Special Considerations Same-Sex Couples Face in Divorce

The legal landscape on marriage and divorce for same-sex couples has changed dramatically over the past few years. Until very recently, 2015 to be precise, marriage between same-sex couples was not legal nationwide. Thirty-seven states granted same-sex couples the right to marry, while others took action to ban gay marriage to prevent these unions from being recognized. Few would argue that marriage has an important symbolic aspect, but more important are the rights and privileges it transfers to the couple, which become particularly relevant during divorce. It is easy to take for granted the legal benefits of being married, such as shared health insurance, joint income tax filings and the right to receive a spouse’s government benefits. In the context of divorce, these rights translate into property division, child custody and support, all pivotal family law matters that few domestic partners were previously able to access absent additional complicated legal arrangements. Given how recently the law changed on same-sex marriage, special considerations exist for couples now seeking divorce due to the overlap of conflicting laws pre-and post-legalization. These potential concerns especially affect couples with long relationships, but only a few years of legal marriage.

Child Custody

Child custody can be a particularly tricky issue for same-sex couples. Upon divorce, parents are entitled to time with their children if and only if they are considered the legal parents. Florida law previously only recognized men in heterosexual marriages as a child’s legal father upon birth without further proof. Same-sex couples had to fight for this same recognition, and the state now allows both spouses in same-sex marriages to be listed on a child’s birth certificate as the legal parents. But what about couples who had a child before same-sex marriage was legal? In these situations, it is not uncommon for the child to have only one legal parent. Unless the couple executed adoption papers to ensure both parties have legal rights over the child, the court is unlikely to give the non-biological parent any rights to visitation, or impose the obligation to pay child support, regardless of how many years the party helped raise the child.

Alimony

Alimony is financial support a former spouse receives because of an inability to self-support. It is usually awarded in cases where one spouse was financially dependent on the other during the marriage. Florida offers several types of alimony, both temporary and permanent, which are based in part on the duration of the marriage. Same-sex couples will have only a few years of legal marriage at this point, despite being together for decades. A court could possibly consider the entire length of a couple’s relationship on this issue, but the best way to ensure the interests of both parties are protected is to execute a prenuptial agreement outlining what happens to property and finances if divorce occurs.

Property Division

Finally, same-sex couples, being relatively new to the legal rights of marriage, may not realize how property is divided in a divorce. Previously, before such couples could marry, when a relationship ended, each person kept whatever property was in his/her name. In divorce, Florida has equitable distribution, which generally divides all property acquired after marriage equally between the couple. Because divorce is somewhat new to same-sex couples, the higher-earning spouse may be shocked when he/she learns that potentially half of everything they purchased over the past few years could be gone. A prenuptial agreement could address this concern as well. They may not be romantic, but they do save a lot of time, hassle and money during a time when emotions are already running high.

Get Help

Divorce, under any circumstances, is a devastating experience, and these emotions can make it difficult to fully appreciate the legal ramifications of this decision. Divorce attorneys, like those at Tampa Bay’s All Family Law Group, P.A., are there to guide you through the divorce process and ensure your legal rights are protected and your wishes followed. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Divorcing without Conflict

Separating divorce from the notions of courtroom disputes and drawn-out litigation is hard to do. As this depiction is really the only one that is written about or appears on television. Obviously, if a couple chooses to divorce, the relationship has not been in a good place for some time, but ending the marriage does not necessarily mean the dissolution must be full of conflict. Alternatives to traditional litigation in divorce do exist that allow the parties to end the marriage on a more amicable note. Couples in divorce may have an invested interest in keeping the process as civil as possible, especially if they hope to equally share childcare responsibilities or have business interests together. One type of alternative dispute resolution that is becoming more popular in recent years is collaborative divorce.

The Basics of Collaborative Divorce

Collaborative divorce centers on the idea that the resolution of issues in divorce can be done in a productive and civil manner without the contentiousness of the courtroom. In addition to the parties, there is a team of professionals that assist the couple with finding solutions to their problems. This team consists of specially trained collaborative attorneys, mental health professionals and financial experts. They work with the couple to facilitate agreement on solutions that are best for the whole family, especially the children. Informal discussions, settlement conferences and mediation are some of the methods used during this process. The process begins when the couple signs the collaborative law participation agreement, which has the parties consent to forego filing a divorce petition in court, in favor of making a good faith effort to work out disagreements in a non-adversarial setting. Each party must be willing to voluntarily disclose relevant information, but any information exchanged or communicated during these sessions are confidential and cannot be later used at trial. Either party may terminate the collaborative process at any time and for any reason. Initiating court action automatically terminates the process, and the collaborative attorneys are not permitted to represent either party in the adversarial proceeding.

