Common Misconceptions About Family Law – Generally and Procedurally

Being involved in a family law matter can be one of the most trying times of a person’s life. Whether it is a divorce or a request for custody, a financial matter involving alimony, child support, or the division of a retirement account, the sale of a home or a car, and everything in between, emotions are high. Many people have misconceptions or assumptions about family law that, while they seem to work out on television, are not how judges apply Florida law in real life.

PART 3 of our 3 part series on Misconceptions in Family Law will answer some general and procedural questions you may have about the process. Below are 5 misconceptions about every family law proceeding that may relieve some undue stress while you await a hearing, mediation, or prepare yourself for a family law matter.

1. You do not need to comply with a Standing Temporary Order, or a Standing Order, as it only outlines suggestions for your conduct.

This is false! Many courts enter a Standing Temporary Order, or Standing Order, soon after a case is filed. The Standing Order outlines, generally, that status quo must be maintained throughout the proceeding – that accounts cannot be drained, that children should not be forced to choose sides, that you cannot leave the state with the child, and that mediation is mandatory, among other items.

This Standing Order is a binding order, not merely a list of suggestions, and remains in force until further order of the court.

2. All matters will be addressed and your case will be over at your first Case Management Conference.

In some counties, after a case filing, you are given an auto-generated date for your first Case Management Conference. However, a Case Management Conference is a quick status conference, and generally, your case is not completed at this time. You attend with your attorney, or yourself if you are self-represented, and there are many cases set for a hearing at the same time and in the same courtroom. Once your case is called, you meet with the judge for an update on your case. No testimony is taken. No determinations are made. The judge simply wants to ensure that everything is moving along and will make simple orders relating to discovery deadlines or mediation, if needed.
If, however, you and the opposing party come to a settlement prior to your Case Management Conference, this time in court can be used to finalize your matter.

3. Mediation is not mandatory and instead, you can proceed straight to Court.

Mediation is a process where a neutral, third party mediator – often another lawyer, retired judge, or a trained mediator – is hired to assist in discussing all of the issues and resolving the disputes without the necessity of court intervention.
In all cases, mediation is mandatory. Even if you are filing a post-judgment matter, meaning, you have come to enforce a judgment, or you are requesting temporary support throughout proceedings, mediation is mandatory. Even if you attend the Case Management Conference, described above, and you have not attended mediation, a judge will likely order you to attend.
What is discussed at mediation is confidential, and even if you do not settle, the other party or opposing counsel cannot go tell your judge what you discussed in mediation or what you previously offered as settlement.

4. If a party is pro se, meaning they have not hired an attorney, then your attorney does not need to speak with them and instead, can file things unilaterally in court and schedule hearings without coordination.

Some people choose not to hire attorneys and rather, proceed with the case themselves. However, if you have an attorney, and the other party is self-represented, your attorney will still treat them as an “attorney” for all intents and purposes. This means that your attorney will communicate with them just as they would an attorney. For example, you will not be able to file pleadings or communicate with the judge without also informing the other party, as this would be unethical. At times, this means that your attorney will have to speak with the other party and your attorney would charge for this time just as they would charge for speaking to the other attorney.

5. Administrative Orders, like Standing Temporary Orders, are merely suggestions to follow.

Most clients believe that upon a case being filed, you are quickly in court and the judge will rule on all issues. However, Administrative Orders exist in some counties which outline rules and procedures that attorneys and self-represented parties must follow during the case. A common issue that arises is that procedural deadlines must be followed, and largely, a judge will want to see that you have made a good faith attempt to resolve issues, discovery or otherwise, prior to seeking their assistance in court. Sometimes, a good faith attempt is even required, such as when financial disclosure or discovery is due, but the other party is passed their due date. You cannot simply file a motion to enforce their compliance without an attempt to secure the overdue documents yourself, in good faith.

Are you in need of Family Law services in Tampa, FL? Call today to schedule your consultation.

Common Misconceptions About Paternity

Being involved in a family law matter can be one of the most trying times of a person’s life. Whether it is a divorce or a request for custody, a financial matter involving alimony, child support, or the division of a retirement account, the sale of a home or a car, and everything in between, emotions are high. Many people have misconceptions or assumptions about family law that, while they seem to work out on television, are not how judges apply Florida law in actuality. tampa paternity

PART 2 of our 2 part series on Misconceptions in Family Law is about Paternity or, rather, the circumstances when 2, un-wed people, have a child. Below are 3 misconceptions about paternity that I hope will clear up some questions or clarify some assumptions you may have while being involved in a paternity matter.


