Tips for Divorced Parents

Parenting can be a tough thankless job. When parents divorce, parenting can be even tougher and the couple needs to learn how to co-parent their children and let each other in on all the decision making. Below is an article found on divorcenet.com that contains helpful information and tips for the divorced parents.

Parenting Tips for Divorced and Divorcing Moms and Dads
By Carolyn J. Stevens, Attorney at Law Published: March 12, 2005
Your parenting plan should spell out your rights and responsibilities in detail. A clear and detailed plan reduces confusion. Reduced confusion leads to fewer arguments about what the plan says. Fewer arguments leads to less tension. Less tension between the parents is better for the children because:
Children hear and see more than you think they do. They hear arguments between Mom and Dad, and they see how angry you are. When you are angry, your focus changes from loving your children and meeting their needs to holding onto your anger at the other parent. This legal case is temporary. The relationship you have with your children is permanent. When the case is over, you parents will still need to parent your children. Turn your arguments over to your lawyers. Let them fight about it. Do everything in your power to preserve your "business" relationship so that you can parent your children. And part of that is:
Do what you can to make the transition between households smooth for your children. Make sure they're ready on time for the other parent to pick them up. Make sure you're on time when you pick them up. Call the other parent if you're going to be late. Do whatever you need to do to avoid fighting and sniping with the other parent in front of your children. If that means waiting in the car and letting the children come to you, do it. If that means staying in the house and sending the children to the car without you, do it.
If you are the parent who pays child support, remember that child support is your child's right, not the other parents' right. Some parents think they're winning a fight if they don't pay support. Children see it differently. They think it means that the nonpaying parent doesn't love the children. Children hurt when they think the nonpaying parent would rather win a fight than take care of the children's needs.
And finally, try to shift your focus from "the other parent" to the children. Your parenting plan is a way for both parents to take the focus off each other and shift focus to the children. Work as a team to meet the children's needs.

Read this article in its entirety at: http://www.divorcenet.com/states/montana/parenting_tips_for_divorcing_and_divorced_moms_and_dads

Holiday Tips for Divorced Parents

As another holiday season is upon us, divorced parents are figuring out how to time-share their children during the Easter and Passover holidays. Christmas and Thanksgiving, as well as the child's birthday, seem to be the days that generate the most angst for divorced couples, but without fail every holiday brings about questions and concerns about who should get the kids. Often times, parents will solemnize their agreement about holidays in their Marital Settlement Agreements, but there are inevitably problems regardless of what is written down and agreed to. Here are some helpful tips to get yourself and your children through the holidays:

1. Plan Ahead
Develop a parenting schedule before the holidays.
Avoid scheduling the children for dinner with Dad at noon and a second turkey dinner a few hours later with Mom. Instead, arrange for Dad to spend the entire day with the children in all odd-numbered years, and have Mom spend the holiday with them in all even-numbered years.
If possible, hire a parenting coordinator, usually a child psychologist or divorce lawyer appointed by the court to act as a decision-maker until a judge makes a different decision. You have quicker access to the coordinator than the judge, but the coordinator must be paid.
2. Keep Your Word
Stick to the schedule. Arrive on time and drop off the children on time.
3. Keep in Touch
If the children are not with you for the holidays, call them, and be sure to send cards or email. Consider celebrating the holiday or birthday before or after the actual day. Children love parties and gifts any time - nothing fancy - but something special you create just for them.
4. Let the Children Keep in Touch
If the children spend the holiday with you, let them speak with the other parent. Give the children any cards and email from the other parent, and read the messages to young children who cannot read. If the children are too young to call, help them make or receive a call, and let them have a quiet moment to speak with the other parent. Make sure to avoid planning an exciting activity like gift-opening at the same time that the children are scheduled to speak with their Mom or Dad.
Remember, children usually have a short attention span, so do not blame the other parent if conversations are short.
5. Safe Travel
Make travel arrangements with airlines for long-distance travel. Airlines provide supervision for unaccompanied minors for a nominal fee.
6. The Art of Gift-Giving
Coordinate gift-giving with the other parent. Do not give your child a cell phone if you know Mom is giving her a phone. If your ex-spouse will not cooperate, go ahead with your own plans, but do not complain to the children about the other parent.
7. Acknowledge the Child's Right to Enjoyment
Let your child take gifts to your ex-spouse's home. Conversely, if your child brings home a new toy or bicycle, let your child take it back to her Dad's home, if she wants.
8. To Each His Own
Let the children spend Mother's Day with Mom and Father's Day with Dad.
9. Create Your Own Celebrations
Do not insist upon attending your child's birthday or graduation party if your ex-spouse is throwing the party. Give your own party on another day.
10. Give Your Child Permission to Love Both Parents
Help your child buy or make a gift and card for the other parent, if the child is too young to handle the tasks herself. You are doing your child a favor, not your ex-spouse, because you are giving your child permission to love the other parent - the best gift you can give.

This tips were provided by www.divorcenet.com
See the whole article at: http://www.divorcenet.com/states/nationwide/10_holiday_tips_for_divorced_parents

You're Out Of the Family Business!!!

