Divorce

July 31, 2011

Family Estate Planning In Florida And Medical Power of Attorney

As a Florida family law lawyer, I have been noticing a mad dash by people trying to obtain a “springing” Medical Power of Attorney (POA) because of the new law taking effect on October 1, 2011. A “springing” Medical Power of Attorney is one that is created when the person it affects is still cognizant of what he or she is doing. The word “springing” means that the document will only be operable once the creator of the POA becomes mentally or physically unable to make his or her own medical decisions. With this document, the creator has personally chosen the person(s) who will be responsible to make those medical decisions for them. If someone is going to be making these important decisions for you, wouldn’t you like to have a say in who that person will be? Most people desire this type of control but the new law will soon eliminate this control. If you create your “springing” medical poa before October 1, 2011, the document will stand up against the new law and be valid, but the opposite will be true for “springing” medical poa’s after that date. If you have a desire to have some control over which family member makes your medical decision should you be in a position to be unable to do so, you should contact a Jacksonville family law lawyer or a Jacksonville estate planning attorney to assist you.

July 29, 2011

Father’s Roles In The Lives Of Children In Florida

by David M. Goldman

As a Florida child custody attorney, I often see families that are having to learn to live separately. Roughly one out of every four fathers lives separately from a child. According to the Pew Research Center, education is a large indicator of whether a father will stick around and be involved in his child’s life. For example, 40% of fathers with less than a high school diploma do not live with their children. Compare that with only 7% of fathers with diplomas who live away from their children. Fifty years ago, 89% of children lived in a home with their fathers. That’s down to 73% today. However, 93% of fathers talk with their children several times a week about their lives. Further, over 90% of fathers who live with their children consider themselves to be either “good” or “very good” fathers, while less than 50% of fathers who lives separate and apart from their children feel they are in that category. This kind of thinking is wrong! Despite the trend for fathers to be decreasingly present in their childrens’ lives, it is still important to maintain some level of contact if possible. This is just one of the many considerations a good Florida divorce lawyer can speak with you about if you are considering a divorce in Florida. If you are in this situation and want more time with your children, please contact a Florida child custody lawyer today.

July 25, 2011

Jacksonville Child Custody Lawyer: Modification of Timesharing Agreements

by David M. Goldman

As a Jacksonville Family Law Attorney, I am often asked whether a child timesharing order can be modified after a divorce. In short, yes, parents can change their timesharing agreement. However, if the parents disagree about the modification, the standard under Florida Law is often difficult to satisfy.

After a final decree establishing timesharing is filed with a court, parents may later agree to modify its terms. Although not required, it is advisable to obtain the court’s approval for the modification so that it may later be enforceable it needed. Generally, courts approve modification agreements unless it appears the modification is not in the best interests of the child.

If a parent wants to change an existing timesharing agreement and the other parent will not agree to the change, he or she must petition the court to modify it. Generally, a court will allow a modification if the parent asking for the change can show a “substantial change in circumstances.” Some examples include a geographic move or a change in lifestyle.

July 19, 2011

Child Support Enforcement

by David M. Goldman

Timesharing disputes often conclude where one party is granted majority timesharing of a child, while the other is issued a court order to pay child support each month. The effect of the court order is a legal obligation for the minority timesharing parent to make monetary payments to the majority timesharing parent. Unfortunately, many minority time sharing parents withhold making these payments even when they have sufficient means.

As a St. Augustine Divorce Attorney, majority timesharing parents often ask me if they can force the minority timesharing parent to fulfill his or her payment obligation. In short, yes, there are several avenues in the Florida legal system. A Judge can hold the minority timesharing parent in contempt if he or she fails to make the court ordered payments. Contempt of court is a legal term of art that simply means there is a violation of a court order.

As a result, the minority timesharing parent could go to jail. However, he or she “holds the keys to his or her cell.” If the minority timesharing parent pays the money owed to the majority timesharing parent or proves his or her income is so low that he or she cannot make the payments, then a judge may not require jail time.

July 18, 2011

Morality Clause in a Divorce

by David M. Goldman

Morality clauses used to be popular in the South. These clauses were included in a Judge’s divorce order and usually required one or both of the divorcing parents to take some action (or refrain from taking some action). For example, a common morality clause was to require that a woman not have any male overnight guests unless that person was a direct relative or married to the woman.

Nowadays, these clauses are less common and extremely difficult to enforce. While you and your former spouse may agree to include such a clause, the court will not likely enforce it. If your divorce had a morality clause and you are trying to gain custody of your child because your former spouse violated the terms of the clause, the court will not likely enforce the clause based simply on the fact that the other party violated its terms. Instead the court will focus on whether or not the child was actually harmed by the overnight guest (or any other violation of the clause).

