Undoing Paternity

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

Conditions to Disestablish Paternity

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

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

Issues Prompting Denial

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

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

Get Legal Advice

Being a child’s parent is a big responsibility, and if you have questions about the paternity of your child, talking to a family law attorney is the most direct route to getting the information you need. Courts take paternity very seriously because of what is at stake – the child’s well being, and will highly scrutinize requests to take that stability away. The Tampa Bay law firm All Family Law Group, P.A. has experience in paternity matters, and will diligently work to achieve the best possible result.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

How Unwed Fathers Gain Custody Rights Over a Child

Learning that one is about to become a parent is an exciting and nerve-racking time. Anticipating the child and thinking of all the hopes and dreams a parent may have is a very emotional experience, but if the parent is an unwed father, the opportunity to participate in his child’s life is not guaranteed. The path to legal parenthood for unwed fathers requires the establishment of paternity. Establishing paternity grants a man legal rights and obligations over a child from birth to adulthood. In contrast, mothers and married men are automatically granted full custody and decision-making rights over a child upon birth, reflecting state policy in preference of marriage. A recent news story highlights the potential for complications this rule poses in practice. A Florida man is fighting for parental rights over his son from his ex-girlfriend’s husband. The boy’s mother was married at the time of the child’s birth to another man, thus giving her husband rights as the legal father. Generally, state law supports the involvement of both parents in a child’s life regardless of the couple’s relationship status, but does impose additional requirements on unwed fathers to attain these privileges. An overview of the available methods to establish paternity in Florida will follow below.

Acknowledgement of Paternity

The simplest way to gain paternity over a child is to file an Acknowledgement of Paternity with the Florida Department of Health’s Office of Vital Statistics. In order for this form to be valid, both the mother and presumed father must sign it in the presence of two witnesses, or have it notarized. By signing this document, the father is accepting full rights and responsibilities over the child, including the obligation to provide financial and medical support until the child is an adult. In return, the father is granted the right to request custody and visitation with the child. Both parties have the right to withdraw their consent to the acknowledgement of paternity within 60 days of executing the document. Once this time has passed, paternity is established and can only be challenged in court on the basis that the form was signed due to duress, fraud or mistake of fact.

Petitioning a Court and Genetic Testing

The other principal method of establishing paternity is through a court order. This is a more complicated process, and is typically used when there is a dispute over the child’s paternity. To determine if the child is in fact biologically related to the alleged father, the court will look at the circumstances of the parties’ personal relationship to see if the child is a likely result. In addition, either the court or the parties may request genetic testing. The test results are admissible as evidence of paternity, and if they show the man is related to the child by the statistical probability of 95 percent or higher, paternity is presumed. Both parties have the right to challenge the results and request further testing, but also have the responsibility for paying the costs for the new analysis.

Get Help

If you have questions or concerns about the paternity of your child, consult an experienced family law attorney to ensure your legal rights are fully protected. Many rights and responsibilities are attached to this designation, which means it should not be initiated lightly. The Tampa Bay law firm All Family Group represents mothers and fathers in these matters, and is available to help you to determine the appropriate next steps.  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+

   

Traditional vs. Collaborative Divorce: Which Option Is Better for You?

Deciding to divorce is one of the most difficult and painful decisions most people will ever make. Coming to this conclusion is typically the result of a lot of discussion, personal reflection and failed efforts to improve the relationship. Once the decision is made, though, the logistics and practical considerations of getting divorced must be addressed. Who will file the divorce petition? Will both sides hire lawyers? Should child custody and property division be decided first? These are important questions that all divorcing couples face, but another crucial matter those seeking divorce should consider is the type of divorce procedure to use. Most people assume that the traditional, combative divorce case in front of a judge is the only way to dissolve a marriage. However, as divorces have become more common over the past 30 years, alternative ways to pursue divorce have emerged, including a recent option called collaborative divorce. This method of divorce is geared toward allowing the parties to emerge from the process with a working relationship by the use of a non-combative dispute resolution approach. While collaborative divorce is an option, this choice is not right for everyone.

Marriage is a Business Contract

While viewing marriage as a business deal is not the most romantic approach, it does reflect the practical realities of the rights and obligations a couple both grant and assume to each other the day they marry. In the event of divorce, sorting out how to dissolve this arrangement is a proposition more suited for the abilities of a court, rather than the professional advisors that collaborate with divorcing parties in the collaborative divorce process. While it may seem more attractive to fashion one’s own conclusion to the relationship, the court has remedies it can access that are unavailable to private parties. These remedies are designed to ensure the unraveling of the relationship is just, and protect the rights of parties in weaker positions.

