Ocala Divorce Lawyer Blog

Florida Divorce and the Marital Home: What Happens With Negative Equity?

Sun, 06 Jun 2010 07:47:06 -0500

If you are divorcing in Florida in this current economic climate, like many, your house may be "upside down" on the equity to loan ratio or have what we are calling, "negative equity." That has happened one of two ways: either you bought between '05 and '07 when the housing market was at its highest or you took equity out of the home through a "home equity line of credit," and now the house is worth substantially less.

But what happens to that house and the negative equity in divorce? Generally, if your spouse has decided to keep the marital home, it could cause problems for you. Unless your spouse is able to re-finance that home, your name remains on the loan/mortgage for that home- even if you sign a Quit Claim deed. The Quit Claim deed only relinquishes legal title to the home, it does not relieve you from the financial obligation. Just because the home is now hers/his, does not release you from your original liability of the original mortgage you both took out as a married couple. Unless your spouse can qualify for a new mortgage, by way of a refinance, on his/her own, you will still be liable to the lender for the original mortgage on a home you do not own, if your spouse cannot or will not pay the obligation. In other words your good credit may be at the mercy of your ex. The next problem is that He/she may not qualify, so you have all the legal obligation to the bank without the legal position of owning the property.

Lastly, there may even be some equity in the house, but in order for you to get your portion of the equity, your spouse might not be able to refinance because the Bank's just aren't lending much anymore, because of the credit crunch. We have had some client's that just pay the other spouse their share of the equity of the house over a long period of time.

It used to be that divorcing couples would fight over which one of them keeps the marital home. Now couples are fighting over which one of them is going to take the marital home. Many of my clients are just letting the house go back to the bank. There is absolutely no benefit for them financially in keeping a home that is worth much, much less than is owed. However, from the lender's standpoint, nothing has changed because both partners are responsible for the mortgage. The only other alternative is a short sale to a third party. Should that occur the deficiency belongs to both of you.

If you are thinking about divorce in North Central Florida, please call us to talk your case. Visit our website or call the office to schedule your low-cost consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

Florida Emergency Motions: Is It Really An Emergency? Or Do You Just Need Help Fast.

Sat, 05 Jun 2010 08:17:11 -0500

I frequently have clients who come in and tell me they need an Emergency Motion filed for __________(fill in the blank). The emergency could be that their Husband/Wife is taking the furniture, going to turn off the electricity, or cancel the Husband's/Wife's car insurance. All very important issues, but does it rise to the level of filing an Emergency Ex-Parte Injunction? When is an emergency really and emergency in the eyes of the court?

In the recently released case of Hunter v. Hunter, 2D09-4878, 2010 WL 2077158 (Fla. Dist. Ct. App), the District Court, says that a trial court should only order relief in an Ex-parte proceeding where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice. See City of Boca Raton v. Boca Raton Airport Auth., 768 So. 2d 1191, 1192 (Fla. 4th DCA 2000). Thus a motion seeking ex-parte relief "must demonstrate (1) how and why the giving of notice would accelerate or precipitate the injury or (2) that the time required to notice a hearing would actually permit the threatened irreparable injury to occur." Id. at 1193 (quoting Smith v. Knight, 679 So. 2d 359, 361 (Fla. 4th DCA 1996)). In the case that was before the DCA, it found that the Wife's motion failed to demonstrate either an immediate threat of irreparable injury or a reason notice could not be given.

The DCA further opined that to the extent that the order grants injunctive relief in the Hunter case, they observed that almost none of the required procedures were followed. According to Florida Family Law Rule of Procedure 12.610(a), injunctive relief in family law cases not related to the need for protection against domestic violence, repeat violence, dating violence, or sexual violence is governed by Florida Rule of Civil Procedure 1.610. Rule 1.610(a)(1), which permits the entry of a temporary injunction without written or oral notice to the adverse party only if:

(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.

In the Hunter case, the Wife's motion was neither verified nor supported by affidavits. Thus the motion was deficient under rule 1.610(a)(1)(A). Also, the motion did not contain the attorney's certification required under rule 1.601(a)(1)(B). Furthermore, the order itself is defective because it contains no explanation of the reasons for its entry other than "[t]he Emergency Motion is well taken." Thus the order violates rule 1.610(c), which requires that an injunction specify the reasons for entry. See also Hathcock v. Hathcock, 533 So. 2d 802, 804 (Fla. 1st DCA 1988) (holding that an order enjoining the husband from disposing of marital property and awarding the wife temporary exclusive use and possession of the marital home failed to comply with rule 1.610 because it contained no findings concerning why the injury would be irreparable or why the order was granted without notice). Finally, it does not appear that the trial court required the Wife to post a bond as required by rule 1.610(b).