Divorce can sometimes be a very complicated mess especially when a couple is involved with a family business and qualifies as one of their major assets. What happens when one of the parties to the divorce, married into the family business? Sometimes that person will be relieved of their duties based on the fact that they will no longer be a member of the family. Other times, that person has already become a majority stock holder, and will be in the business regardless of their status as a "family member". This can create headaches for everyone involved and often times the issue will be brought before a Judge so that he or she can decide what's the best thing to do. With the dawn of the Prenuptial Agreement age, more and more parties understand where they stand if they decide to divorce the family member who has the blood connection to the family business. However, there are often times repercussions for the business and the individual if they are not allowed to continue on in the business.

This situation can be most recently seen in the divorce of George Steinbrenner's daughter. Her husband was slated to be Mr. Steinbrenner's successor, but now with a looming divorce, his future with the Yankees seems bleak. You can read the story at: http://www.newsday.com/sports/baseball/yankees/ny-spyanks0329,0,4972994.story?coll=ny-worldnews-print

Should a Sex Change Terminate Alimony Award

Living in the 21st century brings about new and difficult problems in the area of family law. There are questions over who gets frozen embryos in divorce, gay adoption, and other issues which were unheard of even 20 years ago. A new issue has arisen in Clearwater, Florida concerning whether or not a man's obligation to pay alimony continues after his ex-wife receives a sex change operation and legally becomes a man. The ex-husband's argument is that Florida does not recognize a man marrying a man, so there cannot be a situation where a man is Ordered to pay alimony to a man. The ex-wife's argument is that the Court Order stated that he should have to pay alimony until her death or remarriage, neither of which have happened. Both arguments are compelling, however, I think that in some senses, the "ex-wife" has died. She no longer exists on paper, and if someone no longer exists, they cannot receive alimony. While her physical presence is still there, she is not there in the legal sense, and that is what should be determinative when deciding whether an alimony award should continue. I'm not sure whether the legislature will touch this topic or whether it will get all the way to the Supreme Court of Florida. This is just another example of the impact that technology has on current family law issues.

If you would like to read the story upon which this blog is based, visit: http://news.bostonherald.com/national/south/view.bg?articleid=191311

Dependency Proceeding Reaching International Waters

When a child is protected by the Department of Children and Families due to the fact that one or both of the parents are deemed to be unfit, questions then arise as to who should be the person designated to care for the child. Often times its a relative or family member who takes in a child pending further order of the Court, and there is often a power struggle between the parties who take that child in and the biological parents. What happens when one of the parents is overseas and its the only the parent living in Florida who is deemed to be unfit? That question is being battled out in Miami-Dade County right now. The mother of a minor child was deemed to be unfit and the court is now determining whether the child should be placed with relatives or whether the father, who is currently living in Cuba, should be given custody. Generally speaking here in Florida, if one party is deemed to be unfit, so long as its in the best interests of the child, the other parent will be granted custody pending further order of the Court. In this case, I believe that the father should have custody of the child and that his status in Cuba should have no bearing as to whether or not he should have custody. The father should be given the opportunity to show that its in the child's best interest for him to be granted custody.

The full story for which this blog is based can be found at: http://www.kansascity.com/mld/kansascity/news/nation/16964238.htm

Who Gets To Be Primary Residential Parent?

When a couple divorces, they often have disputes over who should be the primary residential parent. They agree that both parties should be equally involved in the decision making process for their children, but there are debates and disagreements over who the children should live with. If the parties cannot agree as to who should be the primary residential parent, the Court will make this decision based upon the following criteria: (1) Which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent ;(2) The love ,affection and other emotional ties between the parents and the child;(3) Each parent's ability to provide the child with food, clothing, medical care and other material needs;(4) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;(5) The permanence of the existing or proposed custodial home;(6) The moral fitness of the parents;(7) The mental and physical health of the parents;(8) The home ,school and community record of the child;(9) The reference of the child, if the child is intelligent, understanding and experienced enough to express a preference; and (10) Evidence of domestic violence or child abuse.

If you are trying to determine which parent is more likely to be awarded primary residential responsibility of the minor children look to see who usually or most often is responsible for the daily childcare responsibilities such as the following:

• bathing;
• feeding and preparing meals;
• getting up and getting ready for bed;
• helping with homework;
• conferencing with teachers;
• taking to/picking up from school and extracurricular activities;
• school volunteering;
• taking to/picking up from religious activities;
• Arranging and hosting play dates;
• taking a sick child to the doctor and caring for sick child;
• hiring babysitters;
• shopping for child;
• playing with the child;
• teaching values and manners;
• maintaining and cleaning home; and
• Choosing school and classes.

The courts will generally pick a primary residential parent based on what is in the best interests of the child, but it is important to note that the person who is the primary caregiver for a child may be the person who is awarded primary residential responsibility after a divorce is finalized.

