Category Archives: Family Law

Premarital Agreements

 Premarital agreements in Florida are governed by statute – F.S. 61.079 – The Uniform Premarital Agreement Act. Premarital agreements become effective upon the marriage of the parties and must be in writing and signed by both parties, although there may be some limited circumstances where oral agreements are enforceable. They are enforceable without consideration other than the marriage itself. They can be amended, revoked or abandoned only by a written agreement signed by the parties.

The act provides that the parties to a premarital agreement may contract with respect to property rights, spousal support, the making of a will or trust and the disposition of property upon separation, divorce or death or the occurrence of any other event or any other matter as long as it is not in violation of either public policy or the criminal statutes.

Premarital agreements generally must be fair and entered into voluntarily. There must be fair and reasonable disclosure of the financial status of the party who proposes the agreement.

Defenses to the enforcement of a premarital agreement can be such things as: fraud, duress, coercion or overreaching.

Certain things can be waived in a prenuptial agreement such as the right to spousal support following dissolution of the marriage, the right to modify alimony where the waiver is expressly stated, the right to equitable distribution of property, spousal rights in a probate context such as right to intestate succession, pretermitted spouse and elective share rights, homestead rights

Some things cannot be waived in a prenuptial agreement, such as temporary support, child support, child custody and visitation.

It is unclear whether a provision contracting away a future obligation to pay attorneys’ fees for contesting the agreement can be upheld. The issue of whether an impecunious spouse should be prevented from challenging the validity of the agreement because of inadequate resources remains unclear.

It is also unclear whether pension rights can be validly waived in a prenuptial agreement. Pension rights are governed by the U.S. statute known as ERISA which requires that pension rights be waived by a spouse, not a spouse to be. Accordingly a premarital agreement should be separately re-executed by the waiving party after the marriage and separate waivers should be signed.

Finally, the timing of the financial disclosure, the negotiations and the signing of the premarital agreement should all be well in advance of the wedding. Otherwise, if all these things occur shortly before the wedding, it will be easy for a challenging spouse to make claim for duress or undue influence.

Visitation Disputes

Sad boy with arms folded while parents quarreling in the kitchenVisitation is agreed to and established by the parties or the court at the time of the Final Judgment of dissolution of marriage by virtue of the marital settlement agreement and parenting plan which the parties sign and which are incorporated into the Final Judgment. These agreements will customarily have enforcement provisions in them.

Examples of such provisions are:

  1. prohibiting the removal of the child from the state or country without written permission from the other parent;
  2. requiring notarized written permission from both parents or a court order or both to allow a child to leave the country;
  3. prohibiting the removal of the child to a country which has not ratified or acceded to the Hague Convention on the Civil Aspects of Child Abduction or without obtaining written permission of the other parent;
  4. requiring surrender of the child’s passport;
  5. requiring the posting of a bond or other security. F.S. 61.45 contains detailed provisions on these issues and the conditions under which a court will allow them.

If the parties are unable to resolve the dispute……

  • The court can enforce the provisions of the agreement by contempt. Generally, it is improper to withhold child support or alimony as a sanction for failure to honor visitation agreements. It is also improper to modify a time sharing agreement solely as a sanction for contempt.F.S. 61.13(4)(c) contains other remedies if visitation agreements are not honored, such as:
  • The court can award compensatory time to the nonoffending party.The court can award attorneys fees and costs to the nonoffending party.The court can order the offending party to attend a parenting class.
  • The court can order the offending party to perform community service.
  • the court can order the offending parent to bear the financial burden of time sharing if the parent and child live more than 60 miles apart from the other parent.
  • On the request of the nonoffending parent the court can modify the parenting plan if it is in the best interest of the child.
  • The court can impose “another reasonable sanction”

The remedy of Habeas Corpus may be available to seek the return of a missing child and as a remedy for violation of visitation agreements. The proper venue for such a proceeding is in the county where the child is being detained or wrongfully withheld. This is an extraordinary remedy and you must seek the advice of an attorney on this issue.