The Court held that the Wife's argument about the Notice Requirement of Rule 1.610(a) concerning the entry of temporary injunctions without notice was woefully insufficient. To send a copy of a motion to opposing counsel without a notice of hearing and to present the motion to the court for the entry of an order granting the motion an hour or so later is unquestionably inadequate notice -- if it may even be deemed notice at all. See City of Ormond Beach v. City of Daytona Beach, 794 So. 2d 660, 663 (Fla. 5th DCA 2001) ("[N]otice encompasses a reasonable opportunity to prepare and offer evidence."); Fla. High Sch. Activities Ass'n v. Benitez, 748 So. 2d 358, 359 (Fla. 5th DCA 1999) ("Notice for temporary injunction purposes means a meaningful opportunity to prepare in order to present evidence and secure a record of the proceedings.").

If you are thinking about divorce, please call us to talk your case. Visit our website or call the office to schedule your low-cost consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

Florida Alimony and Child Support to Change: House Bill 907 Becomes Law

Fri, 04 Jun 2010 19:02:15 -0500

Divorce in Florida, especially alimony and child support have been changed when House Bill 907 was signed into law yesterday. This bill was merely waiting for the signature of the Governor, as it had passed the House and the Senate.

Florida's alimony laws have been under consideration for change for some time. The statute which previously guided our Judges on issues of alimony was ambiguous at best, because it lacked clear definitions of "duration" for the award of alimony or types to be considered. It was basically a case-by-case analysis with the aid of case law. Lawyers knew what to do with very short term marriages and long-term marriages but everything else was a "best guess." The new law gives the Court more guidance as far as length of marriage and other factors to consider. The following have been codified by this bill:

1. Adds "durational" alimony or alimony for a set period of "short" or "moderate" period of time.

2. Adds specific guidelines for length of marriage, and defines various types of alimony. Allows for award of more than one type of alimony; and revises factors to be considered in whether to award alimony or maintenance

3. Adds tax consequences and child care responsibilities as factors the court should consider when awarding alimony.

4. Recognizes "bridge-the-gap" short-term alimony so that those in the 5th District Court of Appeal (which includes Ocala, Inverness, Bushnell) will finally have access to this type of support.

A big change on the child support side of the bill was that it added back the 25% of daycare that was taken away. So now instead of getting a 75% credit for paying daycare, the parent that is paying it gets 100% credit, Also, another HUGE change was that "substantial Parenting Time" was reduced from 40% time-sharing (or 147 overnights) down to 20% time sharing (73 overnights). Hopefully, this will mean less fighting over that "mid-week overnight."

Florida Divorce Lawyer Discusses the Role of a Guardian Ad Litem

Sat, 01 May 2010 15:54:58 -0500

In highly contested divorces or modifications, I often recommend retaining a Guardian Ad Litem on the case. Most people do not understand that the children are not going to be allowed to "go in and talk to the Judge," and often times the only way to get the children's voices heard is by and through a Guardian Ad Litem.

Why a Guardian Ad Litem?
A Guardian Ad Litem ("GAL") is usually an attorney hired by the divorcing couple (or the parent seeking the modification) to represent the child(ren) in a legal dispute concerning their custody or welfare. Having a Guardian Ad Litem reduces the "he said/she said" that the court has to hear. The GAL report is usually invaluable to the court left to make a permanent custody decision and usually gives it much weight in making its decision with regards to the children. The GAL is a neutral third-party that will make a report to the court based on it's findings from interviews. When the Court enters an Order appointing a Guardian Ad Litem, that guardian is not biased towards either the mother or the father and does not owe any allegiance to either party. They can be objective in the investigation and recommendation as to what disposition would be in the best interests of the child(ren).

What Does a Guardian Ad Litem Do?
A guardian is authorized by the Court and by agreement of the parties to investigate the entire background, living conditions, family relationships, and any other matter related thereto in order to make a recommendation to the court as to what would be in the best interests of the child as to placement, visitation, and other matters ruled upon by the court. They can make home visits, speak with anyone in person, by phone, or any other method of communication. They go to the schools or daycares and speak with the teachers. They can speak with the friends of the parents. They may speak with anyone who has important knowledge about the parents or the children. The guardian usually makes a report to the court recommending a specific outcome. The parties do not have to accept the report, but can present their own witnesses and evidence in court. The Judge makes the final determination on the disposition of the child(ren). However, the report of the guardian, if presented properly to the parties prior to trial, can sometimes lead to settlement of the issues without the expense of a trial.

Talk to a Florida Divorce Attorney
To talk to us about your case, either an initial custody determination or modification, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

Florida Divorce Lawyer Discusses Bankruptcy During Divorce

Sat, 01 May 2010 14:11:53 -0500

I have many potential clients coming in asking about discharging debt in Bankruptcy and wanting to know if it's better to file Bankruptcy before or after the divorce. While I do not practice in the area of Bankruptcy, I will share what I have learned over the last few years from those attorneys with whom I work to practice in this field of law. I can reassure you, that over the past 3 years as the economy has headed downward, the rate of filing for Bankruptcy has headed skyward!

