Recent Blog Posts

What is Shared Parental Responsibility?

Damien McKinney — Wed, 08 May 2013 20:05:00 GMT

The Florida Legislature has defined “shared parental responsibility” as a court ordered relationship between parents of a minor child in which both parents confer with each other and make decisions that affect their child jointly. The parents should consult with each other on decisions regarding the child’s religious upbringing, discipline, financial, moral, social, recreational and legal matters, school and educational matters and non-emergency health care, both medical and dental. As a tenet of shared parental responsibility, the parents are to conduct themselves in a mature and proper manner, and avoid heated conflicts in front of the children. If the child becomes sick, the parents should notify the other parent immediately of any illness. The same goes for any accidents the children are involved in. Both parents have the right to know if their child is sick or injured while in the care of the other parent. Also, the parents should have free access to records pertaining to the children, such as medical records, school records and dental records.

Each parent should be entitled to authorize emergency medical treatment for the child. Further, the parents should openly encourage the children to have free access and a healthy relationship with the other parent. The parents should facilitate contact with the other parent while the child is in their care, such as making sure the children call or e-mail the other parent. The courts get very concerned when a parent actively tries to estrange the children for the other parent. If parents fail to create a loving environment that encourages and fosters a health relationship with the other they could be subject to severe penalties, such as contempt, imprisonment or loss of time sharing with the minor child.

Why am I going to mediation and what can I expect?

Kelly Tobaygo — Thu, 02 May 2013 19:00:00 GMT

The short answer to why you are going is because it is probably required; there are some counties around the Tampa Bay area (Hillsborough, for example) that require mediation before a divorce case can be set for trial. The other answer is because, almost without fail, it will result in a better outcome than if you left the case up to a judge at trial. Mediation gives you control over the decisions. It lets you negotiate for things that are important to you, and sacrifice those that may not matter to you. Often times, spouses value different things. Mediation will allow spouses to both walk away with an agreement that they are pleased with because it is their agreement, not a court order created by a disinterested third party. The spouses are the ones who control mediation, who decide what is acceptable and what is not acceptable, who decide which person gets what asset or which holiday with the children. At mediation, nobody can force you to agree to anything. If your case goes to trial, both parties may walk away with everything they didn’t want, because a judge may take everything and split it down the middle, without considering who has a personal connection with a certain holiday or piece of personal property. Settling a case at mediation is without a doubt the best way to resolve your family law case.

When you go to mediation, you should have already met with your attorney and have a game plan. Your attorney should know your goals, big and small, and have an idea of where you would like to start the negotiation, as well as where your “bottom line” is on all of the major issues. If you are attending mediation with a private mediator, you should prepare for a long day, which may get emotional or stressful. It is important to not give up, and to stay engaged the entire time. Your attorney and the mediator will be able to help you with this, as they will be able to explain things from an objective perspective, and help with a cost-benefit analysis of all options presented. The most important thing you can do to ensure a successful mediation is to prepare, prepare, prepare. Meet with you attorney and build a relationship with him or her so that you trust that they are helping you make the right decisions during this extremely difficult process. An experienced family law attorney will be able to keep your goals in mind throughout the entire negotiation and mediation process.

What Can I Expect at My Initial Consultation?

Kelly Tobaygo — Wed, 01 May 2013 19:00:00 GMT

The first step in almost all divorce cases is an initial consultation with an attorney, or multiple attorneys. Most people arrive for a consultation with a list of questions they want answered or topics they want to discuss. Having a goal for your initial consultation is important, as it will help your attorney get to know you and understand what you want out of your case. What is equally important is being prepared for your meeting with your attorney. In order to answer questions like “how much time can I expect to have with my children?” or “how much alimony can I expect to pay/receive?” or “what is going to happen with the house?” your attorney will need some information from you. You may receive a brief questionnaire to complete prior to your arrival, and it may seem to ask some detailed, personal questions, and it probably does. In order to properly advise you, your attorney will need to know things about you, your spouse, your marriage, your family, and your financial situation. You should arrive to your initial consultation prepared to discuss any retirement accounts, savings, investments, debt, real property, and any other assets you may own; the types of accounts, the date acquired, and a rough value will be important. Additionally, you should be able to provide a brief description of your marriage and of your spouse – the type of relationship you currently have, the relationship you both have with your children, the division of household duties, and anything else that you feel is relevant. While it might be uncomfortable to share these intimate details with a stranger, it is necessary in order to get effective representation. You can rest assured that the information you provide will not be shared with anyone other than any necessary persons (i.e. paralegals or experts working on the case), as everything revealed while speaking with an attorney is confidential and protected by the attorney-client privilege.

