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Florida Parenting Plans

Florida parenting plans govern post-divorce relationships with children by identifying the time each parent will have with their children, as well as each parent’s responsibilities to make decisions for the children.  Parenting plans are either created by the parties in an uncontested divorce or they are created by the court after a divorce trial.

The provisions of Florida parenting plans can vary widely.  The schedule of physical custody for both parents is often determined by work schedules, school calendars and holidays.  The parenting plan should also identify pick-up and drop-off locations and times, the obligation of each parent to transport the children for time-sharing, as well as any right a parent has to have the children in their care and control when the other parent cannot do so (known as back-up care rights).

Parental responsibilities for children can also vary, but are most often determined by examining the role each parent took in making decisions for the children prior to divorce.  For instance, if one parent typically took responsibility for the children’s medical care, that parent might be assigned “ultimate decision-making authority” for medical issues.  Any number of responsibilities can be assigned primarily to one parent or the other, such as academics, medical care, religious events or extracurricular activities.  Although one parent may be assigned ultimate decision-making authority over any area of the children’s lives, the court will typically designate the parenting plan as a “shared” parenting plan.  This means that both parties will retain all parental rights to their children, the right to information about their children and the right to provide input on each decision that affects their children.  Exceptions are made for cases where a parent is unfit to make decisions for the children (e.g. drug addiction or incarceration).

Most jurisdictions have a form shared parenting plan to guide parties in a divorce.  The form will contain check boxes and other standard provisions for a parenting plan and allow the parties or their attorneys to identify the rights of each parent.  An example of such a form can be found in the Okaloosa County Shared Parenting Plan, which doubles as the Walton County Shared Parenting Plan.  The content of form parenting plans will usually vary from county to county in Florida.  Note that, if the form is used, edits to the plan can be difficult or impossible.  Therefore, if you want a plan that is tailored to your particular circumstances, you will need to consult with an experienced Florida family law attorney.

For more information or to schedule a consultation, click HERE.

Florida’s Seniors vs. Crime Project

Florida seniors have an ally to protect them from scams and fraudulent practices.  The Seniors vs. Crime Project was formed in 2001 by the Florida Attorney General’s Office to reduce the victimization of senior citizens who, due to their age, are targeted for specific crimes or scams. The Project provides various educational and crime prevention programs to senior citizen groups, investigates complaints and seeks compensation for seniors where appropriate and establishes investigative agencies with senior volunteers to assist with investigations.

The Project handles thousands of cases for seniors every year. Since 2001, local Project offices have handled more than 39,000 cases, and recovered over $16,000,000 in funds, plus over $12,000,000 in realized gain for Florida seniors. That is a total of $28,000,000 recovered for Florida seniors that would have otherwise been lost without intervention by the Project.

The Seniors vs. Crime Project assists people aged 55 and up who are involved in civil disputes with contractors and other businesses or individuals who may have defrauded or otherwise taken advantage of them financially. There is no charge or fee for Project services. The individual needing assistance must be a Florida citizen, but there is no requirement that the offending party be based in Florida or a Florida citizen.

The services of the Seniors vs. Crime Project must be requested by the victim.  The Project cannot respond to suggestions that a third party has a problem and should be contacted. Victims may be assisted in filing their complaint by family, friends or Power of Attorneys but the victim must sign the Request for Assistance form before assistance can be rendered.  Staff must conduct all business from within the confines of an Office.

Two Options for Assistance

  • The person may only be looking for coaching “assistance” through a situation. Project staff can advise the senior on how to handle a particular matter and not get involved with anyone except the senior. The victim is not required to sign anything to receive this type of assistance. It’s just one senior talking with/advising another senior.
  • A second option is for the Project to assign staff to intervene and represent the complainant in the dispute. In these instances, the Senior Sleuth will thoroughly research the complaint and attempt to mitigate the case with all parties involved. Many people initially only seek advice, but then after some discussion they quickly realize the situation is more complex, so they ask for the Project to assist in resolving the situation. This second option requires written authorization from the victim.