If you, as a prospective client, think you're headed for divorce and have a lot of debt between you and your spouse, it might make sense to file for bankruptcy before starting the divorce process. Filing bankruptcy first can simplify the divorce by clearing out some of your debt. This makes the Equitable Distribution aspect of the divorce much easier and quicker. It is fairly easy to negotiate how the remaining debts should be divided, and protect you from your soon-to-be-ex's bankruptcy filing down the road.

One important thing you might want to consider is filing a joint bankruptcy before the divorce. Not only will this make the final division of any remaining debts even easier, but filing a joint bankruptcy is cheaper than filing two separate ones. In either event, bankruptcies and divorces have serious impacts on each other, especially with respect to your property and personal finances.

How Will The Bankruptcy Effect My Divorce?

When one or both spouses file bankruptcy, all the property, that is, property that was bought or acquired during the course of the marriage, becomes a part of the bankruptcy estate and is available to pay debts. The bankruptcy estate is simply all of your property that you and your spouse own at the time the bankruptcy is filed.

When you or your spouse file a bankruptcy, an "automatic stay" is immediately entered by the court and prevents creditors from collecting on most debts. But the automatic stay doesn't prevent you from asking a Domestic Relations Court to order your spouse to pay child support or alimony.

Once a bankruptcy court decides property is "exempt," that is, it is not part of the bankruptcy estate and so it is not available to be sold to pay debts, but a divorce court can then divide that property. Property exemptions are defined not only by federal law (the "Bankruptcy Code"), but also by the laws of the state in which the bankruptcy is filed.

How Is My Marital Settlement Agreement Effected by Bankruptcy?

Negotiating a marital settlement in the midst of bankruptcy is complicated. Debts related to a marital settlement are presumed to be "non-dischargeable" in bankruptcy, meaning that the person who files bankruptcy can't have those debts wiped out and must still be responsible for them.

So if you think your soon-to-be-spouse is contemplating bankruptcy after your divorce is final, you'll want to word your Marital Settlement Agreement in such a way that your soon-to-be-ex's obligation looks and acts as much as possible like a support obligation instead of a "property settlement." That is so simply because support obligations are more difficult to have discharged.

For many bankruptcies filed on or after October 17, 2005 (when the Bankruptcy Laws were significantly changed), any obligation between former spouses can't be discharged in bankruptcy. So, a spouse with an alimony and/or child support obligation can't have that obligation discharged in bankruptcy if the bankruptcy petition was filed on or after October 17, 2005.

Can An Indemnity Clause Help If My Ex-Spouse Tries To Discharge the Debt?

Many lawyer who practice in the area of divorce lawyer are adding yet another layer of protection for their clients by adding an "Indemnification Clause," based on the possibility that the former spouse may file for bankruptcy after the divorce. This "hold harmless" or "indemnity" clause written into the divorce agreements, require your spouse to pay certain debts or repay you if a creditor makes you pay the debt. While this indemnity clause doesn't provide total protect, it does make it less likely to get that particular debt discharged by the bankruptcy court. At that point, you can go to bankruptcy court and ask the judge to enforce the indemnity agreement. While an indemnity agreement won't guarantee you'll get paid, it's one more factor for the bankruptcy judge to consider.

Contact An Attorney

Going through a divorce and bankruptcy at the same time is confusing and complicated. If you find yourself in this position it is best to consult with a lawyer as soon as possible. To talk to us about your case, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

Florida Divorce: The Difference Between Shared Parental Responsibility and Joint Custody

Fri, 30 Apr 2010 06:07:39 -0500

I frequently have conversations with prospective clients that go something like this:
Me: what kind of parenting time do you have?
Prospective client: we have shared custody?
Me: you have equal time-sharing?
Prospective client: yes, I have every other weekend.
Me: do you mean you have "shared parental responsibility"?
Prospective client: I'm not sure what I have, except I have every other weekend.

Most people get confused with the terms that our Florida Statutes, Lawyers and Courts use in describing parenting-time and parental responsibility. Here is a quick overview of what they are and what they mean.

For many years, the courts in Florida have embraced the idea that a child of divorced parents should have both parents confer with each and make joint decisions about things like after-school activities, medical care, religious upbringing and a whole host of things that relate to the care and well-being and raising of a child. The court did not find it desirable to have the "custodial" parent making all those important child-rearing decisions without input from the other parent.

So, under Chapter 61, Florida Statutes, the court will typically require that the divorcing/divorced parents have "shared parental responsibility." Sometimes this is also casually referred to as, "joint parental responsibility," This is where the confusion starts. "Joint Parental Responsibility" is not the same as "Joint Custody" or "Shared Custody." Joint custody is where each parent has "custody" of the child for roughly equal lengths of time. There is definitely a trend towards parents having "equal time sharing," but the day is still not here when the court finds 50/50 custody is the starting place for creating a parenting plan. In my practice, I see the trend more and more but only about 60% of the families I work with end up with a workable equal-parenting time arrangement.

So, "shared parental responsibility" or "joint parental responsibility" may sound like "Joint Custody" or "Shared Custody," but they are just not same things. With "shared parental responsibility," both parents keep all their decision-making rights and responsibilities. This also means that the parents must consult and confer with each other on matters concerning the welfare and best interests of the child, especially on major decision. When it comes to medical care or education, these decisions should be made jointly, if possible, after the parents have talked to each other.

