Prenups and Postnups: Why you may want one

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A prenuptial agreement is a document that outlines what happens to a couple’s individual and jointly held property, assets, debts, and inheritance, should the parties ultimately decide a dissolution of marriage is necessary, or should one of the spouses predecease the other. Florida is an equitable distribution state, so in the event of a divorce assets are divvied according to what the court deems fair, provided there is no prenuptial agreement. The judge would take into consideration things such as the length of the marriage, whether there are children, as well as the couple’s age, health, job skills and other factors.

Why should you have a Prenuptial Agreement?

A prenuptial agreement is very useful if you want certain assets to remain within a familial blood line or if you desire a clear division between your assets/debts and those of your spouse. Although at first glance, proposing a prenuptial agreement to your spouse prior to marriage may appear business-like and transactional in nature, it is ultimately a means to ensure that your hard-earned assets remain yours. Furthermore, executing a prenuptial agreement prepared by an expert family law and estate planning attorney can help to significantly reduce the costs of litigation should a dissolution of marriage ever occur, as many of the issues that create a contentious atmosphere during a dissolution of marriage (excluding child support) will already have been delineated within the prenuptial agreement, to be upheld at the time of dissolution, or even death. Such agreements may even include who shall be held responsible for such litigation costs.

What can be agreed upon?

Florida Statute 61.079 is the primary statute governing the use of prenuptial agreements, and outlines the following issues that may be agreed upon within a prenuptial agreement:

1. The rights and obligations of each of the parties regarding any sole or jointly owned property, whenever, and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. Who gets what property should a separation, marital dissolution, or death occur;

4. Whether alimony is to be established, modified, waived or eliminated;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. Ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including the parties’ personal rights and obligations, not in violation of either the public policy of Florida or a law imposing a criminal penalty.

IMPORTANT TO NOTE: The right to child support or attempting to waive or limit child support cannot be prearranged and will not be upheld if it is included in a prenuptial agreement.

Validity

A prenup is valid and effective at the time of marriage, but may be held invalid upon a finding that:

  1. It was not VOLUNTARILY executed by one of the parties;
  2. It was a product of fraud, duress, coercion, or overreaching;
  3. A party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  4. A party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
  5. A party did not have, or reasonably could not have had, adequate knowledge regarding the property or financial obligations of the other party; and
  6. The marriage is determined to be null and void.

What is a postnuptial agreement?

A postnuptial agreement is a contractual agreement outlining the distribution of each parties’ assets upon death or dissolution of the marriage. Similar to a prenuptial agreement in subject matter; the true distinction between a postnuptial agreement and a prenuptial agreement is that a postnuptial agreement is entered into by the parties after the marriage has taken place.

Validity

A postnuptial agreement is valid and effective at the time of execution. The following list of reasons a postnuptial agreement can be invalidated is not comprehensive and all encompassing, but includes as follows:

  1. The parties were not married at the time the agreement was entered;
  2. The agreement is not in writing signed by the two parties;
  3. The agreement was not entered into by the parties voluntarily;
  4. One party did not have adequate knowledge of the property or financial obligations of the other party;
  5. The agreement does not contain a consideration;
  6. The agreement is not signed in the presence of two witnesses and a notary.

Why should you have a postnuptial agreement?

Many times, parties accumulate more assets during their marriage versus when they were single, and never even consider the idea that a prenuptial agreement may be beneficial. A postnuptial agreement will allow for the clear distribution of old and new assets accumulating before, during and after the marriage, as well as old and new debts, including joint debts, without the significant stress of dividing everything by way of court proceedings.

Wills and Estate Planning

Should one of the spouses predecease the other, the terms within a prenuptial or postnuptial agreement regarding rights of a surviving spouse to the following: an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any other such rights; which were properly waived in a prenuptial agreement or postnuptial agreement, may be upheld, so long as the agreement was in writing and was signed by the waiving party in the presence of two subscribing witnesses and a notary.

Creating a plan for your estate

If you have questions regarding prenups, postnups, wills, estate planning and more, please call us at 407.512.4394 to receive assistance with the aforementioned options or estate planning in general. Our experienced family law and estate planning attorneys would be happy to assist you in developing a plan to safeguard your hard-earned assets in the event and ensure that your will is followed should a dissolution of marriage become necessary, or should a spouse predecease the other.

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Divorce Does Not Have To Be Difficult

Divorce – Diving Deep and Answering Your Questions

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Change is inevitable. Things comes together, and many times, very naturally, things come apart. This is not to say that change is not complicated, and we all know that those processes can be as intricate and arduous as we see fit. Many times, it is about beginning with the right perspective, and regarding divorce, the way you begin can truly set the tone for the journey ahead.

That is why it is crucial to consult with someone who has experience helping others make divorce work for their life. Marsha Summersill has spent years helping others through the journey, and in this blog, we will take a deep dive into the most asked questions regarding divorce, and how being creative plays a role in the process.

When going through a divorce, what would you say is the top concern for your clients?

It is equally money and kids. If they have minor children that usually would be the big topic of how they are going to work that out. Obviously, if they can work out something ahead of time that is good, but if there is a dispute it can get a little dicey. The finances are comingled with the responsibility of the kids, so they come together in certain aspects. The equitable distribution of the divorce, of the financial piece, might or might not be considered income and can become enmeshed with balancing factors within the divorce. You need to be sure this is the direction you want to go.

What are some determining factors to take into consideration when beginning the divorce process?

Each state has its own laws, and we exist in our own pocket of laws when it comes to divorce. I would say what to consider is exactly how your stuff is going to be split. Really consider the best interests of your kids. If they are elite athletes or a super scholar, really put their needs first with respect to their activities and life. Be flexible and maintain the objective of communicating well throughout the process.

What does the timeline look like for someone filing for divorce?

If you truly do not need to litigate all your issues, then it potentially could take a handful of months. If there are many items to litigate, then it could take years. The more the parties know that is real and legally sound, the faster they will get to a realistic compromise. I think the issue we encounter as family law attorneys, many times, is the friend that wants to chirp in their ear or even the information google gives them. That sends them down an illogical path that does them no favors.

Other determining factors will be the party’s cooperation, compromise, and realistic views on how to get the sorting solved, and then other times it could be their legal counsel. There absolutely has been times when the opposing attorney continued the battle, even when both parties could have solved the situation and walked away.

What are some factors that could prohibit me from retaining rights to my children after the divorce?

You always have rights to your children. The only agency outside of you signing over your rights is the Department of Children and Families. In the state of Florida our public policy is both parents have equal rights to enjoy raising their kids. The judge has about 25 factors that they can consider. They do not have to consider all of them, but what is important to understand is that those factors are common sense stuff. There is no one-size-fits-all approach, and many times I have clients that get super creative. Sometimes they have jobs where they travel, so the family must maximize and divide their time. When thinking about the child first, a two-year-old does not need to go seven consecutive days without seeing their parent.

To establish that bond, it is important that the child spend time with both parents. For older kids, they usually do not like going back and forth. Dicing up a week for a high schooler can be tough, so that is a situation where we may want to divide time differently depending on the needs of the children. Even though you are getting a divorce, you still must be a team when it comes to how you parent. It serves as a great example to other individuals who want to waste time and energy battling each other.

Let us say that I started a business while we were married, and it became successful. Is my spouse entitled to any of that business?

Probably. There are so many factors that we must consider, but the reality is that spouse is going to get something. I had a case where this person worked and worked and grew their business to a highly successful endeavor. The offset of that is really determining what is the marital portion of the business. That is where the fighting can start. The definition of what is marital and what is non-marital, what’s personal good will and what’s enterprise good will can really determine the outcome. Once we discover the amount of money that is the business and then the value that you bring to that business, we can achieve that number but, of course, every business is specifically different.

My recommendation: marry your equal. Then, if they did not earn it, they will not want it. That will simply be their personality type, but of course sometimes it is a complicated, intricate scenario. That is why a prenup can be a completely fair thing. If you do something together, that can become marital property. A prenup does not state that, “You don’t get anything.” What a prenup does say is, “I don’t want to be punished for working hard and achieving a lot of things.” There should be no issue with signing it because it is just being fair.

What about social security benefits? Is there a way I can take advantage of their Social Security benefits if they have always earned a greater amount of money?

Yes. The common law knowledge we operate under is that, if your marriage is ten plus years and the one spouse is not remarried at the time that they decide to select social security and their social security is less than what their spouse’s was, then they will either be able to offset it or get one that is a little bit higher than it would be on their own.

How does mediation play a role in the divorce process?

Mediation honestly saves so much financially, emotionally, and in many other areas. It is a huge benefit. In our location, it is required. Not in all statutes, but in family law, it is. You cannot even go to court without mediating. The question is, “Do you have a qualified mediator working with you?” It is a task to get certified in areas, but it does not take any specialization, so if you are looking at a divorce, post-divorce, or paternity case, it is best to work with someone who has good experience or someone like me, who is a family attorney.

What if I want to move to another state with the kids after the divorce?

No. This is about getting your mindset right from the very beginning. We do have a relocation statute that is automatically the law. If you get a divorce and decide to move later, the best option is that you and the other parent get to an agreement to see if that is something that will work for the kids. It cannot be, “I want to move to live closer to someone I met on the internet,” which has happened before.

 Moving is a tough one because it must be looked at from the child’s best interest. That is how the court looks at it and that is how the law looks at it. If the parents can get to an agreement and have a long-distance parenting plan, then we file with the court. If one parent says no, then you will be required to litigate that. How our law works to calculate maximum distance is – 50 miles as the crow flies. If you go over 50 miles, then you have opened the relocation statute. This is all why it works best when both parties can retain a cordial relationship with each other. Odds are that you will indeed have to work with that person in the future to handle these scenarios. It is all about compromise for both parties involved, and always about what is best for the children.

What are some determining factors when it comes to who will pay child support – and what does that support entail?

That is written in the law. It is how much money your gross income is, accounting for all your deductions, taxes and insurance, mandatory pension, and unions. You do get those credits and deductions. It is important to clarify that you do not get credits and deductions to account for your spending habits. The way time-sharing factors in is that it cost money to take care of kids. Timesharing is based on income incorporated with the amount of overnights, plus the proper credit for child expenses. If the child goes to an expensive school, and they are paying 100% of it, they need some sort of credit for that.

Define equitable distribution and how does it play a role in the outcome of the divorce?

It is huge. A lot of people jump to marital assets, but you also have marital debt. All of that is incorporated, and we do a specified spreadsheet. In cases where I am dealing with a lot of assets and/or a lot of debt, I am going to get the one-sheet, and we go back and forth until there is an agreement. We look at a number that aims at equalizing or offsetting payment or equalizing or offsetting debt.

What determines marital property?

Many times, those are the big items that we will argue over. If you acquire anything during the marriage, then there is a high likelihood that it is going to be considered marital and will be subject to an equal split. There is pre-marital, meaning you had a house before you were married. There is this belief that if you do not put your spouse’s name on the house, then it is not marital. This is not necessarily the case. The equity you have in the house at the date of marriage is yours, but as you make improvements over time, the house becomes marital. Whether or not your spouse’s name is on it is irrelevant, so that is something we would caution someone on.

Inheritance is another item people need to be careful about. Inheritance is technically non-marital until it is deposited into an account that is sharable. You cannot comingle the money or use it for marital needs if you want it protected. If you need to take a portion out, take it out at the time that you receive the inheritance, but make sure to put the rest into an account where it is clearly not being used for marital purposes.

How can a CPA (Certified Public Accountant) be of benefit during the process?

CPAs are highly valuable – I work with two that are amazing. Obviously, as lawyers, we have limits. CPAs know so much about values, stocks, and constructing an in-depth chart that considers all the angles of value for a certain item or category. The CPAs we work with are usually forensic accountants, and they know how to calculate enterprise and personal good will on a high level. I get my spreadsheet, opposing counsel gets their spreadsheet, and we compare to see how close we can get to meeting in the middle. When you find a good CPA, they are literally such a valuable piece of the puzzle.

If someone is thinking about divorce right now, what would you want to be able to tell them?

If you have the resources, always seek therapeutic guidance. Sometimes religion plays a role in helping you be certain, but the point is to find resources to make sure that you feel very secure in the decision you are making, especially if you decide to pursue a divorce. When I do my consults, we talk and make sure that you are confident in the decision that is being made and gain that acceptance before the process begins. That can truly help.