Traditional Divorce Can Be Civil

Collaborative divorce is known as the peaceful alternative to ending a marriage, but couples do not have to engage in protracted disputes simply because a traditional divorce case is filed. Couples can work out their own private settlement agreement, with the assistance of divorce attorneys, before stepping inside a courtroom. In fact, Florida offers a simplified divorce petition, which gives parties with no disputed issues a condensed and faster approach to navigating the divorce process.

Limitations on Probing the Other Side’s Claims

A key aspect of conventional divorce cases is the disclosure of financial information to the other side. This information is needed to assess the types of property owned jointly and separately for purposes of property division, and to see the financial resources of each party for calculations of child support and alimony awards. Filing the usual divorce petition gives each party the ability to request specific information, and to ask a court to compel the release of additional information if fraud or misrepresentation is suspected. Collaborative divorce does not give parties the tools to verify or contest the accuracy of the financial information offered. This limitation may make it easier to hide or withhold information on assets, so if someone considering divorce is unsure about what the other spouse owns, this process may not be the best choice.

Work with a Florida Divorce Attorney

If you are contemplating divorce, talk to a divorce attorney before filing a petition to make sure you choose the type of divorce best for you and your family. The Tampa Bay law firm All Family Law Group, P.A. is experienced in many different types of divorce, and can assist 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+

Relocating with a Child May Require More than Hiring Movers

The world is now a smaller place due to advances in technology that allow us to travel faster and stay in constant communication. One significant byproduct of this change is people are much more mobile today compared with previous generations. Moving for a job or a change in lifestyle is now considered normal, and divorced parents, while needing to consider additional concerns, are part of this group. Certainly, all parents must weigh the impact of uprooting a child to a new place before deciding if the transition is in the family’s best interest, but when child custody issues are put into the mix, the decision becomes complicated. The law recognizes the fact that people with shared parenting responsibilities relocate all the time, while also taking into account the competing interest of the parent left behind who will lose regular contact with the child. Consequently, rules are in place to regulate these circumstances, which are aimed at determining if the move is in the child’s best interest, including an assessment of whether the motivation behind the relocation is legitimate and not vindictive. Parents who have conflicted relationships with ex-spouses may want to avoid a discussion on this issue, but relocating parents cannot keep the other parent in the dark. An overview of the legal requirements for a parent planning to relocate will follow below.

Agreement vs. Petition

As a preliminary point, these rules only apply to changes in the parent’s residence that are greater than 50 miles and expected to last more than 60 days. Any relocation less than this distance does not need parent or court approval. At a minimum, the parent seeking to relocate with the child must obtain the consent of the other parent, and memorialize the agreement in writing. The written agreement must include an affirmative acknowledgement of the other parent’s approval and a plan for how the parenting time arrangement will be modified to reflect the child’s new location. If consent is not obtained, the relocating parent must receive permission from a court to move forward. This requires the parent to file a petition in court, and serve a copy to the other parent so he/she has notice of the legal action. The petition must include a description of the reason for the move and a revised timesharing and travel schedule for the child, or it will be dismissed.

Contested Relocation

Once a parent receives notice about a potential relocation, that parent has 20 days to contest the request. If the parent fails to do so, the relocation will be granted without a hearing or notice, unless it is against the best interests of the child. Filing a response to contest the relocation will put a temporary hold on the move until the matter is settled. The parent seeking to relocate has the obligation to show why the move is in the child’s best interest, but if this burden is met, the responsibility to demonstrate why the move is against the child’s best interest shifts to the parent contesting the move. To evaluate what is in the child’s best interest, courts weigh a number of factors, including how the move will affect the nature and quality of the relationship with the non-relocating parent and how the move may impact the child’s development. Some other factors are:

• the child’s preference, assuming the child is mature enough to make a reasoned decision;
• if the relocation will improve the quality of life for the relocating parent and child;
• if the relocation is requested in good faith; and
• the reason each parent is asking for or objecting to the relocation.

