Florida divorce law has been given a big change with the passing of a recent bill. Florida judges now have a new option in awarding alimony. known as durational alimony. The law is designed to address situations where permanent alimony is not the best option, but is the only option available. Florida law has prevuously recognized gray area marriages- those of more than a dozen or so years- as situations where permanent alimony may not be appropriate. Now, in those situations, a Florida judge can award durational alimony. An award of durational alimony is for a period of years and can be modified or terminated.
It is too soon to know whether the law will effect cases already pending or divorce already filed or how often durational alimony will be used. When it comes to alimony, entitlement and number of years for alimony are always decided on a case by case basis. Those who have specific questions about their Florida alimony case should contact a Florida family law lawyer for advice.
Showing posts with label florida divorce. Show all posts
Showing posts with label florida divorce. Show all posts
Wednesday, June 9, 2010
Tuesday, August 4, 2009
Divorce Court: understanding what a Judge can and cannot do
Much of the angst associated with divorce results from a misunderstanding of the court's role in the process. Many times I've heard, as a mediator and as an attorney, "I'll just take it to court", meaning the Judge will make all of this fair for me.
While the courts do strive for fairness, there are limits on what a judge can or cannot do, especially in the current challenging economic times where job losses and foreclosures are on the rise. No matter what the economic situation of a couple is, a judge cannot make a situation fair from an emotional standpoint.
One of the most important things a person can do to avoid a costly divorce is to avoid unrealistic expectations. No one will walk away "with everything" and no judge will decide if your spouse was a good partner to you. In addition to emotional expectations, a person's economic expectations need to be held in check as well.
The information below was excerpted from a divorce magazine article featuring Judge Toler, of Divorce Court fame:
The judiciary is required to provide both fairness and resolution, a difficult thing to do in a divorce. What could be more complicated than untangling lives that have been intertwined on every level for years? How can the law address all of the nuances of everyday life and the entire range of human behavior?
The answer is, it can't. Unfortunately, in order to achieve resolution, sometimes the law must make generalizations with respect to what is fair. So your court's answer to "how do we end this" may seem somewhat arbitrary. Sometimes the law simply has to say: "This is the way we are going to do things."
What the divorce courts say
Canada and many U.S. states, including Florida, have adopted child support guidelines, a mathematical formula in which you plug in the numbers (income and the like) and do the math, and out comes the support amount.
In a community property state, the court looks to divide marital property 50/50, no matter who made what during the course of the marriage.
In an "all property" state, the law may not distinguish between marital and separate property at all.
Canada and most U.S. states (with the notable exception of New York, where fault is an issue in contested divorces) provide no-fault divorces. That means the court will not consider either spouse's misconduct during the marriage in determining support or property division, except in cases where a spouse's misconduct has depleted assets.
These generalizations notwithstanding, it doesn't mean that a judge has no ability to make equitable determinations based on individual circumstances. Judges almost always have some judicial discretion. That's the leeway the law gives to judges in implementing those general rules. Sometimes, the law will give the judge the ability to consider not only the factors outlined by the statute but also any other factors that will promote a just and fair outcome. In some no-fault jurisdictions, a judge can consider a party's misconduct if that party's actions are sufficiently outrageous or depleted the marital assets. Even when the law requires judges to follow mathematical support guidelines, a judge may deviate from them in certain situations, although they are typically required to provide written support for their decision.
In sum, the Court tries to strike a balance between applying the law and being fair. But, in the end, the court gives you the most important thing of all: resolution.
While the courts do strive for fairness, there are limits on what a judge can or cannot do, especially in the current challenging economic times where job losses and foreclosures are on the rise. No matter what the economic situation of a couple is, a judge cannot make a situation fair from an emotional standpoint.
One of the most important things a person can do to avoid a costly divorce is to avoid unrealistic expectations. No one will walk away "with everything" and no judge will decide if your spouse was a good partner to you. In addition to emotional expectations, a person's economic expectations need to be held in check as well.
The information below was excerpted from a divorce magazine article featuring Judge Toler, of Divorce Court fame:
The judiciary is required to provide both fairness and resolution, a difficult thing to do in a divorce. What could be more complicated than untangling lives that have been intertwined on every level for years? How can the law address all of the nuances of everyday life and the entire range of human behavior?
