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.

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Common Misconceptions About Divorce and Equitable Distribution

5 Misconceptions About the Divorce and Equitable Distribution Process

equitable distribution photoBeing 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.

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4 Things to Know Before You File For Divorce

If you’ve never been through a divorce, this article touches on a few things that you may least anticipate when it comes to divorce.

As a divorce attorney in Tampa, I have witnessed the financial and emotional toll that litigation can take on a person.  One of the items this article touches on is the toxicity of divorce court, and the author isn’t exaggerating. While the author is not suggesting unhappy couples stay married simply to avoid divorce court, I do advise my clients of alternatives such as mediation or collaborative practice that can save both parties money, time and emotional turmoil. In any case, if you’re preparing to file for divorce you may find this article informative so you know what could lay ahead of you in this process.

Original Article from www.scarymommy.com | By: Alison Jacobson for Divorced Moms

tampa divorce attorney

4 Things to Know Before You File For Divorce

Let’s be real, divorce sucks. It’s a lot like childbirth, and if someone told you what it would be like, you might not ever do it. But then you’d regret it for the rest of your life. Sure, there are a few of those amicable divorces and the “conscious uncouplings,” but they are few and far between.

I was divorced in 2010. I asked for a divorce in 2008, but it took two years actually to get it done. And don’t think it’s because we were arguing over some tremendous fortune. Quite the opposite, we were arguing over tremendous debt.

It was ridiculous and took an emotional and physical toll on me. No one in my family had ever gotten a divorce, and my only friend who had divorced did it when she was in her early 20s, and there were no kids involved. I was in unchartered territory. While I never expected it to be easy, I had no idea of some of the issues I would face.

Below are a few other things that no one ever told me that I wish I had known before I filed for divorce:

1. Divorce court is a horrible, toxic place.

The greatest piece of advice I give to people is that at all costs, avoid going to divorce court. You’ll end up spending money that you could have saved for retirement or your kid’s college fund. On top of that, a courtroom is one of the worst places I can imagine. It’s kind of like a zombie apocalypse.

Seriously, I was in court about 48 days over the course of two years. I was on a first-name basis with the bailiffs. I witnessed the ugliest sides of people coming in and out of various legal cases. I would literally come home and take two showers after being there because I felt dirty. If you’re thinking of getting a divorce, visit a courthouse and see what it’s like. You need to steel yourself to the toxic environment.

2. The friends you’d least expect to abandon you, will.

You can assume you will lose some friends, but amazingly it’s sometimes the people you’d least expect. It’s hurtful beyond belief, and you’ll spend years agonizing over what happened. Ultimately, you need to accept that you might never understand why a friendship ended, but cherish the relationship you once had and lovingly let it go.

3. If you have kids, you’ll never be truly divorced.

The reality is that you’re going to have to deal with your ex forever. You will see him at every visitation pickup and drop-off. You will have to negotiate medical issues, school issues, and anything involving your underaged children.

As they grow up, you’re going to be at graduations, at weddings, and eventually interacting with grandkids. It will be a lot less stressful for you and your kids if you find a way to make peace. I’m fortunate that my husband and his ex-wife are good friends. In fact, we’ve had dinners together, and she’s taken my daughters shopping with her and my stepdaughter.

4. Material possessions become way less important.

Pre-divorce you’re worried about your kids having to move out of the house they’ve lived in and not being able to afford summer camp. You might be used to having a housekeeper, getting weekly manicures, and going on shopping sprees.

Then, you find yourself wrapped up with divorce attorneys, and your money gets wiped out. Suddenly you realize that none of the stuff being fought over matters as much as you and your kids’ happiness. I ended up declaring bankruptcy after my divorce. It was devastating.

If you are considering divorce in Tampa, FL and are looking for an expert in family and marital law, please contact Kirkner Family Law Group, P.A. to set up your consultation, (813) 254-0156.

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Holiday Season and Divorce- What Divorcing Parents Need to Prepare For

For children coming from divorced families or soon to be divorced families it is important to give your child or children structure. Making a holiday schedule in advance will provide structure and set the expectation for the holiday season. In my experience, there tends to be turmoil and challenging situations when there is a lack of planning surrounding the holidays and how time with the children is to be allotted.

I recently came across this article with suggestions on how to spit up the holiday schedule and thought it might be useful for divorced parents, or people currently going through a divorce and think it could be helpful.

Holiday Season Approaching — What Divorcing Parents Need to Prepare for

It is that time of year again where we have a number of family traditions approaching.holidays and divorce

We are coming up to Thanksgiving followed by the holiday season.

For families who are divorced or in the process of getting a divorce, it can be overwhelming trying to figure out what to do having two different households involved. The best thing to do is plan now, rather than leaving it to the last minute. This way everybody involved will have a plan so the children will know exactly where they’re going, when they are going and who with.

The great thing about this time of year is that there are two different holidays approaching so the children get to spend time with each parent sharing different and/or similar traditions. Here are a few tips for planning your upcoming holidays:

• Grab a cup of coffee with your ex. Sit down and plan out what’s going to happen over Thanksgiving and this coming holiday season
• Talk to the extended family and see who is going to be in town or who is going to be having the family visit during the holidays so you can consider their plans as well
• Ensure that you both consider who had the children last Thanksgiving and holiday season so that this year you can rotate if at all possible

For the Christmas / holiday season, there are a few different ways of splitting it up and here a just a few suggestion:

• Option #1: One parent cares for the children from the last day of school until the 26th and the other parent gets the children from the 26th to when they go back to school. In this way one parent gets Christmas and the holidays around that and the other parent get New Year’s Eve. Then next year you can rotate so that every second year you either have Christmas time or after Christmas time, which would give you enough time to usually travel and enjoy the New Year’s Eve together
• Option #2: Share holidays around Christmas for example the 24th, 25th and 26th. Therefore, one parent cares for the kids Christmas eve and until noon on Christmas day and then exchange so the other parent can care for the children on the afternoon of Christmas day and Boxing day. With young children having them on the actual holiday celebration can be important to the parents and this way each parents has that opportunity.
• Option #3: Split the holiday season into three segments such as the first part of the holiday with one parent, split the Christmas days like in option #2 and then the other parent for the remainder of the holiday season.