Courts have stated that they consider the child’s (or children’s) welfare more than anything else in a custody proceeding. So, if you cannot show that your former spouse is endangering your child’s welfare, the court will not likely uphold a morality clause.

July 15, 2011

Divorce on Rise in Florida

by David M. Goldman

A recent study suggests that video games are increasingly being blamed for many divorce cases. Apparently, 15% of wives who cite unreasonable behavior for ending marriage have cited gaming as the cause.

This number is much higher than five years ago. One of the games cited by Divorce Online (the website responsible for the study) is the ever-popular World of Warcraft. One woman claimed her husband played over eight hours every day. It should be noted that not just men are gaming addicts; another study suggests that women represent 40% of all gamers.

Similarly, a smaller study by a University in Egypt suggested that husbands who love watching football (AKA soccer) showed higher divorce rates than those who did not. This suggests that sports fans in general may be at higher risk for divorce; however, the study was limited in size. Further, the study focused on extreme fans who do not appear to exhibit behavior similar to their American counterparts.

July 13, 2011

Child Custody in Florida Divorce Cases

by David M. Goldman

You’ve probably heard the concept of “joint custody” in divorce cases. You might think this means that parents share custody of their children equally, with each parent having custody time similar to equal to the other parent. There’s a problem with this idea, however: “joint custody” does not exist in Florida law.

Instead, Florida law has the concept of “shared parenting” — and even this is not exactly what it sounds like. In every divorce case involving children, a judge must issue two separate but similar-sounding orders: one is a “parental responsibility” order and the other is a “time-sharing schedule”. The time-sharing schedule is exactly that: a schedule of the times each parent will have custody over the child or children. A parental responsibility order, however, outlines the parents’ rights and responsibilities.

The differences can be confusing because, under Florida statutes, the parental responsibility order is included in a “parenting plan”. Under this plan, the judge can grant one of three different options: (1) sole parental responsibility, (2) shared parental responsibility, and (3) shared parental responsibility with ultimate responsibility to one parent.

July 7, 2011

Adultery’s Impact on Florida Divorce

by David M. Goldman

Florida is a “no fault” divorce state, meaning that either spouse may seek a divorce without showing cause for the desired separation. The spouse seeking a divorce has the option to simply claim the marriage is “irretrievably broken.” Generally, Florida courts are not concerned with which party played the greater role in causing the divorce.

As a Jacksonville Divorce Attorney, I am often asked how a cheating spouse factors into a divorce in Florida. While adulterous conduct does not factor into the court’s decision to grant a divorce, it can impact other important issues raised in a divorce.

In child custody battles, a court considers the “moral fitness” of a parent seeking custody. Evidence of adulterous conduct can lower a party’s level of “moral fitness,” and decrease his or her chances of receiving custody. However, it is not an absolute bar to child custody. Often times, a larger impact will be whether the adultery had an adverse impact on the child.

July 6, 2011

Divorce and Alimony

by David M. Goldman

When deciding whether to grant alimony in a divorce case, Courts consider many factors, including the length of the marriage, the spouses’ employment prospects, the age of each party, their standard of living, their marital contributions, their available income and assets, and the fairness of the situation.

Generally, the shorter you’ve been married, the less likely you will be awarded alimony. Similarly, age is important. If one of the spouses is about to retire, alimony might be more likely.

Courts also consider marital contributions. You might complain that your spouse watched TV all day for twelve years while you worked fifty hours a week. You might think this means your spouse should not be entitled to alimony; however, the court will likely not consider this in granting alimony. Similarly, if your spouse ran up huge credit card debt, he or she may still be entitled to alimony. The court might look more favorably to you, however, if those debts were ran up without your knowledge.

July 4, 2011

New Laws Change Parenting Plans for Military Service Members

by David M. Goldman

Under current law, if parents of a child are living apart, the parents have to create a parenting plan that must also be approved by the court. The plan generally must outline the parents’ responsibilities and time-sharing rules. If a parent wishes to change the plan, the parent must generally show a “substantial, material, and unanticipated change” in the circumstances that require a modification. Further, the modification must be in the best interests of the child.

There has historically been an exception if a parent is deployed in the military. If a parent is unable to adhere to a parenting plan because of military service, courts have generally been unable to modify the plan except to enter a temporary modification. Under the new law, deployment cannot be the sole factor in the court’s decision to grant a modification of a permanent plan.

This gives more protection for parents who are in the service and are worries their parenting plans might be altered while deployed or otherwise unable to meet the plan. While it’s not impossible for a court to alter a plan, it cannot alter the plan based solely on that parent’s deployment.