Can I Get Sole Custody Of My Child?

You can not get sole custody in a divorce or paternity case anymore, but you can get something close to it if warranted by the specific facts of your case, and in some cases parental rights can be terminated were there are egregious circumstances of abuse, abandonment, and/or neglect.

Under Florida law, there is no longer something called sole custody.  The law favors the involvement of both parents in a child’s life and now uses the phrases, parenting plan, time-sharing, and shared parental responsibility, to reflect the preference of Florida law for the involvement of both parents in a child’s life, rather than the historically used terms custody and visitation which imply one parent has superior rights concerning a child as compared with the other.

Sole Custody

In a typical family law, divorce, or paternity case, you can expect both parents to share time with the child.  While all time-sharing schedule are not equal time-sharing schedules, in a typical case both parents have regular overnights with their child.

In a typical case, parents are are also expected to make important decisions concerning their child together.

However, if warranted by the specific circumstances of a divorce or paternity case, the court can create an unequal time-sharing schedule,  can limit or restrict a parents communications and time-sharing with a child, and can give one parent decision making authority concerning important decisions for a child on specific issues to the exclusion of the other parent.

The court does not take such decisions lightly and a parent needs to establish a very good basis, through testimony and evidence, for the court to award sole decision making authority, or restrict a parents time-sharing and communications with their child.

Where supported by the right testimony and evidence the court can order things like no overnights, supervised time-sharing, supervised communications, and/or impose conditions on a parent they must fulfill for them to be able to be involved in shared decision making, have communications with the child, and have time-sharing with the child.

In the context of a typical divorce or paternity case, it is not realistic to expect the court to completely cut off a parent and not give them a way back into a child’s life if they do the things the court requires them to do.

In the most egregious of cases, cases of abuse, abandonment, and/or neglect, the law does provide a mechanism for the termination of parental rights.  It is also possible for a parent to voluntarily surrender their parental rights as part of an adoption or step-parent adoption proceeding. Further, depending on the circumstances parental rights can  be terminated  where a parent is incarcerated.

If you have questions about “sole custody”, “visitation”, time-sharing, parental responsibility, or the termination of parental rights contact one of our lawyers to arrange a consultation to discuss your situation and get the advice you need.

Partition, The Division of Property Between Co-Owners

You own a property with someone you planned your future with, bought it together as an investment, or obtained title together, but there comes a time when you decide you need to separate your interest in the property but the other owner won’t agree.  What do you do?  You pursue a partition action.

keys to house for partion or sale

When a property is owned jointly with another person, and you want to separate your ownership interest and sell the property but the other owner won’t cooperate you can ask the court to partition the property.  In a partition case the court can order the public or private sale of a property.   Once sold the court can determine how the proceeds of the sale should be distributed between the owners based on their ownership interests, give set-offs and credits for things like; upkeep of the property, the payment of the property’s expenses, the cost of mutually approved improvements to the property, and to the extent to which one owner is out of possession of the property they may be entitled to a portion of the fair rental value of the property from the owner in possession.

Where the joint owners are married partition is often alleged as part of a divorce case so as to give the court options beyond what equitable distribution may provide for.  Technically the partition can only happen after the parties are divorced.

If you need to separate your interests in a property from a co-owner, or need to discuss partition as part of a family law or divorce case, with an attorney with experience in partition of real property please contact us to arrange a consultation.

Should a Brokerage Account Funded with Inherited Money be Considered Marital?

In a Divorce case the court determines what assets and liabilities are marital and which are not and equitably divides the marital assets and liabilities. The Third District Court of Appeals entered an opinion in the case of Gromet v. Jensen reversing the trial court for its decision to consider three brokerage accounts funded with inherited money to be marital and subject to equitable distribution.

Of the three brokerage accounts, one had been established prior to the marriage and the two others that had been established during the marriage. All three had been funded by the Husband with money inherited from his mother. Inherited money usually starts of as being non-marital.

The Wife claimed that the brokerage accounts were marital because the Husband had deposited about $1,100 from the dissolution of a marital business into a brokerage account and because the Husband had expended marital efforts and labor in his management of the accounts such that any enhancement in value should be considered marital.

The Husband claimed that while he had managed the accounts during the marriage they had actually decreased in value because of trading losses and the use of funds to maintain the marital household. The Husband also testified that the had not deposited the $1,100 from the marital business into any of the three brokerage accounts having deposited it into a separate bank account.

The Third District Court of Appeals considered the testimony, evidence, and law in detail coming to the conclusion that the three brokerage accounts were not marital on the record before it. It reasoned that the Wife had not specified which brokerage account the $1,100 had been deposited into and did not have specific knowledge regarding the accounts such that the evidence before it was insufficient to find commingling had occurred based upon the vagueness of the Wife’s testimony and evidence concerning the deposit.

