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April 2013 Archives

Divorce: Mother's Rights, Father's Rights, Grandparent's Rights

Mother's and Father's rights are not different in a dissolution of marriage action, they have equal footing when it comes to what is in the best interest of the minor child(ren) when it comes to time sharing. During a hostile divorce, parents sometimes threaten to take their children away from each other or restrict the contact that the other parent may have. For this reason, it is important to know your rights when you are involved in a divorce. During a divorce, neither mothers nor fathers have explicit rights due to their gender; however, some people believe that women receive an advantage in maintaining custody over the children. The Maternal Preference is a principle that suggests that women usually spend more time with children during their early years, and therefore should remain in custody of the children during a divorce; however, this is not the case any longer, and men have the same rights and possibility of having equal or higher percentages of time sharing with the children.

Native American custody case may clarify federal tribal law

A federal law that has been in place for several years is going to be the subject of a Supreme Court hearing in a case that is scheduled to begin this month. The federal law, the Indian Child Welfare Act, or ICWA, which protects Native Americans from losing custody of their tribal heirs in child custody cases where the children would otherwise be adopted into non-Native-American families, applies to all 50 states, including Florida. This particular case arose from a broken engagement before the birth of the baby, despite the father's efforts to salvage the relationship. After the baby was born, he arrived at a lawyer's office to sign what he believed were documents granting custody of the baby to her mother. After signing the documents, he learned that the mother was planning to give the baby up for adoption, spurring him to retain an attorney and seek custody.

Estate Planning for Same Sex Couples

Same sex couples have the same estate planning and financial needs as opposite-sex couples. The goal of estate planning is to pass the maximum amount of property to their loved one with the maximum amount of creditor protection and the least amount of transfer taxes.

Some real estate agencies working to fill divorce needs

One of the many challenges divorcing couples in Florida face is the sale of a marital home or other real estate. Unless divorce arrangements give one party sole rights to the property, a single real estate agency may be in the position of serving both parties who often have competing interests. Without an understanding of the risks divorcing sellers take and the challenges they face, serious problems can arise and lead to a less than satisfactory conclusion for both.

Domestic Violence and other Injunctions

A Domestic violence injunction may only be granted if it meets the specific criteria outlined in Florida Statute: 741.30. Unfortunately, a lot of people fraudulently file an injunction because they believe it will give them an advantage with dissolution issues: time sharing/custody, parental responsibility/ temporary possession of the marital home, etc. The Judges are quick to determine if the petitioner is abusing the system by filing these false injunctions. However, there are a significant amount of injunctions that are filed in order to protect the petitioner from danger. Only people who have resided together in the past may file a Domestic Violence Injunction. There are other types of injunctions that a person may qualify for: repeat violence, dating violence, and stalking , and the criteria for each of these will differ (784.046(b), 784.046(d), 784.0485, respectively)

Domestic violence victims will speak in Orange County

Following an increase in the number of domestic violence cases reported in Central Florida, the mayor of Orange re-established Orange County's Domestic Violence Commission in January. This body, headed by a circuit judge and another co-chair, is set to reexamine the goals of the commission during a two-hour evening meeting in early April. This inquiry will take place in the chambers of the Board of County Commissioners. The meeting also includes a fact-finding segment. Local victims who have suffered as a result of domestic violence will be given chances to testify about their personal experiences while protected by their right to anonymity. In addition, domestic abuse service providers will be called upon to give their perspectives on the matter. After the meeting, the commission will be granted a 90-day period to make and give its recommendations to officials. 

Discharging tax debts in a Bankruptcy

There are certain debts that are not dischargeable even if you file bankruptcy, and one of the questionable debts is tax debt owed to the IRS. Most debts can be resolved through chapter 7 and 13 bankruptcies; however, tax debt must pass a certain criteria in order to be resolved through bankruptcy.

Binding Arbitration, Voluntary Trial Resolution and Med-Arb Proceedings in Family Law

Mediation has become the most widely accepted ADR (alternative dispute resolution) procedure in family law cases. Although most cases are successful in total or partial resolution, there are some scenarios where the parties are emotionally incapable or unwilling to resolves their issues in an impartial setting. This is where binding arbitration and voluntary trial resolution comes into play.

