Recent Blog Posts in October 2009

Domestic violence is a sad part of the breakup process for far too many couples.  The term is defined in the Florida statutes as, “…any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”  The most common instances involve one person hitting the other, choking the other or blocking the other from leaving a room or a house.

You don’t have to be married to be considered family or household members.  The statute includes in the definition “spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.  With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.”

If you meet these requirements, you can file for a domestic violence injunction.  A domestic violence injunction is a court order that subjects the other person to criminal charges if that person comes around you or contacts you while the injunction is in effect.

Bottom line:  Don’t take chances with your safety.  In an emergency, call 911.  If you have questions, call an expert Tampa divorce lawyer to discuss whether your situation qualifies as one where you can get a domestic violence injunction.

The short answer is that, of course, you can.  The better answer is that you shouldn’t.

Any person can go to court without a lawyer in any legal matter.  That applies to everything from small claims court to defense of a first degree murder charge.  But the more important the issues, the less intelligent it is for you to do that.  For instance, if you are charged with a parking violation, you may be safe to represent yourself.  If you are charged with a serious crime, you wouldn’t want to risk years in prison by having an amateur defense.

Let’s look at what is at risk in divorce case.  If you have children, obviously all of the contact you will have with them until they are adults is at risk.  Everything that you own is at stake.  If you are the higher wage earner, your income is at stake in a potential alimony claim.  The Florida divorce lawyers in our office have frequently had to help people clean up the mess that they have unintentionally made as they represented themselves in family court matters before coming to us.  It is often more expensive to fix the problem than it would have been to handle it initially.

Even if you and your spouse are pretty sure of how you want to settle all of the areas of dispute, you still are at risk of drafting an agreement that doesn’t do what you think it does.  The best divorce lawyers in Tampa have all experienced many cases where people come to them to fix problems which have been created by poor draftsmanship in the agreements they reached with their spouses.  The most serious involve disagreements as to the meaning of the language of custody provisions within a marital settlement agreement.  Other serious problems occur with division of property and especially with the division of retirement plans.

When you consider what is at risk, representing yourself in a divorce should not be considered as an option.  I am frugal as to spending my own money, but when it comes to important things like filing my taxes or dealing with medical or dental issues, I let the experts handle things.  When it comes to a Florida divorce, you will have more peace of mind that you have done things the right way if you retain an expert Florida divorce lawyer to help you through the process.

Bottom: Always use a lawyer if you are in a divorce proceeding.  The risks of being stuck with a bad outcome and having to spend a great deal of money to change it are too great.

There was a time in history when the mother of a young child had an absolute right to be the full-time, custodial parent of the child.  The father would see the child now and then and would pay child support.  The mother made all the decisions regarding the child.

Then times changed and the mother no longer was considered to be the presumed custodial parent.  The Florida legislature created the umbrella of “Shared Parental Responsibility” which covers all child custody matters.  Under that umbrella, there is no presumption in favor of moms and the parents jointly make the major decisions regarding the child (Who will the pediatrician be?  Where will the child go to school?, etc.).  Also under that umbrella, one parent would be named the “Primary Residential Parent” and the other would be the “Secondary Residential Parent”.  On rare occasions, there would be an order by the court naming them “Joint Primary Residential Parents”, but it was very rare.

Times changed again very recently.  Now we still have “Shared Parental Responsibility”.  There, however, are no longer designations of “Primary Residential Parent” and “Secondary Residential Parent”.  Today, we merely have a “Parenting Plan” in each Florida child custody case which has either been worked out by the parents or ordered by the judge.  No one gets to leave the courthouse and brag to friends about being named the “Primary Residential Parent” while the other parent leaves with a title that says that parent is second best.  The idea was that the parents will work together better for the benefit of the child if the divisive titles were removed.

Bottom line:  Talk to your expert Tampa divorce lawyer about the standards for determining what should be in a Florida divorce parenting plan.

You have decided that your marriage is broken and can’t be fixed.  You have hired an expert Florida divorce lawyer and provided endless details of information about your financial and personal matters.  Your divorce lawyer has collected volumes of detail about your spouse’s income and assets.  Your deposition has been taken as well as those of your spouse and all the witnesses in the case.  When and how do you decide to settle the case without going to trial?

There are many considerations to think about before deciding to resolve your Florida divorce.  First and foremost, you must have all of the information about every aspect of your finances and parenting skills and those of your spouse.  You must also have explored what expert witness are needed to provide information to the court and followed up to get that information.

Only when you have all of that information are you able to make the important decisions in reaching a final resolution with your spouse.

Next you must weigh many other factors which are personal only to you and your needs.  How anxious are you to end the controversy?  Are you willing to wait and let the judge decide all or some of the issues?  Can you afford to fully litigate the case?  Will you be spending more to go to trial over an issue than you would gain if the court rules in your favor?  Have you fully explored with your expert Tampa divorce lawyer all of the possibilities of what the judge might rule?

Only when you have done all of this work are you ready to make the decision of whether to settle your Florida divorce.

Bottom line:  Let your Florida divorce lawyer guide you through the process of deciding when to settle your divorce.

When you interview a Florida divorce lawyer with an eye toward retaining the lawyer to help with your divorce, you should ask questions about the availability of that lawyer.  At the most, people sometimes ask how busy a schedule the lawyer currently has and whether there are legal assistants who can answer phone calls if the lawyer is tied up in court.  Another important question to ask is whether the lawyer employs an answering service to field phone calls after normal working hours.