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Divorce Does Not Have To Be Difficult

Baby Boomer Breakups: Truths about Grey Divorce

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You may be surprised to find that the overall rate of divorce in the U.S. has gone down in the past 20 years; however, that does not necessarily apply to people over 50. Grey Divorce, or the act of getting a divorce later in life, has seen a rise occur lately. This goes directly against the common statement that we often hear: the point that young people do not stay together like they used to. When taking a critical approach to looking at the numbers, we must analyze what are the contributing factors to divorce for couples who have been in a long-term marriage.  

It is important to note that divorce is a struggle with a stigma. Not only are you going through one of the most difficult times of your life, but there is also the added fact that shame can play a role, even though it should not. Although this stigma has gone down over the years, it does not affect younger couples as much as it does older ones. As the stigma diminishes over time, individuals begin to look at divorce differently. More couples are deciding that they would rather be happy than be married to someone for the rest of their lives. When we analyze the reasons why many older couples get divorced, it enlightens us on mitigating factors.  

Here’s why Grey Divorce could be on the rise

Money  

First and foremost, how a couple manages their money can lead them down paths of difference. There is no right answer except for the fact that a couple must be willing to work together to achieve a balance in their decision making. One person cannot hold the reigns completely, and compromise can truly lead to the other party feeling validated.  

If one party makes all the money and marshals all the power in the household, that can lead to another party feeling insignificant. Another aspect is that if one individual believes that the other spends money too frivolously, those tensions can build up over time and result in conflict. Research shows that marriage tends to be stronger if the husband increases his earnings, but money management does not necessarily mean more is better. Balance overrules security sometimes and having a partnership that is truly based on equality is the healthiest option. 

The Spark  

Many times, this is the first discussion point for divorce. The spark, the excitement, and the reasons they got together in the first place have diminished over time. It is worth reminding that sparks come from somewhere. True love, at first sight, is an illusion. You must work at it to make those sparks happen. Many times, if the work has primarily been poured into raising children, then the focus on building and cultivating that spark can lessen.  

When you are at a crossroads, and many couples are when their children leave the home, it can lead to the desire to change circumstances altogether. When you are forced to try and cultivate that spark and you realize that it is much harder than you think, divorce lingers on the mind. 

The Individual  

We have become a society that values individuality, which can be a good thing. This does have some drawbacks, mainly in relation to making sacrifices for another party. Sometimes, when a person has spent so much of their life sacrificing for another, they want their years to be invested in themselves again. They want to pursue their dreams, and that causes conflict in the relationship. More and more, baby boomers are attaining this perspective, and it is causing many to think about divorce as a solution to their situation. 

Living Longer 

We are experiencing so much value placed on health, and because of that, we are living longer. This causes individuals to re-think and re-decide their commitments at a later age in life. They are beginning to take advantage of the fact that 50 is not as old as it used to be, and go for the dreams they may have put on hold during their 30’s and 40’s.  

It is ironic, but the longer we live, the more time we must spend trying to reinvent ourselves. Sometimes individuals find this need later in life, and it can lead to life changes such as divorce to help them find what truly makes them happy.  

Dependency  

Addiction can be the true destroyer of a relationship. An individual with a dependency that controls their life can feel like a liability, and that is not conducive towards a healthy relationship. It is all about working together, and if the couple cannot see eye-to-eye, then someone else’s habits can wear the relationship down. It is when individuals put their habits before those that they love that divorce becomes the tool to solve the situation they are in. It is truly difficult, but worth it if the couple cannot find common ground and depend on each other for happiness.  

Our Stance… 

We want to leave you with the implications of Grey Divorce. Ultimately, it might not be a bad thing. One important point to remember is the fact that divorce is not a failure. It is the beginning of progress. Many times, everyone involved can feel like they are losing the game when life is game where change is always inevitable. It is important to remember that children, no matter how old or young, can internalize the process and feel just as broken as the parents.  

The difficulty does not stop there. The division of assets and worth can subsequently divide a family even more, and that is why our lawyers take special care with each situation. We want to remind you that if you are thinking about divorce, talk to one of our attorneys. Their experience can become your advantage. Most of all, you should not feel like a failure. Life is filled with change, and the worth of anything is not directly tied to how long it lasts. On the other side of change exist possibilities that we cannot immediately see. We believe that change is always good, eventually.  

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Sick leave

Sick Leave and the Families First Coronavirus Act: Do You Qualify?

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Those being affected by the coronavirus are going to struggle with their health as well as time away from work. That’s why this new sick leave policy works to help them through the loss of time devoted to their work. 

There are many questions out there and multiple sources for information. 

We’re striving to provide you with accurate articles that detail real solutions to uncertain situations. Things are changing every single week, and we’re keeping apprised to the current state of affairs to help you stay in the know.  

It’s all about the Families First Coronavirus Response Act, which requires private employers to provide employees affected by the coronavirus with sick leave. There are exceptions for health care providers, emergency responders, as well as certain small businesses. If you’re a full-time worker, you can qualify for up to 80 hours of sick leave. Part-time workers can qualify for the average number of hours they worked over two weeks.  

There are only certain situations where a worker can take paid sick leave.

A worker can take paid sick leave under certain conditions. They are the following:  

  1. The worker is subject to a federal, state, or local coronavirus quarantine or isolation order.  
  2. A health care provider has advised the worker to self-quarantine due to coronavirus concerns.  
  3. The employee is in the middle of seeking a medical diagnosis due to experiencing coronavirus symptoms.  
  4. The worker is taking care of an individual who has been subjected to a coronavirus-related federal, state, or local quarantine or isolation order, or who has been advised by a health care provider to self-quarantine. 
  5. The worker is caring for a son or daughter because the child’s school or daycare has been closed, or the child’s care provider is unavailable.  

If a worker is sick or quarantined, they will get their full pay while on coronavirus leave, up to $511 per day, which would equate to $5110 in total for two weeks. If a worker is caring for another person or on leave because of an HHS-specified condition, they could be entitled to two-thirds of their regular pay while on leave, which would be up to $200 per day, which equates to $2000 in total for the two weeks.  

New policies are being enacted every week

It’s so essential that you know your rights and what you could potentially be entitled to. These are truly new waters for us all to navigate, and we are well-aware that there will be a multitude of questions moving forward.  

We want to remind you that we are here to help. Even if that means having a conversation and listening to your story to understand better the processes that you’re undertaking, consulting one of our legal professionals is never a bad idea. We are encouraging you to keep your health, your family’s health, and your livelihood as top priorities. Do not let new procedures and policies get swept under the rug and stay close to sources that you trust during this time. We will consistently be updating you with more information, and we can assure you that we will get through this together.  

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child support reduction

Child Support Reduction/Suspension During COVID-19

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We at the Orlando Law Group understand that this is an incredibly tumultuous time for the world, a time where feelings of stress and uncertainty often cloud even the most optimistic of views.

If we can provide even a little bit of clarity for not only our clients but those out there dealing with issues of child support with reduced income, we will have done our job. 

What happens if a parent who pays child support has been involuntarily terminated?

In a time where hundreds of thousands of people are being let go from their jobs, thus losing their steady stream of income, the Courts look to a party’s individual circumstances to determine whether or not their child support obligation should be temporarily suspended. 

Temporary relief from child support is possible where the paying parent has been involuntarily terminated, he/she has searched thoroughly for a new job, the paying parent has depleted their assets, and their unemployment benefits have expired. 

Such relief may also be possible where there has been a significant, permanent reduction in income. If, however, the reduction is only temporary, the courts ultimately have the power to suspend payments.

It is important to note that a parent who is temporarily unemployed may not be subject to contempt proceedings for failure to make child support payments, based on the fact that the unemployment is the root cause of his/her inability to pay.

Additionally, Courts hold that a parent’s temporary relief from child support payments shall only be effective during the time in which it was reasonably necessary for them to gain employment.  You have to file a Motion to reduce child support right away and try to get a hearing because all obligations will keep being due until the obligation is reduced.

In the event that you had money coming out of a paycheck and you do not work at that company any longer, the Department of Revenue can suspend your license or pursue you for not paying.  We hope they will slow this process during this time, but you still have to be proactive as failure to pay can result in license suspension and in the worst-case scenario jail.  

Quire often, Judges are understanding, but they prefer when people are proactive. 

What happens to payment of back child support?

Where the loss of the paying parent’s job is definite and the court has temporarily reduced the paying parent’s child support, they shall not be required to pay any amounts that are owed (arrearages), if they are currently making the reduced child support payments ordered by the Court. 

Again, you need a court order to reduce the amount of support.

What happens if a parent is voluntarily unemployed?

Where a paying parent has created circumstances that a Court believes may amount to voluntary unemployment, the court may impute income (assign an income amount for the parent) sufficient to continue the current child support payments.

A modification of child support may be done by the court to reflect payments the parent could make if he/she was not voluntarily employed. 

Therefore, if you are a parent that has made an exhaustive effort to seek employment and are truly struggling to pay your current child support amount, the court may have the ability to temporarily suspend or reduce such payments until you are reemployed.

It is important to understand that a parent’s obligation to support their child terminates at death, so the temporary suspension of such support will only be granted if the Court finds it absolutely necessary.

In conclusion, if you have any questions regarding your child support payments, or if you need assistance with temporarily suspending them, please do not hesitate to contact a family law attorney at The Orlando Law Group at 407.512.4394 to schedule a consultation today. 

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divorce during coronavirus

The Truth About Getting a Divorce During Coronavirus

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If you are thinking about or searching for information on getting a divorce during coronavirus, this article is written for you. In reality, getting a divorce during a pandemic that has closed down many businesses and brought normal life to a halt can seem overwhelming.

You are probably weighing many options. Should you wait until the coronavirus lockdown passes before you proceed with a divorce? If you and your spouse are living together, what arrangements need to be made while we are on a stay-at-home order?

For those with children, how can you successfully co-parent during coronavirus or COVID-19 restrictions? Is your mental health at risk while being confined and a divorce is the only clear path to healing? While there are no easy answers to those questions and your individual situation plays a large role in your next steps, here are some guidelines.

The divorce lawyers who focus on family law at the Orlando Law Group report that the divorce rate during any type of crisis tends to go up. Divorce during coronavirus is no different and we are already seeing increasing numbers of phone calls and communications from people who are interested in filing for divorce.

The truth is, divorce is an aspect of life and when there is the added stress of a trying situation, like that during a global pandemic, it shines a spotlight on the existing problems. Being restricted with family members and your significant other from leaving that house places many people in a stressful environment. In your home, social distance can only go so far.

If you and your spouse already were not getting along and divorce was in the conversation, being together without a break can exacerbate the situation. If it is insurmountable, the only logical move would be to take the next step towards a divorce.

Some situations are more urgent. If there is physical or mental abuse, moving forward quickly might be a necessity. There are different levels and classifications of abuse. If you are being physically harmed by your spouse or if you live with a narcissist who mentally abuses you, life with restrictions of social interaction outside the home can become intolerable.

In these cases getting a divorce in general needs to be accelerated, and getting a divorce during coronavirus should happen as quickly as possible so that you can be removed from the abusive situation.

How can you move forward with a divorce during coronavirus pandemic?

The global pandemic is shaping our lives in a very dynamic way. It seems that every day we get new information from our state government and the White House. We need to be mindful that what is true today, might not be so tomorrow.

If you are in a position where you want or need to file for divorce dung COVID-19 and coronavirus, you have the right to do so. The Orlando Law Group has been deemed an “essential” business during the stay-at-home order and we are continuing operations from our offices.

We can start the divorce process over the phone or over a video conference. Our offices are being cleaned with the most strict methods and we can even organize for drive-up legal and notary services in our parking lots for your social distancing convenience.

Ultimately, getting a divorce during coronavirus is a bit more difficult than during times without pandemic regulations, but that’s why we are here. We help our clients through the most difficult times.

The first step is to reach out and contact or call us. We’ll guide you from there.

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Reverse Mortgage

The Reverse Mortgage: An Overview

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A reverse mortgage is a loan available to homeowners aged 62 years or older that allows a homeowner to borrow against the equity they have in their house in the form of a lump sum, fixed monthly payment, or line of credit.