Nevertheless, in a typical dissolution of marriage case, there is usually one parent that will have more overnights with the child than the other parent. This was previously referred to as the "primary custodial parent." But when the statutes changed, the legislature removed any term relating to "custody." Now we have 2 parents, children, and parenting-time. There is no custody or primary residence anymore. Yet none of these nomenclature changes in our Statutes take away from the fact that both parents share in the parental rights and responsibilities for the child.

Funny Article from AP: Pets Listen Better Than Husbands

Thu, 29 Apr 2010 07:22:19 -0500

Poll: A third say pets listen better than husbands

By SUE MANNING (AP) - 18 hours ago

LOS ANGELES -- Husbands, if you end up in the doghouse, consider it a promotion.

A third of pet-owning married women said their pets are better listeners than their husbands, according to an Associated Press-Petside.com poll released Wednesday. Eighteen percent of pet-owning married men said their pets are better listeners than their wives.

Christina Holmdahl, 40, talks all the time to her cat, two dogs or three horses -- about her husband, naturally.

"Whoever happens to be with me when I'm rambling," said Holmdahl, who's stationed with her husband at Fort Stewart in Georgia. "A lot of times, I'm just venting about work or complaining about the husband."

She thinks everyone should have a pet to talk to like her horse, Whistle, who's been with her since she was 19.

"We all say things we don't mean when we are upset about stuff," she said. "When we have time to talk it out and rationalize it, we can think about it better and we can calm down and see both sides better."

It would be a toss-up whether Bill Rothschild would take a problem to his wife of 19 years or the animal he considers a pet -- a palm-sized crayfish named Cray Aiken. His daughter brought it home four years ago at the end of a second grade science project.

Rothschild, 44, of Granite Springs, N.Y., considers Cray a better listener than his wife, "absolutely. She doesn't listen worth anything." He doesn't get much feedback from the crustacean, but it's been a different story over the years with family dogs and cats.

"You definitely feel much more comfortable sharing your problems with them," he said. "A little lick from a big dog can go a long way."

Overall, about one in 10 pet owners said they would talk their troubles over with their pets.

The AP-Petside.com poll also found that most people believe their pets are stable and seldom struggle with depression. Just 5 percent of all pet owners said they had taken an animal to a veterinarian or pet psychologist because it seemed down in the dumps. Even fewer said they'd ever given antidepressants to a pet.

But they weren't opposed to the idea: 18 percent of those polled said they were at least somewhat likely to take a pet to a vet or pet psychologist if it was dejected.

When pets become the therapists, the dogs have it. Twenty-five percent of dog owners said their canines listened better than a spouse, while only 14 percent of cat owners chose the feline.

Ron Farber, 55, of Hoxie, Kan., said it's easier to talk to his dog Buddy than his wife because "the dog doesn't have an opinion."

"I think better out loud. He doesn't care what you say or do. He looks at you, pays attention, you walk through the problem in your mind and eventually, the answer comes. It's not as easy when other people are offering opinions," he said.

Farber would take Buddy to a vet if he needed help, but "I doubt there's a dog psychologist within 300 miles."

A pet psychologist is also called a veterinary behaviorist. Veterinarian Karen Sueda, whose office is at the VCA West Los Angeles Animal Hospital is one of 50 certified by the American Veterinary Medical Association.

Most of her canine patients have problems with aggression and anxiety, while her cats' biggest problem is failure to use a litter box, she said.

Karen Manderbachs, 38, has tried drugs for her dog Kensey, a Shiba Inu who is afraid of thunder. "She sits and full body-shakes. She tries to climb the walls, will hide behind the couch. She gets frantic."

But the first time, the pill didn't take effect in time. The next, "she was so out of it, I couldn't do it again."

Without thunder, Kensey is fine and listens with the other pets -- three dogs and a cat -- as Manderbachs talks.

The dogs seldom react, "but if I'm upset, if I cry, they will hover around and try, in their own way, to make it better," said the 38-year-old from Rocky Mount, N.C.

Sueda, the veterinary behaviorist, said she thinks everyone talks to their animals.

"Pets are great because they provide us with unconditional support. They never talk back, never give us the wrong opinion and they are always there for us," she said. "As much as we love our spouses or significant others, sometimes they are not there, sometimes they have their own thoughts about how we should deal with situations. And sometimes, especially when it's a husband or male significant other, they want to solve the problem rather than just listening to the problem."

The AP-Petside.com Poll was conducted April 7-12, 2010, and involved landline and cell phone interviews with 1,112 pet owners nationwide. It has a margin of sampling error of plus or minus 3.3 percentage points.