The answer is, it can't. Unfortunately, in order to achieve resolution, sometimes the law must make generalizations with respect to what is fair. So your court's answer to "how do we end this" may seem somewhat arbitrary. Sometimes the law simply has to say: "This is the way we are going to do things."
What the divorce courts say
Canada and many U.S. states, including Florida, have adopted child support guidelines, a mathematical formula in which you plug in the numbers (income and the like) and do the math, and out comes the support amount.
In a community property state, the court looks to divide marital property 50/50, no matter who made what during the course of the marriage.
In an "all property" state, the law may not distinguish between marital and separate property at all.
Canada and most U.S. states (with the notable exception of New York, where fault is an issue in contested divorces) provide no-fault divorces. That means the court will not consider either spouse's misconduct during the marriage in determining support or property division, except in cases where a spouse's misconduct has depleted assets.
These generalizations notwithstanding, it doesn't mean that a judge has no ability to make equitable determinations based on individual circumstances. Judges almost always have some judicial discretion. That's the leeway the law gives to judges in implementing those general rules. Sometimes, the law will give the judge the ability to consider not only the factors outlined by the statute but also any other factors that will promote a just and fair outcome. In some no-fault jurisdictions, a judge can consider a party's misconduct if that party's actions are sufficiently outrageous or depleted the marital assets. Even when the law requires judges to follow mathematical support guidelines, a judge may deviate from them in certain situations, although they are typically required to provide written support for their decision.
In sum, the Court tries to strike a balance between applying the law and being fair. But, in the end, the court gives you the most important thing of all: resolution.
Tuesday, July 21, 2009
Florida’s relocation statute and proposed changes
A couple of years ago, Florida lawmakers modified the relocation statute to include a rather strict set of requirements for a primary residential parent seeking to leave the state, or the geographical area, with the minor children. Currently, only the primary parent needs to take these steps prior to relocating. But, if a non-residential parent leaves the state, or moves more than 50 miles away, chances are good that the time sharing schedule with the children will change. This is often the subject of much after the fact litigation as the non residential parent moves and then seeks to modify or enforce visits with the children. A proposed change in the law may affect the non residential parent who doesn’t take steps to address the timesharing schedule before moving.
The proposed new law will require the non-residential parent to file a Notice of Relocation similar to the one a primary parent is now required to file. The notice will have to include a proposed time sharing schedule. If the parents cannot reach an agreement, the Court will hold a hearing and set a time sharing schedule which takes into account the travel distance between the child or children and the relocating non-residential parent. The Court may also address the issue of who will be responsible for travel expenses and whether the non-residential parent should receive an offset against child support for these expenses.
There is also a provision addressing the situation where the parent who moves away spends less time with the children. In such cases, child support may be modified upward to take into account the increased expenses borne by the residential parent.
It is too soon to say what provisions will be included, or whether the law will change at all. However, given the new timesharing statute and the trend towards more parents spending equal time with their children, it is clear that the state lawmakers need to set rules in place for situations where either parent moves away, especially since there is no longer a primary residential parent designation.
The proposed new law will require the non-residential parent to file a Notice of Relocation similar to the one a primary parent is now required to file. The notice will have to include a proposed time sharing schedule. If the parents cannot reach an agreement, the Court will hold a hearing and set a time sharing schedule which takes into account the travel distance between the child or children and the relocating non-residential parent. The Court may also address the issue of who will be responsible for travel expenses and whether the non-residential parent should receive an offset against child support for these expenses.
There is also a provision addressing the situation where the parent who moves away spends less time with the children. In such cases, child support may be modified upward to take into account the increased expenses borne by the residential parent.
It is too soon to say what provisions will be included, or whether the law will change at all. However, given the new timesharing statute and the trend towards more parents spending equal time with their children, it is clear that the state lawmakers need to set rules in place for situations where either parent moves away, especially since there is no longer a primary residential parent designation.