Tax Tips for the Divorce

Its that time of year when everyone starts scrambling to find ways to reduce their federal tax bill. Those people who are divorced have different issues and problems to face when filing out their 1040s. They may be paying or receiving alimony and/or child support, or don't always get to claim their children as dependents. Additionally, asset transfers that occur after a divorce will effect your taxes. Forbes has recently published an article to help divorcees muddle through their unique tax issues and problems. This article provides useful information on the best tax approach to issues that come up during divorce.

TAX TIPS FOR THE DIVORCED
by: Marlene M. Browne
www.forbes.com

This time of year, most people's minds begin turning to madness, basketball and golf. But it's also tax time, and if you are divorced or divorcing, you could run into trouble if you are unaware of the potential traps that await the unwary.

First a review. There are three primary issues when you divorce: dividing property; paying or receiving alimony (or maintenance or "spousal support"); and paying or receiving child support. How these three issues are resolved is what funds the retirement accounts and vacations home purchases of divorce attorneys everywhere. Yet, once the divorce is over, you’ll understand that knowing the tax code and its regulations is nearly as important as familiarity with the substantive domestic relations law in your jurisdiction.
Here are the basics to bear in mind during this pre-April period.
Asset transfers between spouses, consequent to a divorce or legal separation, are generally tax-free affairs. Care of §1041 of the U.S. Tax Code (USC), there is no realization of a gain or loss upon transfer of property, so long as the transaction is “incident to a divorce,” takes place within a year and the recipient of the property is not a “nonresident alien” (if so, you must seek special help to deal with the tax consequences of what are typically tax-free property transfers).
Yet even without a nonresident alien spouse, there are still tricky areas that require special attention because they are not tax-free under §1041. Expert help is required if any third party transfer--say, involving a stock redemption--is involved. Also, if you are divvying up marital property that includes U.S. savings bonds, whoever does the transferring must report the interest on those bonds as income for the year before the divorce. Thereafter, whoever receives those bonds becomes responsible to report interest as income.

But even if § 1041 protects your property transfers from immediate taxation, be cautious about what you agree to give (or take) in your divorce, as you will receive each asset with the transferrer’s basis. So, if you plan on taking that Google (nasdaq: GOOG - news - people ) stock worth $10 million (obtained from your spouse’s judicious choice of employment in 1997 and her consequently wildly lucrative stock options); you will face a huge capital gain exposure when you eventually sell those shares for $430 each, considering your ex got them for $10.
In this example, you'd be better off taking an asset of similar value but a higher basis or, best yet, cash. Similarly, if you owned lovely rental units, which you’ve depreciated to the fullest, you take that property with its reduced basis. Always look to the latent tax bill whenever you agree to “take” an asset in a divorce decree. And make sure that you agree or get an order to have access to all records that would allow you to prove to the IRS what the cost--or adjusted--basis of each asset actually is.
Alimony, as you probably know, is fully taxable as income to the recipient and provides an “above the line” deduction for the payer, provided the conditions of §71 are met. ( See U.S. Code Collection, Cornell Law School.) In other words, to qualify as alimony, the payments must: be made in cash to--or on behalf of--a spouse (or ex); be pursuant to a written document (separation agreement or court decree); not be labeled as nonalimony (this condition reflects that spouses can agree that payments will not be taxable); made in a year that the spouses don’t file jointly (and don’t live together, if the divorce is final); terminate upon the death of the recipient spouse; and not be child support in disguise (more on this later).
Also, don’t try to “front-load” a property payment and call it alimony to take advantage of the deduction. If you do, your so-called “excess alimony” payments could be recaptured and those deductions will evaporate. To avoid recapture, make sure that the alimony obligation doesn’t decrease by more than $15,000 between years, one, two and three. (Consider an alimony trust for more flexibility.)
Now here’s the tricky part. If you are still in the midst of divorcing and are paying temporary support under a “pendente lite” (pending the suit) order, make sure you ask the judge or your attorney to carefully allocate what portion of your pendente lite obligation is alimony, and what portions are not (i.e., represent child support or payments that would not qualify as “alimony” under § 71). Notice: Spouses may reside in the same household and still deduct temporary support--so long as the other criteria are met; they just can’t file joint income tax returns for the year in question. Anyhow, if you don’t allocate your temporary support, you or your spouse could be in for a nasty surprise. For instance, you might try, as the payer, to deduct your unallocated pendente lite obligation as alimony, while your payee spouse objects.
Well, to date, if you live in Delaware, New Jersey, Pennsylvania or Virginia (jurisdictions within the Federal Third Circuit) unallocated temporary support will be considered taxable income to the recipient--you, as payer, win. (See Kean v. Commissioner, 407 F3d 186 (3rd Cir. 2005).) On the other hand, if you live Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming (states in the Federal Tenth Circuit), unallocated support is not considered taxable to the recipient--and you, as payer, lose. (See, Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002).)
If you live anywhere else, you don’t know how your Circuit will rule (the only thing you do know is that the matter will be a proverbial federal case, as federal tax issues are not state court matters). So, avoid uncertainty and nasty tax court cases where you don’t know which precedent the court will follow: Label what each payment is for, and who, if anyone, is entitled to deduct those sums as taxable alimony.