Contested vs. Uncontested Divorce

Kelly Tobaygo — Tue, 30 Apr 2013 18:55:00 GMT

If you have been researching divorce online, you have probably come across the terms “contested” and “uncontested”, but might not know the difference. Generally speaking, a contested divorce is the type most people are familiar with; one person files papers, the other is served, there are court dates, mediations, and most of the time a settlement, but sometimes the case proceeds all the way to trial. An uncontested case is handled almost entirely pre-suit. What this means, is that the parties generally have come to a full agreement on all of the issues within a divorce case (alimony, child support, asset and debt division, attorney’s fees, timesharing, and parental responsibility) before either party files for divorce, and most of the time before they consult with or hire an attorney. There is very little negotiation involved in an uncontested divorce; it is mostly comprised of drafting all of the mandatory pleadings and contracts, filing these documents with the court, and attending the final uncontested hearing. While it may feel like the attorney is working for both parties, it is important to remember that one attorney cannot represent both parties in a lawsuit, and a divorce, even an agreed upon uncontested case, is still a lawsuit. This means that both parties cannot meet with and discuss the case with the same attorney, or get advice from the same attorney.

Uncontested divorces are most common in short-term marriages that do not have substantial assets or debts to split up, and often without children. While these are not requirements to have an uncontested divorce, the more complicated your marriage, the less likely it is that you will be able to proceed with an uncontested divorce. The best way to determine if an uncontested divorce is right for your case is to have a consultation with a knowledgeable family law attorney.

How Long Will My Case Take?

Kelly Tobaygo — Mon, 29 Apr 2013 18:54:00 GMT

One of the most common questions clients ask their family law attorney is “How long will my case take?” The answer to this question, like most things in family law, is often difficult to predict. The best answer is that it depends on you and your spouse or opposing party. If you have discussed the situation with them, and have some idea of where you want the case to go, your case will be resolved much more quickly than if the entire divorce is a surprise or if the situation is contentious. If you and your spouse are in agreement on some issues and just want to make sure all of the loose ends are tied up and all of your documents are drafted property, you may be interested in an uncontested divorce, which is often the quickest way to resolve your case. However, even if you and your spouse are in agreement on most of the issues in your case, things like a home appraisal or business valuation may slow down the process if they become necessary in your case.

The length your marriage, the amount you own and owe, and whether you have children are all factors that will impact how long your case will take to complete, as decisions will need to me made about how all of these things will be handled. Additionally, temporary issues may arise while your case is pending, which may add additional mediations and hearings. These temporary issues, like timesharing, alimony, or attorney’s fees, will add to the amount of time it takes your case to resolve. The best thing you can do to help your family law attorney resolve your case in a timely manner is to communicate regarding what you want out of the case and what you expect as the case is pending; keeping your attorney up to date on any changes is also crucial to a timely resolution, as unexpected changes can also result in additional motions and hearings. An attorney who has a firm understanding of their client’s goals and situation will be better able to work towards resolving your case.

Can I Spank My Child?

Damien McKinney — Fri, 26 Apr 2013 15:45:00 GMT

The issue of spanking doesn’t come up in my cases very frequently these days. In general, parents should work together to determine an appropriate discipline plan for their children. The problem sometimes arises when the parents cannot determine an appropriate plan and one parent is spanking the child and the other parent objects to spanking. Parents in Florida have a constitutional right to privacy in rearing their children, but that right to privacy is not without limits. Case law has recognized the common law principal that parents may administer corporal discipline to their children, however, the discipline must be reasonable. The Florida legislature mentioned corporal punishment when they drafted the definition of abuse. The legislature noted that “corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.” The legislature went on to define corporal discipline to be excessively harsh if it is likely to result in physical injury, mental injury or emotional injury.

Case law in Florida has elaborated on what is considered excessively harsh. For example, in one case, a father who spanked his child once and left a bruise that required no medical attention was not considered excessively harsh discipline. But, when the punishment results in temporary disfigurement or significant bruises or welts, the court’s have found that to be considered abuse and excessively harsh. In another case, the father beat a child five times with a belt, and later the same day, the father’s girlfriend beat the child three more times. The child was naked during both incidents. The father went on to testify that he would continue beating the child in that manner as it was the only effective way to discipline the child. The court found in this case that the discipline was excessively harsh and ultimately terminated the father’s parental rights.

Spanking and corporal discipline can be a weighted and emotional issue. It’s typically best to err on the side of caution and use other forms of discipline when available. If you suspect that your child is being disciplined inappropriately, it is best that you contact your expert family law attorney to discuss your rights and how the law can be applied to your case.