If you are involved in a civil dispute and you request the Seniors vs. Crime Project’s assistance, the Project will do everything possible to reach a settlement without cost to you and without any public or family embarrassment, and the project is successful in a high percentage of cases.

Florida seniors can file a complaint online by clicking HERE and filling out the Project’s online form.  Also, a list of the 44 local offices and phone numbers can be found by clicking HERE.

What is Collaborative Divorce, and is it the Right Path for You?

The collaborative divorce process enables couples who have decided to divorce, separate or end their marriage to work with their lawyers and other family professionals in order to avoid the cost, stress and uncertain outcome of a contested divorce.  It also allows the parties to achieve a settlement that best meets the specific needs of both parties and their children without the immediate threat of litigation. This voluntary process begins when each party signs a contract or agreement binding each other to the process and disqualifying their respective lawyer’s right to represent either one in any future family-related litigation.

Here are the top five reasons any Florida couple considering a divorce should at least consider a collaborative divorce:

Privacy of the Parties

Parties to a collaborative divorce avoid the necessity of disclosing information that is private, potentially embarrassing or harmful from a personal or professional standpoint.  Collaborative divorce discussions involve confidential discussions in private conference rooms.  Also, in a contested divorce, both parties are required to engage in thorough financial disclosures and much of that information will then be a matter of record in the court case.  A collaborative divorce minimizes this intrusion.

Respect for the Family

Court litigation is driven by conflict.  It necessarily involves family v. family, and often requires one parent to prove they are the better parent, or that one spouse should get more property or funds than the other.  Collaborative divorce, by contrast, is a team-based method of conflict resolution where the team focuses on the problem rather than on attacking one another.  The attorneys seek to establish mutual respect for the parties by focusing on solutions instead of costly attack strategies.

Financial Efficiency

The vast majority of cases settle without a trial, and many settle before a petition for dissolution of marriage is even filed.  And even though most divorces settle, the vast majority of the cost is associated with preparing for trial, conducting depositions, legal research, other discovery techniques, as well as preparing for and attending court hearings before a final trial.

In collaborative divorce, the attorneys are prohibited from participating in any contested court proceeding, and they focus all of their energy, time, and resources on settlement, helping the parties reach an agreement.  If a settlement is not reached during the collaborative process, the collaborative attorneys withdraw and the spouses will be forced to retain trial counsel.  Therefore, the attorneys are encouraged to find common ground and resolve the problems, rather than rush to court.

Interdisciplinary Approach

The collaborative process acknowledges that divorce is not only a legal process; it is also an emotional process for all of the parties, and a financial burden.  Collaborative cases therefore involve a neutral facilitator, such as a family counselor, and/or a neutral financial professional.

The neutral facilitators help clients cut through the emotion and focus on what is most important to them (such as their children and long-term financial goals) rather than focus on positions that are a product of anger or confusion.  A financial professional can help the parties find better financial options by, for example, figuring tax advantages associated with one course over another, and help ensure there is financial disclosure to both parties and informed discussions.

Creative Solutions

When a judge makes a ruling, he or she is bound by certain parameters established by the law and rules of evidence.  The judge will often make that decision after hearing a couple of hours of information at trial.  In a collaborative divorce, the parties can agree to virtually anything so long as it does not violate the public policy of Florida.  Therefore, the parties are able to be creative and more flexible in reaching solutions concerning parenting plans, property settlements and support obligations.

Not every case is appropriate for collaborative divorce.  The process is voluntarily and requires the parties to be reasonable in assessing their options to move forward, and an open dialogue.  Not every party to a divorce is willing to cooperate with a collaborative process.  Furthermore, reasonable people can disagree about a proposed settlement proposal.  Therefore, even if the parties are willing and reasonable, it may be that the parties simply disagree about what is best for their children, or disagree about their ultimate rights if the case proceeds to court.  Where this is the case, a collaborative divorce is probably not appropriate.  However, where common ground can be found and there is a mutual respect for the parties rights and responsibilities, there is little or no doubt that a collaborative or uncontested divorce will best serve the parties’ interests in the separation process.