Talk to a Florida Family Law Attorney

If your child is involved in a possible relocation, seek the advice of an experienced family law attorney well before the planned moving date. If a parent relocates with a child without fulfilling the necessary legal requirements, serious legal consequences could follow, including potential loss of custody. The attorneys at the Tampa Bay law firm All Family Group, P.A. understand what is at stake in child-related matters, and will work to get the result is best for 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+

Florida Divorce 101

Looking at the almost daily stories about divorce that appear in the news, it seems as if society sees this event as an everyday process that is not worth a lot of conversation. This nonchalant attitude is especially apparent in the large of number of reports about which group is most likely end their marriage and the top signs a relationship is heading for divorce. In reality, divorce is a painful process that few enter without a large amount of soul searching and numerous attempts to save the marriage, but once the decision is made, having some key bits of information can make the situation a little easier. Knowing this basic information about divorce procedure is likely to make the process feel a little less overwhelming and scary, which should provide some much needed emotional relief to anyone facing divorce. Consequently, an overview of how to initiate a divorce, the types of information needed to file for divorce, and the role of the court will be discussed below.

Starting Divorce Proceedings

All dissolutions of marriage in Florida start with a petition for dissolution. In order for a couple to be permitted access to Florida courts for divorce, at least one party must be a resident of the state for a minimum of six months and intend to remain. The petition is filed with the circuit court in the county where the couple last lived together.  This legal document provides the court with information it needs to determine if there is authority for a  Florida judge to grant a divorce and requires the party filing the petition to include certain information related to child custody, child support, alimony, and property distribution, as applicable, so the court knows what the petitioner is seeking.

Florida is a no-fault divorce state, and all that the petitioner needs to do to get divorced is claim the marriage is irretrievably broken. This means it is unnecessary to prove that one party caused the failure of the marriage, but it also allows one party to ask for a divorce even if the other does not desire that result. The length of time it takes to obtain a divorce depends on the complexity of each individual case, but the law requires a minimum of 60 days to pass between the filing of the divorce petition and the issuance of the court order dissolving the marriage.  However, this can be waived by the parties.

Necessary Information

Before a divorce attorney can begin drafting a petition, he/she will need to collect information related to minor children, property holdings, and support. Specifically, if the couple shares minor children, identifying information for each child and any agreements the parents have made about custody and parenting time should be disclosed. Further, each party must file a financial affidavit with the court no later than 45 days after the petition for divorce is filed. This affidavit will provide the court with information that will help the judge determine child support payments, property division, and alimony, if granted. Note that the law requires the information provided in this form be disclosed to the other spouse.

How the Court Is Involved

The role of the court in divorce cases is, first and foremost, to issue a court order legally terminating a marriage. Beyond this purpose, the court oversees and approves any agreements the parties make related to the divorce. The court will take a more direct role and make decisions on issues like support and child custody, but since many couples work out the terms of divorce in mediation, it is not necessary for the court to intervene. Thus, most divorcing spouses only appear in court once to attend the case management conference where the judge learns about the status of the case and makes any decisions needed to move the case forward.  Or the case management conference can be used as a final hearing if the parties are in agreement and have completed all that is necessary to finalize their case.

Talk to a Divorce Attorney

It can be tempting to file for divorce on your own, but there are a lot of procedural rules and statutory laws that affect how quickly the case progresses and the ultimate outcome. An experienced divorce lawyer is best equipped to handle these legalities, and help you avoid the frustration of not knowing or understanding why certain forms have to be filed and the particulars of local court rules. The Tampa law firm All Family Law Group, P.A. can offer you representation in all divorce matters and is committed to helping you achieve the best possible solution. 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+

Becoming a Better Parent

Parenting is never easy. Children don’t come with an instruction guide, yet parents are expected to instinctively know how to care for all of their children’s physical, emotional, and financial needs. Unfortunately, divorce can intensify the need for better parenting by both the mother and father. Kids need leadership now more than ever. Although the adults may not see eye to eye on the issues surrounding their split, they can each learn how to become better able to provide the stable support their children need.

Parenting Classes

Taking a parenting class is one of the best ways to improve your skills. After your divorce, you will need to learn new ways to parent with your former spouse. Children need to know that both parents are available to provide them with the nurturing and caring environment they need. Parents can take classes through various sources or they may be required to take a class through the court. Parents will learn valuable information about how to talk to their children about the divorce.