3 Misconceptions About Paternity


  1. If the father’s name is on the birth certificate, he is deemed the child’s father for all legal purposes and is entitled to parenting time and must pay child support.

One of the most common misconceptions is that, in the case of unwed parents, if the father’s name is on a child’s birth certificate, that he has all the same rights and obligations to the child as the mother. This is not the case. In Florida, a signed and notarized affidavit or a court order is required to actually establish paternity, child support, and a parenting plan or timesharing. Unless and until paternity is established, the putative father has no obligation to support the child and has no legal right to have parenting time.’

  1. If you do not pay child support, you do not get to see your child.

Child support is not tied to timesharing, nor is timesharing used as an “award” for paying child support. While child support is a factor to consider in a paternity case, and able-bodied parents should be supporting their children, timesharing is a separate matter. Unless a court finds that timesharing between a child and a parent is dangerous or, otherwise, not in that child’s best interests, a parent is entitled to time with their child, regardless of whether child support is being paid or is current.

  1. If your child is sick, you do not have to send them for parenting time with your ex-partner or spouse.

 False! Often, I am faced with a parent who has refused to exchange the child for timesharing because the child is sick. Unfortunately, the child’s illness does not preclude you from following the parenting plan. You cannot pick and choose when you believe it is appropriate for your child to be with the other parent. The other parent is likely more than capable of taking care of the child if the child is sick, and will be able to bring them to a doctor or provide appropriate medication.

Common Misconceptions About Divorce and Equitable Distribution

5 Misconceptions About the Divorce and Equitable Distribution Process

equitable distribution photo Being involved in a family law matter can be one of the most trying times of a person’s life. Whether it is a divorce or a request for custody, a financial matter involving alimony, child support, or the division of a retirement account, the sale of a home or a car, and everything in between, emotions are high. Many people have misconceptions or assumptions about family law that, while they seem to work out on television, are not how judges apply Florida law in actuality.

PART 1 of our 2 part series on Misconceptions in Family Law is about Divorce and Equitable Distribution. Each and every divorce has a unique set of facts, and no 2 can be compared. Below are 5 misconceptions about the divorce and equitable distribution process that I hope will help educate you on the process and manage your expectations in the event you find yourself involved in a dissolution of marriage.

  1. Alimony is a guarantee in a divorce.

Alimony, is never a guarantee, but rather, it is based on a “need and ability to pay” basis. A spouse must have the need for an alimony payment, and the paying spouse must have the ability to pay. The need and ability to pay is determined upon a detailed review of financial resources as well as a variety of factors outlined in the Florida statutes including the standard of living established during the marriage, the duration of the marriage, the contribution of each party to the marriage such as child-rearing, and the earning capacity and skills of each party.

In Florida, there are several types of alimony:

  • Temporary alimony
  • Bridge-the-gap alimony
  • Rehabilitative alimony
  • Durational alimony
  • Permanent alimony

The receipt of alimony is often tied to the length of the marriage.

  1. The Mother automatically gets majority custody of the children after divorce.

While many years ago, this was actually the case, Florida law presumes that each parent should have 50-50 custody of the children. To establish a parenting plan or timesharing (“custody”), the Florida statutes outline 20 factors for a court to consider. These factors include items such as the capacity and disposition of each parent to act upon the needs of the child as opposed to the needs or desires of the parent, the moral fitness of the parents, the capacity and disposition of each parent to provide a consistent routine for the child, and in some cases, the preference of the child. Ultimately, in the eyes of the law, if deemed to be in the best interests of the child, both parents should be entitled to equal time.

  1. If you bought something in your name only, it is yours, and it cannot be split in a divorce.

Names on property do not always equate to rights to property. During a divorce, all marital assets and liabilities are considered to effectuate what is called “equitable distribution.” While an asset such as a bank account or a house may be in only one spouse’s name, if the asset was purchased during the marriage, or if marital funds were used to enhance the asset in any way, it may be considered marital. This does not mean that the spouse who purchased the item or property is not entitled to their non-marital portion of the item, however, simply having their name on the property does not guarantee them full ownership upon the divorce.

  1. Your spouse cheated, so you will “get more” in the divorce as punishment to them.

Florida is a no-fault state. This means that either party can seek a divorce, regardless of the reason. While it takes 2 people to get married, it only takes 1 person to begin the divorce process. In Florida, all that a court will require is the allegation that the marriage is “irretrievably broken.”