Thursday, July 2, 2009
DO IT YOURSELF DIVORCE PART FOUR: PREPARING A SETTLEMENT AGREEMENT
In the last do it yourself divorce article, I discussed how reaching an agreement is only a step in the process. A parenting plan and marital settlement agreement must be prepared and filed with the Court. This is another area where do it yourself divorce participants can run into trouble. Since most do it yourself divorce participants do not have experience in drafting divorce agreements, its not uncommon to miss important details and end up with an incomplete agreement.
One of the most common omissions is a detailed parenting plan. Many people believe they will simply work matters out as they arise and do not create detailed schedules for timesharing, holidays or vacation time. Do it yourself divorce participants may also forget to discuss extracurricular activities or college expenses. If a dispute arises later, some of these items may be waived because they are not included in a settlement agreement. It is important to take the time to address each and every issue before a problem arises. A divorce attorney or family law mediator may be of assistance in helping a do it yourself divorcing couple identify and reach agreement on all children-related issues.
A do it yourself divorce agreement may also lack time parameters or specifics for the sale or transfer of property. For example, if one person is going to keep a house or other property and needs to refinance to remove the other person’s name, the do it yourself divorce agreement may fail to state when the refinance will take place. Or, if a property is to be sold, the do it yourself divorce agreement may have no language about selecting a realtor, agreeing on a sales price or what to do about repairs and expenses before the home or property is sold.
The above are only a few examples of details that may be overlooked in a do it yourself divorce agreement. It is important to be as specific as possible in order to avoid problems and disputes down the road. Anyone who has specific questions about a do it yourself divorce agreement should consult a divorce attorney.
In the next post, I will discuss the last stage of the divorce process- the final hearing- as well as the matters that come up after a divorce becomes final.
One of the most common omissions is a detailed parenting plan. Many people believe they will simply work matters out as they arise and do not create detailed schedules for timesharing, holidays or vacation time. Do it yourself divorce participants may also forget to discuss extracurricular activities or college expenses. If a dispute arises later, some of these items may be waived because they are not included in a settlement agreement. It is important to take the time to address each and every issue before a problem arises. A divorce attorney or family law mediator may be of assistance in helping a do it yourself divorcing couple identify and reach agreement on all children-related issues.
A do it yourself divorce agreement may also lack time parameters or specifics for the sale or transfer of property. For example, if one person is going to keep a house or other property and needs to refinance to remove the other person’s name, the do it yourself divorce agreement may fail to state when the refinance will take place. Or, if a property is to be sold, the do it yourself divorce agreement may have no language about selecting a realtor, agreeing on a sales price or what to do about repairs and expenses before the home or property is sold.
The above are only a few examples of details that may be overlooked in a do it yourself divorce agreement. It is important to be as specific as possible in order to avoid problems and disputes down the road. Anyone who has specific questions about a do it yourself divorce agreement should consult a divorce attorney.
In the next post, I will discuss the last stage of the divorce process- the final hearing- as well as the matters that come up after a divorce becomes final.
Do it yourself Divorce Part Three: Timesharing, Parenting Plans and Child Support
In a do it yourself divorce, the devil is often in the details. Many potential clients tell me that their divorce will be “uncontested” and that they and their spouse “agree on everything”. More often than not, people believe this to be the case only because they have discussed the big picture and not the details. Once two people begin discussing how much money one will pay the other for child support and who will spend this Christmas with the children, a seemingly uncontested divorce suddenly becomes anything but and the desire to remain amicable is replaced with threats about going to court.
As a Florida family law mediator, I find that the biggest disputes arise over child support, alimony or time sharing. In a do it yourself divorce, even the most amicable divorcing couples can find themselves taking different sides when it comes to matters involving parenting plans, support issues, i.e., child support or alimony and children. It is common to disagree on these aspects, because, after all, you are getting divorced. Do it yourself divorcing parties often reach a stalemate on these issues. Caught between the desire to handle the divorce themselves and the mounting frustration of not being able to reach agreement, many abandon the do it yourself divorce at this point and decide to simply battle it out in court.