Counseling

Children, like adults, have to work through the changes that come as a result of divorce. Parents may not have the ability to assist children with these concerns, especially when they are working through their own emotional demands. For these reasons, counseling may be a good solution. A therapist or family counselor is a first step towards getting children to talk about their feelings. This will help them come to terms with the divorce. Children are remarkably resilient, but they may need some assistance in dealing with the very adult issues that are around them during a divorce.

Communication

Good communication is the key to all successful relationships, even with your children. Be careful not to discuss adult matters with children because this can give them anxiety and it involves them in a situation that they do not need to worry about. Instead, make sure that you maintain open communication with the children and answer any questions they may have as a result of the divorce. Kids often have very simple needs. They want to be assured that both of their parents still love them and will spend time with them, even if they don’t live together anymore.

Resolving Divorce Issues

Many various issues come up during the divorce process. These can evoke feelings of fear, anger, heartache, and guilt. Children often deal with these same emotions as they go through the changes that divorce brings. To keep everyone’s emotions at bay, try to resolve the major areas of concern with help from your divorce attorney. Head off any serious problem areas before they can become large disagreements. Your divorce lawyer is often able to help keep the divorce progressing along without any significant arguments. A more agreeable divorce will help to create a much happier resolution for the entire family as they move towards creating a new life. If you are about to go through a divorce, contact the Tampa divorce attorneys and bankruptcy 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+

Trial Separation – Is it an Option in Florida?

The decision to divorce isn’t always an easy one. Sometimes, couples may want some time apart to help them decide whether they want to continue the marriage or move on. In Florida, there is no legal separation. However, couples can still take some steps before filing for divorce, as long as they protect themselves in the process. Remember that separated couples are still married, under Florida law, and so they must be sure that they are able to agree to the issues that may come up during this time period.

Alternatives to Legal Separation

Couples in Florida may live separately before they divorce. If you choose to do this, however, it is advisable to create a separation agreement. While this is not a document that is approved in the family court system, it does provide a degree of protection for couples in this situation. Another option is to enter into a postnuptial agreement. A postnuptial agreement is similar to a prenup except that it is executed during the marriage, rather than prior to it. The postnuptial agreement should include all of the same issues that are handled in a divorce, such as:

• Distribution of assets;
• Allocation of debts;
• Child living arrangements;
• Child support and visitation; and
• Spousal maintenance.

Resolving these issues now will help to better navigate a divorce, should the couple decide to move forward in that direction.

File a Petition for Support

One legal document that can be filed separately from a divorce is a petition for support. The petition is a request for child support, spousal support, or both. Money may be needed to allow both spouses to continue to pay the mortgage, and other necessary bills and living expenses. The support petition is a good option for those whose spouses have already moved out, but there is no pending divorce petition filed. These issues can be addressed again later, as part of the divorce proceedings.

Seek Counseling

Couples in turmoil may want to get counseling to help them decide what to do. Many times the couple simply needs some time apart to review the relationship and work on issues that need to be repaired. Counseling can be done together, as a couple, or alone.

Rules of Separation

There are no rules for separation, but couples should follow some guidelines to help them prevent problems. When separating, make a unified decision on how finances will be handled. Get copies of all bank accounts, pensions, and other records so you can review them later. Meet with a skilled divorce attorney to learn about your options, even if you have not yet decided to part for good. Continue regular communication so that you can assess the progress of the situation. Keep up regular child visitation, so there is as little disruption for the children as possible. Finally, set a timeline for the separation so that it won’t go on indefinitely.

If you are considering a separation or divorce, contact the Tampa divorce attorneys and bankruptcy 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+

Grounds for Divorce in Florida

In Florida, as in other states, state law provides for dissolution of marriage between couples. In order to be granted a divorce, the marriage must have suffered an “irretrievable breakdown” or there must be incapacity of one of the spouses. By far, the most common grounds for divorce in Florida is referred to as the existence of “irretrievable differences.”

Irretrievable Breakdown

Irretrievable breakdown of the marriage means that the parties are not able to maintain the marriage. They are no longer able to live together in a marriage and are no longer able to work things out. When the respondent does not deny that the marriage is irretrievably broken, and there are no minor children, the court will enter a divorce judgment. However, if there are minor children, the court may order the couple to seek counseling prior to granting dissolution of marriage.  That this will happen is extremely rare, although it is allowable in the language of the Florida Statutes. 