  1. An inheritance is not a marital asset.

Often, it is believed that every cent in a marriage, and every dime one spouse receives, is subject to division upon divorce. While, the majority of the time, this is true of marital assets, an inheritance is not always considered a marital asset.

Inherited assets normally remain in the possession of the person who received the inheritance. An exception to this would be in the case where the inherited asset is commingled with marital assets or placed into the name of both parties. If that is the case, it may be subject to equitable distribution unless agreed otherwise.

Sample Child Custody Schedule for a Shared Parenting Plan

Shared parenting can be difficult without an effective Timesharing Schedule.

Timesharing schedules, or more commonly called child custody schedules, can be challenging and time consuming to develop.  The schedule and exchanges must consider the communication between the parents, as well as the work schedules of each parent and the child’s school and extracurricular activities.  When I work with clients to develop a timesharing schedule, it sometimes helps to have examples of what other families have done so that we can use that as a starting point to develop a specific timesharing schedule to meet the needs of each individual client and their family.  I found the following article to be very thorough and it gives a great summation of each of the various options for timesharing.

Original Article 

What kind of custody schedule works best for a shared parenting plan? Well, the best custody schedule is one that will give both parents sufficient time to continue to nurture and develop their relationship with the child. There are many schedules that parents can choose that will allow them to do this, so a mother and father need to assess their situation and think about what will work for them and the child. Here are somesample child custody schedules that parents use in their shared parenting plans. You can choose any of these schedules for your plan, or you can modify and adapt them to meet your needs.

The Basic Weekend Schedule

For a shared parenting plan, most parents don’t think that the common weekend schedule (where one parent has the children every weekend or every other weekend) will work. However, many parents find that they can modify a weekend schedule so that the parent has additional time. Weekend schedules work well for children who are very involved in school during the week and when the parents don’t live very close to each other.

A common variation on the weekend schedule is to add evening or overnight visits during the week. So, a parent may have the children every other weekend, but also has an overnight visit every Wednesday. Or the parent has the children every weekend along with two evening visits during the week. Parents can add visits and time as it works for both parents and the children.

Another variation on the weekend schedule is to extend the weekends. This depends on the work and school schedules involved, but the weekend could start on Thursday evening or extend until Monday evening. This gives the parent more time.

The 2/2/5/5 or 3/3/4/4 Schedule

2-2-5-5 Custody Schedule

Many parents who want equal time with the children find that splitting the weeks in half work well. Common custody schedules for this arrangement are the 2/2/5/5 and 3/3/4/4 schedule. In these schedules, Parent A has the children for two or three days, Parent B has the children for two or three days, Parent A has the children for five or four days, and Parent B has the children for five or four days. Then the cycle repeats. This schedule ends up consistently splitting the week in half–as you can see in the picture.

Alternating Weeks

A common schedule for a shared parenting plan is when parents alternate weeks of custody. A mother and father can also adjust this schedule to meet their needs by adding evening and weekend visits to the parent who doesn’t have custody that week.

Other Options

When children have a rigid school schedule, or when parents do not live close to each other, they may need to be creative about how the parent will still have contact with the children. Parents can choose to have one custody schedule during the school year and then change it during vacations or school breaks to give the other parent more time. Parents can also have contact with the children through webcams, telephone, texting, email, instant messaging, etc.

Should you need assistance with a shared parenting Child Custody Schedule please call our office today. (813) 254-0156 or fill out the form below.

Prenups and Child Support Obligations

Should I get a prenup to protect my income from being considered in my future spouse’s child support obligation?


Errantly, many single parents or significant others of single parents believe they need a prenuptial

agreement before moving on to marriage in order to protect themselves, and their significant other,

from an increase in court ordered child support.


For child support, the court only looks at the income of the parent/payor, and does not consider the

income of any other family or household members. If you only want a prenup to protect your income

from being considered for your spouse’s child support obligation for children from another relationship,

you do not need one.


There are many reasons why a prenup would be appropriate prior to entering into a marriage. Some of

the more common reasons to choose to do a prenup are to:


1. Limit exposure to alimony in the future, particularly when one spouse has substantial

income or assets;

2. Provide for children’s inheritance (particularly in second marriages); or

3. Maintain an asset as a separate asset, not subject to division in a dissolution, for

example if there was a business or a home that was owned prior to the marriage.

