Family Attorney

How To Move Your Child Out Of Florida – New Florida Child Relocation Law

admin — Sat, 14 Aug 2010 16:58:38 +0000

The Florida child relocation law requires a custodial parent who wants to move a child more than 50 miles notify the non-custodial parent of a proposed relocation by sending a Notice of Intent to Relocate.

Your Notice of Intent to Relocate must be sent to the other parent before you move. The Notice is a specific form and must include:

1. A description of the intended new residence – include the state, city, and specific physical address, if you already know it.

If the residential parent is entitled to a public records exemption of his or her address (police, foster parents and certain other public employees), the court has to order modification of the disclosure requirements of this section, so that confidentiality is maintained. One suggested way of handling this is to put the exempt information on a separate sheet of paper. On the Notice, say that the information is provided on a separate sheet and is exempt by Florida law. Provide the Notice and the extra sheet to the other parent, but only file the Notice.

2. The mailing address of the new residence, if not the same as the physical address, if you already know it.

3. The home telephone number of the new residence, if you already know it.

4. The date you intend to move.

5. A detailed statement of the specific reasons for the move. If one of the reasons is based upon a written job offer, the offer must be attached to the Notice.

6. A proposal for the revised schedule of visitation and for the new transportation arrangements. If you don’t include this part, the court can dismiss your request. If there is a current, valid order abating, terminating, or restricting visitation, failure to comply with this provision will not cause dismissal. That’s also true if you have another “good cause” reason before you want to move. In either of these cases, the judge will still want to know your plan for future visitation if it is ordered.

You can also change the child support to consider the increased transportation costs. If you want to do this, you need to explain exactly how you arrived at the new child support amount. The court needs to be sure that the children are adequately supported. Reducing the child support more than 5% from the amount in the guidelines has to be clearly explained.

7. This statement in capital letters:

AN OBJECTION TO THE PROPOSED RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 30 DAYS AFTER SERVICE OF THIS NOTICE OF INTENT TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.

8. Your mailing address – where you will receive the objection, if one is filed.

9. A certificate of service showing how and when you gave the Notice to the non-custodial parent.

10. You must sign the Notice of Intent to Relocate under oath and under penalty of perjury and send a copy of it to the non-custodial parent in accordance with the certificate of service. If there is no pending case, you must send the Notice by certified mail, returned receipt and restricted delivery or have a process server or the Sheriff’s office personally serve the Notice on the other parent. The original is not filed with the clerk yet.

You have a duty to update the information you give in the Notice of Intent as it becomes known. So if you find an apartment in the new location, you need to provide that address as a Supplemental Notice. Remember you can send papers by mail after the first paper is served personally, so the Supplemental Notice can be sent by mail.

What if the Other Side Objects? The non-custodial parent then has 30 days to object to the relocation. If no objection is filed, you have to file a motion and ask the court to ratify the relocation. The motion has to be personally served on the other parent. Unless the other parent requests a hearing, the court will ratify the plan according to what is in your Notice of Intent to Relocate, including the visitation and transportation schedules and child support. No hearing is required.

If you receive an objection to the Notice, the parent who wants to move has to file a motion for permission to relocate and attach the Notice of Intent, including the certificate of service. The court will schedule a priority hearing.

At that hearing, you will have to show that, more likely than not, the relocation is in the best interest of the child. The judge will look at it from the child’s perspective, not the best interest of the parent. If the judge initially finds that the move is in the child’s best interest, the non-relocating parent then has a chance to prove that the relocation is not truly in the child’s best interest.

Can I Move in the Meantime? If you received an objection after giving Notice, you can’t move unless you get a temporary order allowing it.The court can enter a temporary order permitting the relocation if:

1. The required Notice of Intent to Relocate was provided on a time; and

2. The court finds preliminary evidence that there’s a likelihood the court will approve the relocation based on certain factors at the final hearing,

But, the court may not consider the temporary relocation as a factor in reaching its final decision. Before you ask for a temporary order, consider whether you want to move with the possibility than you may be ordered to return. Also consider whether you want to have two hearings before you ask for a Temporary Relocation Order.

By: Pamela S. Wynn

Divorce Court – 7 Mistakes Represented Parties Make in Their Divorce

admin — Tue, 10 Aug 2010 14:48:07 +0000

Having an attorney represent you in your case is not a fool-proof method to avoiding mistakes. There are always things you can do to make sure your case is well-prepared so that, on the date of trial or any other hearing, you can present your best case to a judge.