If you would like to discuss your rights in a dissolution case or have any questions about the collaborative divorce process, please contact us at (850) 837-3662.

 

Florida Power of Attorney: What it can do, and what it can’t do.

A Power of Attorney is, generally speaking, the most important document in a comprehensive estate plan.  A Power of Attorney is a legal document that delegates authority from one person to another. The person who makes a Power of Attorney (called the “principal”) grants their agent specified rights to act on the principal’s behalf. The scope of a Power of Attorney can vary widely, as authority is limited to specified acts or authority is broadly bestowed upon the agent to engage in a wide range of action.  Each person’s need for a power of attorney should be assessed under their particular circumstances.

If the Power of Attorney is “durable,” then the principal’s authority to act survives incapacity.  In other words, if the principal is injured or unconscious in a way that prevents them from being able to take action individually, the principal’s authority will remain active even under these conditions.  To make a power of attorney durable, a principal simply needs to make that intention known in the wording of the Power of Attorney.

A durable Power of Attorney is crucial for aging individuals who may need medical treatment or simply unable to physically transact business for themselves.  Without a durable Power of Attorney, and where the principal is incapable of managing their person or property, the only other option is to file a petition for Florida guardianship over the person and/or that person’s property.  The time, cost and stress of a court will drastically exceed the cost of a power of attorney.

Dementia and other conditions of the mind can create problems those who are acting as an agent, and who are attempting to protect the principal’s assets and financial interests.  It is important to remember that a power of attorney, durable or otherwise, does not remove the principal’s right to make decisions for themselves.  Therefore, where a person with Alzheimer’s Disease or like condition takes action to manage their funds or property, the power of attorney does not work as a bar to that action.  Obviously, this can be problematic for individuals who are susceptible to undue influence or who simply decide to engage in transactions that are a direct result of the illness.  Under those conditions, a spouse or loved one may be forced to seek a guardianship over the principal since the power of attorney will not be sufficient to protect the principal’s interests.

If you need more information about a Florida Power of Attorney, contact us today at (850) 837-3662.

Elder Exploitation in Florida

Florida’s Elder Exploitation Law

On October 1, 2014, Florida Statute 825.103, entitled “Exploitation of an elderly person or disabled adult” took effect.  This law makes it easier to prosecute people who prey on elders and the law increases penalties for crimes against elders.

How does the newly revised statute define exploitation of an elderly person or disabled adult?

The revised statute focuses on financial exploitation of elderly and disabled adults. It targets people who use funds, assets, or property of elderly or disabled adults with the intent to deprive them of the use of those funds, assets or property, or to benefit someone other than the elderly person or disabled adult.

It also targets people who breach their fiduciary duties, misappropriate money, and fail to use an elderly person’s or disabled adult’s income and assets for the necessities required for that person’s support and maintenance.  Fiduciary duties can exist where a person, whether related or not to the elderly person, establishes a position of trust with an elderly person and then, using that position, misappropriates funds or property for themselves.

Who, specifically, can be held liable for elder exploitation under Florida Statute 825.103?

Florida Statute 825.103 applies to the following people:

  • Someone who stands in a position of trust with the elderly person or disabled adult
  • Someone who has a business relationship with the elderly person or disabled adult
  • Guardians
  • Trustees
  • Agents under a power of attorney
  • Caregivers

Are there any key presumptions written into the new law?

Yes.  There is now a permissive presumption of exploitation if there is a transfer of money or property over $10,000, by a person age 65 or older to a nonrelative whom the transferor knew for less than 2 years and for which the transferor did not receive the reasonably equivalent financial value in goods or services.

What are some of the increased penalties for elder exploitation?

If the funds, assets, or property involved in the exploitation are valued at $50,000 or more, the offender commits a felony of the first degree.