Unlike a typical mortgage, with a reverse mortgage, the bank pays the owner of the house monthly mortgage payments, and when the owner of the house passes away or chooses to sell the home, the entire reverse mortgage balance becomes due and payable.

As long as the borrower is 62 years of age or older and lives in the home, he or she is not required to make any monthly payments towards the loan balance. The concept of the reverse mortgage originated as a way to help retirees with limited income use and benefit from the equity which they have built up for their house without having to sell the property.

With these types of mortgages, the owner of the property is ultimately responsible for the property taxes, homeowners’ insurance premium, utilities, fuel, maintenance, and other common household expenses. If only one spouse signed the loan paperwork, in certain situations, the other spouse may continue to live in the home even after their spouse passes away if he or she continues paying the above-noted bills and maintains the property. However, since the other spouse was not a part of the loan, all payments under the reverse mortgage will cease.

Most reverse mortgages have a “non-recourse” clause, which means that the value of the reverse mortgage cannot exceed the value of the home when the loan becomes due and payable. This can be beneficial upon the death of the homeowner because there will not be any bills related to the reverse mortgage outside of the equity in the house.

No other assets in the estate of the deceased homeowner are affected. There are three different types of reverse mortgages. As with any type of transaction, it is important to shop around for the best option for your home and fully understand the complexities of the transaction before locking yourself into a long-term loan.

Single-Purpose Reverse Mortgage

With this type of mortgage, homeowners can use single-purpose reverse mortgage proceeds only to pay for specific items that are approved by the lender. This single purpose may be for necessary repairs and maintenance, or payment of property taxes. The lender on this type of file is a state, local, or non-profit agencies. This type of mortgage considered the least expensive type of reverse mortgage. This option can be beneficial to many homeowners because it offers fewer expenses and fees than other types of reverse mortgages.

Home Equity Conversion Mortgage

This type of mortgage is likely to be more expensive and is the most widely used version of the reverse mortgage. This is because there are no income requirements, and the proceeds from the loan can be used for any purpose. This loan does not carry the same single-purpose limit detailed above.

The Home Equity Conversion Mortgage, or HECM, is insured by the Federal Housing Administration, or FHA, which means it has loan limits and some additional guidelines in place to protect borrowers. The HECM loan limit, or maximum claim amount, for 2022 is $970,800. That means the highest home value that can be used to calculate your reverse mortgage proceeds is $970,800.00.

Counseling is typically required before applying for this loan due to the higher expenses, interest rates, and payback requirements of this loan. Because this is a federally insured mortgage, there are usually high up-front or monthly ongoing insurance payments. These payments are usually taken out of the loan itself, and reduces the amount you are able to borrow.

Proprietary Reverse Mortgages

A proprietary reverse mortgage is not available to the average homeowner. As of 2022, in order to qualify for this type of reverse mortgage, your home must have a value of at least $970,800.00. This is not a federally insured mortgage and often has less stringent insurance requirements.

If you are considering this type of loan, you should also apply for the Home Equity Conversion Mortgage. This way, you can compare fees for both types of reverse mortgages to find out which loan fits better for your situation.

Wrapping It Up

Reverse mortgages do possess a poor reputation in the eyes of many due to several scams which look to target unsuspecting seniors and dishonest marketing to try to get homeowners to take out reverse mortgages. For instance, in late 2021, the Consumer Financial Protection Bureau filed a complaint and levied a $1.1 million fine against American Advisors Group for deceptive marketing regarding reverse mortgages.

Using a reverse mortgage can eat up the equity in your home, meaning there is less value to your estate that is left for your heirs. If your goal is to leave the house for your heirs to live in, a reverse mortgage may not be the right type of loan for you. On the other hand, using a reverse mortgage may allow older homeowners to better manage their expenses during retirement. You also would not have to pay taxes on the income you receive from a reverse mortgage, as it is not taxable because the IRS considers that income as “loan proceeds.”

Reverse mortgages have both pros and cons, and it is important that you understand the complexities of a reverse mortgage to know whether such a loan is right for you and your family. If you would like to discuss how a reverse mortgage may benefit your situation, please contact an attorney at The Orlando Law Group, P.L. via phone at 407-512-4394.

The attorneys at The Orlando Law Group represent individuals throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate or estate planning issue, are wondering if a reverse mortgage is right for you, or are looking to establish your own estate plan, please reach out to our office at 407-512-4394, or fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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time-sharing schedule problems

What Happens If A Parent Refuses To Honor The Time-Sharing Schedule Set Out By The Court?

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In Florida, courts adhere to public policy when shaping a time-sharing schedule. This policy states that each minor child should have frequent and continuing contact with both parents during a separation and after a marriage is dissolved. The court adheres to the notion that parental responsibility is shared by both parents unless the court finds that it would be detrimental to the child.

It is important to note that divorce often results in a rollercoaster of emotions and situations may arise that lead to conflict between parents. If such distress leads one parent to begin restricting or altering the time-sharing of the other, Florida Statute 61.13(4)(c) states that the Court may:

1. Reimburse the denied-parent, as soon as possible, for the time-sharing missed. This is done at the convenience of the denied-parent and at the expense of the noncompliant parent; or

2. Order the noncompliant parent to pay reasonable court costs and attorney’s fees to the denied parent for the expenses incurred from bringing an action to enforce the time-sharing schedule; or

3. Order the noncompliant parent to attend a parenting course; or

4. Order the noncompliant parent to perform community service; or

5. Order the noncompliant parent to have the financial burden of promoting continuous contact, if the child resides more than 60 miles away from the compliant parent; or

6. Modify the parenting plan if it is in the best interest of the child; or

7. Impose any other reasonable sanction as a result of the parent’s noncompliance.

In addition to the possibilities listed above, if a parent refuses to honor the time-sharing schedule, they may be punished by contempt of court or another remedy that the is deemed appropriate. A contempt order may be criminal or civil. The determination of which type of contempt applies depends on the action of the party. Criminal contempt is often used to punish a party whose conduct rises to the level of embarrassing, hindering, or obstructing the administration of justice. Civil contempt is often used to persuade a party to comply with a court order after they have already failed to abide by it. To avoid being held in contempt, the parties must follow the time-sharing schedule set out by the court or properly modify it.

HOW DO YOU PROPERLY MODIFY A TIME-SHARING SCHEDULE?

Florida Statute 61.13 states that in order to modify a time-sharing schedule, a two-prong standard must be satisfied: (1) that there be a showing of substantial, material, and unanticipated change in circumstances; and (2) a determination that the modification is in “the best interests of the child.” In order to allow for a modification of the time-sharing schedule, the change in circumstances must be significant and involuntary. Additionally, as discussed in previous blogs regarding time-sharing, the “best interest of the child” is the primary standard that the court adheres to when constructing a time-sharing schedule for a minor child and his/her parents. There are numerous factors that must be considered when determining what is best for the child, some of which are:

· The ability of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent;

· The length of time the child has lived in a stable environment; and

· The moral fitness of the parents;

Therefore, if a party meets its burden of proving that there is a substantial change in circumstances and the modification is in the best interest of the child, the court may allow for the time-sharing schedule to be altered.

It is important to remember that the focus of both parents must remain on the well-being of the minor child/children, particularly in developing a safe and healthy environment for them. Additionally, if a time-sharing schedule is modified, then child-support payments may need to be adjusted as well. If you are planning on obtaining a divorce or modifying a time-sharing schedule, it is imperative that you understand the process, as well as the rules that the court must adhere to.

The attorneys at The Orlando Law Group are equipped with the knowledge and experience to assist you with such a process. Call 407.512.4394 to schedule a consultation today.

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Divorce Child Custody

How Do Courts Calculate Time Sharing in Divorce Child Custody

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Divorce can be an overwhelming process, especially if a parent doesn’t understand the reasoning and methodology behind the court’s decisions. One decision that many people must deal with is the courts’ decision on the custody arrangement.

When the amount of time you spend with your child is at issue, it often helps to understand the rules that the court must abide by when constructing a time-sharing schedule. In Florida, courts adhere to Florida Statute 61.13, which may be a little overwhelming to read at first glance. This is why the professionals who focus on family law with The Orlando Law Group are here to help. 

Florida Statute 61.046(23) defines time-sharing as a timetable that must be included in the parenting plan that specifies the amount of time that a minor child will spend with each parent, which includes overnights and holidays. A time-sharing schedule can either be 1) developed and agreed upon by the parents, then approved by the court; or 2) established by the court, if the parents can’t agree or if the time-sharing schedule they have already developed is not approved. 

61.13 (2)(c) further states that the court must make a decision regarding a minor child’s time-sharing based on the best interest of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. This means that the court takes into account all factors that affect the welfare and interest of the minor child, as well as the circumstances of the family. For example, some of the factors that the court looks to when determining the best interest of the child are: 

a. The capacity of each parent to encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required; 

b. The ability of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent; 

c. The length of time the child has lived in a stable environment; 

d. The moral fitness of the parents; 

e. The mental and physical health of the parents; 

f. The home, school, and community record of the child; 

g. The reasonable preference of the child; 

h. The knowledge, capacity, and disposition of each parent to be informed of circumstances that involve the child; 

i. The ability of each parent to provide a routine for the child, such as discipline and daily schedules for homework, dinner, or bedtime; 

j. The capacity of each parent to communicate with and keep the other parent informed of issues and activities involving the child; 

k. Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect; 

l. Evidence that either parent knowingly provided false information to the court regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect; 

m. The ability of each parent to participate and be involved with the child’s school and extracurricular activities; 

n. The ability of each parent to maintain an environment free from substance abuse; 

o. The ability of each parent to protect the child from ongoing litigation, which includes: no talking about the litigation, no sharing documents with the child, and refraining from speaking badly about the other parent; 

p. And any other factor that is relevant to the determination of time-sharing. 

In addition to the best interest of the child, the court makes its decision in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, or otherwise known as the “UCCJEA”. The purpose of the UCCJEA is to avoid competition and conflict between courts of another state, where matters of custody may have been previously handled.

The UCCJEA Affidavit requires the parent to fill out the child’s name, place of birth, birth date, sex, present address, the period of residence, and places where the child has lived within the past 5 years. It also requires the name, present address, and the relationship to the child for each person with whom the child has lived during that 5-year period. 

Statute 61.13 further states that it is the public policy of the state that each minor has frequent and continuing contact with both parents after the parents separate or after the marriage is officially dissolved. It encourages both parents to share the rights and responsibilities that come with raising their child. It also emphasizes that there is no presumption against the father or mother of the child regarding their time-sharing, which essentially means that there is no predetermination made by the court regarding which parent the child will spend more time with. After the court weighs all of the factors outlined above, it will make its determination based on whatever time-sharing schedule is best suited for the child’s individual needs. 

If you are currently struggling with determining a suitable time-sharing schedule in a divorce child custody situation, finding an attorney who can effectively help you during its construction is vital. The attorneys at The Orlando Law Group are ready, willing, and able to assist you with such a process. We have countless hours of experience in family court helping our clients navigate divorce cases and understand the type of custody that has been arranged.

Call 407.512.4394 to schedule a consultation today.

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How to handle a narcissist in court during a divorce

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By Attorney Marsha Summersill

What is a narcissist?

A narcissist is someone characterized as having a narcissistic personality disorder. This disorder is defined by psychologists as a mental condition in which an individual has an inflated sense of self-importance, an insatiable need for outside attention has difficulty in relationships, and has a clearly defined lack of empathy for others.

One of the lesser-known defining elements of a narcissist is that despite the outward impression of self-confidence, they possess delicate self-esteem and are easily hurt by even small amounts of criticism.

Someone with a narcissistic personality disorder will often have problems in many areas of their life. Narcissists have difficult times in relationships, at work or school, and those difficulties can find their way into other important parts of their life.

Because of the narcissist’s need for constant outside admiration, they will often be disappointed in normal relationships and will find them unfulfilling. Because of this, the narcissist will typically seem unhappy, dissatisfied, and disappointed.

What does narcissistic mean?

To be narcissistic means to possess the characteristics of a narcissist. This means they have a constant and unrealistic need for affirmation and lack empathy for others, even those closest to them.