If your child is missing, you may be eligible to use the parent Locator Service offered by state of Florida Department of Revenue under the Child Support Enforcement Program. See F.S. 409.2577 SEE ALSO 48 USC 653. There is an application fee for parents not receiving public assistance.

There is also a service offered by the Defense Manpower Data Center (DMDC) through which the public can verify whether someone is in the military.The link is: www.dmdc.osd.mil/scra/owa/home. Each branch of the armed services, except for the army, can also be contacted to determine if the person is on active duty. The army locator service is only available to active duty personnel.

Paternity

Portrait of Happy Father and Son In ParkPresumption Of Legitimacy

  1. F.S. 382.013 provides that the birth certificate serves as a legal document indicating an initial determination of paternity for all children born during a marriage.
  2. F.S. 741.10 provides for a voluntary acknowledgment of paternity. Paternity may also be voluntarily acknowledged by signing an affidavit along with the birth certificate. This creates a rebuttable presumption of paternity.

Judicial And Administrative Proceedings

F.S. 742. 011 provides that any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court to determine the paternity of the child when paternity has not been established by law or otherwise.

Note that scientific testing to determine paternity can be ordered by a court on its own motion or can be compelled by one of the parties. Blood tests are not automatically admissible. See F.S. 742.12 regarding blood tests.

The Best Interests Of The Child Is Controlling

Case law interpreting the above statutes provides that once children are born legitimate, they have the right to maintain that status. In cases where one party trying to question the legitimacy of the child it must be proven by clear and convincing evidence that it is in the best interests of the child to overcome the presumption of legitimacy.

Custody And Support

The issues of custody and support of an illegitimate child are controlled by the general Florida Statutes regarding shared parental responsibility ( F.S. 61.13) and child support ( F.S. 61.30) The courts generally have the power to order child support and to establish visitation.

F.S. 742.031 provides that if a paternity order is entered without a specific ruling on custody, but the order contains an award of child support or visitation, it is presumed to award primary residential care to the parent receiving support or the parent that was not granted visitation without prejudice.

Dis-Establishment Of Paternity

Florida statute 742.18 provides a detailed procedure by which a male may disestablish paternity or terminate child support. A petition must be filed stating that there is newly discovered evidence since the initial determination of paternity and the petitioner must provide scientific testing results that are less than 90 days old or request in the petition that testing be done and the petitioner must also file an affidavit stating that he is current in his child support or that any delinquency arose from inability to pay for just cause.

The statute goes on to provide a list of factors all of which must be present for the court to make a finding of disestablishment of paternity;

  1. newly discovered evidence has come to light;
  2. the scientific testing was properly conducted;
  3. the male ordered to pay child support is current on all child support payments or that the male ordered to pay child support has substantially complied with his child support obligation and that any delinquency in his child support arose from his inability to pay for just cause;
  4. the male ordered to pay child support has not adopted the child;
  5. the child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock;
  6. the male ordered to pay child support did not act to prevent the biological father of the child from asserting his parental rights with respect to the child;
  7. the child was younger than 18 years of age when the petition was filed.The court may not disestablish paternity if the male engaged in the following conduct after learning that he is not the father of the childmarried the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;
  8. acknowledged the paternity of the child in a sworn statement;consented to be named as the child’s biological father on the child’s birth certificate;voluntarily promised in writing to support the child and was required to support the child based on that promise;
  9. received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded;
  10. signed a voluntary acknowledgment of paternity as provided in F.S. 741. 10(4)

Gestational Surrogacy Contracts

If you wish to enter into a contract for gestational surrogacy, you must comply with the provisions of F.S. 742.15 and F.S. 742.16. Basically F.S. 742.15 provides that the surrogate must be 18 years of age or older and that the commissioning couple are legally married and are both 18 or older.

The statute permits these kinds of contracts only when a physician certifies that the commissioning mother cannot carry a pregnancy or the pregnancy will cause a risk to her health or the pregnancy will cause a risk to the health of the fetus.