Case of the Week: Florida Divorce - So You Just Found Out Your Name Is Not On The Deed

Sat, 24 Apr 2010 07:58:09 -0500

The parties in this case have been living together since 1994. They were married in 2004. Immediately before they started living together in 1993, the Husband (then boyfriend) bought a home. The Wife (then girlfriend) moved into the home in 1994. They have lived in the house ever since. They were married 10 years after they started living together in 2004. They had joint checking accounts since 1994, and the Wife has contributed to the upkeep and maintenance of the martial home. But her name was NEVER added to the deed to the house. So for all practical purposes when it comes to divorce, the Wife has no ownership interest in the home. She may have an "equity interest" but she does not legally own the marital home.

So in a divorce, how would that effect the Wife? Well, if the Husband goes to court asking that the Wife be made to move out, the court has no other option then to ask the Wife to leave the home. The case on point with this position is the Herrera case which held that "because the husband acquired title to the home prior to the marriage and kept it titled in his name, the non-marital property was not subject to equitable distribution, and, as such, wife should not have been granted exclusive use and possession of husband's premarital home. Herrera v. Herrera, 895 So. 2d 1171 (Fla. Dist. Ct. App. 2005). The Court further opined, "the trial court granted the former wife exclusive use and possession of the former husband's home under the section of the order dealing with equitable distribution. However, Section 61.075(5)(b), Florida Statutes (2002), defines "Nonmarital assets," in part, as "[a]ssets acquired ... prior to the marriage...." A non-marital asset may not be conveyed to a non-owner spouse as equitable distribution absent an agreement. Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA), review denied, 846 So.2d 1148 (Fla.2003); Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000). Thus, because the former husband acquired title to the home prior to the marriage and kept it titled in his name, the non-marital property was not subject to equitable distribution." Id at 1174.

The best idea is that after you and your spouse are married, and you've agreed to pool resources, please have the house put in both names. Alternatively, if your spouse refused to put your name on the "pre-marital" home, it might be a wise idea to limit the pooling of resources. Don't be surprise if during a divorce, you feel "duped." Putting all those years into a relationship, combining resources and financial contributions, only to find out from the court that you have to leave the home you've lived in for 16 years because your name is not on the title. Buyer Beware.

To talk to us about your case, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

Florida Divorce Lawyer Talks about Depositions

Fri, 23 Apr 2010 19:45:24 -0500

Most clients I have are initially very fearful of the prospect of having their deposition taken. Take a deep breath and let's talk about what a deposition is, what it's not, tips and suggestions for having your deposition taken and finally what not to do at a deposition.

WHAT IS A DEPOSITION?

A deposition is your "side of the story," under oath. Opposing counsel knows his/hers client's side of the story. This is the other side's opportunity to find out your side of the store. You will be asked questions by the opposing attorney, and the questions and your answers will be recorded by an official court reporter. There is little difference between testimony at a deposition and testimony in the courtroom, except there is no judge presiding. You will hear your attorney making objections, but unless your attorney instructs you not to answer the question, you will still have to answer. You will be present, your attorney will be with you, the other side's attorney will be there, the other party might or might not be there.

WHY ARE THEY TAKING YOUR DEPOSITION?

Opposing counsel is taking your deposition for three possible reasons:

1. They are interested in what your story is now and what it is going to be at the trial. They want to know what you know and how you know it.
2. They want to know in advance of the trial what your side of the story is going to be. They want you to testify to a specific story so that you will have to tell the same story at the trial.
3. Your testimony given in a deposition may be read at trial. The other side may be hoping to catch you in a lie or omission because if they were to do so, they can claim at the trial that you are not a truthful person and, therefore, your testimony should not be believed on any of the points, particularly the crucial ones.

All of the above are very legitimate purposes and opposing counsel has every right to take your deposition for these purposes and in this fashion. Your attorney has the right to ask questions of you during the deposition, but usually, your attorney will only ask you questions to clarify an answer which may be confusing. Likewise, your attorney has the same right to take the deposition of the other side.

SUGGESTIONS FOR PREPARATION

The following are suggestions to help you prepare to give you deposition. Please study these suggestions carefully:

1. ALWAYS TELL THE TRUTH when giving your deposition. Failure to tell the truth in a deposition constitutes perjury. Also, it's hard to keep up with the mis-truths and lies. Telling the truth is always easier.
2. DON'T GUESS at any answer If you do not know the answer to a question, even though you feel you would appear ignorant or evasive saying that you do not know, you should nevertheless do so, because a guess or estimate is always wrong.
3. LISTEN TO THE QUESTION. Do not answer any question unless you hear it completely. If you did not hear the question asked, ask the other attorney to repeat it or ask the court reporter to read it back
4. UNDERSTAND THE QUESTION BEFORE ANSWERING. Do not hesitate to ask the other attorney to repeat or rephrase the question until you do understand it. Sometimes attorneys ask compound questions that cannot be answered with a single answer. Advise the other attorney that it's a complex question and you need some time to explain your answer.
5. PAUSE AFTER EACH QUESTION. This gives you an opportunity to think and make an appropriate response. It also permits your attorney to formulate an objection to the question if one is appropriate.
6. ASK TO SPEAK WITH YOUR LAWYER. At any time during the deposition you will have the right to confer with your attorney privately regarding the question and any proposed answer. Do not hesitate to exercise this right.
7. DO NOT VOLUNTEER INFORMATION. Answer the question that is asked of you and then stop.
8. NO EXPLANATIONS. Never attempt to explain or justify your answer. You are there to give the facts as you know them and you are not supposed to apologize or attempt to justify those facts. Any attempt at such would make it appear that you doubt the accuracy or authenticity of your own testimony.