SWEEPING CHANGES TO FLORIDA'S ALIMONY LAW AWAIT GOVERNOR'S SIGNATURE

Stann Givens — Tue, 23 Apr 2013 17:50:00 GMT

Late in the day on Thursday, April 18th, the Florida House of Representatives passed the same alimony bill that successfully made it through the Senate. The Governor is expected to sign it into law and it will take effect on July 1st.

A detailed summary of the changes can be found in our blog from one week ago. The highlights are as follows:

Permanent alimony is eliminated.

The length of specific terms for durational alimony (alimony to be paid for a specific number of years) is cut in half.

The amount of monthly payments to be made is reduced based upon the income of the paying spouse.

What effects most people is that many previous permanent alimony cases can now be brought back into court for changes based on the new statute.

Contact one of the family law attorneys at Givens Givens Sparks to discuss how this new law may affect your case.

MORE ABOUT THE NEW FLORIDA ALIMONY BILL

Stann Givens — Mon, 22 Apr 2013 15:35:00 GMT

The Florida legislature is changing the alimony statute. One of the things they are doing is redefining what will be the basis for alimony.

For years, the standard of living during the marriage has been the basis upon which the court would construct an alimony award. But now, the legislature is in the process of changing the basis upon which alimony will be built. If the expected change to the alimony statute becomes effective (which is expected), the basis of alimony will now start with the needs of the receiving spouse during life after dissolution of marriage with the understanding that both parties will have a lower standard of living after the dissolution of marriage.

What does that mean? Who knows? In the past, everyone looked to the money spent on expenses during the marriage to figure out what the receiving spouse would need after the divorce. Now the judge is going to have to speculate on what the receiving spouse is going to need in the future. This is only going one way. It will reduce the amount of alimony awarded to the receiving spouse.

As of this writing, the Florida Senate has passed the bill, the House is expected to follow suit and the Governor is expected to sign it into law. Get ready for lower amounts of alimony.

FLORIDA IS ABOUT TO ELIMINATE PERMANENT ALIMONY

Stann Givens — Fri, 19 Apr 2013 14:30:00 GMT

The Florida Senate has passed a bill eliminating permanent alimony and a similar bill is expected to pass in the House of Representatives and become law on July 1, 2013.

Consider the following situation: A couple marries at the age of 25 and in the first 5 years have 2 children. The wife stays home to raise the kids. At the time of the divorce after 20 years of marriage, the husband is a business executive earning $100,000 a year. The wife is still not working and has spent her time doing all of the home chores, planning social events to help boost the husband’s career, and has not worked since the job she had as a restaurant server before the first child was born. The wife gave up her plans before the kids were born to get a college degree and become a registered nurse, but the only job qualification she now has is to go back to the job serving at a restaurant, earning $20,000 a year.

Under the current family law, the husband would likely pay between $20,000 and $30,000 in alimony to the wife for life. Upon his retirement, he would pay less based upon his and her income at retirement.

Under the new law, the husband would pay alimony for only 10 years. At the end of that time, the wife would earn the server’s wage until retirement when she would then receive a small amount of social security. The husband, on the other hand, would continue to grow his income and build up his pension as a business executive while paying no alimony for the 10 years remaining before retirement and, at retirement, would receive maximum social security and a much more lucrative retirement.

Depending upon whether you are the husband or wife in this scenario, you will think the new law is a disaster for your life or justice that has been too long in coming.

What is a Collaborative Divorce Participation Agreement?

Blair Chan — Thu, 18 Apr 2013 18:35:00 GMT

In a collaborative divorce, the divorcing spouses, their respective attorneys, and the other professionals involved all sign a participation agreement. The agreement outlines how the professionals will be paid and everyone agrees up front how the professionals will be paid. This is one advantage to collaborative divorce in that it allows the parties to better control the costs of their family law case, and helps prevent them from escalating out of control. Additionally, the participation agreement also provides that if the divorcing parties are unable to reach a full resolution in the collaborative process and decide to resort to a traditional litigated divorce, they cannot continue working with their collaborative attorneys and must start all over again with a new attorney. This serves as a strong motivator to encourage settlement in the collaborative process.

What is a collaborative divorce?

Blair Chan — Wed, 17 Apr 2013 18:35:00 GMT

A collaborative divorce is an alternative to a traditional litigated divorce. In a collaborative divorce, the decision making power is placed squarely in the hand of the divorcing parties. The focus is upon facilitating and encouraging the spouses to work together to reach an agreement on all issues. This is in comparison to a litigated divorce which ultimately puts decision making power in the hands of a family law judge who will never know everything he or she needs to know about your case and is limited by the laws and rules of evidence.