It can be difficult to identify someone’s personality as narcissistic. It’s important to understand that narcissism is a scientifically defined mental condition. While it might be easy or convenient to anecdotally classify someone as being a narcissist, for this article, we advise our clients to refrain from using that term unless there has been a clinical diagnosis.

Signs you are in a narcissistic relationship

While it is important to have someone diagnosed as a narcissist to best understand the situation, there are some signs you can look for if you believe you are in a narcissistic relationship. Here are some of the most common.

  1. Your partner or ex has to dominate the conversation. This is because the narcissist wants all of the focus and attention to be on them, with little regard for how others feel.
  2. Your partner or ex continually interrupts without consideration for your feelings. Remember, a narcissist lacks empathy and understanding of other’s feelings so they will barge in on the conversation without care.
  3. Your partner or ex feels that boundaries or rules don’t apply to them. A narcissist believes they live outside of the rules of appropriate behavior. This means that they will go beyond the boundaries of what is appropriate and feel that they are justified in breaking any rules that govern basic human-to-human relationships.
  4. The projection of a false, exaggerated appearance. The narcissist so badly wants to impress those around them that they will often exaggerate many things about their lives. What’s happening here is that they want to convey the message that they are better than everyone else.
  5. The narcissist is manipulative. They will use situations and other people to their advantage and strengthen their belief that they are better than those around them. Even under pretense, someone with narcissistic tendencies will “use” people and environments to elevate their position and draw out the attention and admiration of others.
  6. Your partner or ex is grandiose. The narcissist has a false sense of self-importance and will portray themselves in kind. Their behaviors will be exaggerated. They will imply that they are heroic and others simply could not survive without them.
  7. Your partner or ex isolates you from your friends and is highly controlling. Remember, to the narcissist, it is all about them, and they do not want you to share your attention or affection with others.
  8. Your partner or ex likes to spread negative emotions. One of the most potent ways to get attention is to spread negative emotions. These negative emotions could be caused by the smallest of circumstances, real or perceived. This behavior will often throw-off people around them and direct attention to the narcissist.

Can a narcissist change?

There is much debate between psychologists about whether a narcissist can change. The root of the argument is that narcissism is a personality disorder and typically these types of disorders have more permanence. They are increasingly resistant to change over time.

One position is that if a person is diagnosed with narcissistic personality disorder and desires to change strongly enough, they can change.

However, we are dealing with the complexities and variances of the human mind, and each person and situation is different. The short answer is that it is not clear if a narcissist can change.

How to deal with a narcissistic husband, wife, or ex.

Dealing with a narcissist is another complicated question. There are many experts who believe that, especially in the case of an ex, you should completely avoid dealing with a narcissist at all. Especially if you feel that you can change their behavior. The experts suggest keeping the narcissist at arms-length and deal with them as little as possible or as is necessary, in the case of co-parenting.

The key to dealing with a narcissistic husband, wife or ex is to understand what you are dealing with. Your partner or ex lives in a world that is all about them, and your feelings or existence have little meaning unless you are paying attention to them, giving them accolades, or giving them affection. If you are comfortable living in that condition, you can then deal with it accordingly.

How to handle a narcissist in court during a divorce

Dealing with a person with narcissistic issues or traits during the divorce process or in an adversarial setting is difficult but doable. The following suggestions are helpful methods as the divorce process alone is daunting, and adding the narcissist as an opposing party escalates the level of difficulty to extremely high.

  • Be prepared to receive several motions and pleadings that will be inaccurate, inflammatory in nature, and in abundance. The first reaction is to respond in anger and try to counter the accusations with your own flurry of emotional responses; however, this type of response may be counterproductive to your goal for the divorce. The best method is to maintain a calm, cool, and collective stance. Meet with your attorney and formulate a game plan to tackle the motions and filings in a manner that places you in a better position when you do need to be in front of a judge.
  • Make certain to choose an attorney with a good skill level to deal with a narcissist. Your lawyer that is drafting your responses, motions and pleadings must be knowledgeable on how to deal with an opposing party that has narcissistic traits. The narcissistic party believes they know more than a lawyer and will attempt to manipulate your attorney. Your lawyer should have the ability to identify the narcissist’s tactics and respond accordingly that will benefit you and get you closer to your desired outcome in the case.
  • Keep your attorney INFORMED. This cannot be stressed enough. Do not doubt your knowledge of your partner or spouse.
  • Because of the increased problems and high emotional stress involved in a divorce with the added issue of divorcing a narcissist, it is suggested that you participate in therapy with a licensed mental health professional that has advanced working knowledge on addressing the ramifications of dealing with a narcissistic partner or spouse. Really try to use the methods and strategies recommended by the therapist to help get through the process.
  • Only use documented or written forms of communication. This is advised for all contentious divorces, but more so in a divorce with a narcissist. You will receive hostile, inaccurate, and harassing communications from the narcissistic party. Don’t respond while you are reeling in anger. WAIT! Consult your lawyer and keep that calm and collective stance that was previously suggested. Remember, every communication has a possibility of being used in court. Communicate in a manner where you think a judge or third-party decision maker is watching and listening.
  • Gather your support together! Your support is your legal team, your mental/emotional support team, and your friends, family and other reliable and trustworthy sources or groups.
  • Meet with your attorney before any hearings or trial. Review methods with your attorney on how to address any triggers that the narcissist may attempt to use to rattle you and impact your ability to get your testimony heard.

Co-parenting with a narcissist

Unfortunately, co-parenting with a narcissist will require ongoing diligence on your part to ensure the children are insulated as much as possible from the self-serving goals of the narcissist. You will need support. It is strongly suggested to have a mental health professional involved. The therapist or counselor also should be skilled in dealing with narcissistic tendencies or traits from the other parent.

Make certain to keep the therapist informed of the issues regarding the narcissistic parent. Ask for help on how to address the problems associated with the narcissistic parent.

You will receive information from the children on what the other parent is discussing with them or saying about you. The narcissist will most likely engage in a smear campaign against you and inappropriately share litigation information or adult topics or issues with the children. It is critically important not to respond in a “correction” mode or tell your children the real facts. I know it is hard, but do not involve your children in the parenting aspect of your case.

Document what the children are saying to you and discuss it with your therapist and your attorney. Remember, keep your lawyer informed. Encourage your children to be open, honest, and to share. Also, let them know that those conversations are adult problems and the children should not be involved at all. The therapist will have insight on how to address the parenting side of the problems the narcissist will create, and your lawyer will guide you on what to do legally. Use the resources of your support teams.

Moving on from a marriage with a narcissist

Moving on from a relationship with a narcissist can be difficult, even more so if you’ve spent years in the narcissistic environment. You might have feelings of low self-worth, you might doubt your ability to make others happy, you might unfairly judge yourself.

First, realize that it’s not your fault. You were in a situation that actively contributed to making you feel this way about yourself. You’ve gotten out. Now it’s time to move on.

You should take time for yourself. It’s time to reconnect with yourself and find the value that you bring to your own life and that of others. Engage in activities that help you regain balance in your life and help build your self-esteem. Sign up for a class that you’ve always wanted, increase physical activity, spend time with family and friends. Reintroduce yourself to the beautiful things life has to offer.

In some cases, you might want to consider getting help through therapy. Sometimes just having someone to speak with about the situation can help ease the process of moving on. A professional who can specifically address the situation can be a valuable resource.

No matter what, you must move on. You will find “yourself” again and realize that you are the beautiful, miraculous person you were meant to be.

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Selling Firearm

What Should I Know if I Want to Sell My Personal Firearm to a Private Citizen?

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When selling a firearm, there is a lot of regulation; however, most of it is designed for transactions between Federally Licensed Firearms Dealers (FFL) and private citizens. The good news is that when selling a firearm is conducted between two private citizens, the rules are simple and there is no wait time, but there are still a few legal requirements. In Florida, both persons (seller and buyer) would need to be residents of the State of Florida (or of the same state otherwise); be at least 18 years of age, and must not have any legal disabilities. For a complete list of legal disabilities, see the federal statute at 18 USC 922(g). This is true even for handguns, as opposed to the federal age requirement of 21 years of age for an individual to be able to purchase a handgun from an FFL dealer. The private seller is not required to ask if the buyer has any legal disabilities, but if the buyer tells you or you suspect the buyer may have a disability, you cannot legally sell to them. It would also be prudent to either copy or given technology today, take a picture of the person’s identification evidencing their Florida or same state residence in case any residency issues come up in the future.

What should I know if I want to sell to someone out of state? A private resident of Florida (or any state for that matter) may not legally purchase or sell any firearm directly from or to any private individual that is a resident of another state, period. However, there is a legal exception to get around this prohibition on private firearm sales to persons that are not residents of the same state as the seller.

Federally speaking, a firearm is not transferred until “delivery”. The steps that need to be taken to sell or purchase firearms from private individuals residing in different states are: 1) The firearm must be delivered and picked up at an FFL, for a small fee, in the buyer’s state. 2) The buyer will need to fill out the Form 4473 and obtain the criminal record check and approval in their resident state. 3) The sale must be lawful in the buyer’s resident state. With these steps, you will have a lawful delivery and sale according to federal regulations. Please note again that you cannot legally, directly deliver the firearm to the resident in the other state. Also, be wary of “strawman” transactions. It is a felony for a person to purchase a firearm for a non-resident or for someone with any legal disqualification. If you have reasonable cause to suspect the purchaser is a “strawman”, do not make the sale to that person. F.S. 790.065

What if I’m trying to sell a firearm to someone under the age of 18? Short answer, don’t do it. However, for those of you who enjoy tangling with the intricacies of the law, when the other party is under 18 years of age, it gets rather complicated. It is a felony to sell, give, or lend any person under 18 any weapon, UNLESS you receive prior written permission from one of the minor’s parents or legal guardians. Failure to obtain the parent’s or legal guardians prior written permission is a violation of F.S. 790.17 and a felony if the weapon is a firearm. Florida law forbids the possession of handguns, but not shotguns or rifles, for persons under the age of 18. (even though the Federal law requires you to be at least 21 years old to purchase a handgun from an FFL dealer.) There are a few exceptions to a minor’s legal use and possession of handguns, such as for target practice or handgun instruction courses. You will also still need prior written permission from the minor’s parent or legal guardian to engage in those activities as well. If the minor is 16 years or younger, it’s a felony for them to use the firearm, unless they are supervised by an adult legally permitted to have the firearm. If you were involved in their possession of a firearm, you could also be held civilly liable for damages caused by the minor. As earlier stated, this is a situation best entirely avoided.

Author: Jeffrey W. Smith, The Orlando Law Group

 

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey lives in Oviedo with his family.

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How-to-Get-A-Passport-for-a-Minor

How to Get a Passport for a Minor Under 16

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Obtaining a U.S. passport for your child will require slightly more work than it will take to get one for yourself. To start, both parents or guardians must be present when applying for the passport, except in certain circumstances that will be explained below. Every U.S. citizen needs a passport to enter and leave foreign countries, so even your infant will need to complete the following steps, which cannot be done by mail for first time applicants.

The first step is completing application form DS-11, which may be done either in writing or online. The requested personal information includes your child’s full name, date and place of birth, gender, phone number, travel plans and an emergency contact. Next, you must gather supporting documents to be presented at the time you submit the application at a passport office. You will be required to show: evidence of your child’s U.S. citizenship; proof of the parents’ or guardians’ relationship to the child; a photo ID of the parents/guardians or the child; a photocopy of identification documents; and one passport photo of your child.

Evidence of U.S. citizenship may be demonstrated by: a previously issued, undamaged passport; a certified birth certificate issued by the city, county or state; a consular report of birth abroad or certification of birth; a naturalization certificate; or a certificate of citizenship. To obtain certified copies, contact the registrar’s office of the state where your child was born, and be sure to get the “long form”. Evidence of parental relationship may be demonstrated by: the child’s U.S. birth certificate; foreign birth certificate; adoption decree; divorce/custody decree; or consular report of birth abroad of a U.S. citizen. The parent(s) or guardian(s) applying for the child’s passport must submit photo ID if the child does not have one, an undamaged passport or valid driver’s license will suffice.