Alimony Reform bill

The Alimony reform bill is about the State of Florida's debate over alimony and spousal support laws. The laws have hit an impasse until just recently. Alimony reform is well underway, and although at first glance it does not seem too bad, it truly is going to be detrimental to the spouse who traditionally made less income during the marriage. The new reform has the alimony bill retroactive, which means you could have been receiving alimony for years, and now it may significantly decrease or stop all together. No one likes to pay alimony, but based on each family the facts are different and some cases should warrant alimony. Paying spouses look at alimony as a "life sentence", but that is just not the case. IF alimony was unfairly awarded, the district Court could have cured that with the appropriate appeal; however, how are we going to cure compromises made in the past that were based on the amount of the payment of alimony, and now that payment may go away? If you agreed to less of an asset 10 years ago based on the fact that you would be receiving permanent alimony, and now that may significantly decrease or cease all together, how do you become made whole with the asset that you waived? This is going to cause a large problem for past cases if this reform is successful with the retroactive aspect. One of the many changes being presented in the Florida state senate transforms alimony into something similar to a child support plan. In a child support plan there is a fixed payment for a fixed amount of time. Some people believe that If alimony ran through this format it would be fair to both parties involved and would not discourage remarriage for the payer of alimony. This alimony reform is going to affect current cases as well as past cases retroactively, the law change in itself is posed to be a factor that is considered a substantial change in circumstances. For more information contact the firm of Camy B. Schwam-Wilcox, P.A. at office@cbswlaw.com for a consultation regarding this issue.

Alimony Reform- Will it go through this time?

Alimony reform is gaining momentum in the Florida legislature. Alimony is a Court ordered payment of spousal support. Currently, under §61.08 in a proceeding for dissolution of marriage, the court may grant alimony to either spouse, which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony. In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.

How unwed couples navigate the world of separation

In Florida and the rest of the United States, marriage is at an all-time low as many couples have decided to remain unwed while producing children and starting a family. Unfortunately, when one partner decides it is time to break up, it may leave the other as a single parent without the assistance provided under a court-approved divorce settlement. Marriage is first and foremost a legal contract: When a couple separates, legal professionals and the courts may guide the parties through the intricacies of a settlement, which often include alimony, spousal and child support as well as custody issues. They also assist when disputes arise between the divorcees to come up with viable solutions.

F.L.O.R.I.D.A. for Children and Families

F.L.O.R.I.D.A.  for Children and Families, or F4CF (Florida's Legal Online Resource, Information Driven Access), is a new resource for lawyers in Florida who want to share expertise, provide information to handle existing cases, give notice of updates in the law, supply answers to any questions, and most importantly help find pro bono services and mentors for children and families. The website organizes resources by topic, allows for secure communication between lawyers, judges, and others, and allows lawyers to volunteer for pro bono work. The online site includes a library of legal and medical information regarding child-welfare. Lawyers can go through the website and customize it to include the areas of law which they can help with and practice in.

Standing Temporary Orders

Most of the jurisdictions in Florida have implemented a Standing Temporary Order for their family law division. During the process of a divorce (or paternity action) most of the time these highly charged emotional matters are contested, and during this time a standing temporary order is provided to the Petitioner, and served to the Respondent in an attempt to protect marital possessions while the dissolution of marriage is taking place, and before the parties are able to be seen by a Judge. The main purpose of a standing temporary order is to protect the parties involved in a divorce from the irrational behavior usually produced from a contested dissolution of marriage. These Standing Orders help keep the playing field level when going through the process of litigation or settlement. The Order acts as an outline for how each party is supposed to conduct themselves during the process, and before the opportunity to have a Judge hear any issues in the pending matter, be it a divorce or a paternity action. Some specifications of the order include an injunction against the sale or destruction of marital property, status quo of the current timesharing of children, an encouragement to pay some sort of child support for the children, and an injunction of the change/cancellation of policies (health insurance, car insurance, life insurance, retirement beneficiaries, etc.). Under Family Law, if the specifications of the Temporary Order are not met by both parties, several motions may be used to ensure the terms of the Standing Temporary Order are followed. The Order is only modified by a superseding Order executed by a Judge that address a specific issue, or by the entry of the Final Judgment, as all Final Orders will supersede temporary orders. For more information on Standing Orders in your jurisdiction (they all vary and a few jurisdictions do not have a standing Temporary Order- also known in some jurisdictions as a Standing Administrative Order) please contact us at office@cbswlaw.com or visit our web site at www.cbswlaw.com