Florida Divorce Attorney Discusses Marital Settlement Agreements

Fri, 02 Apr 2010 21:31:36 -0500

As a prospective client, you know that fastest, least costly and least emotionally draining way to resolve a divorce or family law matter is by entering into a Settlement Agreement. I'm sure you've heard of people who were divorce in 3 weeks because they agreed on everything involved in their divorce. The process was quick and relatively painless. So you are coming to see a lawyer to draw up a Settlement Agreement for your divorce, but you have forgotten one very important thing ... do you and your spouse agree to everything in your divorce. Have you sat down together and talked and decided how the assets and debts are going to be divided? Have you decided on a particular Parenting Plan if the two of you have children? Have the two of you discussed child support - who is paying how much and to whom? And do you agree on all these issues? If you haven't discussed these things - now is the time.

For your understanding, a Marital Settlement Agreement (MSA) contains all the terms of your settlement and essentially your Divorce. Every issue in your divorce, such as parenting-time, support and property, should be addressed. This written and signed contractual agreement is attached later to the Final Judgment and submitted to the court for its signature.

As your attorney, I will prepare, review and revise the Marital Settlement Agreement. I will make sure you understand and confirm that all the terms included in the MSA, and you are satisfied with the language used. And I will encourage you to ask more questions until you are comfortable that the terms as is written in the MSA are the ones you agreed to with your spouse.

Some terms are carried out immediately, such as "The 2006 Ford F-150 goes to the Husband." Others are ongoing but limited, such as "Wife shall assume all responsibility for the parties' debt to Sears." Still others may be ongoing, unlimited and subject to modification, such as "Husband shall pay to Wife on the first day of each and every month hereafter the sum of eight hundred dollars ($800) as spousal support until the death of either, remarriage by Wife or further order of Court."

The provisions will be grouped into paragraph-sections for easy reference. Terms such as child and spousal support are court orders and enforceable by contempt if not complied with. Others may not be directly enforceable, and will require legal action. Ask your attorney if you have any questions about enforcement. Every provision of your MSA is intended to be binding and enforceable, one way or another.

I want my clients to carefully review their MSA. Parenting Plans and Time-Sharing plans can be confusing; clean yours up now to prevent a dispute down the road. Make certain the document contains every term of the agreement that you intended to make with your spouse. Raise every concern you have about the meaning of terms. When you sign your MSA, that's it. You are represented by an attorney and you are a competent adult - when it's signed it's a "done deal." Your MSA will next go to the court to have Final Judgment entered.

If you are interested in having a Settlement Agreement resolve your Divorce or other Family law matter, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

Frequently Asked Florida Divorce Question: What is a Retainer?

Thu, 01 Apr 2010 19:06:56 -0500

A retainer fee is a form of pre-payment, like a "savings account" with your lawyer, against which the lawyer will bill when handling your case. This advanced fee ensures that the attorney will provide the specified legal services on behalf of the client. Think of it as a down payment on the services the attorney provides. The funds, which are usually non-refundable in most family law cases, and are then place in the attorney's or law firm's business account where they have access to it to pay any upcoming services that are rendered on behalf of the client. If the fees go above the retainer amount, the client must pay that amount. The retainer fee is just an initial estimate and is often based on the complexity of the case. If there are more complex issues involved, then naturally the higher the retainer amount. Additional fees beyond the retainer are often required when a matter must go to court.

Before accepting to pay a retainer fee, get the fee, terms and conditions in writing. The most widely used forms of advance payment are "the general (or traditional) retainer", "the special (or specific) retainer," the "flat fee retainer," or "the nonrefundable retainer." Before you hire a lawyer for your divorce or family law matter, make sure you have read, reviewed and understood the Retainer Agreement the attorney has given you. You are signing a binding contract between you and your lawyer. You should be clear on what you will be billed for - such as phone calls, emails, letters and other communications. You should ask all questions before you sign the agreement.

You should be sure that you will be receiving monthly statements showing you (the client) how your retainer funds are being used. The billing statement should be clear and easy to understand and show what work was performed and by whom. If you have any questions about your billing statement, you should always contact the attorney immediately, as sometimes mistakes are made.

If you are going through a divorce or family law matter, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

When Should the Kids Meet the New Boyfriend or Girlfriend?

Wed, 31 Mar 2010 20:24:26 -0500

If only life was really like The Brady Bunch. An easily blended family, no exes to complicate matters, minor disturbances that are resolved with a great little moral lesson. In actuality, real life mirrors what was going on behind the scenes of The Brady Bunch show - complicated, passionate, and sometimes stormy. So introducing a new romantic partner after divorce or death is a situation that may not go as smoothly as when Carol and Bob met. It is a decision that warrants a lot of thought.