If one parent/guardian is unable to appear, the DS-11 application must be accompanied by a signed, notarized form DS-3035: statement of consent from the non-applying parent/guardian. If one parent/guardian is absent and cannot be located, the applying parent must submit form DS-5525: statement of exigent/special family circumstances. The statement must explain in detail the non-applying parent/guardian’s unavailability and the recent efforts made by the applying parent to contact the unavailable party. The applying parent may also be required to provide evidence to document his/her claim of exigent or special circumstances. Evidence may be in the form of a custody order, incarceration order, or restraining order, for example. To protect against international parental child abduction, the Passport Agency processing the application may ask for additional details if the statement is determined to be insufficient.

If the minor has only one parent/guardian, evidence of sole authority to apply for the minor must be submitted with the application. Evidence may include: a U.S. or foreign birth certificate, consular report of birth abroad, or adoption decree, listing only the applying parent; a court order granting sole legal custody to the applying parent; a court order specifically permitting applying parent’s travel with the child; a judicial declaration of incompetence of the non-applying parent; or the death certificate of the non-applying parent.

If you are a parent or guardian and find yourself in need of obtaining a passport for your minor child, particularly if needed during the course of a divorce or paternity proceedings, please contact one our outstanding attorneys at The Orlando Law Group, P.L.

Author: Jeffrey W. Smith, The Orlando Law Group

 

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey lives in Oviedo with his family.

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child

Changes in Circumstances Could Modify Your Florida Child Support

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You’ve gone through a divorce, which is never an easy thing for anyone. The emotional and time toll that these proceedings take on a person can be utterly exhausting. But once the judge bangs the final gavel, is there more to do, save fulfill your court-mandated obligations? Well, if children are involved, the answer to that is, quite possibly!

Child support determinations are not set in stone. There are factors which can lead to a case being reopened, and modification occurring as to exactly how much is owed. Modifications to an existing child support ruling are sought when a substantial change in circumstances occurs. This alteration will either increase or decrease the amount of child support which is paid or received by a party.

But what constitutes a substantial change in circumstances? The loss of a job, or a large promotion, is certainly the first which spring to mind. Any substantial increase or decrease in income could be seen by the court as cause to modify the existing ruling. However, it is more than just a change in either party’s income that merits such a modification. Rulings could be changed if expenses shift, such as an increase or decrease in the cost of daycare or health insurance for the child. Another example of an opportunity for child support modification comes when a child turns 18 and graduates from high school.

But, when it comes to divorced families, money is not the only factor that can be re-determined. Time sharing is also determined by the court, and can always be modified provided there be a substantial change in circumstance. The alleging party must prove that such a shift has occurred, and show the court that the requested change, whether it be for an increase or decrease of time, is in the best interest of the child.

Time and money are two factors that can prove daunting in the post-divorce landscape. If you are seeking to modify your existing child support or time management arrangement, it is important to have the input of an experienced and skilled attorney.

The Orlando Law Group specializes in family law, including modifications. Call us at 407.512.4394 to schedule a consultation today!

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baby

Know The Law When Adopting a Child

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Adoption is a beautiful way to grow your family. Taking in a child in need, either domestically or abroad is one of the most noble and rewarding experiences a parent can undertake. The process for adoption can be long and arduous, and mistakes can cause major setbacks, up to and including having the adoption disrupted. The presence of an adoption attorney can help you avoid these potentially disastrous consequences and welcome your new addition in peace!

When choosing to adopt a child, it’s important to familiarize yourself with the different types of adoptions available.

Domestic Child Adoption speaks of a scenario in which you and the child you wish to adopt are both residing within the United States. If the prospective parent and child reside within the same state, it is called domestic intrastate adoption. If they are in different states, it is known as domestic interstate adoption. Adoption specifics vary depending on the state or states involved and the level of cooperation from the birth parents. Domestic intrastate adoption is a far simpler process, as you only have to concern yourself with meeting the requirements of one state.

When you adopt a child from a country other than the one you reside in, that is called International Child Adoption. This process is subject to the laws and regulations of your state, the United States government, and the foreign government where the child is coming from. International Adoptions are also subject to the requirements of The Hague Convention, a treaty among member countries that sets internationally agreed-upon minimum procedures for all member country affiliated adoptions.

In both types of adoption, it is important to have a Home Study completed prior to taking custody. The Home Study is the require detailed evaluation of you, your spouse, your home and surrounding environment. This step is required for all domestic and international adoptions.

In addition to the choice between International and Domestic Adoptions, you will also be faced with several other decisions that must be made. For instance, are you using a licensed adoption agency or is this a private adoption? Will you work with a facilitator who coordinates the adoption, or through the Foster Care system? Will you have an open adoption, in which the identity of the birth parents is known, or a closed adoption where no information on the birth family is given? Understanding the importance and consequences of each choice is vital, and is yet another avenue where legal guidance comes into play.

Failure to understand the laws and rights of both the birth parents and the adopting family can cause a disruption to the process. If you are planning on adding to your family through adoption, it is important to seek legal aid before the process begins.

The attorneys of The Orlando Law Group are equipped with the knowledge and experience to aid in your quest to grow your family. Call us at 407.512.4394 and schedule a consultation today.

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How Does Contempt Work in Family Cases?

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If you watch any court show, you’ve surely heard the word “contempt” tossed around. But do you know what it means? Contempt of Court is a provision that allows a judge to deincentivize and even punish individuals who are hindering the administration of justice. In cases of family law, contempt is particularly relevant. Often times, ex-spouses will violate or ignore court mandates such as child support payments, alimony, or visitation time due to spite against their former spouse. When such a situation occurs, a judge could find the offending party in contempt.

Contempt should be taken seriously. Potential consequences could range from fines to sanctions or evil incarceration.

There are two types of contempt, criminal and civil. In a case of criminal contempt, a “show cause” hearing must be held, in which the involved parties present sworn testimony and evidence in an attempt to show why one party should or should not be found in contempt. Criminal contempt can be both direct and indirect. A case of direct criminal contempt occurs when a party violates a court order in the presence of the court itself. For instance, if a Judge orders a party to stop bringing up irrelevant information, and the party willfully disobeys that order, they are in direct criminal contempt. Indirect criminal contempt occurs when a party fails to comply with a court order outside of the court. If the court orders one party to stop contacting the other, and they ignore this edict, they are in indirect criminal contempt.

Civil contempt is dependent upon a court ruling, stating that the offending party had the ability to comply, but refused to do so. Civil contempt courses also carry a “purge provision” in which a judge will lay out a particular action which, once undertaken, will eliminate the contempt. One example could be an ex-spouse who owes 6 months of back child support. Paying the back-owed amount could eliminate the contempt and any consequences that come with it.

If your former spouse has violated a court order, and is refusing to pay alimony, child support, or violates visitation rights, you may be able to petition the court to find them in civil contempt. The court could then fine or sanction your former spouse, or incarcerate them until he or she complies. A petition, however, does not automatically lead to a finding of civil contempt.

The presence of experienced legal counsel is vital to this process. A family law attorney comes to the table armed with the knowledge of court proceedings and knows how to properly bring the issue before a judge. There are many procedural rules that must be followed in cases of contempt, and evidence must be presented in a specific way.

The Orlando Law Group is experienced in such matters and will help you navigate the court’s contempt system to ensure that you receive the support you are legally entitled to. If you believe your ex-spouse might be in contempt, call The Orlando Law Group at 407.512.4394 to schedule a consultation.

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How is Paternity Determined in Florida?

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When the mother and alleged father are in agreement as to the child’s parentage, they can sign what is known as a “Voluntary Acknowledgment of Paternity” form. When you sign this form, you are stating, under oath, that the man listed is the child’s legal father. Once signed, it takes 60 days for the acknowledgement to become final. After that initial period, neither parent can revoke it, unless they can present in court proof of fraud or extreme force used to get the signature.

When there is discrepancy or disagreement as to a child’s parentage, the mother or alleged father may petition the court to establish paternity. This process can be started by the mother, the man who has been identified as the father, the child through a legal representative, or the Florida Department of Child Services. Cases can be started before a child’s birth, but cannot be held until the child is born.

The court will order a genetic test to prove or disprove alleged paternity. Following the results of this examination, the judge may make orders as it pertains to child support, decision-making authority, parenting time, health insurance of the child, or payment of either party’s attorney fees and court costs.

If you are involved in a paternity dispute, the attorneys of The Orlando Law Group are here to help! Call us at 407.512.4394 to schedule a consultation!

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Adult Guardianship in Florida – What You Need to Know

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This process consists of three steps.

1.       The court must determine the proposed ward’s mental incapacity.

2.       The guardian must be officially appointed for the purpose of carrying out the Ward’s personal and/or financial affairs.

3.       Accounting must be provided to the court regarding the Ward’s affairs.

Florida law accounts for both voluntary and involuntary guardianships. Voluntary guardianships occur when the ward is mentally competent, but incapable of managing his or her own estate. They voluntarily petition for the appointment of a guardian.

Involuntary Guardianship occurs when another individual files a petition in Probate court, stating that the proposed ward lacks the mental or physical capacity to manage their own person and/or property.

Subsequent to the appointment of a guardian, the ward may lose some or all of following rights:

–          The right to Vote

–          The right to marry

–          The right to travel at will

–          The right to seek or retain employment

–          The right to have a driver’s license

There are several different forms of guardianship.

Guardianship of the Person:

–          The Ward has little or no assets that require guardianship, but their ability to make decisions such as medical care, housing arrangements, and personal care are in question.

–          Financial accountings are avoided; however, the court still requires an annual plan summarizing the previous year and detailing proposed care strategies for the following year.

Limited Guardianships and Guardianships of the Property

–          The individual in question is capable of making personal decisions, but incapable of making financial decisions.

–          Guardian oversees the proper management of assets and makes an annual accounting to the court.

–          Also occurs if a minor is beneficiary of an estate and inherits money.

–          Also applies to scenarios in which a lawsuit settlement is payable to someone under the age of 18.

–          Permission from the court would be required before these funds can be used.

–          The guardian is responsible for making annual accountings to the court.

Plenary Guardianship

–          The ward is incapable of making BOTH financial and personal care decisions.

–          Guardian will oversee all decision-making areas.

–          Guardian will solicit the court for permission to spend assets for the benefit of the ward.

–          Guardian is responsible for accounting the ward’s assets and care.

Guardian Advocacy

–          A developmentally disabled child turns 18 and is viewed as an adult in the eyes of the law.

–          Summary form of guardianship in which the ward’s prior condition and medical reports take the place of an incapacity determination.

–          Guardian Ad Litem attorney is appointed to represent the ward and their rights in court.

–          Guardian Ad Litem investigates what solutions would be in the best interest of the ward.

Guardianship can be a complicated and difficult process to navigate. The Orlando Law Group specializes in guardianship, and is ready to answer your questions. Call 407.512.4394 for more information, or to schedule a free consultation. 

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Top 5 Signs That You Should Consider Divorce

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1.       Your Needs Are Not Being Met:

We all have needs, whether physical, emotional, or spiritual. Both partners must do their part and fulfill the needs of the other. When one-half of this equation drops off, the marriage becomes one-sided. No one should be forced to give their all and receive nothing back in return. If you feel unfulfilled in every aspect of your relationship, then you owe it to yourself to find happiness elsewhere, once a divorce has been finalized.

2.       Staying Together For The Kids:

The presence of children always hurts the divorce process, and in many cases, an abusive relationship will carry on for years because one or both parents do not wish to put their children through the stress. Often times, you’ll hear someone say, “we’re staying together until the kids are out of school,” and meanwhile they’re wasting away the best years of their lives.

Children are impressionable, and they see everything. Many of the values that a child carries into adulthood are learned from the examples set forth by their parents or guardians. Seeing an unhealthy relationship degenerate before their eyes will teach kids the wrong lessons about love. Seeing abuse on a daily basis normalizes that behavior, and they may adopt such a demeanor as they grow. Sometimes, it is healthier for children to experience the divorce process than it is to grow up in an unhappy home.

3.       Trust is Gone:

Trust is the most important element of a relationship. If you cannot trust your spouse, then every element of your marriage will be tainted. No one likes to worry about who their husband or wife might be speaking with, who they’re seeing, and what they’re hiding. Having to snoop around your significant other’s phone, drawers, or social media profiles is not something anyone should ever have to do.