The following mistakes are common with parties who are represented by an attorney. Except for mistake #1, the others are in no particular order because they are all important as well:

1. Being less than truthful–which is lawyer-speak for “lying”- to your lawyer.

2. Not following the advice of your lawyer, and especially as to what you need to do to comply with orders of the court.

3. In court hearings or at trial, answering your lawyer’s questions appropriately, then becoming evasive or argumentative with the questions from your spouse’s lawyer. Listen to your lawyer’s instructions, including those about answering questions, and follow them.

4. Not providing your lawyer with all the documentation you have as soon as possible after he or she requests it from you. This includes providing incomplete documents.

5. Not being informed about the process of divorce in case you and your lawyer part ways for any reason.

6. Not being prepared or organized during the case, for meetings with your lawyer, and not showing up timely for meetings with your lawyer without first re-scheduling.

7. Not asking questions of your lawyer about anything on which you feel you need more information.

I don’t include above the mistake of not paying your lawyer his or her fees if you still want representation because I think it’s obvious. But you should keep in mind that most lawyers will quickly withdraw from a case for non-payment of fees, even in the middle of the case, leaving you to get another lawyer or doing it yourself–which is why mistake #5 is a great mistake.

For more information on divorce court, get this Divorce Court Report

(c) 2008 Vivian Rodriguez

By: Vivian Rodriguez

How to Draft a Rhode Island Family Court Motion

admin — Thu, 05 Aug 2010 09:37:39 +0000

Preparing a Motion in a Rhode Island Divorce is simply a matter of following a general formula of elements that the court and the judge will be looking for so that it can be recognized as a motion, identified with the correct case, notify everyone as to what you are seeking and why and let the court judge know that the opposing party has had property notice.

1. The first element is a basic header. It includes the name of the state, the county, and the court in which the matter is pending. In the family court for Providence Family Court the typical header would appear at the top of your motion and would look like the following:

STATE OF RHODE ISLAND FAMILY COURT

PROVIDENCE, S.C.

Note that the header is in all CAPITAL letters with the state and county flush with the left margin and the name of the court flush with the right hand column. The S.C. after the county name stands for Sheriff’s County. In some instances you may see S.S. or SS. used which is the older colloquialism for Sheriff’s Shire.

2. The second element that appears under the basic header is the case caption. The case caption contains the names of the plaintiff above the name of the defendant as well as the case number assigned by the court. The case caption would appear as follows:

JOHNATHAN SMITH

VS. CASE NO. P08-0086

MARY SMITH

Note that typically the case number is placed from the center typing toward the right margin.

3. The third and simplest element is the title of the motion which is typed in all CAPITAL letters, centered and often underlined. For instance, a motion for modification of child support would appear as follows:

MOTION TO MODIFY CHILD SUPPORT

4. The fourth element of a Rhode Island Divorce or Family Court motion is the body of the motion which includes your request for relief and the basic reason(s) why the relief should be granted. The typical body of this motion may be in standard type and paragraph form as follows:

Now Comes the Plaintiff, Johnathan Smith and moves this Court for an Order modifying his child support obligation in this matter.

In support of this motion the Plaintiff states that there has been a substantial change in circumstances and/or incomes of the parties since the last time the child support obligation was set.

5. The fifth element is the closing of the motion which contains the parties name and either the name, address and telephone number of the party or the party’s attorney. It also contains the hearing date for the motion which would be obtained from the clerk of the judge who would be hearing the motion. It would appear as follows if Johnathan represented himself (Pro Se)

JOHNATHAN SMITH

PRO SE

________________________

Johnathan Smith

15 Mantel Avenue

Coventry, RI 02819

(401) 467-2392

6. The last element is the certification. If this is an initial motion and the case has been either closed or inactive (without a pending court date scheduled) then you will have to create summonses and have your spouse served as required by law. This is a topic beyond this short article posting. However, what I am referring to here is when a case is active and there is a pending court date in the case that you are filing the motion in, then you must provide a certification that tells the court that you served the opposing party by mail (or more appropriately their attorney if they are represented by one). It appears below the closing and looks like the following and must be signed by the person doing the mailing (i.e. making the service):

CERTIFICATION

I certify that on April 15, 2008 I served a copy of this motion by first-class mail upon Mary Smith at 88 Dupont Lane, Providence, RI 02903

_______________________________

For those who must represent themselves in family court it is my hope that this tutorial on motion drafting has been helpful and that the formatting tools used to create this article have not made it appear too disjointed.

By: Christopher Pearsall, Esq.

