Family Law

What You May Not Know About Common Law Marriages

What You May Not Know About Common Law Marriages The majority of my Family law practice is devoted to divorce (dissolution of marriage) cases. That however is not the only area of family law that I am involved in. There those cases which do not involve a marriage at all. Here is an example of what I am referring to. Let’s say a couple decides to live together and not get married. During their relationship they have a child, perhaps two. They stay together for several years even after the children are born, but they never get married. After a number of years they grow apart and decide to move on with their lives and separate. The question becomes, what issues might need to be addressed in this relationship. Many of us have heard the term, “Common Law Marriage”. In states that recognize Common Law Marriage, a couple who are together for a number of years are in essence presumed to be married and therefore certain issues would need to be addressed based upon their “break up”. Florida however does not recognize Common Law Marriages. If a couple has not entered into a state sanctioned marriage, whether it be in Florida or any other jurisdiction, they are not considered to be married in Florida. That can be significant in some cases.  Assets or debts will not be addressed in the family court. There will be no provision for spousal support. This is true no matter how many years the parties may have been together. If there are disputed property rights it will be determined in civil court by the...

The More Things Change The More They Stay The Same

Last month I wrote an article about the anticipated changes in the alimony laws in Florida. This is a movement that has been in progress for several years. In 2013 both the State House and State Senate overwhelmingly passed an Alimony Reform bill, which was vetoed by Governor Scott just before the end of the legislative session. Since 2014 was an election year, the issue was not addressed. This year however it was everyone’s expectations that a reform bill would in fact finally be passed. The State House passed their version of the bill, which would have ended Permanent Alimony in this state. In addition, there were other changes in the law including certain guidelines that could be followed in computing the amount of alimony that could be awarded. The State Senate however had their own version of alimony reform, the main difference being a provision which was included that would have changed the time sharing law to a presumptive 50-50 division of time. This was not adopted by the House and before a compromise could be reached, the State House of Representatives ended their session early in protest over a totally unrelated issue. This action by the House was never seen before and ultimately was ruled to be unconstitutional by the Florida Supreme Court. The ruling however did not change the outcome, since the session had already ended. The result being that once again an Alimony Reform bill, which was overwhelmingly approved, did not become law. It is anticipated that this issue will be back before the legislature in 2016. In the meantime I thought it might be...

Back To School

Once again the summer has quickly passed us by and it’s time for the school year to begin again. It is an exciting and often stressful time as children begin a new year with new classes, new teachers and sometimes new schools. For children of divorced parents there can be some additional stress. Of course parents who place the children first can make it much less stressful. These days we are seeing more equal time sharing between mom and dad. This also means equal responsibilities for each parent as well. In an intact marriage parents usually assume certain roles and assist each other. In a one parent household, there are no longer defined roles. Mom and Dad must each make sure that they get the children up on time, ready on time, perhaps pack lunches and most importantly complete homework assignments.  Communication between parents is the key to a successful school year. Each parent must realize that they are on the same team and they should not be looking for a “gotcha” moment. Each should be ready to assist each other rather than try and find fault to be used in a court proceeding. Joint parenting is not a contest; Mom vs. Dad. It is an attempt to have both parents do what’s best for the child as opposed to try and prove who may be the better parent. The most common equal time sharing schedule is two nights with one parent (Monday and Tuesday) and two nights with the other parent (Wednesday and Thursday); with weekend (Friday to Monday) being rotated from week to week. A set schedule...

The Era Of The Gray Divorce

The Baby Boomer generation has had a huge impact on many categories of American life; from music to art to technology.  Those same boomers are now impacting family law as well.  Statistics have shown that the overall divorce rate over the past 20 plus years has actually declined. This could be because the marriage rate has decreased as well.  In spite of this overall decline in divorce, the divorce rate for couples over 50 has doubled over the same span of time.  This increase in the divorce rate of baby boomers, has led to the term “Gray Divorce”. There are probably many factors which have led to this increase in divorce over 50. As this generation increases in age, more and more people are celebrating their 50th birthday and as such the over 50 population has increased. The greater the number of people, the greater the number of divorces.  There are however other factors to be considered as well.  People are generally living longer, which results in potentially very long marital relationships.  As people age their perspective on life sometimes changes as well.  Their mortality comes into issue and couples who are not happy in their marriage no longer wish to remain together for the later part of their lives.   Some couples wait until their children are grown and have established their own lives.  Parents feel that after raising their children it is now “their time” to explore and enjoy life.  Unfortunately in many instances their spouse is not who they wish to share this experience with. Finances are the  most significant issues that accompany divorces for individuals in...

Do You Need An Attorney For A Divorce?

These days many individuals going through a divorce handle the matter without the assistance of an attorney.  They feel that it is better to try and settle the matter without spending large sums of money on legal representation.  In all honesty, simple divorces can easily be handled by the parties.  There is enough assistance through the courthouse or the internet to “walk you through” the process.  HOWEVER, sometimes people can be as they say “penny-wise and pound foolish”. In an effort to save money on attorneys’ fees they may wind up giving up too much or perhaps not receiving his/her share.  I have often reviewed Marital Settlement Agreements which were entered into without the assistance of counsel. Often these individuals come to see me after the fact to request assistance in attempting to “get them out” of the Agreement.  Unfortunately it is extremely difficult to undo what has already been done.  A Marital Settlement Agreement or a Mediation Agreement has the same legal effect as any binding contract.  In addition, individuals are expected to know the law and it is not an excuse to later say “I wasn’t represented by an attorney”. Many attorneys offer free initial consultations; those that don’t usually charge a nominal fee for their time.  If you have any doubts as to the law as it pertains to your situation, it would be in your best interests to consult with an attorney.  However, an attorney cannot ethically represent both parties in a divorce and therefore can only advise one of the parties.  Therefore initial consultations should take place without your spouse. Lastly, if you have...

