Navigating Summer Vacations and Shared Custody of Your Child

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

Check the Parenting Plan

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

Early Planning

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

Notifications

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

Modify the Parenting Plan if Necessary

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

Contact a Family Law Attorney

Child custody disputes can quickly turn into nasty affairs that call for legal action. The Tampa Bay law firm All Family Law Group, P.A. focuses on all areas of family law, including child custody, and will fight to protect your rights as a parent. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

How Courts Treat Spousal Gifts in Divorce

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

Marital vs. Non-Marital Property

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

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

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

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

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

Spousal Gifts

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

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

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

Get Legal Advice

Your financial future is tied to the property distribution settlement in your divorce, so you want to make sure it is fair and that your rights are properly represented. The Tampa Bay law firm, All Family Law Group, P.A., understands how complicated property division can be, and are ready to answer your questions and concerns.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

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

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

New Rules Generally

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

One Big Omission

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

Get Legal Advice

Engaging with the court system on any matter, family-related or otherwise, is always a complex endeavor. If you are contemplating divorce, or have child custody issues, working with an experienced family law attorneys can have a huge impact on the final outcome. Trained attorneys understand the law behind the rules, and can best adapt his/her approach to obtain your desired outcome. The lawyers at All Family Law Group, P.A. in Tampa Bay understand how important family law cases are, and will take the time educate you on every step of the process.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Does Florida Permit Relatives to Adopt a Child?

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

Who Can Petition for a Relative Adoption?

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

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

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

Relative vs. Standard Adoption

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

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

Talk to a Tampa Florida Adoption Attorney

If you are a stepparent or relative seeking to adopt a child, you need the services of an experienced adoption attorney to ensure the process is handled correctly. While these types of adoptions are simpler, the legal requirements are still somewhat complicated. The Tampa Bay law firm All Family Law Group, P.A. will guide you through this process step-by-step, and help you to walk away with a momentous event to celebrate.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

How to Petition for a Stepparent Adoption in Florida

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

Is the Stepparent Eligible to Adopt?

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

Filing a Petition

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

Consent from Biological Parents

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

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

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

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

Contact a Florida Adoption Attorney

Adoptions are events worthy of celebration, but the correct procedure must be followed to ensure a court will authorize a petition. Working with an experienced adoption attorney can relieve the stress of wondering if your petition will be accepted, and make the entire process much more perfunctory and simple. All Family Law Group of Tampa Bay knows how to build a strong petition in favor of adoption, and is available to help you complete your family.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Child Custody Concerns for Military Personnel Post-Divorce

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

Changes to the Time-Sharing Schedule

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

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

Concurrent Custody

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

Get Legal Advice

If you or your spouse is in the military and seeking divorce, you need a divorce attorney experienced with the issues unique to this situation. Laws specific to the divorce of military personnel must be satisfied to ensure the terms of the divorce decree are valid and enforceable. The attorneys at the Tampa Bay law firm All Family Law Group, P.A. understand the rules that apply in military divorces, and will strive to give the best possible representation.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Filing for Divorce as a Stay-at-Home Spouse

When someone starts contemplating divorce, a number of considerations must be factored into the final decision. For spouses who chose to pause their career in favor of raising children, the financial implications of divorce cannot be overstated. Concerns about supporting oneself and one’s children is naturally paramount, and can specifically manifest as worries over how feasible returning to work will be, as well as the impact on the child of putting him/her in daycare. Further, staying in the family home may not be possible, and the additional issue of finding a new place to live weighs on the ramifications of ending the marriage. All this is to say that stay-at-home spouses have an enormous amount of emotional and financial stress to manage in the wake of divorce. One source of money may be available in the form of alimony, or spousal support. However, a party seeking alimony should know that these awards are rarely permanent, so some type of alternative revenue stream will need to be found at some point. Further, getting an alimony award, and making sure it is paid, is another matter altogether.

In addition, you will not automatically receive alimony after you file for divorce until the judge orders it or it is paid voluntarily.  The judge will not order it until there is a temporary hearing on the matter.  Normally the parties are required to attend mediation prior to having a temporary hearing on alimony.  Furthermore, needing support is not usually considered to be grounds for an emergency hearing as there are so many people in the divorce process who need financial support during the process that it usually is not considered an emergency.

To help stay-at-home spouses understand their options in divorce, a discussion of the types of alimony available in Florida, as well as methods of enforcing payment, will follow.

Types of Alimony

The first thing to know about alimony awards is that a court will not issue one if the judge believes the party being asked to pay does not have the ability to so, or that a need for the support exists. For stay-at-home spouses, the need for support is almost always present, and courts have discretion over how much the alimony payments will be. In addition, courts can attribute income to spouses believed to be voluntarily earning less than they could when deciding if alimony is appropriate and how much it should be.

Florida has four types of alimony: bridge-the-gap, rehabilitative, durational and permanent. Other than the permanent option, the others are temporary, and meant to provide short-term financial support while the party needing assistance finds his/her own way to generate income.

Bridge-the-gap alimony is designed to provide for short-term needs as the spouse transitions to being single, and cannot exceed two years. Rehabilitative alimony provides financial support while a party gets the education or training needed to become self-sufficient. This type of alimony would be particularly relevant for stay-at-home spouses seeking to reenter the workforce. It lasts until the rehabilitation plan is complete, circumstances change, or the party stops complying with the plan. Durational alimony is for a set period of time, and is typically used for marriages lasting less than 17 years.  Finally, permanent alimony is available for parties unable to support themselves, but is generally reserved for marriages of 17 years or more, absent extenuating circumstances. Thus, this type of alimony is unavailable for most individuals.

Enforcing Compliance

When a judge issues a court order that includes an alimony award, the payment of this support becomes a legal obligation. Many ex-spouses resent having to pay this money, and attempt to avoid it. In these situations, enforcing compliance becomes necessary. There are a number of available legal options to force the payment of alimony, including civil contempt, liens and forced sale of property and wage garnishment.

Violating an order to pay alimony is considered to be in contempt of court, and if there is evidence that the non-payment was willful, the court can punish the delinquent party with jail time, fines or both. Further, if the delinquent party has assets, such as real estate or cars, pursuing a lien against the property, followed by a writ of execution to force the sale of assets, is a good option for collecting payment. If there are no assets, petitioning for the garnishment of wages is another avenue to obtain payment. Sometimes, it is even possible to collect future payments and attorney’s fees.

Ask for Help

Figuring out the financial implications of divorce is a pressing issue, and a divorce attorney can advise you on the short- and long-term consequences of the divorce process. This is information everyone needs up front, so do not delay consulting with an attorney about these concerns, or you may risk losing valuable 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+