In part two of this do it yourself divorce series, I urged anyone with questions about finances to consult with a divorce attorney and possibly a financial professional as well. Assuming there are no questions about income, the do it yourself divorce may be able to proceed with a little assistance. Using the services of a mediator may be very helpful in resolving a disagreement and getting both sides to reach a compromise. While a mediator cannot give you legal advice (and, as discussed previously, if you have questions about your child support or alimony rights or obligations, you should consult with a divorce attorney) he/she can help you work towards a settlement that you can both live with. Using the services of a family law mediator may cost more than a do it yourself divorce, but it may save you money in the long run if you are able to come to terms with your spouse. A family law mediator can also put your agreement and your parenting plan into writing so that you have a settlement agreement to file with the court.
A disagreement about time sharing, or a parenting plan, or even how to prepare a parenting plan are all issues that can cause parties to abandon the do it yourself divorce concept. Before “taking this to Court”, as many people indicate they wish to do when a disagreement arises, both parties need to keep in mind their reasons for choosing the do it yourself divorce process. Generally, the well being of the children is the main reason for trying to avoid court in the first place. When it comes to your children, you and your spouse are in the best position to decide what is in their best interest in terms of time sharing and making decisions about their health education or well being. While you may disagree on these issues, it is rare that anyone- parents and children included- will be happy with a Court Ordered schedule. This is another situation where it might be helpful to use the services of a divorce mediator to help you reach an agreement or to prepare your parenting plan.
Keep in mind that “agreeing on everything” is not the end of the process. A settlement agreement must be prepared and filed with the Court. In the next article, I’ll discuss the preparation of a settlement agreement and how to avoid the do it yourself divorce pitfalls.
As a Florida family law mediator, I find that the biggest disputes arise over child support, alimony or time sharing. In a do it yourself divorce, even the most amicable divorcing couples can find themselves taking different sides when it comes to matters involving parenting plans, support issues, i.e., child support or alimony and children. It is common to disagree on these aspects, because, after all, you are getting divorced. Do it yourself divorcing parties often reach a stalemate on these issues. Caught between the desire to handle the divorce themselves and the mounting frustration of not being able to reach agreement, many abandon the do it yourself divorce at this point and decide to simply battle it out in court.
In part two of this do it yourself divorce series, I urged anyone with questions about finances to consult with a divorce attorney and possibly a financial professional as well. Assuming there are no questions about income, the do it yourself divorce may be able to proceed with a little assistance. Using the services of a mediator may be very helpful in resolving a disagreement and getting both sides to reach a compromise. While a mediator cannot give you legal advice (and, as discussed previously, if you have questions about your child support or alimony rights or obligations, you should consult with a divorce attorney) he/she can help you work towards a settlement that you can both live with. Using the services of a family law mediator may cost more than a do it yourself divorce, but it may save you money in the long run if you are able to come to terms with your spouse. A family law mediator can also put your agreement and your parenting plan into writing so that you have a settlement agreement to file with the court.
A disagreement about time sharing, or a parenting plan, or even how to prepare a parenting plan are all issues that can cause parties to abandon the do it yourself divorce concept. Before “taking this to Court”, as many people indicate they wish to do when a disagreement arises, both parties need to keep in mind their reasons for choosing the do it yourself divorce process. Generally, the well being of the children is the main reason for trying to avoid court in the first place. When it comes to your children, you and your spouse are in the best position to decide what is in their best interest in terms of time sharing and making decisions about their health education or well being. While you may disagree on these issues, it is rare that anyone- parents and children included- will be happy with a Court Ordered schedule. This is another situation where it might be helpful to use the services of a divorce mediator to help you reach an agreement or to prepare your parenting plan.
Keep in mind that “agreeing on everything” is not the end of the process. A settlement agreement must be prepared and filed with the Court. In the next article, I’ll discuss the preparation of a settlement agreement and how to avoid the do it yourself divorce pitfalls.
Sunday, June 28, 2009
DO IT YOURSELF DIVORCE PART TWO: GATHERING THE ESSENTIAL FINANCIALS
In the first article about do it yourself divorce, I discussed what to do before getting started. The next step in the do it yourself divorce process is very important in deciding whether this is right for you.