A New Look For Custody Proceedings

On October 1, 2008 a new law went into effect in Florida which made some important changes in the custody laws. Any dissolution action which is filed after October 1st, will now be decided pursuant to this new law. The purpose of the change is to avoid custody battles in divorce proceedings. Although the changes may seem to the average person to be a significant departure from the previous law, in reality it is not. However, they do make some substantial changes and remove certain terminology which has caused unnecessary litigation in the past. Under the prior law parents were generally designated either as the primary or residential parent or the non custodial parent. The children resided in the home of the primary parent and had “visitation” with the other parent. This designation was confusing to some people, who believed that the residential parent had greater rights. This was not the case. Both of the above terms have now been abolished and the only designation is parent. This now more clearly equalizes the parties. In determining the role of each parent the law now requires the preparation and filing of a “Parenting Plan”. A Parenting Plan is defined as follows: “…a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to the child’s education, health care, and physical, social, and emotional, well being. In creating the plan, all circumstances between the parties, including the...

A Difficult Problem

It seems that almost everyday we read about a domestic violence case in the newspaper.  Of course we only read about the cases which involve celebrities.  This is not a problem which only involves celebrities, but an issue which can be found in almost every bedroom community.  Of course a great deal of domestic violence goes unreported. There is also the other side of the coin.  This is a law which can at times be misused to obtain the “upper hand” in a divorce.  Judges will almost always err on the side of caution when required to make a decision about whether or not to issue an injunction for protection against domestic violence, commonly referred to as a restraining order.  This at times can cause an abuse of the judicial system for personal gain. The law concerning domestic violence injunctions is very specific as to what must be proven to obtain an injunction and who may obtain one.  This cannot be obtained because your spouse is being argumentative or disrespectful.  Words, even harmful words, will not rise to the level that is required by law.   An individual seeking an injunction must swear under oath, in a written petition, that he or she has been the victim of domestic violence or has a reasonable belief that he or she is in imminent danger.   This applies to husbands and wives, individuals residing together, couples who have had children together, divorced couples, or any person related by blood or marriage.  I have been involved with cases involving siblings, parents and children and girlfriend and boyfriend.  Domestic violence is defined as a battery...

Federal Law Cannot Be Used to Block Legal Adoption, Justices Say

The heartrending battle over who should gain permanent custody of a three-year old Cherokee girl known in court papers as “Baby Veronica”—her adoptive parents or her biological father—appears to be over after the U.S. Supreme Court refused to rehear the case.  The denial clears the way for the child’s transfer from her father in Oklahoma to her adoptive parents in South Carolina. The two side have been fighting for custody for over two years now. Initially, the courts in South Carolina sides with the biological father, Dusten Brown, based on a federal law that makes it difficult for non-Native Americans to adopt a child that has any Indian ancestry. After the decision, Baby Veronica went to live with her father, but her adoptive parents did not give up the fight. The case went all the way to the U.S. Supreme Court, which ruled 5 to 4 that the father could not use a federal law to block a legal adoption. The high court also considered and noted the fact the Mr. Brown had not provided financial assistance to his child before the adoption and that he had signed away his parental rights as a...

What Happens When a Divorce Case Goes to Trial?

Most divorce cases are settled without a trial, and this is usually best for everyone. However, sometimes divorcing spouses are unable to come to a settlement and a trial becomes necessary. At the law firm of Evan H. Baron & Associates, we’re able to help you settle without a trial, but will defend you aggressively if a trial is unavoidable. What Is a Divorce Trial Like? Divorce trials do not involve juries, but are held by a Circuit Court Judge in the judge’s chamber. The judge hears evidence from each spouse, your divorce lawyer, and your spouse’s, and renders a decision based on evidence. Once the judge gives a ruling, you should consider the case over, because successful appeals in family court cases are extremely rare. Children and Other Witnesses If your divorce case goes to trial, your children will probably not be witnesses, even though the judge will be making decisions regarding their future. During the trial, expect several hours of testimony, and you will be subject to questions from both your own child support attorney and that of your spouse. Other witnesses will only be called to testify if their testimony is relevant to the divorce case. Trials Are Expensive Divorces can be very expensive, but divorces that go to trial are even more expensive. They take more time to prepare for, and the court date is usually scheduled for a time several months into the future. Financially, most people almost always fare better when they are able to settle the dissolution of the marriage without a trial, if for no other reason than the higher child...

Answers to Frequently Asked Child Custody Questions

Child custody and child support are issues that are important enough that you should never rely on what you’re told by someone without expertise on child custody and support laws. Ideally you should talk to a child custody attorney. At The Law Firm of Evan H. Baron & Associates, we have the skill and experience necessary to give you real facts and real answers (Read more about attorney Evan Baron here). The Other Parent Wants to Move Away with My Children. Can I Prevent This? If the other parent wants to move more than 50 miles away with your children, they must file notice with the court and propose a revised child sharing schedule. You then have 30 days to file an objection with the court. In court, a judge will render a decision about relocating with the children based primarily on the children’s best interests. What Should I Do if I Haven’t Been Receiving Child Support That Was Ordered? If you’re not receiving child support, don’t let this slide. Contact your child support lawyer and explain the situation. He or she will know the best way to proceed in getting the child support your children were promised. If the parent who is in arrears refuses to pay, there are several legal mechanisms for compelling him or her to pay. Do I Still Have to Pay Child Support if the Other Parent Gets a Lucrative Job? If you’re paying child support and the other parent’s income increases significantly, it’s possible to modify the child support order, but there are no guarantees. You need to explain the situation to your...