If you choose to do a prenup, each party will need to hire a separate attorney to guide them through the

process. If you are considering marriage and would like to protect your assets, please contact my office

at 813-254-0156 to schedule your consultation.

What is the best custody arrangement for children after divorce?

What is the best custody arrangement for children after divorce?

What ‘New’ Studies Say Is Best For Children Of Fractured Homes

Trading weekends is out. Children need open access to both parents.


This is a great article I came across this morning on The Federalist by   about new research that indicates children of divorce are more tolerable of divorce when they have unrestricted, unlimited access to both parents. 

“What is the best custody arrangement for children after divorce? Most of us outside of family lawyers and courts don’t think about that question until we are faced with it. And then adults tend to choose administrative stability, figuring the kids are as exhausted and spent as themselves. Children of divorce face such an upheaval that it makes sense to adults that the children need time to rest and recover, and so we prioritize routine.

Certainly our custody assumptions support this kind of stability. Typically, one parent gets primary custody, while the other gets Wednesday evenings, every other weekend, half the summer, and alternating holidays. This is so normalized that I was recently encouraged to host a women’s event on Wednesday night because that’s when the kids of divorce are with their dads. It is widespread and predictable.
But those custody norms are informed by old research. We have new research now. In fact, we have enough research that we have long-term studies of children of divorce and meta studies—studies of those studies, a few of which I covered here last summer.

Grant Children Their Rights, Too

What children want and what children need—what they see as stability—is open access to both parents. From a 2000 paper by William V. Fabricus and Jeffery Hall on young adult perspectives on living arrangements after a divorce, reporting on their follow-up in the late ’90s with children of divorce they had studied in the ’70s:

“Earlier research on younger children’s perspectives on living arrangements has demonstrated that children desire free and frequent access to noncustodial parents. For example, Rosen (1979) found that 60% of children wanted unrestricted contact, regardless of whether the noncustodial parent was mother or father. Children repeatedly insisted that being able to see the noncustodial parents whenever they wished and being able to see that parent often made their parents’ divorces tolerable for them.

Kelly and Wallerstein (1977) reported that young children viewed the typical every-other-weekend visitation arrangement as severely inadequate. ‘The only younger children reasonably content with the visiting situation were those 7- and 8-year-olds visiting 2 or 3 times a week, most often by pedaling to their father’s apartment on a bicycle’ (p. 52).

…The perspectives of young children, although compelling, have not had much influence in public policy debates about custody and visitation. Young children’s feelings may be suspected of being relatively temporary, malleable, and ultimately not strongly connected to measurable outcomes. The public policy debate about custody and visitation has generally been framed in terms of parents’ (and, most recently, grandparents’) rights rather than children’s wishes (Mason, 1999). Thus, it is important that Wallerstein and Lewis (1998) have recently reported on the longitudinal follow-up of the perspectives of these children now that they are adults. Their report is based on a subsample of 25 respondents who were the youngest (now ages 27 to 32) in the longitudinal study.”

Wallerstein and Lewis (1998) found that many of their respondents reported that their visitation schedules with their fathers had been too disruptive and too inflexible and that when this was true they got little enjoyment or benefit from visitation in the way of enhanced relationships with their fathers. As adults, they feel strongly now, as they did then, that their wishes should have been taken into account, and they remain angry and resentful that they were not.

But the children’s desires have had a hard time breaking through the conventional wisdom. Myths about single-adult attachment and simple routines persist. Considering the relative advantages for children of intact families, that children need both parents should not surprise us. Yet it does.

Historical and Practical Ruts
Divorce wasn’t commonplace until the 1970’s. Before then, social scientists studied orphaned children and mother and young child attachment. Mothers were the primary caregivers of children, so studying them first made sense. Then, when the divorce rate spiked, courts didn’t have other information to advise them about the best custody arrangements for children. They granted primary mother care based on the only available research and the prevailing cultural practice. Then social science started to study the effects of a fractured family or father absence.

After about four decades of such studies, we have another answer to “What is best for the children?” (Or really we find another example of being led astray by data that our common sense should have warned us to be wary of back in the ’70s.) Absent extenuating circumstances such as abuse, children children need open access to both parents.

Advocacy groups for children of fractured homes are opening all over the world trying to break though the old myths with the new studies. They typically seek a presumption of shared parenting rather than the current unstated presumption of primary maternal custody, which covers for an epidemic of familial alienation when the sole-custody parent restricts visitation by other family members.