Regardless of which option you choose, having it set out in advance will save a ton of stress and last minute planning.

Original article

Kirkner Family Law Group – Family Law Experts

Kirkner Family Law Group, P.A. is a leading family law provider in Tampa, Florida. We are Peer Review Rated for Ethical Standards and Legal Ability by Martindale-Hubbell and have been providing exemplary marital and family law services since 2004. We specialize in divorce, military divorce, child support, child custody, qualified domestic relations orders, pre-nuptial agreements, paternity, step-parent adoptions and enforcement of parenting time.

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Kirkner Family Law Group, P.A. Receives Peer Review Rating™ for Kristin Kirkner from Martindale-Hubbell®

Legal Profession’s Most Prestigious Rating Service Recognizes Kirkner Family Law Group, P.A. Principal, Kristin Renee Hayes Kirkner with AV.

Tampa, FL – June 8, 2015 – Kirkner Family Law Group, P.A. today announced it has received notification from Martindale-Hubbell that Kristin Renee Hayes Kirkner has received a Martindale-Hubbell® Peer Review RatingTM.

Martindale-Hubble Tampa Divorce Law Review of Kirkner Family LawKristin Kirkner was given an “AV” rating from her peers, which means that she was deemed to have very high professional ethics and preeminent legal ability. Only lawyers with the highest ethical standards and professional ability receive a Martindale-Hubbell Peer Review Rating.

The Martindale-Hubbell Peer Review Ratings evaluates lawyers based on the anonymous opinions of members of the Bar and the Judiciary, including both those who are rated and those who are not. The first review to establish a lawyer’s rating usually occurs three years after her first admission to the Bar.

Martindale-Hubbell conducts secure online Peer Review Ratings surveys of lawyers across multiple jurisdictions and geographic locations such as Tampa, Florida, and in similar areas of practice such as divorce lawyers and family law practices. Reviewers are instructed to assess their colleagues’ general ethical standards and legal ability in a specific area of practice.

The Martindale-Hubbell® Peer Review Ratings™ help buyers of legal services identify, evaluate and select the most appropriate lawyer for a specific task at hand. The confidentiality, objectivity and complete independence of the ratings and attorney reviews process are what have made the program a unique and credible evaluation tool for members of the legal profession.  The legal community values the accuracy of lawyer peer review ratings because they are determined by their peers – the people who are best suited to assess the legal ability and professional ethics of their colleagues.

The Ratings Explanation
Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. A threshold number of responses is required to achieve a rating.
The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. Those lawyers who meet the “Very High” criteria of General Ethical Standards can proceed to the next step in the ratings process – Legal Ability.

Legal Ability ratings are based on performance in five key areas, rated on a scale of 1 to 5 (with 1 being the lowest and 5 being the highest). These areas are:tampa divorce attorney reviews by peers

  • Legal Knowledge – Lawyer’s familiarity with the laws governing his/her specific area of practice(s)
  • Analytical Capabilities – Lawyer’s creativity in analyzing legal issues and applying technical knowledge
  • Judgment – Lawyer’s demonstration of the salient factors that drive the outcome of a given case or issue.
  • Communication Ability – Lawyer’s capability to communicate persuasively and credibly
  • Legal Experience – Lawyer’s degree of experience in his/her specific area of practice(s)

The numeric ratings range may coincide with the appropriate Certification Mark:

  • AV Preeminent® (4.5-5.0) – AV Preeminent® is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.
  • BV Distinguished® (3.0-4.4) – BV Distinguished® is an excellent rating for a lawyer with some experience. A widely respected mark of achievement, it differentiates a lawyer from his or her competition.
  • Rated (1.0-2.9) – The Peer Review Rated designation demonstrates that the lawyer has met the very high criteria of General Ethical Standing.

Martindale-Hubbell Peer Review Ratings were created in 1887 as an objective tool that would attest to a lawyer’s ability and professional ethics, based on the confidential opinions of other lawyers and judges who have worked with the lawyers they are evaluating.

About Martindale-Hubbell

     Martindale-Hubbell’s (www.martindale.com) 140-year-plus history began in 1868, when lawyer and businessman James B. Martindale first published The Martindale Directory. Its stated purpose was “to furnish to lawyers, bankers, wholesale merchants, manufacturers, real estate agents, and all others…the address of one reliable law firm, one reliable bank, and one reliable real estate office in every city in the United States…”

By 1896, The Martindale Directory included the basic information that still appears in our lawyer and law firm Profiles, as well as ratings and a section on foreign lawyers and firms.

In 1930, the Martindale Company purchased the publishing rights to Hubbell’s Legal Directory, which contained a digest of state laws, court calendars and a selective list of lawyers and firms. The following year marked the first edition of the Martindale-Hubbell Law Directory; a two volume set that combined the features of both predecessor publications.

Today, Martindale-Hubbell offers solutions for both professional and consumer markets. Our online destinations contain profiles for over one million lawyers and firms in the United States, Canada and 160 other countries, serving as a fundamental legal resource and marketing tool.

Schedule your consultation today with one of Tampa, Florida’s best family law attorneys! Fill out the form below or simply call our office to schedule your consultation.

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