Florida divorce law requires that parties getting divorce file financial affidavits and list all of their assets and liabilities. In order to draft a complete Marital Settlement Agreement, you need to know everything you own and everything you owe. This would include all bank accounts, credit card statements and retirement accounts. It is highly recommended in do it yourself divorce situations that you obtain current statements for each and every account that you and your spouse have, whether the account is in one or both names. In a do it yourself divorce situation, you and your spouse should be on good enough terms that you share this information with one another. All of this information must be listed on a financial affidavit and both parties must sign under oath that they have provided full disclosure to one another of all assets and liabilities and that the information provided is truthful and accurate. You will need this information to decide how you are going to divide your assets and liabilities.
Once you have a Florida financial affidavit and all information about your assets and liabilities, questions may arise. Is an asset or liability marital or nonmarital? How do you split credit card debt? What happens with a retirement account that began before the marriage? What about pensions and profit sharing? A divorce lawyer can advise you about whether an asset or liability is marital or non marital. This is one of the things that should be addressed in your initial divorce consultation. Credit card debt can be a tricky issue if both parties names are on a specific credit card and the debt is to be split. In a do it yourself divorce situation, you need to think about how you are going to divide this debt and how you will protect yourself and your credit if your spouse does not pay his or her share. When it comes to retirement accounts and pensions, you may want to consider hiring a financial professional to perform a valuation of the account, pension or profit sharing. You should also speak with your divorce lawyer about your obligation to divide these assets or your rights to a portion of these assets.
The Florida financial affidavit also requires that both parties list their incomes. What happens if you do not know your monthly income? This is a common question for business owners or those who are paid by commissions. In those situations, it is important to speak with a financial professional, such as an accountant, to get advise regarding how to calculate your monthly income. If you have questions about how much your spouse earns, you should address these questions with a divorce lawyer or an accountant.
These are just a few examples of questions and issues that may arise during the do it yourself divorce process. The financial portion of a divorce may be the most challenging aspect in the do it yourself divorce process. The important thing to keep in mind is that many decisions you make in this part of the process may be binding and non-modifiable so it is crucial that all of your questions are answered before you proceed. If you have questions or concerns about these or other financial aspects of your divorce, speak with your divorce lawyer or accountant before making any decisions about dividing property, assets and liabilities.
Florida divorce law requires that parties getting divorce file financial affidavits and list all of their assets and liabilities. In order to draft a complete Marital Settlement Agreement, you need to know everything you own and everything you owe. This would include all bank accounts, credit card statements and retirement accounts. It is highly recommended in do it yourself divorce situations that you obtain current statements for each and every account that you and your spouse have, whether the account is in one or both names. In a do it yourself divorce situation, you and your spouse should be on good enough terms that you share this information with one another. All of this information must be listed on a financial affidavit and both parties must sign under oath that they have provided full disclosure to one another of all assets and liabilities and that the information provided is truthful and accurate. You will need this information to decide how you are going to divide your assets and liabilities.
Once you have a Florida financial affidavit and all information about your assets and liabilities, questions may arise. Is an asset or liability marital or nonmarital? How do you split credit card debt? What happens with a retirement account that began before the marriage? What about pensions and profit sharing? A divorce lawyer can advise you about whether an asset or liability is marital or non marital. This is one of the things that should be addressed in your initial divorce consultation. Credit card debt can be a tricky issue if both parties names are on a specific credit card and the debt is to be split. In a do it yourself divorce situation, you need to think about how you are going to divide this debt and how you will protect yourself and your credit if your spouse does not pay his or her share. When it comes to retirement accounts and pensions, you may want to consider hiring a financial professional to perform a valuation of the account, pension or profit sharing. You should also speak with your divorce lawyer about your obligation to divide these assets or your rights to a portion of these assets.
The Florida financial affidavit also requires that both parties list their incomes. What happens if you do not know your monthly income? This is a common question for business owners or those who are paid by commissions. In those situations, it is important to speak with a financial professional, such as an accountant, to get advise regarding how to calculate your monthly income. If you have questions about how much your spouse earns, you should address these questions with a divorce lawyer or an accountant.
These are just a few examples of questions and issues that may arise during the do it yourself divorce process. The financial portion of a divorce may be the most challenging aspect in the do it yourself divorce process. The important thing to keep in mind is that many decisions you make in this part of the process may be binding and non-modifiable so it is crucial that all of your questions are answered before you proceed. If you have questions or concerns about these or other financial aspects of your divorce, speak with your divorce lawyer or accountant before making any decisions about dividing property, assets and liabilities.