The contract itself must provide that the surrogate will be the sole source of consent with respect to clinical intervention and management of the pregnancy and that the surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions. The surrogate further must agree to relinquish any parental rights unless it is determined that neither member of the commissioning couple is the genetic parent of the child. The commissioning couple must agree to accept custody and to assume full parental rights and responsibilities for the child immediately upon the child’s birth regardless of any impairment of the child unless neither of them is the genetic parent.

F.S. 742.16 provides that the commissioning couple may petition the court for an expedited affirmation of parental status within 3 days of the birth of the child.

Relocation

Cardboard Box with Warehouse Relocation on Hand Truck White Background.

Relocation has become an important and often contested part of dissolution proceedings. In our society many people have to relocate. The Florida statutes define relocation as “a change in the principal residence of a parent of at least 50 mile for at least 60 consecutive days”. This does not include temporary absence for vacation, education or the provision of health care for the child.

Both parents can agree in writing to the relocation as long as the agreement reflects their consent to the relocation and spells out a time sharing plan for the non relocating parent along with any transportation arrangements needed for visitation. You must seek ratification of the agreement by the court. There may not have to be a hearing unless one is requested. If both parents cannot agree then the statutes provide for the court to make the decision.

Florida has changed the relocation statute to eliminate the requirement that a notice of relocation be filed before a petition to relocate is filed in court. Now, in the absence of an agreement between the parents, a parent seeking relocation files a court petition immediately and must serve it on the other parent. The other parent has 20 days to file a written response to the court just as in any other court proceeding. The court then schedules a hearing.

There is no presumption for or against any relocation. The factors that a court will consider in determining whether to allow the relocation are set out in the statute 61.13001.

Failure to follow this procedure and removal of the child without permission subjects you to contempt of court and other proceedings to compel return of the child.

If you are faced with this situation I strongly recommend that you consult the attorney of your choice.

The Online Shopping Cart: Protecting Your Purchases

Internet ShoppingMore and more of us are buying products online, whether through websites of established vendors who also have brick-and-mortar stores or from businesses whose entire existence is online. Internet shopping is perfectly safe, and extremely convenient, so long as you follow some precautions and are aware of the legal protections available to you if things go wrong.

These days, security is not as much of a concern as it used to be when shopping online, but you certainly shouldn’t ignore it. Make sure that you are using the most recent version of your Internet browsing system, which will encrypt, or scramble, your information, making it harder to steal.

It is usually safe to pay online with a credit or debit card. If problems arise, however, the Fair Credit Billing Act protects you. This law gives you the right to dispute charges and temporarily withhold payment while the charges are being investigated. You can further protect yourself by keeping up-to-date records of your online transactions. Keep copies of your online communications with the company and your purchase order and confirmation number. Also, review your bank and credit card statements for billing errors or unauthorized purchases, which might have been made by someone who illegally accessed your information.

UNDER FEDERAL LAW, IF YOU DO NOT RECEIVE THE GOODS YOU ORDERED WITHIN A CERTAIN TIME FRAME, USUALLY 30 DAYS, YOU CAN DEMAND A REFUND.

You can further limit your exposure by acquiring a low-limit credit card and using that card for your online purchases. The lower limit reduces potential exposure if the number is misappropriated.

Problems at the Mailbox
Before hitting the “purchase” button, you should make sure you review the company’s return, refund, and shipping and handling procedures. You will also want to make sure you make note of your order number (many retailers will actually email this to you as soon as the sale is completed).

Save any emails or correspondence when your purchase arrives, examine the item carefully as soon as possible. Contact the seller immediately if you discover a problem. Tell the seller in writing about any problems, ask for a repair or refund, and again, keep copies of any correspondence in case you have to take the company to court.

Under federal law, if you do not receive the goods you ordered within a certain time frame, usually 30 days, you can demand a refund. Companies that cannot make delivery within the legally required timeframe must tell you and also inform you of your right to cancel the order with a full refund.