The Court then considered the Wife’s enhancement in value argument. The Court reasoned that while the Husband had actively managed the accounts during the marriage the Wife had failed to meet her burden to show an enhancement in their value had resulted from it, and that the evidence of record actually supported that they had decreased in value. Accordingly, the Wife was not entitled to any portion of the three accounts.

This case shows the importance of properly preparing for trial and presenting the right evidence to the trial court. Had a different record been established at trial through documents or testimony the outcome may have been completely different. For instance a bank record showing the deposit of the $1,100 into the initial brokerage account which was then used to fund the other two may have affected the court’s consideration of whether the accounts had become marital through commingling.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, valuation under the law, and presenting the legal arguments and evidence to the court to support your position, contact our office to arrange a consultation on (786)539-4935

Divorce, Equitable Distribution, Court Must Identify Marital Or Nonmarital Status of Assets and Liabilities and Value Them

equitable distribution assets and liabilitiesIn a divorce case with assets and liabilities, the court must identify what assets and liabilities are marital and what are non-marital and then assign values to the assets and liabilities so they can be divided in equitable distribution.

Determining what is marital and what is non-marital generally starts with a determination of what assets and debts were obtained or incurred during the marriage.

There are however some exclusions from what is considered marital even where an asset was acquired during the marriage, for instance, non-interspousal gifts, income produced by nonmarital assets, or an inheritance.

Then a court must then decide if assets and debts that existed prior to the marriage have a marital component because of concepts like gifting, enhancement, and commingling.

The assets and liabilities are then valued and equitably divided by the court.

This is not necessarily an easy process involving both legal concepts and valuation issues so you will want a lawyer with experience in such issues to present the right legal concepts and values to the court.

If a court does not determine what is marital and what is nonmarital and value the assets and liabilities in its judgment a decision can be reversed.

For instance, in Buckalew v. Buckalew, the trial court had affirmed a General Magistrates written findings of fact that did not identify what assets and liabilities were marital and what were not.  Nor did it assign values to each asset and liability.  The Fourth District Court of Appeals for the State of Florida reversed the trial court’s decision to adopt the written findings because they did not state what was marital and what was not and assign a value to each asset and liability.

A decision can also be reversed if a court does not categorize what is marital or nonmarital correctly or uses inappropriate valuation methods.

If you are facing equitable distribution issues in your divorce case you need a divorce lawyer who can help identify the issues specific to your case and help you present your case to the court.  Call us for a consultation. (786) 539-4935

When is Alimony Modifiable?

Most types of alimony available under Florida law can be modified where there has been a substantial change in circumstances.  Modification of alimony is based on need and ability to pay.

Examples of situations where a modification of alimony may be warranted include a substantial reduction in the income of the party paying alimony, an increase in the income of the party receiving alimony, a reduction in the expenses of the receiving party, or  the receiving party entering into a new supportive relationship since the judgement or agreement awarding alimony.  The court may consider if a change is temporary or permanent, whether it is voluntary or involuntary, and other such factors in making its determination. A modification of alimony can be a downwards or upwards modification.

The statutory right to modification of alimony, unless specifically waived, is as a matter of law incorporated into a judgment or agreement awarding alimony. However, modification of alimony can be waived in an agreement establishing alimony if explicitly stated in an agreement.

It the type of alimony awarded in your case is modifiable and modification is warranted by the circumstances in your case alimony may even be reduced to zero. The modification of alimony is meant to be retroactive to the date of the filing of the alimony modification action.

If you need help in a modification of alimony case or accessing if you are a good candidate to seek a modification of alimony contact us for a consultation (786) 539-4935.

 

 

 

Jeff Bezos Divorce, Hey Alexa, Can I Have a Prenuptial Agreement?

Yes, Jeff Bezos, founder of Amazon and the undisputed richest person alive is going through a divorce from his long time Wife MacKenzie Bezos.  Yes, it is fodder for divorce gossip and jokes. Yes, they have four children together and I am not sure the child support calculator can handle the math.  Yes, it is doubtful that the Bezos have a prenuptial or post marital agreement and perhaps MacKenzie is entitled to half of the Bezos’ fortune which is reportedly close to $150 billion, and child support will likely be staggering.

While one might think this the ideal launching pad for a discussion of how Jeff Bezos should have had a prenuptial agreement I think the exceptional fortune at play makes a prenuptial agreement less important for these people.

Does it really matter in their lives how many billions of dollars they have?  Is there anything either of them could not still afford to do if they split their assets? I think the lessons to be taken from this relate more to how money does not buy you happiness and that happiness and living ones life as best as one can in our limited time on this earth are more important than money.

