having this document in place is a smart way to protect these assets from being substantially depleted in divorce. This is an important consideration if there are children from a previous marriage to whom a parent intends to leave an inheritance. A discussion of what a prenuptial agreement is, what it can and cannot do, as well as the benefits a prenuptial agreement can bring to a marriage, will follow below.

What Is a Prenuptial Agreement, Anyway?

A prenuptial agreement, also referred to as a premarital or antenuptial agreement, is a contract a couple enters into before marriage that governs the division of assets and payment of spousal support, or alimony, in the event of divorce or other specified occurrence (death, incapacity, birth of children, etc.). Without such an agreement, a spouse is typically entitled to 50 percent of the marital assets if the couple later divorces. Though having a prenuptial agreement does not negate the possibility of litigation, having a well-crafted contract from an experienced family law attorney will make it less likely a court will invalidate the agreement.

Possible Uses and Certain Prohibitions

Prenuptial agreements are intended to protect assets from division in divorce, protect against assuming the liabilities of the other spouse, and protect the other spouse from claiming certain future earnings. However, Florida law specifically prohibits the enforcement of clauses in prenuptial agreements that attempt to release a party from a child support obligation, or would leave one party destitute and forced to seek public assistance for means of basic support.

How an Agreement Can Benefit Marriage

One way to make the discussion of a prenuptial agreement less negative is by using it as an opportunity to learn about each individual’s approach to finances. Finances are one of the leading causes of divorce, and working out how to handle these matters before marriage reduces the chance of disagreement. Further, a valid prenuptial agreement requires both parties to fully disclose all income, assets and liabilities so each person knows exactly what they are gaining or losing under the agreed upon terms. Further, knowing this information up front will give a couple the opportunity to blend their financial styles into an approach that is workable when finances do become shared.

Seek Legal Advice

Prenuptial agreements must follow certain rules to be enforceable, and involve complex issues that have long-term consequences. To ensure the executed agreement reflects what you want, work with a family law attorney that understands how courts view these contracts. The Tampa Bay law firm All Family Law Group, P.A. understands how important these agreements are, and is available to provide you with a free consultation to discuss your 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+

Getting Divorced When a Spouse Is Nowhere to Be Found

Divorce is usually precipitated by an uncomfortable conversation during which at least one spouse must work up the nerve to say he/she wants out of the marriage. If given the choice, it is likely many would skip this step if at all possible, but they do have the comfort of knowing where their spouse is so the divorce process can begin. However, what does a spouse do when he/she cannot locate the other person to initiate a divorce? One of the basic requirements of a divorce case is the need to serve the other spouse with a copy of the divorce petition so he/she has notice and an opportunity to reply. However, what does one do if a spouse suddenly walks out one day, without a word, and never returns? Likely, the person left behind will at some point contemplate divorce, but how does one proceed when a central party is absent? A discussion of how one can obtain a divorce when one spouse is missing, and limitations of the legal process in this situation, will follow below.

Constructive Notice/Service by Publication

As noted above, all parties to a legal proceeding have the right to notice of the suit and an opportunity to respond. However, the law does not want to keep individuals in marriages solely because one spouse cannot be located. As a result, one party can petition for divorce and satisfy the notice requirement by providing constructive notice, or service by publication. Service by publication can be accomplished by publishing a notice of the divorce case in a newspaper approved by the Clerk of Court for four consecutive weeks. Further, the party seeking divorce must make a diligent search for the other spouse, which is something beyond stating he/she cannot be located. Specifically, a party will be expected to show some form of the following actions:

• contacting the last known employer;
• questioning family and friends about the spouse’s current or past whereabouts;
• searching online;
• checking social media; and
• monitoring bank and credit account activity.

An affidavit of the party’s failed efforts to locate the missing spouse must be filed in conjunction with the petition for divorce before a court will proceed on the case.

Default Judgment and Limitations of the Court

If a party fails to respond to a pending legal action, the court will issue what is called a default judgment. This essentially grants all the demands of the petitioner, which may sound great for the spouse seeking divorce, but due to the personal nature of divorce proceedings, there are some caveats. While a court in a constructive notice case can dissolve the marriage, it does not have authority to do the following:

• divide property;
• award child support or alimony; or
• create a parenting plan, though the practical implication of one spouse’s absence is that the party present receives sole custody.

Obviously, these issues lay at the heart of most divorce cases, which is why courts are willing to reopen divorce cases if the missing spouse later reappears to settle these outstanding matters. Because divorce cases under these circumstances leave a lot of issues unresolved, it is important to do whatever is necessary to find the other spouse, including hiring a private investigator if financial resources allow.