Incapacity

Incapacitation of one spouse may occur due to a number of reasons. Incapacity generally means that the person is unable or unwilling to make logical decisions or has a problem which is debilitating. The spouse must be deemed incapacitated based on the provisions of the law (s.744.331) for a time period of a minimum of 3 years. The divorce proceeding must be served to the incapacitated spouse along with the guardian. If the person does not have a guardian, the court will appoint one for the purposes of the divorce. It is imperative that the person be properly represented in order to understand the divorce proceedings.

What the Court May Require

Rarely, if ever, the court may not agree that the marriage is irretrievably broken, although it is possible under the Florida Statutes.  If this were to happen, the judge may require the parties to seek counseling in some form or fashion. For example, the judge may require parties to spend time working with a marriage counselor, psychologist, psychiatrist, minister, priest, or rabbi, or other professional that is acceptable for consultation. Other actions may be required as well, especially if they are in the best interest of the minor child or children. A continuance of the proceedings will thus be put on hold for a period of not more than 3 months. This is considered time to allow for a possible reconciliation.  Again, this is extremely rare.

Help From a Qualified Divorce Attorney

Not all divorces are easy. In fact, many of them are quite complex and each has its own set of circumstances which must be reviewed and resolved.  However, it is important to note that the court will proceed with a divorce regardless of whether both parties agree that there are irretrievable differences, and which irretrievable difference do not have to be proven, just alleged. If you are about to go through a divorce, contact the Tampa divorce attorneys and family law lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Child Relocation in Florida

Divorced parents often wonder if it is possible for them to relocate with their child. The Petition to Relocate must be made in accordance with the law and must contain the correct information in order to be deemed legal. The court will schedule a hearing date at which time both parents will be present unless the non-relocating parent consents to the relocation. Relocation may be across the state or out of state. If you are moving within a 50-mile radius of your home it is not necessary to request permission from the court. However, many parents find that they need to relocate out of state, often in order to take a better job. The Florida relocation statute provides guidelines on how to legally relocate with a child after divorce.

Relocation with a Child

The law regarding relocating with a minor child is a complex one. It is necessary to review it completely when determining how best to proceed in your situation. The statute may not apply to your case so it is best to speak with an experienced divorce attorney before making any decisions regarding relocation. Parents who want to relocate with their child are able to do so in one of two ways:

• Both parents may consent to the relocation of the child. The consent must be in writing and be approved by the court before relocation takes place.
• When parents are not in agreement regarding the relocation request, the parent who wishes to relocate must file a petition in court, called a Petition to Relocate.

The Petition to Relocate must be made in accordance with the law and must contain the correct information in order to be deemed legal. The court will schedule a hearing date at which time both parents will be present.

Parenting Plan

When parents divorce they must include a parenting plan in their divorce order. The plan addresses many issues regarding custody and visitation of the child. Parents must address the specific parenting plan or custodial order that is in place. Issues of relocation may be addressed in this plan. Additionally, parents may have already agreed as to the way relocation and other issues will be handled should they occur later on. Always refer to your original divorce order to learn information regarding relocation. In most cases, relocation will need to be handled through the courts with a modification and petition to relocate.

Failure to Comply

Parents who fail to comply with Florida law are subject to legal action. A parent who relocates a child without compliment could be found in contempt. The child could be returned to the other parent or the relocating parent could lose custody of the child. The time-sharing schedule must be properly modified through a court order for it to be considered lawful. In addition to the possibility of losing custody, the relocating parent may be responsible for attorney’s fees for the other parent and for travel costs to return the child. Because of the serious nature of these issues it is strongly advised that you go through proper channels for relocation and modification of child custody issues.

Whether you are considering relocation with a child or want to fight a relocation request by your former spouse, it is best to speak with a family law attorney as soon as possible. These cases can take some time and you must have a court order before moving with the child. To learn more about child relocation in Florida, contact the Tampa divorce 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 Keeps the House in a Divorce?

Divorce is never easy but it can become more complicated with there is property at stake. The home is a place that should be considered a safe haven, yet it could become a sticking point in a divorce settlement. In Florida property and assets that were acquired during the marriage are considered marital property and are to be divided equitably between spouses. All too often, couples disagree about what to do with the home after the divorce. The situation can become more complex if the couple bought the home together prior to getting married.