When you meet someone new, your initial instinct will be to want them to meet your children. Your kids are central, important and and in many ways the main loves of your lives! It may feel odd to keep a relationship separate from them. It may feel sneaky. You may be inclined to resolve this by having your new lover hang out and share in activities with your children as a new "friend". Right? Wrong!!! These reactions are completely understandable but remember, not all are instincts are best followed. Children are no dummies - even children under three will register the different energy present with a platonic vs. non-platonic friend. Furthermore, if there was an extramarital affair involved with this partner your children will be aware consciously or unconsciously regardless of being told explicitly. So don't kid yourself.

A good rule of thumb is wait to introduce your children to your romantic interest until the relationship reaches six months of seriously seeing one another. This guideline protects kids from experiencing the inevitable romantic ups and downs of a new relationships and of having another potential loss. Shielding your children from the early stages of your relationship will require sacrifice on your part; keeping your private life private takes energy, planning and giving up time with your new lover. It is not lying, it is not sneaky, it is privacy - necessary privacy.

Children have very mixed feelings about new relationships. They may feel disloyal to the other parent if they have fun with this new person. They become jealous of sharing your time. They may feel uncomfortable because the sexual energy present with a new relationship is different than that of their married parents. It is not as if kids cannot develop meaningful relationships with girlfriends or boyfriends after divorce -- of course they can -- but the more thoughtful consideration on your part the better the chances for your children to adapt to the new situation.

It is in your child's best interest to wait and see if this looks like a relationship that will have sticking power to withstand the pressures of step parenting and blending families. Once the six month mark has come and gone, you are ready to begin integrating this person in to your family. Inform your ex of all developments. If he/she introduces your children to a new relationship as well, try to be as generous as you can -- keep all complicated feelings to yourself. Your reaction will play a huge role in your kids openness to accept this new person and to experience less conflict over loyalty.

The first kid-new-partner meeting should be activity based. Do something together, a movie, bowling, ice skating -- something that comes with distinct time limits and allows your child to ease in to the meeting with focus on the activity rather than "getting to know" your new lover. Gauge your child's readiness as you decide the frequency of these get-togethers -- keeping in mind that slow is always better in these matters. In terms of sleep overs and joint vacations, especially if other children are involved, take it very slowly. No one has ever complained that they wish they had moved faster on integrating families -- on the contrary, most difficulties come from rushing in with idyllic expectations. Consider yourself very lucky if all goes smoothly as life is not The Brady Bunch.

This has been cross-posted by permission of the author. Full credit goes to Lisa Spiegel and her insightful and inspiring SoHo Parenting - a Center for parenting and the emotional health of the whole family. To see the original blog post, please visit http://www.sohoparenting.com/blog/2009/11/divorce/

Florida Domestic Violence Injunctions: What is imminent fear?

Wed, 31 Mar 2010 17:52:39 -0500

There are times when Domestic Violence Injunctions are truly necessary. Then there are times when an Injunction is being used as a "sword" and not a "shield." The court must find, when an Injunction is entered properly, that the Petitioner had been a victim of Domestic Violence or is in imminent fear of become a victim of Domestic Violence. See Oettmeier v. Oetmeier, 960 So.2d 902 (32 Fla. L. Weekly D1743); Moore v. Hall, 786 So.2d 1264 (Fla. 2d DCA 2001); Gustafson v. Mauck, 743 So.2d 614, (Fla. 1st DCA 1999); Cleary v. Cleary, 711 So.2d 1302 (Fla. 2d DCA 1988). The court can use additional criteria as enumerated in Florida Statute 741.30 to determine whether the imminent fear of become a victim of domestic violence is reasonable. The statute reads: "In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant factors alleged in the petition, including, but not limited to:
1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner's child or children.
4. Whether the respondent has intentionally injured or killed a family pet.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
7. Whether the respondent has a criminal history involving violence or the threat of violence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence."

In a recently decided case, the Court in Malchan v. Howard, --- So.3d ----, 2010 WL 787800 (Fla. 4th DCA, 2010) held that "A court may issue an injunction when it appears that the petitioner is either the victim of domestic violence or 'has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.' " Ambrefe v. Ambrefe, 993 So.2d 98, 98 (Fla. 2d DCA 2008) (quoting section 741.30(1)(a), Florida Statutes). In determining whether the victim's fear is reasonable, "the trial court must consider the current allegations, the parties' behavior within the relationship, and the history of the relationship as a whole. Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999)). In the Malchan case, the mother failed to present sufficient evidence that she had a reasonable fear of imminent danger of domestic violence. Her only basis for requesting the injunction was a disputed incident three years before and a subjective fear that her anticipated request for child support might cause Malchan to become angry. Additionally, the court in Moore v. Hall, 786 So.2d 1264, 1266-67 (Fla. 2d DCA 2001), held a pushing incident, coupled with a knife in a statuette, was insufficient to support the issuance of an injunction when it occurred twelve years prior and there had been no further violence or threats.