Child support is never taxable to the recipient spouse, nor deductible by the paying spouse, as it’s not considered "income," but rather a payment that is owed on behalf of the child, who just happens to live in the other parent’s home. Don’t even think about labeling child support payments as taxable alimony. If these payments terminate upon an event associated with a child’s majority (attaining age 18 to 21) or emancipation (leaving school, entry into the armed services, marriage, full-time employment or, god forbid, death), then the IRS will go back and recalculate every penny you paid as nondeductible child support. Not only will you be taxed on that previously deducted income, you’ll likely face interest and penalties. Don’t do this.
Finally, what everyone wants to know: Can you deduct your divorce lawyer’s bill? Well, not generally, but it is possible. Under §212, the IRS allows deductions for legal fees incurred in the “production” or “collection” of gross income. Consequently, if you itemize and can prove that your lawyer helped you receive, increase or collect alimony payments, you can deduct her fees but only in connection with the alimony and only if they exceed 2% of your adjusted gross income. ( See U.S. Code Collection, Cornell University.)
You cannot deduct the legal fees incurred to stop or defend against an alimony action. You may, however, deduct legal expenses incurred to obtain tax advice--often encountered in a divorce. But, these fees must your own. (You can’t deduct any fees paid on your spouse's behalf, no matter what they are for). To avoid any problems, your attorney's invoices must be clear, separating the tax planning provided from the purely personal and nondeductible divorce-related services rendered. ( See Rev. Rul. 72-545, 1972-2 CB 179.) Also, if you acquired sole title to real property in your divorce, ask your attorney about adding those legal fees to its basis.
Please, consult with a tax professional to review your tax exposure or savings before your divorce is final. As they say, a person who is his own accountant has a fool for a client.
Written by Marlene M. Browne, a lawyer licensed in New Jersey, Massachusetts and Colorado. In addition to writing, Browne lectures on the law and appears regularly on national radio and TV.

For more information about marriage, divorce and family law, read Boomer's Guide to Divorce and The Divorce Process: Empowerment Through Knowledge by family law attorney Marlene M. Browne.

At Long Last, Protection for Domestic Violence Victims

In the past, when a victim of domestic violence went to Court to obtain an Injunction for Protection, or to attend a hearing in their domestic case (i.e., paternity, divorce, etc.), they were forced to be in the same waiting room as the violent offender, and were often in a courtroom with many other people discussing the very personal aspects of their lives in front of strangers. This process was intimidating for many people, and often times, a victim of domestic violence would not speak up because of the way the court proceedings were set up. As of January, 2007, Orange County has revamped their proceedings so the parties wait in separate rooms and do not have to face one another until the are in the courtroom. Additionally, the proceedings will be private and will no longer have the "cattle call" feel of the past, to provide the parties with the privacy and attention that their cases deserve. This system is still working out its kinks, but seems to be a step in the right direction.

To read more about the changes being made in Orange County, see the following: http://www.orlandosentinel.com/orl-dv2407mar24,0,2539145.story?coll=orl-home-headlines

When Can a Child Testify On Their Own Behalf In a Divorce Case

Divorce can happen at any given time during a marriage, and often times happens when the parties' children are teenagers. Often times one of the parties wants a child to testify regarding which parent they would want to live with. As a matter of practice, most judges do not allow child testimony because they feel it is not in the best interest of the child to have to testify at their parent's divorce proceeding. However, if you feel strongly that your child should testify here are some important things to know:

1. Having a child testify should always be the last resort.

2. A motion to allow child's testimony must be filed with the Court and the Judge must grant this motion before a child will be allowed to testify.

3. Fl. Stat Section 61.13(3)(i) will take into consideration the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express preference. This is a broad standard and even a child of 16 may not be allowed to express their preference based on this statute. The child's preference is just one factor of many factors that used to determine who should be award primary residential responsibility of a minor child.

4. Court proceedings can be terrifying to a child, and its important to keep in mind the impact of having to go to Court may have on your child before you request that they be allowed to testify.

Marital v. NonMarital Assets in Equitable Distribution

Fl. Stat. Sec. 61.075(5)(a) and (b) sets out the difference between nonmarital and marital assets. When determining who receives what in a divorce, the court must decide which assets are marital and which assets are non-marital. All marital assets will be equitably distributed between the parties. Generally speaking an asset which was acquired prior to the marriage, will be considered nonmarital. Conversely, all assets acquired during marriage will be considered marital. Even though it appears that this general rule is fairly straightforward, many questions still arise as to which assets are marital. Some of the more common issues which come up are as follows:

1. Real Property- There is a presumption that all real property held by the parties as tenants by the entireties (whether acquired prior to or during the marriage) shall be a marital asset. (See, Robertson v. Robertson, 593 So.2d 491 (Fla. 1991).