Do it yourself Divorce Part One: Know Before You Begin
Do-it-yourself divorce is becoming more popular these days, especially among those who feel that they can’t afford to divorce. Many divorcing couples also fear that hiring divorce lawyers will lead to emotional and costly battles over children, property and finances, so they are opting for the do it yourself divorce. There are a wide range of options for DIY divorce, including using an online divorce service, obtaining a large pile of divorce forms from the Clerk’s office, mediation or hiring a divorce lawyer to draft or review a Marital Settlement Agreement. The DIY divorce may not work for many, but it also may be the only financially feasible option for those who cannot afford to divorce. No article can take the place of legal advice- but this five part series will give some tips for the do-it-yourself divorce process.
Before embarking on a do-it-yourself divorce, it is important to know what the issues are and what you can and should expect in terms of timesharing, support (child support and alimony, if it applies) and dividing property and liabilities. It is highly encouraged that the first step should be to consult with a divorce attorney. While this is the step that most do it yourself divorce seekers want to avoid, it is crucial to have an understanding of divorce law and your rights. Too many times people in do it yourself divorce situations enter into a settlement agreement and forget to include things only to find out later that either they have waived their rights or that they will now have to spend even more money clarifying their Marital Settlement Agreement. A free divorce consultation may sound tempting, but will likely be a brief meeting with little information provided about how to go forward with the divorce process. It is recommended that you have a thorough initial consultation with a divorce attorney to discuss your children, proposed timesharing, your income, assets and liabilities. During this initial divorce consultation, a divorce lawyer can give you suggestions on how to divide property, calculate child support and divide assets. A divorce lawyer can also discuss with you the information you need to gather in order to make decisions as well as the potential problems that may arise. The cost of an initial divorce consultation may be a small price to pay considering what is at stake.
During an initial divorce consultation, there are several items that must be addressed. If you have children, your divorce lawyer should explain to you the changes in Florida law regarding parenting plans and time sharing. Florida law now requires a parenting plan in all divorce cases, so your do it yourself divorce plan should take this into consideration. You can also discuss with your divorce attorney whether or not to include extras such as college tuition and extracurricular activities. During the initial divorce consultation, your divorce attorney can also review the particulars of your financial situation, especially the big concern for most do it yourself divorce seekers, which is the residence. Your divorce lawyer can discuss with you whether you should keep your house or sell it, who will live in the house until it is is sold and how you will pay not only the monthly bills but any expenses and repairs that arise. In order to have a complete Marital Settlement Agreement, you need to be aware of these concerns.
These are just a few of the concerns you need to discuss with a divorce lawyer. There may be more depending on your specific situation. In the next article, I will discuss how to become familiar with your financial situation and how to deal with questions about assets, liabilities and income.
The information included in this article has been prepared by Lori Barkus, Esq. for information purposes only and is not intended to be a substitute for legal advise from your own legal counsel. Transmission of such information is not intended to create, and receipt does not constitute, an attorney-client relationship between Lori Barkus, Esq. and the receiver. No information in this article should be acted upon any person, entity or firm without first obtaining proper legal advise. Please feel free to contact us for a free case evaluation. However, be advised that the act of sending electronic mail or any telephone communication with Lori Barkus, Esq. or Lori Barkus P.A. does not in and of itself create an attorney-client relationship.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements or articles written by the attorney. Before you decide, ask us to send you free written information about our qualifications and experience.
Before embarking on a do-it-yourself divorce, it is important to know what the issues are and what you can and should expect in terms of timesharing, support (child support and alimony, if it applies) and dividing property and liabilities. It is highly encouraged that the first step should be to consult with a divorce attorney. While this is the step that most do it yourself divorce seekers want to avoid, it is crucial to have an understanding of divorce law and your rights. Too many times people in do it yourself divorce situations enter into a settlement agreement and forget to include things only to find out later that either they have waived their rights or that they will now have to spend even more money clarifying their Marital Settlement Agreement. A free divorce consultation may sound tempting, but will likely be a brief meeting with little information provided about how to go forward with the divorce process. It is recommended that you have a thorough initial consultation with a divorce attorney to discuss your children, proposed timesharing, your income, assets and liabilities. During this initial divorce consultation, a divorce lawyer can give you suggestions on how to divide property, calculate child support and divide assets. A divorce lawyer can also discuss with you the information you need to gather in order to make decisions as well as the potential problems that may arise. The cost of an initial divorce consultation may be a small price to pay considering what is at stake.