Many issues come up in a divorce at times when law offices are normally closed for the day.  Questions arise as to visitation issues, lack of payment of funds, should someone be allowed to take marital property out of the home, and so on.  The most serious of these questions involve domestic violence or the threat of domestic violence.

In our firm, we have been able to advise clients how to protect themselves and how to protect their children from potential domestic violence because we have been available 24 hours a day for their phone calls.  The process is very simple.  The client calls our normal office number and the answering service answers.  The client explains that the matter is urgent and a lawyer calls back right away.  In certain situations, we have been involved with calling 911 when the client is afraid that there may not be enough time.

Bottom line:  Before you hire an expert Florida divorce lawyer, make sure that the lawyer is available to serve you 24 hours a day by way of an answering service.

In many Florida divorces, part of the property division that occurs involves college funds which have been set aside for the benefit of the children.

Unless these funds are owned by one spouse alone as a result of money from before the marriage or as a result of a gift from someone other than the other parent, the funds will be divided along with all of the other assets and debts of the parties.

If the plan procedures allow both parents to exercise joint control, the solution is fairly simple.  You merely request that the plan confirm in writing that neither spouse can withdraw or otherwise move the money without the written consent of the other.

Sometimes that is difficult to do.  Many plans, including the state operated Florida Prepaid College Plan, require that the accounts be opened in one name only.  When that is the situation, your expert Tampa divorce lawyer will merely place a paragraph in the Marital Settlement Agreement or ask the judge to place a paragraph in the Final Judgment of Dissolution of Marriage which states that neither spouse can make any decisions regarding that money without the written consent of the other spouse.

Bottom line:  Don’t assume that the children’s college funds will be handled the way that you want them to be.  Have your Florida divorce lawyer obtain clear rules for withdrawing the funds.

If you have begun your Florida divorce or are even just thinking about divorce, you may have heard that it is a bad idea to leave the home.  Often clients appear in the offices of expert Florida divorce lawyers and tell them that their friends have advised them not to leave their homes.  The friends have told them that they give up their rights to the home if they leave before the divorce is final.

That is absolutely not true.  When it comes to rights to the home, it doesn’t matter who is staying there at the time of the divorce.  The value of the house is just a number on the property division chart.  It is no different than the value of a bank account.  The value doesn’t change just because you have moved out and it doesn’t go into your spouse’s column in property division just because your spouse is living there and you are not.

There is one big caution, though.  If you have children in the home, the rules are entirely different.  You will have a difficult time telling the judge at trial that the children should be in your care most of the time after you have spent six months away from them while they stayed in the home with your spouse.  So keep in mind that the freedom to leave the home applies only to the property rights aspect of your divorce and not to the child custody part.

Bottom line: Unless there are child custody issues involved, you are not penalized by leaving the marital home in your Florida divorce.

People going through a Florida divorce frequently ask Florida divorce lawyers if they will lose their health insurance if they get divorced.

Usually this situation involves the person who is reliant on the other spouse for health insurance.  Typically, the other spouse carried the insurance for the family through work.  What happens if you get divorced and no longer qualify for the spousal coverage under the employer’s plan.

A federal law called “COBRA” requires that your present insurance company cannot reject you from coverage for three years after the divorce.  They are required to give you exactly the same coverage as you have now.

A problem is that the cost of the coverage may be higher because you are no longer getting the family coverage discount which is less per person than if there were just one person on the policy.  Additionally, the employer may presently be charging you less than the actual cost as a benefit to the employee.  They will no longer do that when you are no longer related to their employee.  One small additional increase (less than ten percent) in the premium is a result of the fact that the law allows the insurance company to charge you a premium of slightly higher than the employer is paying.

Bottom line:  Talk to your Tampa divorce lawyer and your insurance company about the cost of health insurance before you reach a final settlement of your Florida divorce.

© Copywright 2009 by Stann Givens

Your expert Tampa divorce lawyer tells you that your spouse’s attorney wants to take your deposition.  What do you need to know before that happens?  A deposition is just a session where the other lawyer asks you questions well ahead of the scheduled trial in your case.  Here is a list of what to do and what not to do:

1. Tell the truth.
2. Review all of your notes ahead of time.
3. Meet with your lawyer ahead of time to go through what may be asked.
4. Even though at a deposition you are just in a room with your spouse, the two lawyers and a court reporter, act like the judge is there with you and treat everyone with respect.  Do this even though someone else is being rude.
5. Listen to the question.  That may sound simple, but many people think they know where the questioner is going and decide on an answer midway through the question.  Sometimes that’s not the right answer.  If you don’t understand a question, say so.
6. Just answer the question.  Don’t expound.  Don’t give an opinion that is not asked for.  If your Florida divorce lawyer wants you to expound on an answer, your lawyer will get a chance to ask you to do that after the other lawyer is finished with questions.
7. Remember that you know the answer to all the questions.  That is because one answer is, “I don’t know.”  If you don’t know something, it is ok to say that.
8. Don’t bring notes with you.  You are just going to be asked what you remember.
9. Don’t joke.  Sometimes that makes you look like you are not taking the court system seriously.
10. Relax!  When your deposition is over, you are one step closer to getting on with your life.

© Copyright 2009 by Stann Givens