Collaborative Divorce May Not Be Necessary

Even though this process aims to completely neutralize and eliminate conflict and allows the parties to craft their own agreement outside of the courtroom, it is not always possible to come to an agreement nor may the process be in the best interest of the client.  If you do not have issues that require mental health professionals or financial experts, etc., then it is not necessary to go through the collaborative divorce process.  Even if you do have these issues, there are other means of alternative dispute resolution such as mediation.  In traditional family law cases, you can still preserve a working relationship. come to an agreement and avoid a hearing before the judge.  Furthermore, if you cannot come to an agreement, you will not have to begin the process again with another attorney as a collaborative law attorney must withdraw if the parties cannot come to an agreement.

Talk to a Divorce Lawyer

If you are contemplating or facing divorce, speak to a divorce attorney about your options for resolving your case outside of court. While alternative dispute resolution options are not appropriate in every situation, it is worth exploring other methods that could better 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+

The Impact of Drug Use on Divorce

The number of issues that can potentially end a marriage are wide and vast, but one issue is particularly known to wreak havoc on all relationships – drug and alcohol abuse. Individuals caught in the cycle of addiction can pose a safety risk to the other spouse and their children, as well as jeopardize finances. Getting out of these marriages and seeking divorce is rarely easy, but unfortunately, often necessary. While these issues are certainly private matters that one tends to keep quiet, the presence of substance abuse does have a real impact on the outcome of a divorce, especially if children are involved. Breaking off all communication and relations with individuals with substance abuse problems is ideal, but not always possible or practical. One of President Trump’s advisors, Steve Bannon, has an ex-wife with alcohol and drug issues, and despite her problems he has continued to provide financial and emotional support as she struggles to recover. This news report illustrates that addiction issues reach into all spheres of power and wealth, and needs to be understood in the context of divorce.

Property Division

Marital property is divided in divorce based on the concept of equitable distribution. Equitable distribution, under Florida law, starts from the premise that all marital property should be distributed equally. However, a court will deviate from that standard, if there is justification, in order to arrive at an arrangement that is most fair based on circumstances of the parties. One factor that can persuade a court to award an unequal division of assets is if one spouse intentionally wasted marital property. Drug and alcohol abusers will invariably spend more than they can afford to feed their addiction, which results in the taking of financial resources away from the rest of the family. A court will specifically look at a spouse’s use of marital property in the two years preceding the filing of the divorce petition and while the divorce case is pending. If there is evidence of a spouse deliberately using money and property to acquire drugs or alcohol, the judge is likely to give the other spouse a greater share of the remaining assets.

Child Custody

Substance abuse has an even bigger impact on child custody decisions. The law in Florida gives a preference to shared parental responsibility, but the arrangement must first and foremost be in the best interests of the child. Specifically, if the court finds evidence that a shared parental responsibility would be detrimental to the child, the judge has discretion to award the other parent sole custody. Alternatively, the court could limit the frequency and type of visitation the parent with substance abuse problems has, such as by ordering supervised visitation. The court must analyze a long list of factors to decide what is in the child’s best interests, and evidence of substance abuse would certainly get the court’s attention. Basically, a judge is looking for any pattern of behavior that could pose a harm to the child’s mental and physical health, and potential exposure to drug use and/or a parent that would put getting drugs or alcohol before the child’s needs is problematic.

One final point worth noting is that, unlike criminal trials, a judge in a civil case can take a party’s silence as guilt. This point is important in substance abuse cases since these individuals have a tendency to deny the existence of or responsibility for the problem. Thus, if a spouse accuses the other of a cocaine habit, and the accused party refuses to confirm or deny or submit drug testing results, the judge can take this behavior as affirmation of the party’s drug problem.

Contact a Divorce Lawyer

Navigating divorce with a spouse who is addicted to alcohol or drugs is bound to present challenges. Having an experienced divorce attorney on your side, like those at Tampa Bay’s All Family Law Group, P.A., will alleviate some of the stress associated with this process. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

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+

Legal Issues Related to Domestic Violence and Divorce

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

What Qualifies as Domestic Violence According to the Law?

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

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

Is a Domestic Violence Injunction (Restraining Order) Necessary?

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

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

What Is the Impact on Child Custody?

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

Get Legal Help

If you are dealing with domestic violence issues and think that divorce may be your way out, talk to a divorce attorney about how to initiate this process in as safe a manner as possible. The All Family Law Group, P.A. represents clients in the Tampa Bay area in a variety of divorce and family law matters, and can help you take the necessary steps to getting your life in order.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Divorcing Later in Life

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

Retirement

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

Alimony

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

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

Changing Beneficiaries

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

Get Help

Divorce at any age is a difficult process, but divorce later in life brings unique considerations that should be taken into account. The Tampa Bay law firm All Family Law Group, P.A. will fully evaluate your situation, and advise you on the best course to achieve your goals, while also protecting your rights.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

What Is Supervised Visitation and When Is It Used?

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

The Purpose of Supervised Visitation and Basic Setup

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

The Process/Programs

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

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

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

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

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

Talk to a Family Law Attorney

There are few issues more important than seeing your child, and if you have questions or concerns about visitation or custody issues, talk to a family law attorney about your rights. The Tampa Bay law firm All Family Law Group, P.A. focuses on family law matters, and can assist you with obtaining the best possible resolution in your case.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+