If the product never arrives and you aren’t making any inroads with the seller, you have additional legal rights under the Fair Credit Billing Act (FCBA) when you’ve paid for the goods with your credit card. Under the FCBA, you can contact the card issuer in writing about such disputes (note—do not send the letter to the billing address, but rather to the address listed on your statement for “billing inquiries.”) The Federal Trade Commission (www.ftc.gov) hosts sample dispute letters on its website. You will want to contact your credit card issuer within 60 days of receiving the bill that contains the challenged charge. The issuer will then acknowledge your complaint within 30 days and will resolve the dispute within two billing cycles. If your credit card issuer isn’t responding to your calls and letters, consider working with your attorney to determine your rights and FTC protections and the proper next steps. You likely have steps to find a solution, but know that time is of the essence.

You may withhold payment on these disputed amounts while your credit card issuer is investigating the issue. However, the disputed amount may be applied against your credit limit during this time. For example, if your limit is $1,000 and you dispute a charge for a $750 television, your credit limit will be capped at $250 during the investigation.

A special note if an online deal seems too good to be true—be on the lookout for gray-market goods. These are products that were not manufactured or intended for sale in the United States, but have found their way here through circuitous routes. Gray-market vendors will happily sell such goods to you at a substantial discount. These products are often made by high-end manufacturers, arrive in excellent condition, and work perfectly fine. On the other hand, gray-market goods may also arrive without a set of instructions in English or a U.S. warranty. If you buy a gray-market good, you take on the risk that if the product is broken or doesn’t live up to your expectations, you won’t have any recourse with the manufacturer or seller. It is the ultimate “buyer beware” situation.

Be Careful About Sending Text Messages to An Ex-Spouse It Could Be Considered “Cyberstalking”

Modern mobile smart phone. Sending and Receiving SMS Messages. E

Text messaging can be a good way for ex-spouses to communicate with each other about certain topics, such as the practical details of child custody. Text messages are short and quick, and they can be less likely to lead to extended arguments than a phone call.

On the other hand, sending repeated text messages to an ex-spouse, ex-lover or ex-partner can sometimes be considered harassment – especially if the texts are insulting or have a threatening under- tone. Sometimes, repeated texting can result in a restraining order…or even criminal charges.

Consider Florida’s statute on “cyberstalking”….

d) “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

(FLORIDA STATUTE 784.048(1) (d))

Stalking is a misdemeanor and is punishable by a fine or imprisonment. If the stalking is accompanied by a “credible threat” it is a felony. You can get an injunction to prevent further stalking.

So it’s important to be careful about texting. If you feel that your ex-spouse is stonewalling you about your children or other important matters, it’s best to consult your lawyer to discuss the best way to handle the situation. And if you feel that your ex’s texting has become genuinely harassing, you should consult an attorney for advice or, if you feel imminently threatened, call the police.

Divorce Survival Kit

Divorce2

  1. Get counseling so that you can unload your emotional baggage.
  2. Look to the future not backwards-move on. Allow plenty of time for readjustment.
  3. Do not try to “get back” at your spouse. Revenge has no place in a courtroom.
  4. Take care of yourself so that you can maintain your composure and sense of balance. Divorce is stressful-allow yourself plenty of time to decompress.
  5. Mediate your case rather than litigate if at all possible. Litigation is stressful.
  6. Tell your children that they are not to blame and that they are not being rejected or abandoned.
  7. Continual anger, bitterness and criticism of the other parent can harm your children more than the dissolution itself.children need to respect both parents.
  8. Get counseling for your children. .
  9. Do not force your children to take sides.
  10. Do not change the childrens’ routine too quickly. Children need to have a sense of continuity and order and direction.

You Can Be Served With Legal Process By Email

Legal concept

Beginning September 01, 2012, you can be served with a lawsuit by email. This is a big change in the legal system. For instance, there is no longer a requirement that the sheriff personally serve you with process. You can now be served by email!

This applies to civil suits in the trial court divisions for civil, probate, small claims and family courts only. It also applies to appellate cases in the Supreme court, District Courts of Appeal and the Circuit courts when sitting as an appellate court.

It does not apply to criminal prosecutions right now Criminal suits in the trial courts for criminal, traffic and juvenile cases will begin the same e service procedure as of October 01, 2013.