2. Inheritance- Pursuant to Florida Statute Sec. 61.075(5)(b)(2), a spouse's inheritance is a nonmarital asset even if it is acquired during the marriage. However, if that spouse deposits his or her inheritance in a marital account and the funds are no longer capable of being traced, the funds will be considered commingled and a marital asset. (See, Amato v. Amato, 596 So.2d 1243 (Fla. DCA 1992).

3. Use of Nonmarital Asset for Marital Purpose- Use of income during the marriage which resulted from a nonmarital asset does not transform the nonmarital asset into a marital asset. Further, the future income stream is not a marital asset after the marriage is dissolved. (See, Barner v. Barner, 716 So.2d 795 (Fla. 4th DCA 1998).

4. Stock Options- Stock and stock option awarded to spouse by employer which were primarily intended as incentive for future services rather than as deferred compensation for past services are nonmarital assets. (See, Parry v. Parry, 933 So.2d 9 (Fla. 2nd DCA). Unvested stock options acquired during the marriage for past services during the marriage are marital assets. (See, Jensen v. Jensen, 824 So.2d 315 (Fla. 1st DCA 2002).

5. Accrued Vacation-Spouse's accumulated hours of leave from employer is a marital asset subject to distribution. (See, Purpura v. Kelly, 913 So.2d 110 (Fla. 1st DCA 2005).

6. Pensions- Spouse's pension benefits earned during the marriage is a marital asset. (Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986).

Additionally, it is important to note that if you want to claim that an asset is nonmarital, then you will have the burden of proof and you must specifically plead that an asset be set aside as nonmarital.

War's Affect on Children

Many of our young service men and women have been deployed to Iraq, Kuwait and Afghanistan over the past couple of years to fight the war on terror. Some of these men and women have small children and may have been granted primary residential care of the minor children in a court proceeding. Often times, there are disputes as to who should take care of these minor children in the event of their parent's deployment over seas. Some non-military parents are using the deployment of the other parent as a way to obtain temporary and permanent custody of their children. While I believe that under most circumstances it is in the children's best interest to be with their non-military parent when there is a deployment, I do not believe that there should be a permanent change in custody based on this one fact. Congress is currently attempting to pass legislation in order to close loopholes which may have allowed for permanent changes in custody as a result of the primary residential parent's deployment. This type of legislation is clearly within the best interests of children and should be passed sooner rather than later.

If you would like to read the article on which this blog is based, see: http://www.tcpalm.com/tcp/local_news/article/0,2545,TCP_16736_5417681,00.html

Putting Children First

After a divorce is finalized, there are often harsh feelings between the parties which affects the way that they decide to raise their children. Those feelings can become even more negative when one party moves on with their life by getting romantically involved with another person. I have dealt with clients who dislike their ex-spouse's new wife or husband for no apparent reason, other than the fact that they are married to their ex. How you choose to deal with your ex-spouse after a divorce is critical to raising healthy well adjusted children. If you choose to put your own feelings aside for the betterment of your children, you will find that everyone is happier. While Hollywood is rarely the yardstick to measure what to do after a divorce, there are some couples who are doing it right. While it may be unrealistic to think that you can be best friends with your ex and his/her new spouse, its important to be friendly for the sake of your children.

If you would like to read the article for which this blog is based, see: http://abclocal.go.com/wtvd/story?section=entertainment&id=5117678

Things To Do After A Divorce

There is plenty of information out there about what to do before and during a divorce. There are few resources out there that help you figure out the things you need to do after a divorce to help you with your finances and your emotional well-being. Here are a few things that you should do after your divorce has been finalized:

1. Draft a New Will. Often times, if you have a will in place prior to a divorce, your spouse is listed as your main beneficiary. This should be changed to avoid any conflicts in the event of your death.

2. Change Beneficiary on Life Insurance Policy and Retirement Plans. Unless the Court has directed you to name your spouse as the beneficiary on a retirement or life insurance policy, you should change the beneficiary so that your spouse receives no benefits upon your death.

3. Create a Financial Plan and Monthly Budget. One of the hardest things to deal with after a divorce is living within your means on a lesser income. Making a budget and sticking to it can help you reduce the risk of financial disaster in the future.

4. Take Time For Your Children. The aftermath of divorce can be difficult on your children. Its important to establish new routines and traditions with your children that they can count on.

5. Throw Your Negativity Out The Window. Once a divorce is finalized, the parties often times have bitter feelings towards one another. While those negative feelings may be justified, a healthier attitude is to leave the negative baggage behind and move forward.