Simply, courts should grant shared custody, roughly 60 to 40 percent splits of time, to divorcing parents unless presented with clear and convincing evidence that this arrangement is not in the best interest of the child. Abuse, addiction, instability—evidence of each could prompt the court to grant custody to one parent. The court would simply start from the idea that the child should have time with each parent.

The Opposition: Lawyers and Feminists
As simple and logical as that presumption sounds, the two main groups actively resistant to shared parenting make for powerful opposition: lawyers and, paradoxically, feminists. That lawyers oppose shared parenting makes sense. Shared parenting arrangements tend to reduce parental conflict and therefore the continued need for lawyers and their fees. (See generally, the myths link above, page 3 and studies cited in footnotes 16-21.) But feminists, a group often heard demanding more domestic participation from fathers and who we might expect to vehemently object to the old legal assumptions that expect the mother to provide primary care for children, their opposition to shared parenting makes no sense.

In other contexts, feminists complain about the cultural assumptions of childrearing putting an unfair burden on women, but when the law tries to redress that burden and demand that parents share in childrearing, then feminists object. Why? Since courts have overwhelmingly awarded primary custody to mothers in the past, feminists see shared parenting as part of the men’s rights movement. They object to shared parenting as men trying to usurp women’s power by trying to assume the parental responsibility women normally assume, as an attempt to lower child support payments, and as society failing to protect women from abusive men. A particularly tight contortion in reasoning from a recommendation of the National Association of Women and the Law in Canada, where a shared parenting law was defeated back in May.

In fact, as long as women remain the primary caregivers of children, women’s equality is in the best interests of children, and law reform can and must simultaneously take into account and promote both the best interests of children and the equality interests of women.

So while the assumptions about mother care hold, then the assumptions should be followed? I thought feminism was, partially, about breaking assumptions about women’s roles. (Pause here for a moment to ponder that although non-feminists keep getting lectured about how feminism isn’t anti-men, their actions suggest otherwise. They turn their own goals inside-out for simple spite.)

Playing to type, in the North Dakota political battle over the “new and improved” Measure 6, the only active vote for a presumption for shared parenting in this U.S. election cycle, the group running the opposition campaign is all lawyers plus a male pastor and a female domestic violence advocate—and they seem to be using State Bar resources to oppose the legislation. The group that sponsored the measure, however, isn’t the stereotypical men’s rights groups. That group is all women.

Shared parenting is about family.
There are many fathers’ rights groups who support shared parenting, of course, but that is only because fathers are usually the alienated parent. I’m a member of Leading Women for Shared Parenting and the stories we receive in that organization are overwhelmingly from women. Some are mothers who hardly see their children. Others are grandmothers and aunts who cannot see their grandchildren, nieces, or nephews, because their son or brother is denied access to his children. The heartache strains other family relationships, like the distraught father who avoids talking to his mother so he can keep his angst from overflowing or the mortified sister who inadvertently posted a FB link that upset the alienating parent and ended the little contact her brother had with his children.

Shared parenting isn’t about fathers’ rights. It isn’t even just about children’s rights, although their hurts are certainly the deepest because they last a lifetime. Shared parenting is about family. Divorce is hard enough, severing the family’s spirit. Physically splitting the family as a matter of course means those spiritual wounds cannot heal for anyone, especially the children.

It is time to stop playing money and politics over children from fractured homes. They have enough to deal with. We should do what is best for them. And the four decades of studies really just tell us what we intuitively know: Children need their parents—both of them.”

Should you have any questions or concerns in your own child custody case and would like to seek legal counsel, please fill out the form below and my office will be in touch with you to set up a consultation.

Infographic: The Divorce Process

Infographic: The Divorce Process

The divorce process typically follows one of the paths depicted below.

Divorce is a complex matter. We’ve created this infographic to give you an idea of the the different paths the divorce process can take.

divorce process in tampa florida

For any questions about your divorce, or to schedule your consultation, please fill out our contact form and we will be in touch with you shortly.


What Are Child Support Payments Meant to Cover?

Family lawyers handle a variety of legal matters ranging from divorce, child custody, and child support. Even after the court has ordered child support, it is not uncommon for two parents to end up another legal situation because they are not adhering to the order or do not understand their obligations. If you’re experiencing a dispute over child support, it may be useful to talk with a family lawyer for more information.

What are child support payments meant to cover?