If the value is $10,000 or more, but less than $50,000, the offender commits a felony of the second degree.

If the value is less than $10,000, the offender commits a felony of the third degree.

What should I do if I know someone who has been exploited?

If you know a victim of elder exploitation, please contact an elder law attorney who can help you with the case and effectively involve law enforcement and the Florida Department of Children and Families.

If you need help with an elder exploitation case, please contact Andrew D. Wheeler at (850) 837-3662.  We are here to help and to protect those who need it the most in their time of need.

Making Decisions in a Florida Divorce

Here’s an extremely practical article about making personal judgments during a divorce. So many clients want their attorney to make both legal and personal decisions for them during a divorce, but an attorney’s advice should never be a substitute for personal values and goals. Be active in your case and ask questions to ensure that the outcome reflects what you value most.

Family law and elder law attorneys follow the direction of their clients when they make legal decisions to protect their clients.  The given direction, however, should always be determined by the client.  The decisions that are made during a divorce are often difficult decisions.  Attorneys are often well-versed in matters of divorce law and procedure.  However, every client’s goals and interests are different, and the legal course of a case should reflect those goals and interests.  Therefore, no matter how knowledgeable or experienced your attorney is, make sure to communicate information and ask questions as you proceed toward a divorce.

Who gets the family pet?

I recently received a call from a gentleman who was preparing for a divorce, and he was concerned about a custody issue. Interestingly, the couple had no children during the marriage. He wanted to understand his rights to custody of a pet, in this case a dog.

In a divorce, the question often arises: Who gets to keep the family pet?   Florida family laws are designed to protect the best interests of children in divorce.  Based upon a myriad of factors, the court will determine what it believes to serve the interests of children due to social, economic, educational, emotional and other factors that will serve the children’s interests, and assign custody accordingly.  Pets are not given to either of the divorcing parties based upon this standard.  Rather, pets continue to be viewed by the law and courts as personal property.  Therefore, the court will award the family pet or pets to one of the parties based upon the equitable distribution standard.

Pets that were acquired by one of the parties prior to the divorce will remain the property of that party.  Pets obtained by the parties during the marriage will be assigned to a party based upon the equitable distribution doctrine, which uses a variety of economic considerations to divide property in a fair and just manner.  More information about the equitable distribution doctrine can be found HERE.

If you need to discuss your rights in a Florida dissolution of marriage action, contact us at any time.

How to divide assets and liabilities in a Florida divorce

House dividedIt is easy to get lost in the various financial and asset disclosure requirements that are imposed by Florida law.  A great deal of financial information and documentation can be needed in order to complete the divorce, depending on the extent of the marital estate and the complexity of the parties’ finances.

Florida utilizes the “Equitable Distribution” standard when dividing assets and liabilities.  This article will outline the general rules and requirements for “equitable distribution” of a marital estate in the State of Florida.

Generally, property includes assets and funds.  Assets include real estate, personal items, bank accounts, retirement accounts, accrued sick and vacation pay, intellectual property (patents, trademarks, and copyrights), stock options, businesses and business interests, and tangible personal property (e.g., cars, jewelry, guns, art, and pets). Liabilities, which are also subject to equitable distribution in a Florida divorce, include any kind of debt such as a mortgage, student loan, credit card debt, tax liens, car loans, etc.

Contact our attorneys today to discuss your rights!

Step One: Distinguish Marital and NonMarital Property

If a given piece of property was obtained during the marriage, with marital funds or labor, it will typically be treated as marital property.  As such, the court will presume that an equal division of the property is fair and equitable. Examples of marital assets include:

  • Real property held as tenants by the entirety;
  • Personal property held as tenants by the entirety;
  • Gifts from one spouse to another;
  • Insurance benefits acquired during the marriage;
  • Any appreciation or enhancement in the value of non-marital assets;
  • Pension benefits, workers’ compensation benefits, social security income, interests in pending lawsuits, and stock options acquired during the marriage.