Divorce–Getting Legal Help Without Paying Exorbitant Attorney’s Fees

admin — Thu, 15 Jul 2010 12:44:34 +0000

Ignorance is the most common trap in the business of divorce, so becoming informed is crucial. However, friends, relatives and “common knowledge” are the worst and most expensive sources of advice. Use these for moral support, but when they give you advice, just smile and say “Thank You” but do not take it seriously. If you didn’t get the advice from a reputable book or an attorney, don’t trust it! Just because you like or trust someone doesn’t make them right. And if you take bad advice, who pays the price? You do–perhaps for the rest of your life.

Millions of people have done their own divorces since self-help law was established in 1971, so you can probably do it too. If you do need an attorney for help, one of your biggest problems is going to be finding the right one. Not just any lawyer will do.

If you have trouble with some part of doing your own divorce, or if you and your spouse are trying to work out terms and get stuck, or if you need more information or legal advice, or for any reason at all, you may decide that a little time spent in conference with an attorney would be worthwhile. Instead of having a lawyer do the whole job, you might have him or her help you with just part of it. Some attorneys might not be willing to this. You have to shop around.

Shopping for an attorney is very much like shopping for melons. You have to check the prices and see if they “feel” right to you. You have the right to ask questions, look things over, and be choosy about whom you hire to take on such a major personal role in your life.

The best way to find an attorney is through some friend or trusted person who has had a satisfactory personal experience with one. But don’t forget to check things out for yourself. Don’t be intimidated. Call around on the telephone to find out how much an initial interview will cost, and how much the whole case might cost. See if you like the way the attorney and the law office staff treat you. If you only want some advice on part of doing your own divorce, ask ahead of time to see if they are willing to do this and find out what their rates are for consultations.

Most attorneys will do the first interview for nothing or for a very small fee, perhaps $15 to $25. Hourly rates run from $50 to $200 per hour, but $100 is pretty common. Price is not everything–it has to feel right. Talk to the attorney to see if you like the experience.

Why You Should Not Retain an Attorney

It is okay to use an attorney, but most people should never retain one in their divorce case unless there is a clear reason for doing so. When you retain an attorney, the attorney takes professional responsibility to act on your behalf–to represent you. You are literally handing over your power and authority to act.

Our system of justice is known as “the adversary system.” It began in the middle ages when trial by combat meant that whoever survived was right. This approach to justice forms the basis of our legal system today. The attorney works in our system as a combatant, but that is not what you want for solving family and personal problems. Law schools do not require courses in counseling or communications. They teach aggressive and defensive strategy and how to get the advantage in every case. Lawyers are taught to look for problems, not solutions.

Lawyers are taught to act in ways that will complicate your case and make it worse instead of better. They tend to take cases into court quickly, even when that is likely to cause upset and make settlement more difficult.

Never forget that when you retain an attorney, the more trouble you have, the more money the attorney makes. That’s hardly an incentive to keep things simple. But keeping things simple is what you want to have the best possible divorce.

Copyright 2005 Ed Sherman

By: Ed Sherman

Santa Barbara Divorce Attorney

admin — Fri, 18 Jun 2010 18:26:14 +0000

Santa Barbara County has over 2,000 Santa Barbara attorneys or Santa Barbara lawyers registered with the State Bar of California. Some popular cities within Santa Barbara County where Santa Barbara County attorneys may be practicing law are Buellton, Carpinteria, Casmalia, Goleta, Guadalupe, Isla Vista, Lompoc, Los Alamos, Los Olivos, Montecito, New Cuyama, Orcutt, Santa Barbara, Santa Maria, Santa Ynez, Solvang, and others. With so many attorneys practicing law in Santa Barbara County California, how do you find the right Santa Barbara County divorce attorney or Santa Barbara County divorce lawyer who can help you with your particular divorce case and/or child custody case?

First, an experienced Santa Barbara divorce attorney or Santa Barbara divorce lawyer should have experience and legal expertise in the field of family law. Family law covers a variety of topics such as divorce or dissolution of marriage, paternity, domestic partnerships, child custody and visitation, domestic violence, restraining orders, spousal support, child support, guardianship, adoptions, community property, division of property, and more. Some Santa Barbara divorce attorneys may specialize or have more experience than others in specific areas of family law. For example, some Santa Barbara attorneys are certified by the State Bar of California or an organization accredited by the State Bar of California as a specialist in the field of family law. Currently, Santa Barbara County has approximately a dozen Certified Family Law Specialists (CFLS) registered with the State Bar of California. These Santa Barbara County attorney’s have made efforts to become State Bar certified in the field of family law. In other words, of more than 2,000 Santa Barbara County attorneys in California, approximately a dozen are Certified Family Law Specialists (CFLS). However, just because a Santa Barbara County attorney is not a Certified Family Law Specialist does not mean he/she is not qualified and/or experienced to handle a Santa Barbara County family law, divorce and/or child custody case. In fact, there are many well-qualified Santa Barbara County attorneys or Santa Barbara County lawyers who do not hold State Bar certifications. If you are searching for a Santa Barbara County divorce attorney or Santa Barbara County divorce lawyer and you do not know what to look for or where to begin, narrowing down your search to only those who practice family law in Santa Barbara County may be a good place to begin.