Child support payments are not only for bare necessities of a child. Rather they are meant to help cover a broad range of expenses including the following:

Food, Clothing, and Shelter
At the very minimum, child support payments should cover groceries, beverages, snacks, and other types of food. It can also be used to purchase clothing and shoes, and also pay for rent, a mortgage, and utility bills.

Health and Medical Care
Nearly all states require parents to have health insurance for their child. In general the parent with better employee benefits will also carry the insurance plan for the child. If both parents cannot afford insurance, a family lawyer might suggest alternative options such as Medicaid.

Out of Pocket Medical Expenses
If a child is not covered for certain medical expenses, or there are deductibles and copays of a treatment, child support payments can be used to cover these costs. For example eyeglasses, braces, dental surgery, eye surgery, and so forth. Depending on the state you are in, each parent may be required to split these costs.

Regardless of a child attending public or private school, there will be fees involved. Child support can be used to purchase books, clothes, uniforms, meals, private tutors, tuition, and more.

If both parents have work related obligations and require a nanny, babysitter, or daycare, child support should assist in paying for these needs. Payments can also go towards child care during vacation breaks and the summer time.

Child support may be used to pay for gas, car payments, car insurance, and public transport. It can also be used for travel costs, particularly when the child is visiting his or her parent in a different location.

Extracurricular Activities and Entertainment
Many courts also hold that a child has the right to basic entertainment. This includes visits to amusement parks, nature outings, movies, and shows, as well as, access to the internet, computers, and games. Furthermore a child should be able to attend activities outside of school including girl or boy scouts, sports clubs, dance, and so forth. Child support may be used for these things, and as agreed upon by each parent.

Depending on the state and circumstances, child support payments may be used for college expenses. This might even include financial contribution to college after the child has turned 18. A family lawyer can help you to determine whether or not this is applicable to your child support case.

All states have established legal child support guidelines which help lawyers and the judge to determine a fair amount of child support a parent may need to pay every month. There are numerous factors considered with respect to this amount. These include the parent’s income and the needs of the child. Should these circumstances change, it may be possible to file for a modification in the order.

To learn more about child support, to file for a modification, or enforce a court order, please call a family lawyer such as the family law lawyer Rockville MD locals turn to.

Thanks to authors and contributors at Daniel J. Wright Law Firm for their insight into Family Law.

Divorce and Death Benefits – How Your Beneficiary is Affected

Divorce and Death Benefits – How Your Beneficiary is Affected

It is a common situation to die without updating important legal documents. While this scenario is not unique to family law, it has significant implications for financial planning after a divorce. Consider what would happen if, after a divorce was finalized, a person died without having changed or updated the beneficiary status on his or her life insurance policy, or other financial asset. The former spouse would still be named as the beneficiary, but the life insurance company would refuse to pay the benefits to the former spouse by claiming that the likely intent was to exclude the former spouse because the parties were divorced. Ultimately, the death benefits from the policy or asset would have to go through probate, rather than simply transfer through the typical life insurance distribution process. To avoid this unintended consequence, the Florida Legislature amended the Probate Code to require affirmative designations of beneficiaries, particularly in the context of a former spouse after a dissolution of marriage.

Florida Statute, Section 732.703, in effect since 2013, voids the designation of a former spouse as a beneficiary if that beneficiary designation was: (i) made before the divorce was finalized and (ii) not updated to reflect the divorce or former-spouse status. The relevant language of the Florida Statute states:

A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order. The decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent.

In other words, if the beneficiary designation is not made or updated post-dissolution of marriage, Florida law treats the former spouse as though he or she does not exist. This scenario is incredibly important for parties who assume and intend that their death benefits will go to their former spouse, even though a divorce has been finalized. Often, child support and alimony are secured with a life insurance policy that was in effect during the marriage which named the then-spouse as the beneficiary. According to Florida law, in order for the benefits to actually go to the former spouse, the former spouse must be renamed as the policy’s beneficiary post-dissolution. If there are death benefits to be distributed, whether pursuant to a life insurance policy, a qualified annuity, a tax-deferred contract, an employee benefit plan, or an IRA, the designation of the beneficiary must be made after the divorce has been finalized. Parties can clearly convey their estate planning intentions by incorporating specific language in a divorce settlement agreement or final judgment.

Kristin Kirkner is board certified in marital and family law in the State of Florida and has focused her practice solely on family law since 2004. Kirkner Family Law Group is available to assist you in all of your Florida family law and divorce needs and can help safeguard your family with the specific language needed in your settlement agreement to distribute your death benefits as you intend. Contact us today or call (813) 254-0156.