Nonmarital property includes any assets or liabilities before or after the marriage, or from sources that are independent of the marriage, such as an inheritance. In some limited instances property acquired during the marriage is also considered a spouse’s nonmarital property.  Unless steps are taken to change the title or the value of the property in the marriage, the following types of property are generally considered nonmarital assets:

  • Assets or liabilities that a party possessed prior to the marriage;
  • Assets or liabilities acquired during the marriage, but through an exchange for a nonmarital asset;
  • Income derived from nonmarital assets during the marriage (unless the income was used as a marital asset);
  • Any assets and liabilities that are excluded from being considered as marital property under a valid written agreement, such as a prenuptial agreement; and
  • Any liabilities incurred by the fraud of one of the spouses (that spouse is responsible for the liability);
  • Assets that were inherited;
  • Assets or liabilities that were obtained after the filing of a petition for dissolution of marriage.

Converting Nonmarital Property to Marital Property

Nonmarital property can be converted into marital property. This can happen if nonmarital property is retitled from one spouse’s name into both spouses names, or when nonmarital property is comingled with marital property, and the value of the marital and nonmarital assets becomes indistinguishable. This commonly occurs when spouses open a joint bank account and add nonmarital funds to the account. In both retitling and commingling situations the entire value of the property is converted into marital property.  Also, where nonmarital property is enhanced due to the labor or financial contribution of either spouse during the marriage, the property can be converted into marital property.

However, it’s important to note that any professional practice associated with the degree is considered marital property, and can be factored into both division of property and in deciding alimony.

Step Two: The court will then value the marital property.  The value of marital property can be determined by various methods, including an assessment of the purchase price, the value of the property if sold during the divorce, recognized authorities for the value of assets, such as a Blue Book value in reference to a car, or an expert analysis of the value of the asset.

The court classifies the property as either marital or nonmarital property. Nonmarital property is set aside and marital property is lumped together. The court uses the date of marriage and the date the parties enter into a valid separation agreement or the date of filing a petition for dissolution of marriage to determine the dates used for classifying the property as marital or nonmarital.

Step Three: The court then distributes the marital property.  Generally, the presumption is that the property will be divided equally, but the court may allow the marital property to be divided unequally as long as the result is equitable. Determining what is equitable involves a totality-of-the-circumstances, fact intensive, including:

  • The contribution to the marriage by each spouse (including contributions to the care and education of the children and services as homemaker);
  • The economic circumstances of the parties;
  • The duration of the marriage;
  • Any interruption of personal careers or educational opportunities of either party;
  • The contribution of one spouse to the personal career or educational opportunity of the other spouse;
  • The desirability of retaining any asset, including an interest in a business or professional practice, intact and free from any claim or interference by the other party;
  • The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the martial assets and the nonmarital assets of the parties;
  • The desirability of retaining the marital home as a residence for any dependent child of the marriage;
  • The intentional dissipation, waste, depletion, or destruction of marital assets during the marriage; and
  • Any other factors necessary to do equity and justice between the parties.

Marital Misconduct and Unequal Distributions

Courts allow for unequal distribution of marital assets where marital misconduct caused a waste of marital assets. These situations can arise in instances where marital funds have been spent on an extramarital affair, were gambled away, or used to support a drug addiction.

It is important to note that marital misconduct alone is not enough for a court to award an unequal distribution. It can be difficult to prove these allegations without extensive discovery and investigation.

Equitable Distribution is Final

Once the division of marital assets and liabilities has been formally decided, it is final. This is a clearly distinguishable legal standard when compared to legal standards governing child custody, alimony, and child support. Judgments in those areas can be subsequently modified due to a material and continuing change in circumstances.

Conclusion

Dividing property is almost always a complicated aspect of any divorce.  Obtain the advice of an experienced family law attorney who can help guide you through the process and protect your rights and interests in a divorce.  If you need assistance with your divorce in Walton, Okaloosa, Bay or surrounding counties, Contact Us to discuss your divorce rights.