Big Changes Coming in Florida Alimony

Stann Givens — Tue, 16 Apr 2013 18:49:00 GMT

The Florida legislature is considering monumental changes to the alimony laws. The bill deals with more than alimony, but drastically affects alimony so it is being referred to as the “alimony bill”. It has been passed by the Senate and, if the House passes it as expected, it will become law on July 1, 2013.

Here is a summary of the proposed new family law:

Permanent alimony is eliminated. All awards of alimony will be for a specific number of years, rather than being open ended (such as is done now in long-term marriages).

The standard of living during the marriage is no longer the basis for the need of the receiving spouse, but rather the needs of life after dissolution of marriage with the understanding that both parties will have a lower standard of living after the divorce.

A “short-term marriage” is now defined as less than or equal to eleven years, rather than the previous less than seven years and there is a presumption that a marriage of less than twelve years would result in no alimony at all. If alimony is awarded in a short-term marriage, it can be for not more than twenty five percent of the paying spouse’s gross income and for a period no longer than one-half of the length of the marriage (as opposed to the previous term allowed of up to the entire length of the marriage).

A “mid-term marriage” is now defined as being more than eleven years and less than twenty years, rather than more than seven years and less than seventeen years. There is no presumption one way or the other as to whether alimony should be awarded, but if it is, it can be for no more than one-half of the length of the marriage (as opposed to the previous term allowed of up to the entire length of the marriage). The amount of alimony cannot exceed thirty five percent of the paying spouse’s gross income.

A “long-term marriage is now defined as being twenty years or more, rather than the previous seventeen years or more. There is still a presumption in favor of alimony awards in long-term marriages. The alimony is not open-ended, but can only be for one-half of the length of the marriage and the amount cannot exceed thirty eight percent of the paying spouse’s gross income.

The combination of durational alimony and rehabilitative alimony cannot exceed forty percent of the paying spouse’s gross income.

In a sliding scale based upon how long it has been since employed, a spouse seeking alimony who is not working will be presumed to be able to earn a percentage of what that spouse previously earned. That scale goes from a ninety percent presumption if the spouse has been out of work for less than a year to a forty percent presumption if the spouse has been out of work for at least five years.

I will update you once we have the vote in the Florida House of Representatives.

Are frequent flyer miles consider a marital asset?

Damien McKinney — Tue, 09 Apr 2013 19:17:00 GMT

It’s been my experience that clients often place great value in their travel points and are often reluctant to part with them. In Florida, these travel points (frequent flyer miles, hotel points, rewards points, etc) are considered a marital asset subject to equitable distribution in a divorce if the points were earned during the marriage. If the points (or a portion of the points) were earned prior to the marriage, then the points are considered a non-marital asset and not subject to equitable distribution. Sometimes it is hard to determine what the actual cash value of these points will be for the division of property. If the airline or hotel places an actual cash value on the points, then it’s simple. But often they do not, and the points vary in value depending on which flight or hotel property you wish to use, and what season or day you wish to use the points. The airlines or hotels tend to be very vague on the actual value of the points which makes it hard for one spouse to simply give the other spouse cash to buy out their interest in the travel points.

The best solution, if there is no actual cash value, is to contact the airline and have them divide the points into two separate accounts. Each spouse can take an account and use the points as they wish, independent of the other spouse. Be mindful that some airlines will charge transfer fees, which need to be considered in any equitable distribution schedule. Also, some rewards programs specifically forbid the transfer of points to anyone or by any means, even if it is stated in a divorce decree. If the airline will not allow you to split the points, then one spouse will have to maintain the points and agree to distribute one half to the other spouse upon request. The spouse who is in charge of the points would be responsible for booking the flight or hotel room for the ex-spouse. This requires both parties to cooperate and communicate with each other, which might not be the best option for some couples. Others could agree to set aside the points for children or other family members to use. It’s important that you do some research regarding the mechanics and specifics surrounding the points so that your family lawyer is fully informed when going into settlement negotiations or a final hearing. Another concern is that often travel points expire after a period of time. There are fees associated with “renewing” the points, which also need to be considered in any marital settlement agreement. If you believe your spouse might have travel points that would be considered marital assets, then it’s best to consult your expert family law attorney to determine your best settlement options to divide the points equitably.

What is an Administrative Support Order?