During an initial divorce consultation, there are several items that must be addressed. If you have children, your divorce lawyer should explain to you the changes in Florida law regarding parenting plans and time sharing. Florida law now requires a parenting plan in all divorce cases, so your do it yourself divorce plan should take this into consideration. You can also discuss with your divorce attorney whether or not to include extras such as college tuition and extracurricular activities. During the initial divorce consultation, your divorce attorney can also review the particulars of your financial situation, especially the big concern for most do it yourself divorce seekers, which is the residence. Your divorce lawyer can discuss with you whether you should keep your house or sell it, who will live in the house until it is is sold and how you will pay not only the monthly bills but any expenses and repairs that arise. In order to have a complete Marital Settlement Agreement, you need to be aware of these concerns.
These are just a few of the concerns you need to discuss with a divorce lawyer. There may be more depending on your specific situation. In the next article, I will discuss how to become familiar with your financial situation and how to deal with questions about assets, liabilities and income.
The information included in this article has been prepared by Lori Barkus, Esq. for information purposes only and is not intended to be a substitute for legal advise from your own legal counsel. Transmission of such information is not intended to create, and receipt does not constitute, an attorney-client relationship between Lori Barkus, Esq. and the receiver. No information in this article should be acted upon any person, entity or firm without first obtaining proper legal advise. Please feel free to contact us for a free case evaluation. However, be advised that the act of sending electronic mail or any telephone communication with Lori Barkus, Esq. or Lori Barkus P.A. does not in and of itself create an attorney-client relationship.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements or articles written by the attorney. Before you decide, ask us to send you free written information about our qualifications and experience.
Friday, May 29, 2009
The myth of 50/50 timesharing
Since the passing of the new parenting bill, many have believed that Florida is now a 50/50 time sharing state. While the words "custodial" and/or "primary residential" parent are no longer used, this does not mean that children will spend equal time with each parent in each and every case.
First, Nothing in the Florida law says that there is to be equal time with each parent. Instead, the law makes it clear that timesharing is to be determined based upon the unique circumstances of each and every family. There are several factors which judges need to review in order to make this decision, including, the amount of time each parent spends with the children and the amount of involvement in specific parenting tasks. The simple statement by a parent that he or she wants 50/50 timesharing simply is not enough.
Second, as most of us recognize, there simply cannot be a "one size fits all" approach to parenting. What works for one family may not work for another. It is also important to keep in mind that the standard is what is in the best interest of the child. Although this would seem to be on everyone's mind, those that fight to divide their children's time to be exactly equal may be ignoring the wants and needs of the particular child or children. How much time a child spends with either parent depends on the age of the child, the activities of the child and other factors. This does not mean, and judge would appear to agree, that it is always in the children's best interest to spend only alternating weekends with one parent either. The bottom line is that any parenting plan and timesharing schedule needs to be tailored to the particular family, with special consideration to the needs of the children involved
First, Nothing in the Florida law says that there is to be equal time with each parent. Instead, the law makes it clear that timesharing is to be determined based upon the unique circumstances of each and every family. There are several factors which judges need to review in order to make this decision, including, the amount of time each parent spends with the children and the amount of involvement in specific parenting tasks. The simple statement by a parent that he or she wants 50/50 timesharing simply is not enough.
Second, as most of us recognize, there simply cannot be a "one size fits all" approach to parenting. What works for one family may not work for another. It is also important to keep in mind that the standard is what is in the best interest of the child. Although this would seem to be on everyone's mind, those that fight to divide their children's time to be exactly equal may be ignoring the wants and needs of the particular child or children. How much time a child spends with either parent depends on the age of the child, the activities of the child and other factors. This does not mean, and judge would appear to agree, that it is always in the children's best interest to spend only alternating weekends with one parent either. The bottom line is that any parenting plan and timesharing schedule needs to be tailored to the particular family, with special consideration to the needs of the children involved
Tuesday, October 7, 2008
What Florida’s parenting bill will and will not do
I received numerous comments on the last blog entry, most equal in their convictions either for or against the new law. Based on the comments I read, there appears to be confusion as to what the new law actually does.