Many times, repentance is possible, and through time and effort, the bond of trust can be mended. But, if you have been burned multiple times, ask yourself if you can ever truly trust this person again. If the answer is no, then it’s time the begin thinking about moving on.

4.       Abuse:

Abuse can come in many forms. Physical abuse is the most commonly known, but there are also mental, verbal, and emotional abuses, all of which are unacceptable in a relationship. By accepting abuse and continuing to give your spouse what they want, you are feeding into that behavior and reinforcing it. Abuse cannot be tolerated, and if you are being abused in any way, you owe it to yourself to get out of that relationship as fast as possible.

If you are a victim of physical abuse, consider calling the National Domestic Violence hotline at 1-800-799-SAFE.

5.       Unfaithfulness:

Whether you’ve cheated or been cheated on, unfaithfulness is a huge sign that something in your relationship is broken. Many times, a partner can overlook unfaithfulness, but it often looms above the marriage like a dark cloud. If you are trying to forgive a cheating spouse, make sure that you have it in your heart to fully forgive them, or you will have a tainted relationship forever.

Also, if you are thinking about being unfaithful, that is another sign that something in the relationship is broken. Either attend counseling and try to cut off the issue before anything happens or consider filing for a divorce.

Divorce is not fun, but it can be manageable. The Orlando Law Group specializes in Family Law, and will stand beside you during this difficult time. But, before that’s possible, you must decide what’s best for you, and make this important decision. If any of these five examples of a broken relationship can be applied to yours, then it might be time to schedule a consultation.

Call 407.512.4394 to speak with an attorney today. 

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Retirement Accounts and Divorce Who Gets Custody?

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As with most financial accounts, retirement accounts afford the participant (person contributing to the account/account holder) the opportunity to place beneficiaries on the account in the event the participant becomes deceased prior to extinguishing the funds in the account. A common question often in the mind of the participant is, “What will happen to my retirement account if I get divorced?” In Florida, the income of the husband and wife is considered to be marital property, as well as the benefits received therefrom. Funding a retirement account using funds from your income (paycheck or individual deposit) could designate all, or at least a portion of your retirement account as marital property. The problem with dividing up a retirement account as part of a divorce proceeding is that both the Employee Retirement Income Security Act (ERISA) and the IRS prohibit retirement plan participants from assigning their interests in their plan to anyone absent a Qualified Domestic Relations Order (QDRO).

QDRO is a court order that creates a right in the “alternate payee” (former spouse) to receive a portion of the benefits that would be payable to the participant (other former spouse) in accordance with that specific retirement plan’s rules. In reality the way this works is either by agreement between the parties or by order of the court, the alternate payee will be designated a portion of the other spouse’s retirement plan expressed either as a specific dollar amount or as a percentage of the marital portion of the account balance as of a valuation date. If the participant began contributing to the plan after the parties were married, the valuation date is usually the date of the filing of the petition for dissolution of marriage or any other date as agreed to by the parties or ordered by the court. If the participant was contributing to the plan before the parties were married then the valuation of the account is usually determined as the value of the plan on the valuation date minus the value of the plan on the date of marriage. After the dollar amount or percentage is determined and final judgment has been entered by the court a proposed QDRO will need to be drafted. The first step in drafting a QDRO is for the attorney or draftsperson to contact the Plan Administrator (PA) for a sample QDRO specific to your plan. Depending on the response time from the PA your order could be draft in a little as a day or two or in as much as two to three weeks. After the proposed QDRO has been drafted the attorney will then send the proposed QDRO to the PA for review. This process usually takes about 30 days. Upon receipt from the PA that the proposed QDRO complies with the plan rules it is sent to a Judge for signature to become a valid and binding court order. The attorney will send the signed QDRO back to the PA who will then begin administering the plan according to the order.

QDRO’s are very specific in nature to each retirement plan and may vary greatly depending on the outcome of each individual divorce. If you think you may be involved in a divorce and would like some more in depth information about how your retirement account could be affected please contact one of our outstanding attorneys here at The Orlando Law Group PL at 407-512-4394. Offices Waterford Lakes, Lake Nona and Dr. Phillips.

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Guardian Advocacy: What Can It Do For You?

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Guardian AdvocacyDevelopmental disabilities include cerebral palsy, autism, spina bifida, Prader-Willi Syndrome, or other conditions that that manifest before the age of 18 and that constitute a substantial handicap that can reasonably be expected to continue indefinitely. The focus is on the decision-making ability of the person needing the Guardian.

How do YOU become a Guardian Advocate? First, you must be over the age of 18 and be a resident of the state of Florida. You must also submit to a level 2 background check under and provide a live fingerprint scan, and lastly, you MUST have an attorney if you are seeking to be the guardian of the property other than Social Security or other governmental benefits.

If you meet all the qualifications to become a Guardian Advocate, you can begin the process of becoming appointed as one. This process begins with a Petition that is filed with the Court along with the Oath of Guardian Advocate and a Designation and Acceptance of Resident Agent.

The next step will be to schedule a hearing with the Court. Upon successful completion of the documentation process, you should receive a letter or call from the Clerk of Court providing you with your case number, the name of your Judge, and the name of the attorney appointed to represent the person with the disability. (Tip: You will have to coordinate this hearing with the attorney appointed to represent the disabled person.) Prior to the hearing, you should draft a proposed order and Letters of Guardian Advocacy and bring them with you to the hearing.

After the hearing, but within 60 days of being appointed as the Guardian Advocate, you will need to submit what is called the Initial Plan. The Initial Plan provides information to the Court as to how you plan to care for the Ward. Additionally, within 90 days of the date of the anniversary of your appointment as a Guardian Advocate, each year you are required to file an Annual Plan.

If you are interested in becoming a Guardian Advocate or know someone who may need one, please contact our office at (407)-512-4394 and ask to speak to one of our knowledgeable and experienced Guardianship attorneys, Pamela Martini or Maytel Bonham. CLICK HERE to download our Guardian Advocacy Bootcamp Presentation.

Written by: Attorney’s Pamela G. Martini and MaytelMaytel Sorondo Bonham

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When Custody Issues Threaten You Holiday Traditions

When Custody Issues Threaten Your Holiday Traditions

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The holidays are often synonymous with the idea of traditions. Traditions are those little rituals that are passed down from generation to generation. For many people, traditions give a sense of unity, warmth and closeness. Oftentimes their consistency represents security.

That can be a little disconcerting if you’re in the midst of or have recently been through a family breakup. The traditions that you made the effort to cultivate in years past, might be turned upside down by the new realities of shared custody. For example, it may be that the children have always spent Christmas Eve with you at your parents’ house. Or maybe you always made cinnamon rolls on Thanksgiving while you all watched the Macy’s parade together. Perhaps the children have never been away from you on the holidays.

These rituals that once provided comfort can easily become a sticking point for divorced (or divorcing) parents. The reality is that your traditions will probably have to change in order to incorporate both parents and their extended families. Here are a few tips to make the coming months a little easier for everyone:

1. Don’t be afraid to start new traditions with your children based on your custody agreement. For example, if you don’t have custody of your children on Thanksgiving, create a new day-after-Thanksgiving meal, followed by a game night. Invite your family and make it into a fun event that your children will look forward to every year.

2. Take the time to explain some of the new plans to your children so that there are no surprises. Children are more adaptable than we often assume. Sure, they might miss some of the old traditions but they don’t need things to stay exactly the same. What really matters most is that they sense that they are loved and that they feel secure in the midst of this time of transition.

3. Be sure to review your custody order ahead of time. If you have a custody agreement, check it now. It is very common for holidays to be rotated annually. Be prepared to stick to the plan, right down to the drop off time and place. If your custody order is ambiguous or you can’t remember who had which holiday last year, communicate with the other parent and see if you can reach an agreement so there is no confusion on the actual holiday.

4. If you would like to request a change because of special circumstances, make your request early on. One of the keys to insuring that custody arrangements are tension-free is for parents to communicate with each other and plan the holiday well in advance.

5. Never put your children in the middle of any holiday disputes. If you and your ex cannot reach an agreement as to who will have the children on Christmas, don’t put the children in the awkward position of asking them where they want to be or letting them know how distraught you feel about the situation.

The best gift you might give your kids this holiday season, might just be the peace you convey and the tone you set during this time of turbulence and change in your family traditions.

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Parental Alienation Syndrome

Parental Alienation Syndrome

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Divorce is not the most fun thing in the world.  There’s usually hurt and sometimes anger, which is to be expected.  The divorce process can either go easily with mutual respect, or it can create bitter feelings and hurt everyone who is involved. Divorce does not have to be, nor should it be a destructive process.   If it is, you can alienate the children.

During a divorce that involves child custody disputes, one or both parents can attempt to distance the child from the other parent. It can be a indirect attempt by a parent, such as making subtle negative comments about the other parent in front of the child. One parent will often criticize the other parent, trying to instill anger and extinguish the child’s bond with the other parent.

At times, one parent will inform the child about the divorce process and the struggle between both parents. One may roll her eyes at something the other parent said, or blame the other for not trying to make the marriage work. Children should not have to deal with these adult emotional topics or ever be forced to pick sides.   When parents invoke these emotions of resentment toward the other parent, it can have lasting effects on a child. The child may develop separation anxiety or use the same techniques for dealing with relationships as an adult.

Signs of Parental Alienation Syndrome
Not all children show the same signs of parent alienation; however, many children do develop some type of resentment, hostility or desire to stay away from the other parent. A young child may cling to one parent and avoid the other parent. An older child may develop sleep disorders or have anger issues.
Other signs of alienation syndrome include:

  • Having trouble forming close relationships
  • Feelings of vulnerability
  • Conflicts with authority
  • Withdrawing from social situations
  • Developing psychological dependency
  • The Difference Between Alienation and Preference

Though parental alienation syndrome does occur in some divorce cases, there’s a difference between a child feeling alienated from a parent and preferring to live with the other parent. Some children may feel closer to one parent because of similar interests or because that parent is the primary care provider in the home. Though children may have a parental preference, they still want to spend some time with the other parent.

Parental conflict takes its toll on the child, resulting in the child choosing one parent over the other just to end the conflict. When children are caught in the middle between conflicting parents, they may align with one to remove themselves from the situation, even if they have no problems with either parent. An alienated child aligns with a parent because of deliberate parental involvement.
Children sometimes suffer the most during the divorce, but parents can decrease their children’s anxiety and make the process easier for them. The children are losing a unified home and must deal with the stresses that come with having divorced parents. Understand the signs of parental alienation, and keep the children’s best interests in mind to avoid any further hurt that comes with the divorce.

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Getting a Divorce in your 50s or 60s

Getting a Divorce in Your 50’s or 60’s

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Over the last two decades, the percentage of couples divorcing in their 50’s and 60’s has risen from three to almost thirty percent.  Sociologists have a term for people in their 50’s and 60’s who are divorcing.  They coined the term “gray divorce”.  Baby boomers are living longer and more of them are divorcing.  This impacts not only their retirement and income, but also other important areas of their life. If you’re over 50 and considering a divorce, keep these things in mind before you put yourself in a stressful and financial hardship.

The Children
It doesn’t matter how old they are, they can be grown adults, with families of their own; consider their feelings and emotion when you are contemplating a divorce. A divorce can damage your family’s harmony and create an unnecessary divide if it’s not handled carefully. The two of you may not be married anymore, but you will always be your children’s parents.

Alimony
In long marriages, a spouse is entitled to permanent alimony. It’s not actually a permanent though.  Permanent alimony usually lasts until either spouse dies or the receiving spouse remarries. In some states, if the receiving spouse lives with someone else and has a supportive relationship, it can affect the alimony arrangement. The alimony payments also can be restructured after the supporting spouse retires and lives off a retirement fund.

Financial Assets
Couples who have been married for a while, have likely accumulated assets together.  It can be a home or retirement accounts or other investments, most people want to keep the home as part of the divorce settlement.  Keeping the house doesn’t always put you in a better position after the divorce. In most cases, a house continues to have unexpected expenses, which may or may not affect its future value. As for retirement, it’s possible to split one spouse’s retirement account or 401(k) through a domestic relations order.

