What the Katie-Tom Divorce Can Teach Us about Where to File for Divorce
July 13th, 2012While many may think that the high profile divorce between Tom Cruise and Katie Holmes involves financial and personal issues far different from those faced by the average party filing for divorce in Florida, the reality is that there are some important lessons for average people. Anyone following the high profile Hollywood couple’s divorce is aware that Katie Holmes filed in Florida despite the fact that the couple has lived for much of their marriage in Southern California. This high profile divorce provides insight into the strategic reasons that one might choose to file for divorce in one state instead of another.
Although both parties to this marriage are high profile and successful celebrities, California is usually a venue that is preferable for the lower earning spouse. The reasons for this distinction are two-fold. California has very liberal spousal support laws and also follows community property law. Community property law generally means that most property and earning during the marriage are divided equally between the spouses. Exceptions to this general principle include inheritance, gifts, property acquired prior to marriage and appreciation in value of any of these types of property. New York follows an equitable distribution of property that essentially refers to a “fair” though not necessarily equal division of property.
When property and alimony issues are considered, it may seem surprising that Katie Holmes did not file in California because Tom Cruise certainly has had higher earnings during the couples marriage, but media reports indicate that she filed in New York because she is seeking sole legal and physical custody of their daughter Suri. It is very difficult get a court to award sole custody in California so Katie Holmes actually chose New York for a better chance to obtain sole custody. The media has reported that she made this decision because of concerns about the possibility of Cruise involving their daughter more deeply in scientology.
Many parties that get divorced are faced with the choice to file for divorce in multiple states. Because state law governing child custody, alimony (spousal support) and property division can vary significantly, it is important to speak with an experienced Florida divorce attorney when making a determination about where to file for divorce. This determination depends on a variety of considerations that are relevant to venue and jurisdiction, such as where the child resides, which county/state the filing party lives in and the length of time that the party has lived in the county/state. There are usually residency requirements that require someone live in a particular county for a minimum period before being eligible to file for divorce in the jurisdiction. If you are considering filing for divorce, we can answer all your questions including where to file. Our Florida divorce attorneys provide a free no obligation initial consultation so call us today at 954-580-8080.
What You Should Know About Florida Child Custody Evaluations
July 6th, 2012Many divorces in Boca Raton involve challenging issues surrounding children, including timeshare arrangements and parental responsibility for decision-making in fundamental areas like schooling, medical care and religious training. While both the parties to a divorce and their children typically benefit from an amicable agreement on parenting plans and timeshare arrangements. Frequently, when parents are unable to reach an agreement on parenting plan arrangements, a Florida family law judge will often order a child custody evaluation to be conducted to assemble factual information regarding the best interest of the child and make recommendation regarding an appropriate parenting plan including timeshare arrangements.
A custody evaluation is usually conducted by a mental health professional, like a psychologist who interviews both parents, the child and review other information like medical records, health records and other documents. It is essential to understand that when the court orders a custody evaluation, the finding and recommendations will have great weight with the family law judge when making orders regarding custody and visitation (timeshare and parenting plan arrangements in Florida).
The custody evaluation process can cost several thousand dollars and typically the cost of the evaluation is allocated between the parties. While the court sometimes assigns a custody evaluator, other times the parties to the divorce will pick from a list of evaluators provided by the Florida family judge. Not all child custody evaluators are created equal, therefore, it is important to have an experienced Florida child custody attorney assist you in determining the appropriate child custody evaluator to select and preparing for the child custody evaluation process. It is important to understand that your relationship with a custody evaluator is not confidential and the disclosures you make generally will be disclosed to the court by the custody evaluator.
A custody evaluator in a Florida divorce will typically conduct multiple interview with either parent. Often these interviews will be in your home so you should make sure that your home is clean and that the refrigerator is stocked with reasonably nutricious food. The evaluator will be analyzing the appropriateness of your child’s living environment so it should be presentable and reasonably tidy.
The general demeanor a parent during a custody evaluator interview should be positive. Criticizing your spouse over general marital issues and seeming to be hostile to the other parent will create a negative impact on the Florida custody evaluator. The focus of your conversation should be on parenting issues. While it may be appropriate to point out legitimate concerns about your spouse’s parenting skills, you should try to do so in as positive a way as possible. Any criticisms should also be accompanied by positive comments about the strengths of your spouse as a parent. The evaluator pays close attention to evidence regarding your ability to work constructively with the other parent. When meeting with the custody evaluator in a Florida divorce, parents should also make sure that they are prepared to provide documents pertaining to their child’s education and medical care.