Divorce Stories

With over 50% of marriages ending in divorce, there is no shortage of horror stories from people who have had a horrible time after their divorce is final. From emotional problems to financial disaster, there is no question that divorce can have a devastating affect on a family. However, there are plenty of stories of men and women who rise from the ashes of their dissolved marriages to be better more productive people. While these stories may not get as much publicity as those dramatic stories of love and finances lost, they are just as important and could help individuals going through similar problems realize that they are not alone, and they will be able to get through to the other side of divorce. Its important to remain positive and proactive about your future, regardless of the decision that a Judge, arbitrator or mediator says. If you would like to read one such inspirational story, see: http://www.americanchronicle.com/articles/viewArticle.asp?articleID=22307

Divorce Aftermath

Once a divorce is final, in many cases, the couple will still be connected to one another either because of their children, or because of alimony payments. Unfortunately, at times those ties cause people to react or do crazy things. In New York, a man has been indicted for the murder of his ex-wife and he was quoted as saying that the alimony payments that he paid on a monthly basis were forcing him to take a job at a local Quiznos. He was obviously distraught over the amount of alimony he was paying and it appears that he may have killed his wife as a result. I do not justify what this man may have done, but there is no question that inequitable alimony awards can make people do crazy things. In the event you have a client or you yourself are stuck with a large alimony award that makes it impossible to pay your monthly bills, I highly suggest either appealing the Order or filing a Petition for Modification. Chances are if you are truly having trouble paying your monthly bills, your alimony award will be adjusted so that it is more equitable.

If you would like to read the story that this blog is based upon, please see: http://www.nypost.com/seven/03102007/news/regionalnews/deadly_gripes_regionalnews_john_mazor_and_todd_venezia.htm

Emergency Hearings in Florida

When a couple decides that they are going to get divorced, some immediate issues always arise. Who is going to have temporary residential responisbility for the children? Who is going to pay certain bills? What amount of child support is allowable? Will there be any form of temporary spousal support? Florida is a mandatory mediation State which means that parties to a divorce must attend mediation prior to obtaining any court hearing including a court hearing on temporary matters. The only way that a party can get before a Judge on any temporary matters prior to going to mediation are under those circumstances that qualify as an emergency. Often times, clients are confused by this and wonder what constitutes an emergency in the eyes of our Judges. What one person may consider an emergency may not constitute an emergency for a Judge, and you will be forced to deal with the problem without the help of the Court. The Fourth District here in Florida defines an emergency circumstance as "...one in which there is imminent danger, a crisis situation requiring immediate and extraordinary action." Shaw v. Shaw, 696 So.2d 391 (Fla 4th DCA 1997). Some districts go even further and define an emergency through an administrative order as one in which death or manifest injury will occur if immediate relief is not afforded. Unless there are extraordinary circumstances which would justify an emergency hearing, the parties will be forced to work out their immediate issues without the assistance of the Court. Therefore, it is important for the parties to work together to come up with temporary solutions for immediate problems.

Staying Together for the Kids

There are many reasons that couples put off getting a divorce. The most common thing that I hear from clients is that they are staying together for the good of the children. There has been a lot of research concerning the positive and negative affects on children when a couple, who otherwise would get divorced, stay together because they believe its what is best for their children. Sometimes children living in a house with bickering parents can end up with emotional issues far beyond those that they would have had if their parents had decided to divorce. However, deciding to end a marriage is a decision that should not be taken lightly and the fact that there are couples who have discussed their issues and are trying to do the right thing by their children is never a bad thing. Dr. Ruth A. Peters, Ph.D. is a contributor on the TODAY Show and recently wrote an article about the pros and cons regarding staying together for the children. If you would like to read the article it can be found at: http://today.msnbc.msn.com/id/13924018/

Alimony and Factor of Ability to Pay

Determining alimony awards in Florida can be confusing. After it is determined that a party is entitled to alimony, the Court must then determine how much alimony should be awarded. One of the major contributing factors to determine how much support should be awarded is based on the obligor spouse's ability to pay. When determining an obligor spouse's ability to pay, please remember the following:

1. Ability to pay is not based solely upon income, all assets, including non marital assets will be considered. White v. White, 617 So.2d 732 (Fla. 2d DCA 1993).

2. Alimony cannot be based on past earnings if those earnings are no longer available. DeSanto v. DeSanto, 621 So.2d 560 (Fla. 2d DCA 1993).

3. Amount of alimony award must be based on current circumstances even when there is evidence that changes will occur in the future. (ex., future inheritance). Hollinger v. Hollinger, 684 So.2d 286 (Fla. 3d DCA 1996).

4. Factual findings of the obligee spouse's monthly needs must be established to determine amount of alimony. Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986).

For more information about how alimony is determined see 2006->Ch0061->Section%2008#0061.08">Florida Statute Chapter 61.08

Introduction to Guardian Ad Litem

With Anna Nicole Smith continuing to be in the news, I'm sure most of you are as sick of hearing about her and her life as I am. However, like most, I wonder and worry about the fate of her baby daughter. The Judge here in Florida appointed a Guardian Ad Litem to ensure that the best interests of the child were looked after. Many people are uncertain as to what a Guardian Ad Litem is and what they do for a child. Usually a Guardian Ad Litem is appointed by the Court in a divorce case to interview the child(ren) and parents and make a recommendation concerning what they believe is best for the child(ren). A good recent article that describes a Guardian Ad Litem's role in a custody case in more detail can be found at http://www.billingsgazette.net/articles/2007/03/02/opinion/guest/55-smith.txt.