It’s National Adoption Month!

It’s National Adoption Month and there are many wonderful opportunities available to adopt a child. National Adoption Month has been recognized in November for 19 years and is designed to celebrate adoptions, raise public awareness of the need for adoptive families and the issues surrounding adoptions in the United States.  Thousands of children are waiting, both domestically and abroad, to find a family and a home. Some are available through private adoption agencies, and others are waiting in state foster care homes. Other children are adopted from within the family (grandparent adoption, stepparent adoption, etc.). But is adoption right for you and your family?

Here are some of the more common reasons a person should adopt a child.

First and foremost, the desire to provide a child with a family. As an adoptive family, you should want to provide a child with a loving home and family. That should include everything that makes a home a loving place to be, and a family that accepts the child into their home. Family traditions will be shared, routines altered and memories created. It also means accepting the child for who they are – even their faults. It’s important to remember that, the child may have experienced unfortunate circumstances and may need help to begin anew and start a new life. Indeed, those circumstances may be the reason the child needs help from your family!

The desire to help a child move on in life. Adoptive parents should have an interest in helping a child heal from past circumstances that brought about the need for the adoption, whether this comes from abuse, neglect, being abandoned, or orphaned. Various services may be needed to facilitate the transition, but there is an abundance of services to help you and the child through the process. Again, by working together as an adoptive family, this journey can be rewarding and successful.

The ability to provide for a child. Adoptive parents want to share their home with a child, and they have the physical space for another child. They commit the time, effort and emotional space in their heart for a new family member. Adoptive families are also financially secure enough to adopt comfortably.

Every family and every adoption presents with unique opportunities and challenges. That’s a journey that every family can understand, and adopting a child can enhance that journey for both the child and you as an adoptive family. If you would like to explore your options to adopt a child, contact an adoption agency, state social services department or local adoption attorney to find out how you can get started.

Florida Marital Settlement Agreements

Marital Settlement Agreements: An Alternative to the Florida Contested Divorce

Very few words invoke feelings of misery or dread like the word “divorce.” It’s a word that, for most people, is synonymous with intense anxiety and the destruction of ones family. In a Florida contested divorce, these feelings are unavoidable consequences of an adversarial proceeding. However, for those who can agree on the terms of their divorce, a Marital Settlement Agreement offers an opportunity to turn a hostile situation into a managed and predictable process. The agreement provides certainty, with both parties compromising on various points to reach resolution of the divorce, and thereby resolving all issues relative to custody, visitation, property division, child support and spousal support.

Advantages of Settlement

Less Fees and Costs: Because marital settlement agreements can be reached quickly and do not involve protracted litigation in court, attorneys spend a fraction of the time that would otherwise be needed to complete the divorce.  The cost is thereby minimized.
Speed: Divorcing spouses have full control over the speed of the settlement negotiations, and are not delayed by litigation and court backlogs.
Flexibility: A settlement agreement is a product of the parties’ chosen solutions to resolve their particular problems and and concerns.

Marital Settlement Agreements are Complete Resolutions of the Divorce

Parties can include all of the issues presented by their divorce inside the settlement agreement. As long as none of the provisions violate existing law and the agreement is not obtained by fraud or duress, it will be considered a valid agreement that can be incorporated into a Final Judgment of Divorce.  The settlement agreement can resolve all disputes relative to:

  • Assets (marital residence, investments, automobiles, etc.)
  • Liabilities (mortgages, car loans, credit card debt, etc.)
  • Alimony
  • Child Support
  • Parenting Plans
  • Time-sharing Arrangements

Experienced Family Law and Divorce Attorneys

Although marital settlement agreements are typically less complicated than divorce litigation, they are complex documents with numerous issues to address, such as tax repercussions and estate planning issues, that require advice of an experienced domestic relations attorney. Consult a experienced Florida family law attorney to determine whether a settlement agreement is the right option for you in your dissolution of marriage case.