Get Legal Advice

Divorce is never easy, and unforeseen complications frequently come up in the most straightforward divorce cases. Having an experienced divorce attorney by your side greatly reduces the likelihood of surprises, and provides the security of knowing someone has a vested interest in protecting your rights. The Tampa Bay firm All Family Law Group, P.A. takes time to get to know their clients so they can best serve their needs and obtain the best possible outcome.

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 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+

The Role of Prenuptial Agreements in Divorce

When couples begin conversations about getting married and starting a future together, they are understandably reluctant to consider what could happen if the relationship does not last. At the outset of any happy time it is difficult to think about possible negative futures, but unfortunately not all marriages survive, and thinking about the financial ramifications of a divorce should lead many couples to explore the benefits of a prenuptial agreement. Prenuptial agreements are contracts executed before a couple marries that outline how property will be divided if they later divorce. The divorce of celebrity couple Brad Pitt and Angelina Jolie is the situation most people envision in which a prenuptial agreement has value. Thus, many couples believe, especially if they are young, that prenuptial agreements are unnecessary because they own very little of value, but it is hard to predict what a person’s financial situation will be in twenty or thirty years, and substantial assets could accumulate during the life of the marriage. In addition, if person is entering a second or third marriage, he/she will likely possess sizeable property and/or have concerns about protecting property for children from an earlier marriage. In either case, a prenuptial agreement would address these issues.

Creating a Prenuptial Agreement

The most important thing to realize about prenuptial agreements is that they must be created before the marriage occurs, and are only effective if the marriage takes place. As such, if a couple drafts an agreement, but later decides to skip marriage in favor of living together, the contract has no force as a prenuptial agreement if the couple later breaks up. The legal formalities for prenuptial agreements are simple: it must be written, and signed by both parties. Any changes to the content or decisions to revoke a prenuptial agreement must be writing and signed by both parties as well. Putting together the bare bones of an agreement is relatively easy, but figuring out which terms are permissible and make sense for each person’s unique situation requires more work.

What Can the Contract Say?

Florida law limits the content of prenuptial agreements to the division of a party’s financial assets, real and personal, tangible and intangible, and specifically delineates what the agreement may address. The permissible terms of a prenuptial agreement include:

• the rights of each party over property acquired at any time or under any circumstances;
• the right of either party to buy, sell, transfer, manage, or control property;
• what happens to property upon divorce or the occurrence of another event;
• whether and how spousal support will be paid;
• who retains ownership rights in death benefits paid under a life insurance policy; and
• the need to create a will, trust, or other estate planning arrangement to carry out the terms of the prenuptial agreement.

Note that prenuptial agreements cannot reduce or eliminate a party’s right to pay or receive child support, and if the elimination or modification of spousal support would cause a party to qualify for government assistance, a court has the authority to order spousal support notwithstanding the terms of the prenuptial agreement.

Get Legal Advice

The complexity of a prenuptial agreement is entirely dependent on the wishes of the parties and types of property they own, so do not assume a highly technical agreement is needed in every situation. However, protecting carefully accumulated assets is always in your best interest, and an experienced family law attorney can help you accomplish that interest. The Tampa Bay law firm All Family Group, P.A. is well versed in all areas of marital and divorce law, and is ready to help you with all your legal 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+

Deciding Which Kind of Divorce Is Right for You

Any couple together long enough will go through difficult patches of time where one is out of sync with the other, and many discussions end in argument. Most of the time, moving past the rough period intact is possible. However, sometimes the problems are deeper than surface disagreements, making it impossible to stay together. At this point, which is different for everyone, divorce enters the picture, and spouses must begin the process of unraveling their lives. While this process is often painful and demanding, spouses sometimes find their relationship as exes is better than when married. Once the decision is made to dissolve the marriage, the next step is to determine what type of divorce is appropriate. All divorces legally end a marriage, but not all divorce cases are processed in the same manner. A recent article discussed the divorce of the mayor of Cape Coral from her husband after less than three months of marriage, and noted that the couple filed a simplified divorce petition. Simplified divorce is one option for couples seeking to end a marriage, but is often unavailable to most divorce petitioners for reasons that will be discussed below. Selecting the correct type of divorce petition is a crucial aspect of court procedure. If the wrong one is filed, the case will be dismissed and will require a re-filing of the appropriate type, along with additional time and money utilized by both parties.

Simplified Dissolution

Simplified divorce is a faster and less expensive divorce process for those couples with no issues to resolve. Both parties must be in agreement on all of the following points, and jointly sign the petition for divorce. All of the following must be true in order to qualify for simplified divorce:

• both spouses agree the marriage is irretrievably broken;
• the parties do not share minor or dependent children, nor is there a pregnancy;
• the parties agree on the division of all their assets and liabilities;
• neither party is asking for alimony;
• at least one spouse has resided in Florida for the previous six months; and
• both parties are willing to jointly attend the final hearing before the judge.