Termination of Permanent Alimony Award

It used to be that outside one spouse's substantial change in circumstances regarding either the ability to pay alimony or the ability to be self-supporting, awards of permanent alimony were never terminated, unless one party died, or the receiving spouse re-married. A controversial statute was enacted in January of 2006 here in Florida which alters the rules regarding when alimony can be terminated. Prior to the enactment of Florida Statute Section 61.14 a receiving spouse would not lose their right to their permanent alimony award even if they were living with someone of the opposite sex and were being supported by that person. With this new statute, upon a finding that the receiving spouse has a supportive romantic relationship with a new person, their permanent alimony award will be terminated. There has been a lot of controversy involved with this statute, mostly tied to the fact that people who are receiving permanent alimony are usually people who are not skilled in a profession and do not have the ability to be self-supporting. Therefore, if their alimony is terminated, and they never marry their new boyfriend or girlfriend, and the new relationship terminates, they may not have the ability to support themselves. I still think that this new law is a good one and that it is important to advise your clients accordingly when alimony is awarded.

Obtaining a Private Judge In Lieu of Going to Court

More and more couples are looking to alternative means to obtaining resolution to their divorce cases, whether that be mediation, collaborative law, arbitration or obtaining a Private Judge. I've already touched on collaborative law, arbitration and mediation in previous blogs. The hiring of a Private Judge is something that most couples never even consider, however it can be a very good alternative to going to court. (Jennifer Aniston and Brad Pitt used one in their divorce). Private Judging is a process in which the parties in a divorce agree to retain a neutral person as a private judge. The private judge will hear the case and make a decision, in a way much like a public judge. The key difference between an arbitrator and a private judge is that the private judge is appointed by the Court and the court retains some supervisory role over the private judge. The trial, or hearing, is not held in a courthouse, and you can request all the time that you need for the matter to be heard. Many couples use this form of dispute resolution when they want to keep their case, and the matters involved in their case, private. Once you have decided to obtain a divorce, its important to discuss with your soon to be former spouse whether or not you could possibly use one of the alternative dispute resolution tools such as a Private Judge.

Permanent Alimony Awards Tied To Length Of Marriage

One of the key components as to whether or not an individual will receive a permanent periodic alimony award is the length of the marriage. In Florida, there is a presumption in favor of permanent periodic alimony in a long term marriage, a presumption against permanent periodic alimony in short-term marriages and no presumption in favor of or against permanent periodic alimony in gray-area marriages. When determining whether or not someone should receive permanent alimony, we must look to what constitutes a short-term, long-term and gray-area marriage. The definitions of these three types of marriage vary among and changes from time to time in each district.

Definitions of Marriage for Alimony Purposes
1. Long Term Marriage- Can be any where from 14-17 years and up depending on the district.
2. Short Term Marriage- Can go as high as 8 years.
3. Gray-Area Marriage- Can be any where from 6-18 years depending on the district.

If alimony is an issue in your divorce case, you should look to the case law of your district to determine which definition of marriage your case falls under.

Women Get Off Easier?

I usually use this blog as a way to report about family law matters and issues which come up in the news. While the issues and stories about Lisa Nowak, the astronaut that is currently facing criminal charges over her actions in connection with an alleged love triangle, are not necessarily family law in the direct sense, they are indirectly related to family law. Many people are feeling sympathy for Nowak because of her high stress job and some have shown sympathy for her because she is a woman. I feel that there is a double standard when it comes to violent crimes or the potentially for the perpetration of a violent crime when we are dealing with women. I see this double standard in the context of family law in the form of injunctions and the enforcement of those junctions. Many times a man can feel not only threatened, but fearful of what a woman is capable of doing based on actions that have occurred in connection with a divorce or custody proceeding. These fears are often very real and in some jurisdictions are not taken seriously by a judge, based on the preconceived notions about a man's ability to protect himself against a woman. I believe that the sex of the petitioner should never come into play when an injunction is requested, and that the merits of the request and the truthfulness of the testimony of the petitioner should be the only basis to grant or deny a request for an injunction.

Disputes Over Use of Marital Home

In a divorce proceeding, the divorcing couple's largest asset is almost always their home. Sometimes there is a request by one party to have exclusive use and possession of the marital home during the pendency of the divorce. Such a request usually has to do with who has primary residential responsibility of the minor children. When one party is granted temporary exclusive possession of the marital home, questions often arise as to what the other party's rights are to the marital home while they are not in possession. If an Order has been entered that states that one party has exclusive possession of a marital home, the other party cannot enter the premises, even though they may own the home. If they enter the home without the express permission of the possessing spouse, they may be subject to criminal sanctions as well as civil contempt. Therefore, if you are not granted possession of the marital home during the pendency of a divorce, it is highly suggested that you do not enter the home without the express permission and knowledge of the possessing spouse. Even though this may seem unfair, you are bound by the Temporary Relief Order until a final hearing on the matter of equitable distribution of marital assets.

What Is No Fault Divorce?