First, the law does not automatically provide for joint and rotating custody. This is the most important misunderstanding that needs to be correct. The law rewrites the entire statute, eliminating phrases such as “primary” and “secondary” parent as well as the words “visitation” and “custody”. These concepts were viewed as insulting to parents and often caused parties to litigate over who would receive which label. The “new” concept, really not new at all, is that both parents have the right to parent their children and share time with them. This only means that children are not viewed as possessions and parents as having a rank in terms of importance. We begin with the premise that both parents are equal in their children’s lives.
When it comes to the timesharing arrangements and the parenting plan, the court will still, as it has always tried to do, take into account the best interests of the children. The new law left out language about joint and rotating custody and, instead, gave judges a checklist of factors, some old and some new, to evaluate in determining time sharing between the two parents, including the history of involvement by both parents. This, of course, assumes that the judge has to make that decision and I’ve never met a judge who wanted to do that. There is no aspect of a divorce that parties are more strongly encourage to work out on their own than the time they spend with their children. And the new law has given them yet another way to encourage parties to do that.
In all Florida divorce cases where there are minor children, the parents are required to submit a detailed parenting plan. The plan specifies who will do what and the where’s and when’s of the parents interaction with their children. This portion is still being fine tuned by the legislative portion of the Florida Bar, but the goal is to eliminate conflict over who drives to soccer practice, whether the children contact mom or dad on their cell phones and a multitude of other issues which would previously have to be addressed in front of a judge, at a cost of two lawyers and a good deal of wait time.
Last, but not least, the new law provides a form of recourse when either parent does not abide by the time sharing schedule. This is designed to eliminate a situation where one parent seeks additional time with the children to avoid paying the full amount of child support which would otherwise be required.
It is too early to say how the judges will apply the new law. That information will come in time. But the hope is that the new law will eliminate many of the bitter contested battles that have plagued family courts, families, and, most importantly, children.
First, the law does not automatically provide for joint and rotating custody. This is the most important misunderstanding that needs to be correct. The law rewrites the entire statute, eliminating phrases such as “primary” and “secondary” parent as well as the words “visitation” and “custody”. These concepts were viewed as insulting to parents and often caused parties to litigate over who would receive which label. The “new” concept, really not new at all, is that both parents have the right to parent their children and share time with them. This only means that children are not viewed as possessions and parents as having a rank in terms of importance. We begin with the premise that both parents are equal in their children’s lives.
When it comes to the timesharing arrangements and the parenting plan, the court will still, as it has always tried to do, take into account the best interests of the children. The new law left out language about joint and rotating custody and, instead, gave judges a checklist of factors, some old and some new, to evaluate in determining time sharing between the two parents, including the history of involvement by both parents. This, of course, assumes that the judge has to make that decision and I’ve never met a judge who wanted to do that. There is no aspect of a divorce that parties are more strongly encourage to work out on their own than the time they spend with their children. And the new law has given them yet another way to encourage parties to do that.
In all Florida divorce cases where there are minor children, the parents are required to submit a detailed parenting plan. The plan specifies who will do what and the where’s and when’s of the parents interaction with their children. This portion is still being fine tuned by the legislative portion of the Florida Bar, but the goal is to eliminate conflict over who drives to soccer practice, whether the children contact mom or dad on their cell phones and a multitude of other issues which would previously have to be addressed in front of a judge, at a cost of two lawyers and a good deal of wait time.
Last, but not least, the new law provides a form of recourse when either parent does not abide by the time sharing schedule. This is designed to eliminate a situation where one parent seeks additional time with the children to avoid paying the full amount of child support which would otherwise be required.
It is too early to say how the judges will apply the new law. That information will come in time. But the hope is that the new law will eliminate many of the bitter contested battles that have plagued family courts, families, and, most importantly, children.
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