That being said, everyone who does not have a billion dollars or more, so money does not matter to them in the event of a divorce, should be calling us right now on (786) 539-4935 to get a prenuptial agreement.

What is Mandatory Disclosure?

Mandatory disclosure is a Florida family law term referring to the production of a financial affidavit and financial documents required pursuant to Florida Family Law Rule 12.285. The rule applies to most initial and supplemental family law actions like divorce, paternity, and modification actions. Mandatory disclosure is not required in adoption actions, simplified dissolution cases, contempt cases, domestic violence cases, and cases where a divorce is by publication. The parties or court may modify these requirements, except a financial affidavit must always be filed in cases as to which the rule applies, and a child support worksheet must always be filed in cases involving children and child support.

A party must gather and provide to the other party each of the types of documents required by the mandatory disclosure rule and provide a certificate of compliance with mandatory disclosure. Required documents include things like pay stubs, tax returns, deeds, bank statements, account statements, and promissory notes. In an initial or supplemental proceeding the rule requires that mandatory disclosure be completed within 45 days of service of the initial pleading unless there is an objection to the disclosure, agreement or motion for extension of time to do so. The requirements of mandatory disclosure vary where temporary financial relief is being sought within 45 days of the filing of a petition. The parties have a duty to update their financial affidavit and documents whenever there is a material change in their financial circumstances.

If you have questions about your family case or the requirements of mandatory disclosure contact us and we can schedule a consult to help you.

What is Shared Parental Responsibility and What is Sole Parental Responsibility?

“Shared parental responsibility” is where both parents retain full rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined together. Shared parental responsibility is what is usually ordered by the courts. If the parties have shared parental responsibility but can not agree they can ask the court to decide the issue or potentially change parental responsibility.

“Sole parental responsibility” means only one parent makes decisions regarding the minor child. Where warranted by specific facts a court can order ultimate decision making authority or sole parental responsibility be given to one party concerning a child or specific issues concerning a child like, for example one parent could be awarded decision making concerning education. To award sole parental responsibility the court must make a determination that shared parental responsibility would cause detriment or harm to the child. Sole parental responsibility is not usually order by the courtsand is only awarded where warranted by the specific facts of the case.

If you have questions about shared or sole parental responsibility in your case please call our office for a consultation.

What is an Uncontested Divorce?

An “uncontested divorce” is as the name suggests a divorce without a contest, an unopposed divorce or a divorce based upon an agreement. If a Husband and Wife can reach an agreement concerning the issues in their divorce case, and the agreement is consistent with the requirements of the law, they can pursue an uncontested divorce using a divorce agreement or through the Respondent filing an Answer and Waiver to the Petition. This is not the same things as a “simplified divorce” which has its own set of additional requirements such as both the Husband and Wife having to attend the final hearing.

If the parties go the uncontested divorce route, they can usually avoid the extra expense and extra stress commonly associated with a contested divorce and can usually get divorced from one another much more quickly than in a contested divorce case. In an uncontested divorce the parties can also benefit from being able to agree to terms that fit their lives best and their best interests rather than having terms that may not fit their lives so well imposed upon them by the Court.

If you are able to agree with your spouse on the issues in your divorce case such as: the distribution of marital assets and debts, alimony or the lack of it, children’s’ issues like time-sharing, parental responsibility, and child support calculated pursuant to the guidelines, you may be good candidates for an uncontested divorce. If you would like more information on the uncontested divorce process and to find out if it may be right for you please contact us to arrange a consultation.

Wrongful Detainer, When a Person Who is Not an Owner or a Tenant Will Not Leave Your Home

It came as a complete surprise to me how frequently people try to stay in other peoples homes without a legal right to be there, and how the police may not to be very helpful in resolving the situation, and may even assist the person without ownership or tenancy in the home to gain access to it or remain there. It seems horrific that someone who forced their way into your home or whom you invited in may refuse to leave, and that the police might not assist you in having them removed, and may even tell them they have some right to be there. For instance, a friend who stays at your residence, overstays their welcome, and then refuses to leave.

If you are faced with such a situation you need to consult with an attorney to evaluate your options, determine if you are able to complete an affidavit based upon which an illegal occupant can be removed by the police, or if you do not qualify for the affidavit and need to file a wrongful detainer action to get the illegal occupant out.

A wrongful detainer action is for when you are trying to remove someone from your home; when you are the owner or legal tenant; the person you are trying to remove is not a tenant or legal owner; and there is no agreement for rent. Wrongful detainer is a distinct and separate cause of action from eviction and ejectment. It is important to file the correct cause of action to prevent unnecessary delay in getting the person illegally occupying your home out. If you have a person illegally occupying your home who is neither an owner or a tenant without an agreement for rent you scan contact us for a consultation about getting your home back.