Alimony and the New Tax Law

Alimony and the New Tax Law

On December 22, 2017, President Donald Trump signed the new tax bill into law. While, on its face, H.R.1, known as the Tax Cuts and Jobs Act, appears to haveno correlation with family law, the new tax law actually includes terms relating to alimony, specifically, terms that will drastically change the law you may be familiar with today. Most of the new law’s provisions will take effect on January 1, 2018. However, the new alimony law applies to any divorce or separation decree executed after December 31, 2018 or any decree executed before December 31, 2018 and modified after this date “if the modification expressly provides that [the new tax rules regarding alimony] apply to such modification.”

Section 11051 of the new tax law is entitled “Repeal of Deduction for Alimony Payments.” The current law

as outlined in Section 215 of the tax code allows for alimony and support maintenance payments to be deductible by the payor spouse and includible in income by the recipient spouse. The new tax law eliminates Section 215 of the tax code entirely. Now, family law taxes alimonyalimony and support maintenance payments are not deductible by the payor spouse, and alimony and support maintenance payments are not included in income. Specifically, alimony and separate maintenance payments are removed from the definition of gross income found in Section 61 of the tax code. The new law mandates that income used for alimony and support payments be taxed at the rate applicable to the payor spouse rather than that of the recipient spouse.

To reiterate the new law’s implementation timeline, there are two scenarios:

  1. The law automatically applies to all divorces beginning January 1, 2019; or
  2. The law applies to the modification of any divorce finalized prior to January 1, 2019, so long as the modification documents specifically say so.

Based on this timeline, the next year is critical for considering your options if you are considering filing for divorce. The taxability of alimony can be beneficial to one party and detrimental to the other. Until the new law takes effect, the option remains available to take advantage of the taxability or deductibility of alimony. If you are seeking a Tampa family lawyer or divorce attorney, Kirkner Family Law Group is here to help you to navigate through the changes in the alimony law. Contact us online or at 813-254-0156.

Indemnification After VA Waiver – US Supreme Court Decision

Indemnification After VA Waiver – US Supreme Court Decision

The US Supreme Court announced its decision today in Howell v. Howell.

Here’s a link to download in pdf for your review.

The issue before the US supreme court was whether state courts can order veterans to indemnity former spouses when the military veteran waives his military retirement pay in order to receive VA disability pay.  When a veteran waives a portion of the retired pay, the former spouse’s portion is reduced as well, to the benefit of the veteran and the detriment of the former spouse.

The Supreme Court held that the state court cannot order the veteran to reimburse the former spouse, citing Mansell v. Mansell and reversing the Arizona Supreme Court.

As it stands now, a member/retiree can unilaterally circumvent the rights of a former spouse by accepting VA compensation and waiving retired pay.  In the coming months, I expect that we will see proposals for legislation to address this issue.  In the meantime, this highlights the importance of including clauses for indemnification in the marital settlement agreement or otherwise addressing the indemnification through alimony.

If you have a question about the distribution of military retired pay in a divorce or military pension division, please contact Kirkner Family Law at (813) 254-0156.

How a Skilled Military Divorce Attorney Can Help You

How a Skilled Military Divorce Attorney Can Help You

Divorce proceedings involving parties that are members of the United States Armed Forces pose specific and often convoluted issues that must be handled by someone well-versed in the legalities of military divorce. For example, there are numerous requirements to complete when handling the division of a military retirement or pension, or preparations to consider when a parent is required to appear for military duty. A recent 2016 case in Vermont illustrates an example of how beneficial and necessary a skilled military divorce attorney can be when handling military matters within a divorce.

In 2016, a trial court judge in Vermont refused to divide the then-husband’s military retirement, stating that since the retirement was
not yet vested, that he “would not and could not distribute” the military retirement since the husband had, at the time of the final hearing, no entitlement to his retirement. The judge, in his reluctance to divide the retirement between the parties, pulled both attorneys aside to speak with them and, as a result, the then-wife entered into a stipulation to accept $15,000.00 in exchange for her waiver of any claims to the husband’s future military retirement.

It was later discovered that, in fact, the judge was wrong. Not only was the judge able to distribute the husband’s military retirement, as the law in most states (including Florida) does not require the actual vesting of marital assets as a precondition to those assets being divided upon divorce, but the wife’s portion of the retirement over her lifetime could have been worth nearly $500,000.00, which was lost as a result of the judge’s error and the attorney’s failure to recognize the error.