Further, an experienced Santa Barbara divorce attorney or Santa Barbara divorce lawyer should have success representing clients on child custody and divorce cases in Santa Barbara County. He/she will likely be familiar with the judges, processes, and procedures in the Santa Barbara County family court which an attorney outside of Santa Barbara County may not have. However, just because an attorney or lawyer is not located in Santa Barbara County California does not mean he/she is not qualified and/or experienced to represent you on a family law, divorce, or child custody case in Santa Barbara County. Ultimately, if you have a child custody and/or divorce case in Santa Barbara County, you will want to investigate any prospective attorney’s background and experience and choose the right divorce attorney or divorce lawyer you believe can help you with your Santa Barbara divorce case and legal need.

Child Support in Florida – What is the Fight About? (Part 2)

admin — Mon, 14 Jun 2010 03:27:58 +0000

In part one, I briefly outlined the framework of Section 61.30, of the Florida Statutes, pertaining to how child support is calculated. Let’s look at two instances when the parents might disagree as to the amount of child support payable by either of them.

So why do people fight about the amount of child support if there is formula provided?

It boils down to time and money. Specifically, what is considered income by a party, and how much time a parent shares with the child. When it comes to what is income, parents may disagree as to what should or should not be included. For example, if you’re a W-2 wage earner, you might think that your income can be easily determined from your W-2 form. But what if you get bonuses? Should that income be included? Inclusion (or exclusion) of bonuses as income is what parties could fight about in this (very narrow) example.

For parents who own a business, the potential for disagreement as to what is income is usually greater. Sometimes a business may pay for certain personal expenses of a party, and this could be argued to be income to the parent for whom the business pays such expenses.

When it comes to time-sharing, the basic child support calculation under the Guidelines has a built-in assumption: it assumes that the party paying child support is sharing less than forty percent of overnights with the child. All else being equal, the child support amount due from a parent will be different if the parent spends at least forty percent (40%) of overnights with a child. Additional calculations are needed to arrive at the child support obligation of parents who share time with their children for forty percent or more of the overnights.

Now that Florida has eliminated the terms custody and visitation, the child support guidelines might be next on their list for revision. It makes sense to find a better way to deal with the “time is money” factor currently reflected in the guidelines. In doing so, the parties would have one less thing to keep them from concentrating on the best interest of their children when it comes to working on a time-sharing plan for them.

By: Vivian Rodriguez

Mediation in Domestic Violence Cases

admin — Fri, 04 Jun 2010 18:14:46 +0000

Mediating family cases in which there is a history or incident of domestic violence

Protect, Provide & Profit – A Family Limited Partnership

admin — Thu, 03 Jun 2010 23:25:52 +0000

A Family Limited Partnership is becoming one of the most popular methods to pass the equity in a larger estate to the heirs at a discounted tax rate, while retaining control, and at the same time, protecting the assets from lawsuits.

This entity may be used to begin shifting ownership from your estate to your heirs without losing control. The Limited Partnership is becoming a more popular staple of estate planning for a number of reasons. A major one is for asset protection.

It enables a parent or grandparent to divert income from partnership assets to children and grandchildren in lower tax brackets.
It allows gifting of limited partnership interests to reduce the size of your estate without placing cash or property directly in the control of the donees. You retain control over the use and nature of the assets in the Family Limited Partnership. Limited partnership interests are also easily divided to enable you to meet the annual exclusion limits. This helps reduce the size of the taxable estate without giving up control. The general partner ceases to have any rights to vote or control the partnership upon death. For this and other reasons, partnership interests are subject to various valuation discounts at death that help minimize the size of the estate for estate tax purposes.
It provides a degree of lawsuit protection. Certain characteristics of the partnership ownership form make it attractive as a means of safeguarding your assets.

Safeguarding Assets

Here’s how it works: Partners hold the partnership property in a special formC, a tenancy in partnership. Partnership assets are not subject to the debts of either the general or the limited partners.

If a creditor gets a judgment against one of the partners, the creditor applies for a “charging order” to enforce his judgment. This is an order by the court charging the partnership interest of the debtor partner. This means that if the partnership pays any income to the partner, it now must be paid to the judgment creditor. The creditor does not become a partner of the partnership, but is entitled to receive any distributions which would be given to the debtor partner.