One important right this simplified process takes away is the right to examine the other spouse through the collection of information before trial or as a witness during trial. This happens because simplified dissolution requires both parties to waive the right to a trial and appeal. This limitation on information is further expanded to the disclosure of financial information. While both parties are required to submit a financial affidavit, any further requests for financial information are not always enforceable.

Regular Dissolution

If a couple does not meet the criteria for a simplified divorce or declines to consent to the waiver of rights, a regular divorce petition is the option left to them. Regular divorce cases begin when one party files a petition for divorce. In addition to requesting a divorce, the petition includes any other demands a party may have, like specific property division terms, alimony, child support, or parenting time.  Where it goes from here depends on whether the divorce case is contested or uncontested.

The other spouse always has 20 days to respond after the receiving divorce petition, and if the response agrees with the demands of the petition, making the case uncontested, the parties can ask for a final hearing date to conclude the matter once the required financial disclosure is complete. If, however, the other party files a counter-petition disputing the demands listed in the petition or makes new demands, a Notice for Trial must be filed, as this case is contested. A contested divorce is like any other lawsuit where the parties exchange information and present arguments to the judge through filing additional documents or attending live hearings. This is a lengthier process, but may be necessary if the parties cannot agree, or have another type challenge preventing resolution of the case.

Get Help

Regardless of the kind of divorce petition you file, you are permitted to retain legal counsel to represent your interests. In divorce cases, where the outcome has significant and long-lasting effects on a person’s daily life, it is important to work with a divorce or family law attorney to ensure you do not unnecessarily give up your rights and fully understand the legal consequences of your decision. The Tampa Bay law firm, All Family Law Group, P.A., will evaluate the unique facts of your case and guide you through the divorce process to its end.  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+

Can You Undo a Divorce Decree?

Deciding to get divorced usually comes after much deliberation and numerous attempts to save the marriage. Once the decision is made, however, the parties are typically firm in their position that the marriage cannot continue. Nevertheless, there are instances where a couple later determines they want to attempt reconciliation instead of divorce. While this situation is good for the spouses personally, legally there could be difficulty depending on far the divorce case has proceeded through the court system. If a default judgment or final divorce decree was issued, courts are reluctant to undo such decisions because the stability of the legal system rests in part on the finality of court actions. In addition, the legal complexity of reintegrating all of the matters a divorce separates makes it virtually impossible to really undo a divorce decree. Consequently, if the divorce case has reached an endpoint, courts will only overturn an order in limited circumstances. If, however, the case is earlier in the process, stopping divorce proceedings is easier and generally brings fewer consequences. Certainly such requests are the exception in most divorce cases, but understanding the procedure to cancel a divorce decree will illustrate the seriousness of seeking divorce.

Dismissal of Pending Divorce Case

If a divorce case is still pending and no final orders have issued from the court, it is relatively simple to withdraw the petition. All that is necessary is for one party to file a voluntary motion for dismissal requesting the court to stop the case at the present point and discontinue further proceedings. If the other party filed counterclaims earlier in the case, it may be necessary that he/she also file a motion to dismiss. Note that if the court entered interim orders for child support or alimony, these benefits would go away. Thus, it is important for parties to assess what they would lose by ending a divorce petition.

Vacating Default and Final Judgments

When a court issues a final judgment in a case, it means the judge has considered and decided all pending matters before the court. The verdict is released in a written decision that can be used to enforce the terms of the court’s judgment. While most people associate final judgments with the end of a case after both parties present their arguments, it can come earlier in the form of a default judgment. When a legal petition is filed with a court, all named parties must respond to the demands or allegations made against them. If any party fails to respond, the court can enter a default judgment against him/her that grants all of the demands of the opposition. This is a severe result, so it is crucial to respond to every court document received in a legal case.

Overturning a final judgment is a complicated process, and a court will only consider it if one of the following circumstances exist:

• mistake, unintentional or excusable neglect, or surprise;
• newly discovered evidence that was not available or discoverable during the pendency of the case; or
• fraud, misrepresentation, or other bad conduct by a party.

None of the grounds for vacating a final judgment is easy to show, but in the event a decent argument can be made, the knowledge of an experienced divorce attorney is needed to evaluate the facts of the case in order to give such a request the best chance of succeeding. Also, it is important to mention that a party can use these grounds as basis to reopen a divorce case and argue it needs to be reconsidered or modified.

Talk to a Divorce Lawyer

If you have questions or concerns about the final judgment issued in your divorce case, talk to a divorce attorney to learn what your legal options are. The All Family Law Group, P.A., located in the Tampa Bay area, handles all aspects of divorce and family law cases, including post-judgment appeals and petitions.  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+