THERE WILL BE MANY QUESTIONS AS THIS NEW LAW BECOMES EFFECTIVE. WE DON’T KNOW ALL THE ANSWERS YET. BUT WE DO KNOW ONE THING- WE ALL NEED TO CHECK OUR EMAILS CAREFULLY STARTING SEPTEMBER FIRST, 2012

2014 Division of Property – Equitable Distribution

Family break up silhouette.

The Florida statutes provide that the marital assets and liabilities will be “equitably distributed” between husband and wife. This remedy is in addition to all other remedies available to the court such as alimony and child support. The specific statute is F.S. 61.075.

This statute applies regardless of the size of the marital estate and involves a 4 step process:

  1. Identify all assets and liabilities.
  2. Classify which assets and liabilities are marital or non-marital.
  3. Valuation of the asset or liability.
  4. Distribution of the asset or liability.

Note: There is a presumption that marital assets and liabilities should be distributed equally unless there is a justification for an unequal distribution. Note also that there is a presumption that all assets and liabilities acquired subsequent to the date of the marriage are marital assets or liabilities unless clearly established otherwise. The statute provides the criteria for a court to use in determining whether the distribution should be equal. These factors are similar to the factors for determining alimony and include such things as the duration of the marriage, the economic circumstances of the parties and the contribution of each to the marriage, just to name a few. See the statute for a full listing. The statute also contains a definition of marital and non-marital assets. The court may order an interim partial distribution during the pendency of the litigation if the circumstances of the case warrant it.

None of these 4 steps are simple questions. There have been volumes of litigation on each of these steps. These issues must be decided on a case by case basis.

This article is for general reference only, and it is not intended to be a substitute for the hiring of an attorney. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.

Divorce Laws in Florida

divorce papers

Divorce Law in Florida has the purpose of dissolving or terminating a marriage with the good of both parties in mind. A divorce is called dissolution of marriage in the court system. It is begun by filing of a petition for dissolution along with a summons.

The petition describes to the court in general terms basic facts about your situation and what you are seeking in the divorce (such as alimony, child support, equitable distribution of the marital property, child custody, temporary support, etc.) There is a filing fee which must be paid to the court for filing the petition.

The summons is a document which accompanies the petition and tells your spouse that he or she has twenty days to respond. It is usually served upon the opposing spouse by formal service of process, either by the sheriff or by a private process server. There is a charge for serving this document and the proof that the process server has served it upon the other spouse is placed in the court file. It is called the return of service.

Information Gathering

The next step is information gathering. This can be done informally by the parties themselves or formally by their attorney’s. Formal methods include subpoenas to third parties such as employers or financial institutions, interrogatories (written questions) directed to the next step party, depositions of the other party or third parties, or requests for admissions. These methods are governed by strict rules and deadlines and there are penalties for failing to comply. Informal information gathering is much less costly and time consuming.

A part of information gathering may be the hiring of experts such as psychologists, accountants, appraisals and neutral financial advisors. It is advisable to put together a team to assist you with all aspects of the divorce.

Going To Court

The next step will be going to court and attempting to resolve your differences. This can take as little as a few weeks or as long as two years or more, depending on the levels of cooperation and animosity between the parties and their attorneys. There can be pretrial hearings before the case goes to trial, depending again on the parties and the attorneys involved. Generally, the higher the level of animosity between the parties and their attorneys, the more pretrial hearings there will be and the higher the costs will be. At trial, the court will hear the evidence and make its decision. Dissolution cases are usually tried before the judge without a jury.

Divorce, entered into without competent counsel, can have devastating effects that result in an increase in the time it takes for you and your family members to resume a happy and healthy lifestyle. Its important that you know your legal rights and protections. Spousal support, custody rights, child support, visitation schedules, parental rights, property division, and protection of your assets, even protection of your retirement account, are issues that must be addressed. Even an amicable divorce agreement, drafted by the concerned parties themselves, may omit information that affects their rights and costs each of them for years to come. Many such mistakes can be avoided by consulting an attorney.

This article is for general reference only, and it is not intended to be a substitute for the hiring of an attorney. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.