In my practice, many times clients are confused as to what is meant by "no fault" divorce. In its simplest terms it means that the parties need not show fault on the part of one of the parties in order to obtain a divorce. Additionally, fault will not factor into the distribution of assets, unless a parties' non-marital activities contributed to the dissipation of a martial asset. The parties must only state that the marriage is irretrievably broken. By this, we mean, the parties can no longer live together because their difficulties are so substantial that no reasonable effort could enable the parties to live with one another in a normal martial way. The Court will ask a couple whether their marriage is irretrievably broken, however, there is no requirement that a written finding be made that the marriage is irretrievably broken to obtain a divorce. Even though there is usually one party who is more at fault than the other, generally speaking "fault" does not need to be placed in a divorce petition, and can further be struck as immaterial or scandalous. If you are planning on divorcing in Florida, it is important to understand this basic divorce rule so that you are not confused as to why information regarding fault is not placed in your divorce petition.

Helping Children Cope With The Realities Of Divorce

The divorce rate in America is still quite high and there is no question that divorce has a profound affect on children. Many children whose parents are going through a divorce feel a variety of different emotions from anger to insecurity. While a child is going to feel all of these emotions regardless of how friendly the divorce is, its still important to speak frankly with your children about the divorce and remember that even though you have made the decision to terminate the marital relationship with your soon to be ex, you are bound to that person to life as parents. The most important thing for your children to understand is that they are not the cause of the divorce, and that both parents love them and want what is best for them. There are plenty of resources out there that can be purchased to help children cope with the changes associated with divorce, there are also resources on the Internet to help you figure out the best way to put your children first in the event of a divorce. For more information and/or resources on helping children cope with divorce visit: http://www.childcentereddivorce.com/

Enforcement of Child Support Orders

Every state has different ways to enforce child support orders. Florida's Department of Revenue has several ways to bring child support arrears current or create different ways to punish those offenders for failure to pay their child support as ordered. Some of the remedies for failure to pay child support are as follows:

1. Suspending Florida driver's license.
2. Suspending other licenses such as hunting, fishing, as well as occupational and professional licenses.
3. Intercepting IRS tax refunds.
4. Intercepting Florida lottery winnings over $600, unemployment compensation, and workers' compensation.
5. Requiring employers to deduct child support from noncustodial parents' wages (Income Deduction Order).
6. Cooperating with the court for issuance of writs, also known as arrest warrants.
7. Placing liens on real property and personal property such as cars and boats.
8. Reporting the child support debt to credit bureaus, which can affect the noncustodial parent's credit rating.
9. Placing bank account levies and garnishment.

If you are not receiving the child support that you are entitled to, you should contact the Department of Revenue immediately. They can be found on the web at www.myflorida.com/dor/childsupport/enforcement.html

Dependency Proceedings in Florida

All family lawyers should have a working knowledge of juvenile dependency proceedings especially those lawyers who do pro bono work as a guardian ad litem. Dependency proceedings, like criminal proceedings have mandatory time frames in which certain hearings and other matters must be conducted. Additionally, a party affected by a dependency proceeding must be aware of their right to counsel and generally speaking a Guardian Ad Litem is appointed to represent the interests of the child(ren) involved. Once a child is removed from a home by the Department of Children and Families ("DCF") the court must hold a "Shelter Hearing" within 24 hours from the time of removal. This hearing is similar to a first appearance in a criminal case, and the parents will be heard at that time and evidence will be presented on whether there is sufficient evidence to shelter the child. There are certain rights that the parents of the child(ren) are entitled to at the hearing which are governed by Florida Statutes Section 39. At the time of hearing, the court will enter a written findings of facts regarding whether placement in shelter care is in the best interests of the child.

Within 28 days after the shelter hearing or within 7 days of the date the dependency petition is filed if the child is in out-of-home placement, the Arraignment hearing must take place. The happenings of at the Arraignment Hearing is governed by Florida Statutes 39.506.

If you would like to read more about the specfics of a juvenile dependency hearing go to www.flocourts.org/gen_public/family/bin/benchbook.pdf

Presumption Against Rotating Custody

Florida Statute 61.121 states that the Courts may enter an order for rotating custody if it finds that it will be in the best interests of the child. Rotating custody generally means that parties will share custody of the minor children by either rotating weeks in which the children live with the parents or by the children spending 3 days with one parent and 4 days with another. In Florida, there is a presumption against rotating custody because it is presumed that it is not in the best interests of the child. Courts have argued that a child's need for stability and continuity generally outweighs a parent's desire for rotating or equal time with the child. Chapman v. Prevatt, 845 So.2d 1249 (Fla. 4th DCA 2001). A court will only award rotating custody if it truly feels that the it is in the best interests of the child and that the parents are capable of working together in order make the rotating custody schedule plausible. The factors that are applied to determine whether rotating custody should be allowed are as follows:

1. The age and maturity of the children.
2. Whether the child is in school and the closeness of the parents' respective residences.
3. The child's preference.
4. Any disruptive effect on the child.
5. The reasonableness of the time period that the child spends with each parent.
6. The relationship between the periods of rotating custody to other events in the child's life (like school).
7. The parents' attitudes towards one another and how the child will interpret these.
Hosen v. Hosen; 785 So.2d 703 (Fla. 4th DCA 2001).