Equitable Property Distribution

Equitable property distribution means that both parties must split their assets and property so that both receive the same value in the settlement. There are some considerations that may be given to how property is divided but in most marriages, especially with couples who have been married a long time, the split is approximately equal. The marital home is just one part of the property owned by the couple that must now be divided. There are several options that are generally available:

• One spouse may buy the other out and own the home. This requires that the spouse relinquish other assets that total half the value of the home;
• The couple may sell the home and split the profits; or
• Both parties may continue to own the home together until a later date. In this case, the person living in the home may need to pay rent along with a share of taxes and maintenance costs.

The choice to sell the home may be a difficult one but ultimately may be the best option, particularly if the divorce is acrimonious. In situations where there are minor children living in the home, the couple may decide that it is best to allow them to stay in the home with one parent so they can continue to attend the same school and keep the same friends and activities.

Preparing for Divorce

If you own a home, or other property, there are a couple of things that you must do immediately when you decide to divorce. If the home is mortgaged you will need to determine the amount that is still owed on the home as well as how much equity you have in the home. Divorcing couples must find out the current value of the home. This is best accomplished by having an appraisal completed. Once you know what the home is worth you can determine the amount of equity you have in it. This will help couples make the decision as to how to proceed. For example, if you owe more than the home is worth it may be advantageous to keep the home until the market value increases and you have more equity in the property.

How a Divorce Attorney Will Help

Couples in Florida are encouraged to come to an agreement as to the major divorce settlement terms. This is often done with help from an experienced Tampa divorce lawyer. Your attorney guides you through the process and works to assist when there are disagreements. You will learn what your options are when it comes to your home so you can make the decision that is best in your situation. Some divorces are more complex than others. Count on your attorney to answer your questions and work to achieve a fair and equitable divorce for you and your family. Contact the Tampa divorce 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+

Uncontested Divorce in Florida

Divorce can be an emotional and difficult time in your life. Once the decision to divorce has been made, the legal process must be followed. Divorce in Florida is also known as dissolution of marriage. The easiest and fastest divorce option is an uncontested divorce. When a couple can agree to the terms of the divorce, it is said to be uncontested. If one or the other party does not agree to the divorce or accept the settlement terms, the divorce becomes contested and therefore more complex. While uncontested divorce is fast and easy, it is still best to seek guidance from an experienced divorce attorney.

Criteria for an Uncontested Divorce

There are a number of qualifications that must be met in order to qualify for an uncontested divorce. These include:

• Both parties agree that they want the divorce;
• Parties agree about the division of property;
• If the couple has minor children, a parenting plan must be put in place;
• Child support is agreed upon;
• Alimony is not disputed;
• There are no unsettled issues; and
• Both parties agree to sign the necessary documents.

Generally, an uncontested divorce can be utilized in situations where both parties are in agreement. When issues are disputed or go unresolved, the divorce is contested and proceeds in that manner. A contested divorce often signals a litigious situation and one that may require negotiation and possibly mediation.

Benefits of an Uncontested Divorce

There are many benefits to choosing an uncontested divorce. The uncontested divorce is typically much easier to complete and therefore is much less expensive. It is still in your best interest to have representation by a divorce attorney; however, the process is less complex. Another advantage to an uncontested divorce is that the time necessary to finalize it is less than a contested divorce. A simple uncontested divorce could take just a couple of months to complete while a contested divorce could drag on for many months or even years. Probably the most significant benefit of an uncontested divorce is that the marriage is dissolved in an amicable manner. This relieves stress on everyone in the family, including the children. A more relaxed situation sets the stage for a better relationship as the family moves forward in a new configuration.

Is Uncontested Divorce My Best Option?

In Florida, as elsewhere, property and assets that have been acquired during the marriage belong to both parties and are to be divided equitably upon divorce. This means that both people should receive about an equal portion of assets in a settlement. In situations where the couple agrees the division of assets and there are no complications, the uncontested divorce is a very good choice. Every divorce is different and a unique set of circumstances. When determining how to proceed with a divorce it is helpful to speak with a reputable divorce attorney to answer your questions and assist in determining the options available to you. Contact the Tampa divorce 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

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

A prenuptial agreement can be an effective tool for two people to settle the division of assets upon the dissolution of the marriage. Prenuptial agreements can be complex agreements that should be approached with great care and diligence. Both parties to the agreement should have a full understanding of the subject of the agreement and retain counsel to advocate for their interests. One common element of prenuptial agreements is a waiver and release of claims, which can vary in specificity. In Hahamovitch v. Hahamovitch, the Supreme Court of Florida determined the validity of general waivers as they relate to certain marital property and claims.