Now, here’s the fun part. The General Partner of a Family Limited Partnership can choose to distribute the partnership income, or to accumulate such income and reinvest it in the Partnership. But he must still issue a “K-1″ (a tax report) showing each partner’s share, and tax liability. So, if general partner decides not to make a distribution of income, the creditor only gets the “K-1″. He will now have to pay the taxes on the income that was never really distributed.

So, transferring assets into a limited partnership is an excellent way to safeguard your property.

Advantages: -Asset protection-Estate equity gifting at discounted rates-Some income tax splitting.

Disadvantages: -Additional income tax return required-Must have business purpose-Costly to establish.

By: Steven W. Allen

Florida Custody – Differences Between Custody Evaluation, Social Investigation & GAL Report

admin — Sun, 09 May 2010 12:37:44 +0000

Florida child custody law permits the court to appoint three different types experts when divorcing parents cannot agree on a parenting plan or when a modification action has been filed. Each of these experts produce a report for the court, but there are big differences in the process, in who will see the report and in how the report can be used. You can ask the judge to appoint any of these experts in your disputed custody case:

Custody Evaluator Social Investigator Guardian Ad Litem

There are four major differences between these experts:

Custody evaluators are licensed psychologists. Social investigations can be performed by psychologists and other licensed mental health therapists as well as unlicensed court staff or child-placing agency staff. Guardians ad litem can be either laypersons trained by the court program or attorneys. Custody evaluations are governed by the American Psychological Association’s extensive guidelines for conducting the evaluation. Social investigations are governed by Florida Administrative Rule 64B4-7.006, which speaks to the investigator’s qualifications, not the conduct of the investigation. For layperson guardians ad litem appointed through court GAL programs, the reports must meet program standards. Reports from attorney guardians ad litem are not governed by specific content guidelines. Custody evaluators usually conduct psychological or review prior psychological testing. Social investigators may or may not use testing, depending on the qualifications of the investigator. Guardians ad litem cannot conduct testing but may ask the court to order testing by a licensed expert. Custody evaluations are considered evidence and must be properly introduced into evidence before the judge can consider them. Social investigations are filed with the court upon completion and are automatically considered by the judge. GAL reports are filed with the court and provided to both sides, but are usually not admissible as evidence because they are filled with hearsay statements.

Florida law permits custody evaluations, social investigations and Guardian ad Litem reports when the parenting plan is in dispute. Know the differences before you ask the judge to appoint any expert to investigate and evaluate your family situation during your Florida divorce or custody modification case.

By: Pamela S. Wynn

7 Action Steps to Take Once You Decide to Divorce

admin — Wed, 05 May 2010 01:51:18 +0000

Making the decision to divorce is only the first step. Once you’ve made the decision to dissolve your marriage (divorce), there are some action steps you should take.

If you and the soon-to-be-ex are taking the DIY route to divorce you should:

Cancel all joint credit cards – open new individual accounts. Be absolutely certain that all joint accounts are actually closed. Make sure the two of you have a clear agreement about who will pay the bill while the divorce is pending. If the balance is large, also think about who will be responsible for each card’s balance. Cancel Direct Deposit if you have it and unlink bank accounts if linked online. You will want to change your Direct Deposit so that it goes to your new individual bank account. Because it takes some time to change the Direct Deposit, you may have to keep the joint account open for a couple months. You’ll be closing the joint bank account, so unlink it now so neither of you are tempted to do something spiteful later on. Split the money in joint accounts and each open separate, individual accounts. The general rule for dividing property in Florida is 50/50 so go ahead and split the cash you have in the bank now. Put the money into an individual account you’ve opened. Change all passwords – email, ATM, websites – and don’t use the same old ones! It is time to stop recycling the same old passwords. Monitor your credit report to be sure the accounts are closed. You are both responsible for joint accounts so you want to be sure they are closed. If they aren’t closed, one of you may later be tempted to use the account and claim that the card is lost. If that happens on an old joint account that was not closed, the other spouse will have a hassle with credit reporting and bill collectors. Start a folder to collect monthly bills in one place – this makes the Financial Affidavit easier. The financial Affidavit is a time consuming process. Do anything that will make it easier to track how much everything costs each month. Remember, some bills only arrive every quarter, every six months or even annually. You’ll need to include those too. Decide how the household bills will be paid during the divorce process. Make sure your agreement is clear and write it down for both of you to sign.
You can use this online estimator for child support. Although not precise, it will give you an idea of what the child support payment will be so you can make a budget for your new life.

Once you’ve made the decision to divorce, you should take action on your finances as a first step in the divorce process.

By: Pamela S. Wynn