As you can see by the case law, there needs to be a direct connection between the imminent fear and the threat of violence. It's not enough to say, "I'm just afraid he/she is going to hurt me." There has to be something that happened in close proximity to the filing of the Petition for the Protection Against Domestic Violence. Merely subjective fear does not meet that threshold.

Parental Alienation Syndrome in Florida Divorce

Sun, 07 Mar 2010 14:33:37 -0500

I frequently hear prospective or current clients telling me about how their soon-to-be-ex or former spouse is engaging in disparaging comments about them. I reassure them that taking the "high road," rather than acting "in kind," is the healthiest for the children. Normally, after the emotions of divorce begin to fade, so do the hurtful comments from one parent about the other. However, the parent engaging in the negative behavior may be purposefully encouraging a child to disengage with the other parent and/or denigrate the other parent. Typical methods include: badmouthing the parent, denying visitation rights through geographical relocation or other means, using the psychological threat of detachment, and withdrawing affection and other tactics. There reaches a point when the mere "bad mouthing" turns more serious and becomes Parental Alienation.

Parental Alienation is extremely complex and difficult to assess -- especially initially. Two very good resources may be The Florida Bar article by Michael Bone and Michael Walsh that come out in 1999. The other is Michael Bone's website that deals exclusively with Parental Alienation and the Florida Court system. I have worked with Dr. Bone on some rather difficult PAS cases and he is an absolute expert in his field! It should be specifically noted that in 2000, in Tampa, J. Michael Bone, Ph.D. was directly involved in a "Frye Hearing" as was Richard Gardner, M.D. along with Richard Warshack, Ph.D. The court ruled that PAS was accepted in the professional scientific community and did meet the Frye standard.

In a parental alienation situation when one parent uses tactics of hostility with a child, the dynamics of time-sharing changes dramatically. A child may act-out to prevent time-sharing with the "targeted" parent. A new time-sharing arrangement evaluation may be in the best future interests of the child. This may mean giving the targeted parent the most overnights, to offset the effects of PAS. Enlisting the advice of an expert, someone like Dr. Bone, well versed in this type of damaging behavior, can help a parent with an alienated child evaluate their options and pursue some therapeutic remedies. Equally as important is having legal counsel who has worked in this field and can help discuss various legal remedies.

It is vitally important that these matters are handled with extreme sensitivity, care and professionalism to ensure the best interests of the child. The welfare of children is of utmost importance to the law office of Anne E. Raduns, PA. Frequently, the children are forgotten as parents fight for child custody rights and wage child custody battles. The law office of Anne E. Raduns PA is a staunch advocate of protecting the best interests of children to develop stable, consistent relationships with the adults in their lives whenever possible.

Responsible parents have the right to have a positive, loving relationship with their children. And, children deserve to grow up in a psychologically healthy relationship with their parents. Too often Florida child support and time-sharing rights become the issues former spouses use to vent their anger and hostility. As research suggests, emotional dysfunction for the child can follow him or her far into their future relationships with others. The healthiest children grow up with two loving parents fully present in their lives, even if the parents are divorced. Divorce should not make either person any less of a parent!

If parental alienation has affected you, please call us to discuss your case or visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

What Religion Are We Going to Raise Our Child: A Legal and Religious Dilemma

Sun, 28 Feb 2010 10:39:15 -0500

As a divorce attorney I see this scenerio play out repeatedly in the context of what religion are the children going to be raised:

A custody battle between parents has erupted in a firestorm over religion and the boundaries of faith and the law. The couple live in the Chicago area and was reported by CBS and the Sun-Times.

It's the story of Joseph Reyes and Rebecca Shapiro; he's Catholic, she's Jewish. They married in 2004. Because Rebecca came from a deeply religious family, Joseph agreed to convert to Judaism but, according to him, he continued to practice Catholicism.

Both said they were open-minded about religion, but the story begins to diverge there. According to Joseph, because Rebecca came from a deeply religious family, her parents wouldn't accept their daughter marrying a gentile. Rebecca denies that, and said that she was OK with his religion as long as he agreed to build a Jewish home.

Their wedding was a traditional Jewish affair. They signed a ketubah, a Hebrew marriage contract, and held the wedding ceremony under a huppa, a ceremonial canopy that symbolizes the creation of a Jewish household.

They broke a glass, danced the hora --these are customary in Jewish weddings, and began their lives together. But the marriage began to go south --the reasons why are not the issue, but the long and the short of it was as Rebecca said, "we just didn't see the world the same. We had different expectations for what two people in love should act like."

But by this time, they'd had a daughter, Ela, born in November 2006. On this front, both parents agree that she is a perfect little angel. But she also became the center of a bitter custody battle over what religion to raise her in. By Rebecca's account, the couple agreed to raise her Jewish, which meant frequent trips to the synagogue, sending Ela to a Jewish preschool, and celebrating Jewish holidays.