Damien McKinney — Thu, 04 Apr 2013 21:01:00 GMT

Florida Statute 409.2563 allows the Department of Revenue to establish administrative child support orders. The Department of Revenue is a governmental agency in Florida that is set up to establish and enforce child support obligations. The Department of Revenue can use the administrative law process to establish your child support when there is no disputed facts and paternity is not an issue. The Department of Revenue administrative support procedure begins with both parents being notified that they are seeking to establish child support. If you are the noncustodial parent (the child does not live with you the majority of the time) then you will be served via process server. The Department of Revenue serves you with a notice, a blank financial affidavit, a parent information form and instructions on how to correctly fill out the forms. If you are served with these documents, it is advised that you contact yourfamily law attorney to discuss these documents you in detail. It is important that you fill out these documents correctly, as the Department of Revenue will use these documents to calculate your child support obligation. You will have 20 days to fill out the forms and return them to the Department of Revenue. The Department of Revenue calculates your monthly child support based upon the financial information provided by you and the other parent.

The Department of Revenue will then send both parents a proposed administrative support order that sets forth the child support amount and health care coverage for the minor child. It is important that you contact your family law attorney upon receipt of this proposed order. Once you receive the order, you have three options. One, you can agree to the order and begin paying the child support amount. Two, you can request an informal discussion with the Department of Revenue to discuss the order. Three, you can request and administrative hearing. The request for an administrative hearing must be made within 20 days of the proposed order.

It’s very important to note that if you fail to respond within the allotted time, the order will be signed by the administrative hearing office and it becomes an enforceable child support order. Additionally, the hearing officer will enter an Income Deduction Order which will garnish the child support payments directly from your pay check and you will have no say in this matter what so ever. Further, once the final administrative support order is entered, you cannot appeal it to a circuit court judge. The circuit courts do not review administrative orders. These orders are only reviewed by the appellate courts. The final administrative support order remains in effect until it is changed by the Department of Revenue, is reversed by the appellate court or is superseded by a circuit court order. The Department of Revenue has the same ability to enforce an administrative support order as it does a court order. If you fail to pay the child support ordered, the Department of Revenue can suspended your license and can report you to credit agencies. If you have been served with proceedings by the Department of Revenue, contact your family law attorney to discuss your legal rights and responsibilities. It cannot be stressed enough that deadlines are important in these matters and failing to respond will have real financial consequences.

Will the Court Increase my Alimony Based on Cost of Living Increases?

Damien McKinney — Fri, 29 Mar 2013 19:10:00 GMT

The Third District Court of Appeal entered a ruling in an interesting case where a spouse requested an increase in her alimony payments based upon inflation and cost of living increases. In Silverman v. Silverman, the appellate court found that the trial court abused its discretion when it increased the Wife’s alimony payments based upon inflation. The parties in Silverman were divorced in 1990. Pursuant to the Final Judgment of Dissolution of Marriage, the Wife received alimony in the amount of $7,700 per month. In 2009, the Wife petitioned the court to increase her alimony, arguing that her expenses were no longer being met due to an increase in the cost of living. The trial court ultimately increased her alimony to $10,200 per month. The appellate court found this was error. Several prior cases have found that a spouse may seek to modify their alimony payments based upon inflation and cost of living increases. The appellate court discusses at length a Florida supreme court case, Bedell v. Bedell. In Bedell, the former wife testified that because the cost of living had gone up since the divorce, her standard of living had gone down. Her major appliances, such as the dishwasher, the trash compactor, and the dryer, need to be replaced because the original items are now over fifteen years old. The carpet in the townhouse was worn out and the plumbing was in need of repair. She put bed sheets over the windows at night because of the absence of drapes. She did not use the air conditioner because she could not afford the high electric bills. She needed more money for food and clothing. She drove a [nine-year-old] 1982 automobile that keeps breaking down.

The Bedell court found that these factors together with the spouses increase in ability to pay led the Florida Supreme Court to rule that “the failure to award the wife an increase in alimony [from $415 to $496 per month] was an abuse of discretion.” In contrast, the court in Silverman stated that the needs alleged by Wife in the instant case, according to her own brief, include “a copious clothing allowance, four trips annually to an exclusive golf resort, numerous holidays and travels to Europe, California, Las Vegas, Bahamas, New York, cruises, ultra chic shopping, bi-annual new Cadillac automobiles, live-in maid service, in-house weekly massages, health club memberships, manicures, pedicures, and extravagant entertainment.” Bedell allows for a modification of an alimony award when the increased cost of living has left the recipient spouse in dire circumstances; it does not stand for the proposition that an adjustment is warranted due to the loss of live-in maid service.

If you believe you may be entitled to an increase in alimony based upon inflation and increased cost of living, contact your expert family law attorney to discuss the options that might apply to your case.