When the wife’s attorney later realized the judge’s misguidance and that the stipulation was inequitable for the wife considering the law on the matter, she sought to set aside the stipulation “on the ground that she entered into the agreement in reliance on an in-chambers ‘weather report’ in which the trial judge misstated the applicable law.” See Coons v. Coons, 2016 WL 1706665, a Supreme Court of Vermont case on appeal from the Vermont Superior Court – Family Division Docket No. 137-5-14. The Supreme Court of Vermont affirmed the lower court’s decision and did not overturn the stipulation, stating that a mistake of law does not establish a reason for setting aside a binding final stipulation.

Due to the judge’s assumption, and the wife’s attorney’s unawareness of the applicable law regarding military retirement benefits, the wife was unable to receive the benefit of her marital portion of the husband’s military pension. When any member or prior member of the military needs assistance in divorce proceedings, engaging the services of an experienced military divorce attorney is in their best interests. An attorney who consistently practices in the field of military divorce and is knowledgeable regarding the current laws, options, and information that encompass a military divorce proceeding can achieve an equitable settlement or be in the best position to advocate on these issues at trial.

Kristin Kirkner is board certified in marital family law in the State of Florida and has focused her practice solely on family law and military family law since 2004. Kristin has been accepted in the Thirteenth Judicial Circuit for the State of Florida as an expert in military divorces and division of military pensions. Contact us today or call (813) 254-0156 to discuss your military divorce needs.

Divorce and Special Needs Children

Divorce and Special Needs Children

Considering how to care for children in a post-divorce setting is often a stressful and difficult task. If a child has special needs, many less-typical factors must be considered. Whether the child has a disability, diagnosed disorder, or another medical or social issue, a parenting plan and custody arrangement must be in the child’s best interests, and must be crafted in such a way that their needs continue to be met.

A parenting plan is required in all cases where children are involved. The parenting plan outlines each parent’s time sharing arrangements with the children, as well as other important items such as travel restrictions, child care instructions, and school designation. If a child has special needs, additional information and instructions for caring for that child should be outlined, in detail, in the parenting plan. For example, perhaps overnights with one parent may not be acceptable, or the child will need to be removed from school early to attend doctor’s appointments or counseling. If one parent has generally been the caregiver of the child with special needs throughout the marriage, it may be in that child’s best interests for that caregiving parent to have sole decision-making authority over that child’s medical needs. Regardless of the special needs of the child, if any specific instructions are required for that child’s care it should be outlined in the parenting plan.

Child support may be modified when a special needs child is involved. While child support is most often calculated pursuant to the Florida Child Support Guidelines, the number determined may not be sufficient depending on the care required and the severity of the child’s disability or disorder. For example, medical costs, therapists, doctors, medications, caregiver costs, or special education are some of the additional costs to consider for a child with special needs. A predetermined child support amount may not cover the needs of the child, especially if the child’s needs may increase as they grow older. In Florida, child support terminates at the age of majority or at a child’s graduation from high school. Often, however, a special needs child requires support past the age of majority, and specific language and guidance is needed in an agreement to ensure that the child receives support past the age of majority.

Your children are so important. If you are going through a divorce or paternity matter and your child has special needs, it is imperative that the future needs of the child are considered, as well as any needs of the caregiving parent. Kirkner Family Law Group is here to help you create the best possible plan for the future of you and your children. Contact us today or call (813) 254-0156 to discuss your needs.

Counseling Throughout the Divorce Process

It is so important for people to get counseling during a divorce. As a lawyer, I am well versed on the legal issues, but I am not a mental health professional. If clients can get support and counseling, it makes the process easier and usually more cost effective because they are prepared for the changes and challenges of the divorce process.

That being said, if you are going through a divorce I would highly recommend using The Helen Gordon Davis Centre for Women, Inc. as a resource through your divorce.

The Counseling and Wellness program at The Centre for Women is able to offer affordable counseling to women, men, couples, teens and children. Our counselors are Masters prepared, licensed therapists with many years of experience. We are able to counsel clients in a variety of welcoming office locations and can accommodate flexible appointment times.  They also offer counseling in Spanish.  To inquire, please them call  813-571-1684.

Additionally, they offer monthly women’s support groups and are currently focusing on topics related to divorce.  The daytime and evening groups occur at their Hyde Park location and are free of charge.