Life and Health Insurance Policies
Some couples, during their marriage, purchase a life insurance policy, which goes to the supported spouse after the divorce. If the supporting spouse dies, the supported spouse gets the insurance payout. After a divorce, you may not want your ex-spouse being the beneficiary of your life insurance policy.  You may find yourself in a position to take out a new life insurance or health insurance policy.  Unfortunately, at a later stage in life, there may have pre-existing conditions that raise the costs of obtaining a new life insurance policy. Health insurance may also cost more after 50, so look into a replacement health insurance policy soon after the divorce.

Social Security Benefits
Social Security benefits can help the lesser-earning spouse after the divorce. In fact, the lesser earner can receive Social Security benefits based on the higher earner’s work record. However, the marriage must have lasted at least 10 years, and the lesser earner must be 62 or older. Even if the higher-earning spouse has not applied for Social Security benefits, the lesser-earning spouse can collect the benefits if the couple has been divorced for a minimum of two years.

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Can Grandparents have Visitation Rights in Florida

Can Grandparents Have Visitation Rights in Florida?

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A new law in Florida relating to members of the military states that if a parent is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days, the parent may designate a family member, a stepparent, or a relative of the child by marriage to engage in time-sharing on the parent’s behalf.

So if the parent in the military designates a grandparent to time-share in his or her stead, the court would enforce such a designation. The Florida Supreme Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard to be unconstitutional.

Under current Florida law, a grandparent may file a petition and obtain visitation rights as to a grandchild when it is in the best interest of the child and one of three conditions have been met:

  • The parents’ marriage has been dissolved
  • A parent has deserted the child or
  • The child was born out of wedlock and the parents never marry

A court is allowed to consider a number of factors when it determines what is in the best interest of the child. None of these factors are decisive or irrefutable in and of themselves. A court will not likely make a decision regarding grandparent visitation based only on the presence or absence of one factor. The court will look at the presence or absence of all of the following factors before making a ruling:

  • The willingness of the grandparents to encourage a close relationship between the child and parents
  • The length and quality of the relationship between the grandparents and child before the divorce
  • If the child is old enough to express a preference, that preference will be considered
  • The mental and physical health of the child
  • The mental and physical health of the grandparents
  • Any other factors the judge wants to consider

What happens when one of the child’s natural parents remarries and the stepparent adopts the child? Florida will not automatically terminate any grandparent visitation rights just because a natural parent remarries and the child is subsequently adopted by the stepparent. However, a Florida court can still terminate the grandparents’ visitation rights if it believes that continued visitation with the grandparents is not in the child’s best interests. Before a court decides this, though, it must hold a hearing and allow the grandparents an opportunity to be heard.

A new law in Florida relating to members of the military states that if a parent is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days, the parent may designate a family member, a stepparent, or a relative of the child by marriage to engage in time-sharing on the parent’s behalf.

So if the parent in the military designates a grandparent to time-share in his or her stead, the court would enforce such a designation. The Florida Supreme Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard to be unconstitutional.

Under current Florida law, a grandparent may file a petition and obtain visitation rights as to a grandchild when it is in the best interest of the child and one of three conditions have been met:

§  The parents’ marriage has been dissolved;

§  A parent has deserted the child; or

§  The child was born out of wedlock and the parents never marry.

A court is allowed to consider a number of factors when it determines what is in the best interest of the child. None of these factors are decisive or irrefutable in and of themselves. A court will not likely make a decision regarding grandparent visitation based only on the presence or absence of one factor. The court will look at the presence or absence of all of the following factors before making a ruling:

§  The willingness of the grandparents to encourage a close relationship between the child and parents

§  The length and quality of the relationship between the grandparents and child before the divorce

§  If the child is old enough to express a preference, that preference will be considered

§  The mental and physical health of the child

§  The mental and physical health of the grandparents

§  Any other factors the judge wants to consider

What happens when one of the child’s natural parents remarries and the stepparent adopts the child? Florida will not automatically terminate any grandparent visitation rights just because a natural parent remarries and the child is subsequently adopted by the stepparent. However, a Florida court can still terminate the grandparents’ visitation rights if it believes that continued visitation with the grandparents is not in the child’s best interests. Before a court decides this, though, it must hold a hearing and allow the grandparents an opportunity to be heard.

 

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Summer Plans for Divorced Parents

Summer Plans for Divorced Parents

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It’s almost summer again, at least it’s starting to feel like it in Florida.  Kids look forward to summertime; having fun, outdoor activities and most importantly, no school. While all that usually comes with summer break for kids, depending on the circumstances, it can be a hard time for kids of divorced parents.

Typically, children are with one parent or the other for longer periods of time over the summer than during the school year. In summer time, regular schedules and habits change. It’s this change up in routine and scheduled parent time that can produces anxiety for children and concern for parents.

Below are some tips to help separated and divorced parents make a smooth transition from a school year schedule to summer vacation time and make it stress-free for everyone.

Discuss vacation plans early. Before you book the cruise or pay the deposit on summer camp for the kids, talk to your former spouse about plans to enroll children in summer programs or taking vacation trips. That way everyone can make plans and their schedule work time and also gives children a clear understanding of how their summer break will be spent. By taking care of this sooner rather than later, it allows time for parents to identify and resolve any schedule concerns that might arise in the planning process. Good advance planning will help reduce frustrations later. Be as flexible as

Communicate about schedule changes. Good communication is key in order to keep the peace and also respect as the foundation of a healthy post-divorce relationship. Clear communication about schedule changes minimizes surprises and ensures you know what’s happening in your children’s lives. If talking to your ex-spouse in person is too stressful, consider using email to stay up to date and also a shared online calendar. However, DO NOT use your child or children as messengers of schedule and vacation updates. Planning and scheduling are adult concerns, especially in co-parenting arrangements. Work to maintain a respectful tone in your communications, and use thoughtful negotiation to resolve any conflicts.

Be positive. Your children will remember the example of your attitude and mirror your behavior with your ex-spouse. Do your best, at all times, to never speak ill of your former spouse in front of your children and avoid asking them to take sides or favor one parent’s or home over the other. In order for your children to grow and thrive as adults, they should feel free to love both parents equally.  A child should never feel badly or confused about wanting to spend time with the other parent at any time of the year, vacations included.

Have fun.When you were a kid, I’m sure you looked forward to summer break, spending time with family, friends and unscheduled play time. By creating the space and opportunity for these types of situations, you’ll be positively creating those same types of memories for your own children. Spending summer vacation time with each parent, is simply part of the scheduling process that the adults must properly manage. What your children will remember is how they felt and what they experienced through their parents’ interactions with each other.

Though summer vacation may require additional planning and communication with your ex-spouse, it can also be a time that you create special memories that will last forever. Cooperating and be flexible with your former spouse for summer plans and remember to put the kids first.

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Ten Tips For Nominating Your Childs Guardian

10 Tips For Nominating Your Child’s Guardian

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Parents do not like to think about needing a guardian for their children.  Unfortunately, we have no control over the time of our deaths but we do have control over whether we plan for them.

A very important part of your estate plan is the nomination of a guardian for your minor children. If, before your death, you do not choose the person or persons you believe would be suitable guardians of your children, then after your death the judge is left to guess who you would want to care for your children.

The nomination of a guardian is a straightforward aspect of any family’s estate plan and is best made in your Last Will and Testament. It can be as basic or detailed as you want.

Here are 10 Tips to consider when selecting a guardian to nominate for your children:

  1. Make a Long List of Potential Guardians. When trying to identify the right people to serve as guardian, make your initial list of potential guardians very broad. Consider all of your extended family members, as well as friends and neighbors.
  2. Make a List of Possible Guardian Characteristics. Make a list of all the possible characteristics that your child’s guardian might have, and then rank the importance of those characteristics to you in light of your personal beliefs and your child’s needs.
  3. Rank the People on List #1 Using the Characteristics on List #2. Analyze each of the potential guardians in light of the personal characteristics that you deem important. You might be surprised to learn that a close friend is actually better suited to raise your children than your sister is.
  4. Once You Have Narrowed Your Choices Down, Talk to Them. While your sister may truly love your children, talk to her about the responsibility it would involve and make sure that she would accept if the situation arose. If you are not 100% confident that she would, add another person to your list of nominees so there will be someone to take her place should she decline.
  5. Nominate Only One Person at a Time. While it might seem to make sense to nominate both your sister and her husband as your child’s guardian, consider naming them one at a time. This avoids issues in the event they are not able to agree on a decision relating to your child.
  6. Nominate More Than One Successive Guardian. Consider that your first choice for a guardian might not be able or willing to serve at the actual time a guardian is needed. Name as many successor guardians as you are comfortable with, who would serve in the order listed.
  7. If You Nominate “In-Laws,” Consider Potential Life Changes. If you should choose to nominate your sister first and her husband second, consider whether you would still want him to serve if he and your sister were separated or divorced at the time of your death and instruct accordingly.
  8. Do Not Let Disagreements Between You and Your Spouse Stop You from Nominating a Guardian. If you and your spouse disagree, you should respect the other’s opinion but each prepare your own nomination. Should you die simultaneously; the court will simply have to decide which nomination is in the child’s best interests. This is far better than the court having no indication of what either of you wanted. Moreover, if the person nominated by your spouse is unable or unwilling at the time to serve, then that person will not even be considered.
  9. Consider Naming A Guardian of the Person and A Guardian of the Estate. Duties over your children’s care and their financial resources can be split between two different people if you believe that is in your child’s best interests to do so.
  10. Make Sure Your Nomination is Legally Valid. Florida law requires that persons being nominated meet certain legal requirements. The law also requires that the nomination of an initial or successor guardian be made in writing and witnessed by at least 2 credible witnesses over the age of 18, neither of whom has been nominated as the guardian. The best place to make this nomination is in your Last Will and Testament with the assistance of an experienced estate planning attorney.
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Be Careful What You Post on Social Media During a Divorce

Be Careful What You Post on Social Media During a Divorce

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You should be aware of the perils of using social media during a divorce or will be involved in a court case for custody, co-parenting and assets. Facebook, Twitter, LinkedIn, YouTube, Pinterest, personal blogs and tons more online sites are a part of pretty much everyone’s lives these days. All social media establishes a record of communication. Social media allows us to put details of our lives on display where others can see it, share it and comment on it.

Regardless of how casual or informal your social media posts may seem, these posts and comments can be obtained and used against you in divorce or custody proceedings. This applies to Facebook updates, tweets, photos and information posted through any other social media site. Also, your emails and text messages, ones to and about your ex-spouse, are now admissible as evidence in court.
You should count on the opposing counsel to be checking out your social networking sites and the activity you post there. Social Media sites have become important resources for guiding questions asked during divorce proceedings. Many attorneys also conduct a Google search of all parties.

You may think you have set your profile, message or post to private, but it still has the potential to spread to as large a community as you can imagine. One thing to consider when putting information on social networking sites is that you can’t remove it. The entry is permanent, even if you delete it.

Before you post to a social media site consider these points:

  • Evaluate your emotions before writing anything. If you’re frustrated or angry, don’t post any comments or pictures.Think about what you would want your children and family to have access to in the future.
  • Once you post, your privacy is breached and you can’t take it back.
  • Unfriend or block your soon to be ex-spouse and common friends to prevent damaging online communications.
  • Check and change your privacy settings. Remember, your ex-spouse’s legal team can find and view everything posted on social  media through research an discovery regardless of privacy settings. Every posting, even deleted ones, are permanent.
  • Assume your posts are also under review, hold back from online behaviors that may be viewed as unfitting during divorce proceedings: flirting via chats, active profile on dating sites, texting while driving, drinking around the kids or any pictures showing you in a negative light.
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More About Estate Planning for Blended Families

More About Estate Planning for Blended Families

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Estate planning for blended families is complex and it requires a watchful eye and a delicate touch. Clients in blended families should understand that there are important additional issues unique to them that must be addressed, like how to properly provide for their spouse without accidentally disinheriting their own kids. If there are minor kids, planning for their custody adds further complexity.

A blended family can make estate planning more complicated. For example, you may want to leave different inheritances to biological children than you would to stepchildren, or to protect your biological family’s inheritance in the event your spouse remarries.

A solid estate plan can help you prepare for these or other scenarios. With so many kinds of blended families, it makes sense to put in place a plan that directs your assets to the people you choose, rather than possibly to someone you don’t know or don’t necessarily want as a recipient.