Issue of the Case

In Hahamovitch v. Hahamovitch, the husband and wife executed a prenuptial agreement before marriage, which lasted for 22 years and produced two children. The prenuptial agreement contained:

• a general waiver and release that barred the wife from asserting any claim to the husband’s property, and to any rights she otherwise accrued as a result of the marriage, such as alimony, support and maintenance, equitable distribution, division of property, or attorneys’ fees;
• a provision that each spouse shall keep sole ownership of their respective property that was acquired before or after the marriage, and that each waived all right to the other’s assets; and
• a presumption that property titled in one spouse’s name was deemed to be that spouse’s property.

Upon their divorce, the wife claimed that the general waiver did not apply to her right to her share of her husband’s earnings, assets purchased with those earnings, or any appreciation or enhanced value of her husband’s assets as a result of marital efforts. Before the Hahamovitch decision, Florida courts were split as to whether a general waiver as described above is a valid means to waive a spouse’s right to such assets.

The Court’s Ruling

In a unanimous decision, the Supreme Court of Florida settled an important legal issue in Florida divorce law. The court held that prenuptial agreements that contain a general waiver that provides that each spouse:

1. disclaims all interest in the other spouse’s property;
2. will be the sole owner of property purchased in their own name; and
3. waives all claims that they may have as a result of the marriage, e.g., alimony;

…are valid and will prevent each spouse from claiming a share of property owned and titled in the other spouse’s name, regardless if that property was purchased with marital assets or appreciated in value because of efforts by the non-owner spouse.

Impact on Prenuptial Agreements

Before Hahamovitch, Florida courts varied on the specificity required for waivers for certain marital assets, such as a spouse’s earnings. The court’s decision brings clarity in that a properly drafted waiver can serve to preclude claims otherwise allowed under Florida law.

Considering or Need Help with a Prenuptial Agreement?

Prenuptial agreements are complex and require careful consideration, especially when they contain a broad waiver and release of claims. The divorce attorneys at All Family Law Group, P.A. have the knowledge and skill necessary to protect your interest in entering and exiting a marriage. If you need help or have questions about your divorce or prenuptial agreement, contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Military Divorce and International Law

Military divorces happen at all stages of marriage, from long 20-year marriages to couples married just before deployment overseas in Germany, Korea or Afghanistan. It is important to note that, the military does not grant divorce. State courts grant divorces to persons who are in the military and it’s better to think of military divorces as divorces involving military personnel. As such, international law could become relevant factor when divorcing a military member who is overseas. This is particularly true if the country has signed the Hague Convention. The Hague Convention covers service of process abroad and may apply in some child custody disputes.

The Hague Convention Governs Service of Divorce Papers

Florida law requires the service of military personnel outside the United States conform to the requirements of the Hague Convention. Consequently, the Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention on Service Abroad) governs the service of divorce papers on military spouses abroad. The convention requires that service follow the rules of the country where the service member resides. Additionally, documents may need to be translated into the local language, even if the service member does not speak the language.

The Hague Convention may Govern Aspects of Custody Disputes

A different Hague Convention may apply if a child is improperly taken overseas. The Hague Convention on Child Abduction (Child Abduction Convention) is likely to come into play when a child was improperly, or illegally, removed from a custodial parent. A Child Abduction application may be made at The Hague when:

• A child is taken, or retained across an international border,
• The place where the child is being held is away from the child’s habitual residence,
• The child was removed without the consent of the custodial parent; and
• The custodial parent has custody according to the law of the child’s habitual residence.

If the countries involved are parties of the Child Abduction Convention, then the child must be returned to the habitual residence. This will be the case unless returning the child will create a grave risk of harm to the child. The “habitual resident” is usually the physical location of the child six months prior to filing the application.

Military divorce and potential custody disputes are complicated. These issues are even more complicated in military divorces that involve the Hague Convention. Military divorces evolve rapidly and there is too much at stake for attorneys and their clients to learn about critical aspects of the Hague Convention on the fly. It is extremely important to locate counsel with knowledge and experience in military divorce and Hague proceedings.

The Military divorce attorneys at All Family Law Group, P.A. have the skills necessary to take you through your military divorce. Our office is knowledgeable in the area of military divorce and can help you throughout the process. Contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+