Understandably, many couples will be inclined to procrastinate, uneager to revisit past relationships. But reaching a successful outcome to their estate planning demands that they plan with an eye toward the past as well as toward the future. An experienced estate planning attorney can help facilitate those potentially painful conversations.

Potential pitfalls
Blended families without an estate plan may run the risk of scenarios like the following:

  • An ex-spouse inherits the former spouse’s bank accounts, home, or retirement assets, even though the former spouse has willed them to his children.
  • One child inherits the family home, even though the home was promised to another child.
  • A spouse dies before his new wife and leaves his estate to her; when she dies, she leaves the assets to her children, not to his.

Prenuptial agreements
A prenuptial agreement can be a good way for parents who are remarrying to specify which of their assets they’d like to earmark for their children. For example, a prenuptial agreement can help couples designate college savings they each have put aside for the children from their first marriage. A postnuptial agreement, signed after the couple has taken their vows, is less common but could work the same way.

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What is my filing status

What is My Filing Status: Divorced or Married?

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By law your filing status is determined as of the last day of the calendar year. You are considered unmarried for the whole year if, on the last day of the tax year, you are unmarried or legally separated from your spouse as determined by a divorce or separate maintenance decree.

So if your divorce became official in December, you can’t file as married even if you were for most of the calendar year.  Your filing status will be either single, or you can claim “head of household”.

Sometimes couples in the middle of a divorce may qualify for filing as single or head of household. In order to do so, you must meet the following criteria:

    • You have lived apart from your spouse for the last six months of the tax year
    • You have paid over half the cost of maintaining your primary residence
    • You must be able to claim your child or children as your dependents according to the rules for children of divorced or  separated parents
    • You have to file a separate tax return from your spouse, even if you are still legally married

Dependents
A child can only be claimed on one tax return – you can’t both claim the same kid as a dependent. This may present a problem if you are divorced or separated. You can claim your child as a dependent on your tax return if the divorce decree names you as the custodial parent.

If you have more than one child, you may choose to split the dependency of the kids up between the two parents, which is allowed even if both kids spend the same amount of time with each parent.

Child Support
Child support is always tax-neutral, meaning unlike alimony it doesn’t affect your taxes in any way. It is non-taxable income to the person receiving it and it is not tax-deductible by the person paying it. In some cases, you or your spouse may be paying both spousal and child support.

Itemized Deductions
For itemized deductions, such as charitable contributions, you would generally be able to claim the expenses you paid individually and half the expenses that were paid from a joint account while you were married.

Legal fees and expenses involving personal matters are normally not deductible, but you can deduct the portion of fees paid to divorce-industry professionals for tax advice or for help in getting spousal support. Additionally legal expenses related to the taxpayer’s business are usually deductible. If you own and operate a privately held business and incurred legal expenses related to that business during the divorce process, then those expenses may also be deductible.

If you divorce in the middle of a tax year, your judgment or settlement agreement should clearly define how income earned and expenses paid during the marriage are to be reported. This helps to ensure filing accuracy and avoid inconsistent returns. If for some reason the income earned and expenses paid during the marriage is not clearly detailed in the divorce agreement, you should consult with your former spouse when preparing your tax return to avoid IRS issues which will impact to both your return and that of your former spouse.

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Living Together During A Divorce

Living Together During A Divorce

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When a couple decides to divorce, sometimes one spouse moving out right away is not an option, for financial reasons, or to wait until the marital house sells.  Though this living arrangement certainly would not work in all relationships, it can if the terms of the divorce are amicable enough to last another few months under the same roof.If you are considering living with your soon-to-be ex-spouse during a divorce, here are a few ground rules for the potentially uncomfortable situation.

Talk About Your Budget
Since financial disagreements are one of the main reasons that people split up, be sure to handle this situation cautiously. Sit down with your ex to determine the financial obligations that you share. If both of you work and earn similar incomes, then consider dividing the financial burden equally. However, if one of you earns significantly more than the other one does, then you’ll need to negotiate. While preparing for divorce, create a manageable budget for the time that you’ll remain in the same residence.

Share Responsibilities Amicably
Once you and spouse have decided to dissolve your relationship, be sure to share household responsibilities while you are living in the same home. Allocate the chores fairly and plan a time to do them. Decide where each of you will sleep, and be considerate of each others’ personal space. In fact, try to think of your ex as a roommate. For instance, wash the dishes that you use, and don’t eat food that the other person purchased. Be mindful of the time that you spend in the bathroom and share the home’s common family areas.

Come up with a Parenting Plan
When you’re preparing for divorce, you’ll need to organize a parenting schedule. Decide which days each of you will have full responsibility of the kids. If you have an infant or a toddler, then you will need to decide who will take care of feedings, oversee baths and get up at night with the child. Be sure to share school drop offs and pick ups as well as the responsibility of transporting children to and from after school activities. A parenting schedule will help your children adjust to the separation, and it may make it easier for them to shift households once you and your ex no longer live together.

Have Separate Rooms
It can be easy to fall into old habits, but do not sleep together. The intimacy is likely to be confusing, and if one of you would like to reconcile the relationship, then your eventual permanent separation will be even more devastating.

Don’t Bring Home a Date
To make your living situation function more smoothly, do not bring a date home while you are living under the same roof with your soon-to-be ex-spouse. Once you are divorced, it’s fine to date, but be considerate of your ex’s feelings.

When you carry out basic living considerations and exercise patience, you and your ex can continue living together while getting a divorce until your finances and emotions permit you to move on to the next phase of your life.

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Moving On After a Divorce

Moving On After Divorce

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The time right after a divorce can be tough. You are essentially starting a new chapter in your life.  Moving on after divorce can be adifficult concept for many people. It’s important to stay optimistic and keep good friends around you, a support system is crucial atthis place in your life.
Here are a few tips that will certainly allow you to get back to the normal, happy you:

Grieving is Important
After your divorce has been finalized, you may find yourself emotionally unprepared for the aftermath. If you haven’t given yourselftime to mourn the small things, it will be hard to move on.  You need to allow yourself time to grieve after a divorce. By recognizing that you have made the best decision for you and your family, however, you will ultimately be able to continue on with your lifewithout any baggage.

Be Upfront With Your Kids
You may understandably be anxious about divorce and how it will affect your children. In nearly all instances, it is best not to dance around the issue. Explaining the divorce to your kids openly and honestly will surely win you a tremendous amount of respect. When you let them know that you will remain an essential part of their daily lives, you will be decreasing their fears and allowing them to also move on.  By continuing to attend their football games, ballet recitals, and other important life milestones, you’ll be showing your children that they are still mean the most to you.

Keep an Eye on Your Finances
When moving on after divorce, you may find yourself at first struggling with finances. If you are a newly single mom or dad, sticking to a budget during the week will give you enough cash to relax a bit with the kids on the weekend.  In fact, there are a broad array of divorce support groups that will help you with your financial planning. While child support will often come into play, you should do whatever you can to put yourself on sound financial footing going forward after a divorce.

Date Responsibly
When starting over after divorce, you are going to want to have company. By reentering the dating game, you’ll be on the fast track to companionship.  Friendship itself can be exceedingly rewarding. Try to choose dating partners who will treat your kids with respect. While some potential matches may be put off by divorce and children, others will be perfectly thrilled to meet your kids. In the end, you should plan your steps carefully when starting over after divorce. Through honesty, optimism, rigorous financial planning, and divorce support groups, you’ll feel refreshed and reinvigorated. Having accepted things as they are, you can begin constructing a wonderful new life.

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7 Legal Documents You Need to Change After a Divorce

7 Legal Documents You Need to Change After a Divorce

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If you’re recently divorced, you’ll need to change most of your legal documents. I know, paperwork is the last thing on your mind, but it will avoid frustrating situations down the road.

Here are seven legal documents you should change as soon as possible after your divorce papers are signed:

1. Powers of Attorney

Besides updating your will, you’ll also need to update your living will to give power of attorney to somebody other than your ex-spouse. If you’re incapacitated for any reason, whoever has medical power of attorney will be able to make healthcare decisions for you, which can have life-changing consequences.

2. Property Titles

You’ve probably already settled on who owns what, but you still need to finish updating legal documents like car and house titles to prove ownership. Whether you’re moving or staying, you’ll need your ex-spouse to sign the documents to renounce ownership.

3. Social Security and ID Cards

If you’ve finished changing your name after a divorce, it’s time to contact the Social Security Administration to update your government records. Failure to do so could make it more difficult to take out future lines of credit or receivebenefits after you retire. You’ll also need to update your driver’s license and other ID cards to reflect your new personal information.

4. Last Will and Testament

Most married couples leave their estates to each other and their children. Updating your will is inexpensive, fast, and easy compared to writing a new one, and you can remove an existing beneficiary and change the executor in the blink of an eye.

5. Beneficiaries

You’ll need to go through all of your financial accounts and change your beneficiaries. While you’ve likely already changed your bank accounts, you’ll still need to change your investment and retirement accounts. If you plan on changing your name after a divorce, update your accounts with your new personal information.

6. HIPPA Forms

HIPPA forms authorize the release of your medical information to select individuals, and if you received medical treatment while married, you likely designated your ex-spouse as your contact. You’ll need to contact each hospital and medical practice individually to change every HIPPA form you’ve ever signed.

7. Medical Authorization and Treatment Forms

These forms allow doctors to provide medical treatment to your underage children if they’re not accompanied by you or another legal guardian. You’ll want to update them to make sure babysitters, teachers, and other caretakers have the legal authority to seek medical treatment if necessary.

In addition, you’ll want to change your utility, television, Internet, and other personal accounts to give yourself sole ownership. If you’re moving out, you won’t want to pay your ex-spouse’s bills. Most of these accounts can be changed quickly with minimal paperwork.

Updating legal documents should only take a month or two after completing your divorce. This simple step will make your life much easier. The fewer loose ends you leave, the fewer headaches you’ll need to deal with in the future.

 

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3 Ways to Have an Amicable Divorce

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Divorce is not the most pleasant experience. It represents an end to something that was once, presumably happy, and the process can lead to hurt feelings. When there are children involved, they may feel isolated and confused.

There is often times heartbreak and there may be a lot of pain, but going through a divorce doesn’t need to be a battle or leave both parties feeling frustrated and overwhelmed.

There are three divorce options in the State of Florida that are designed to make getting a divorce easier. Most importantly, having an amicable divorce can protect your children through an otherwise difficult time and save you time and money.

The three types of amicable divorce options are:

1. Divorce Through Mediation

Mediation helps each spouse to come up with their own unique resolutions rather than seeing what the court imposes. This type of divorce is a cost-effective and time-saving alternative to formal litigation, which costs a lot more money and can take a few months or more.
Divorce through mediation can assist with different kinds of disputes, such as child custody arrangements and co-parenting or dealing with dividing marital property. The benefits of mediation include:

  • A more time-efficient and cost-effective process than a traditional divorce
  • A less-expensive alternative to court trials and hearings
  • A confidential process with no public record of the mediation session

2. Uncontested Divorce

Terminating the marriage within days instead of weeks and months, is a benefit of an uncontested divorce. It costs much less than a contested divorce, and both parties can create agreements that work for their situations rather than leaving it up to the judge to decide. Both parties must agree with every issue of their marriage, such as custody and visitation, alimony and child support. The parties sign a Marital Settlement Agreement, which must then be approved by the court before it becomes part of the divorce decree.

Collaborative Divorce

Similar to the uncontested divorce, is the collaborative divorce. Both parties have to agree to the issues of their marriage and decide to bypass a typical litigation. This type of divorce places the children’s best interests first, and both spouses work together with their attorneys and a mediator to reach an agreement on all the issues related to the divorce. A collaborative divorce is obtained by the following steps:

  • Both spouses must agree to the collaboration before starting the legal portion of the process. Afterward, the parties establish a participation agreement, which outlines the commitments in the divorce.
  • The spouses and their attorneys sign a contract that commits to resolving the issues related to the termination of marriage without going to court. Everyone involved works together to arrive at a mutually acceptable settlement.
  • Both parties act in the best interests of the children to promote positive relationships with the divorcing spouses and to minimize any emotional effects.

If either spouse ignores the participation agreement and pursues outside legal representation or court, the collaborative attorney must end his or her representation of the client.

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