If you are involved in a divorce involving children in Florida, our experienced Boca Raton child custody attorneys at Klein & Associates can assist you in preparing for a child custody evaluation, which can play a critical role in the court’s decision on parenting plans and timeshare arrangements.
The Power of Evidence of School Performance in a Florida Child Custody Dispute
June 29th, 2012Many Florida couples presume that divorce means a process filled with stress, anxiety and uncertainty about the future. While the process is certainly unsettling as is any major life change, many divorces are reasonably amicable. If you have children, less conflict between you and the other parent during a divorce typically will make the process less difficult for your children. While amicable child custody cases typically are the best option, sometimes parents simply cannot agree on the best parenting plan for their children. Contested custody disputes often are the most difficult Florida family law issues.
Many high conflict custody cases in Florida involve troubling allegations including domestic violence, drug use, alcohol abuse, spousal rape and child abuse or neglect. Although sometimes such allegations can be substantiated by drug test results, police reports and court documents, many times there are few if any objective facts to substantiate these types of claims. In other cases, both parents may be reasonably good parents and extreme allegations of this time may be completely absent.
The problem in either of these situations is that the child custody dispute can become little more than a
“he said-she said” type dispute with neither parent in a position to provide objective or verifiable information. A child performance in school can provide objective evidence in such situations. Unlike reports from either parent or extended family and friends, information like school records, teacher observations and disciplinary records provides objective evidence of your children’s adjustment and functioning at least in an academic setting. There is a fair amount of research that supports the view that problems in school begin with issues in the home. Consider a few conclusions from a study conducted by the National Society for the Prevention of Cruelty to Children (NSPCC):
- Multiple studies have found that maltreated children do not perform as well on standardized tests and achieve lower grades even when socio-economic status and other background factors are taken into account.
- A recent study conducted in Nebraska revealed that 31 percent of children in special education classes were mistreated at home as opposed to children who were treated well in the home.
- A study of 587 children conducted of children in multiple states revealed that the earlier children were harmed in the home the more likely they were to act out with negative behaviors during adolescence. Data provided by teachers of the children in the study who were treated poorly in the home early in life revealed that such children exhibited greater behavioral problems in the classroom.
While these studies are illustrative, there is a wealth of academic literature linking effective parenting in the home with school performance. Judges in Boca Raton courts and throughout Florida will look closely at evidence furnished to the court regarding school performance. If a child is performing well in terms of academics, behavior and socialization at school, we work with our clients in child custody cases in Florida to effectively present relevant school records including:
- Report cards
- Standardized tests scores
- Letters from teachers and counselors
- Letters from coordinators for extracurricular activities and sports
If this evidence shows that a child is performing well in the classroom, not exhibiting serious disciplinary problems and successfully interacting with peers, this provides compelling evidence that the parent who the child is living with the majority of time during the school week and who supervises homework is generally doing a good job. A judge in a Florida family law court will be hesitant to seriously disrupt this status quo unless there is other factors that justify disrupting this successful status quo arrangement.
By contrast, the parent of a child who is doing poorly in school can expect this to be an issue that must be dealt with in a custody dispute. While it is hardly unusual for a child’s grades to suffer or a child to act out in the midst of a divorce, a Florida family law judge will look closely at evidence regarding the reasons for the decline in academic performance or issues with the child acting out. If you are involved in a Boca Raton paternity action or divorce involving children, our experienced Florida divorce attorneys at Klein and Associates can provide legal advice and representation to protect your rights while seeking the best possible outcome. Eric N. Klein & Associates provides legal representation throughout Florida and offers a free initial consultation so call us today at 954-580-8080.
Why DIY Divorce in Florida Is a Bad Idea
June 22nd, 2012Many Florida couples attempt to dissolve their marriage by way of self-help kits that often include pre-printed forms and standardized instructions. The advertisements and marketing that promote these do-it-yourself (DIY) divorce kits promote them as fast, efficient and inexpensive alternatives to a divorce with legal representation. Sadly, many of those that begin their divorce with these DIY divorce kits end up retaining an attorney to untangle the mess frequently paying far more than they would have had they retained an experienced Boca Raton divorce attorney initially. Parties that rely on DIY solutions also frequently make devastating mistakes that affect their future financial stability or relationship to their children.
There are many reasons these DIY kits and books do not work, including but not limited to the following:
Lack of Advice and Guidance: The divorce process is extremely complex, especially if you have children, have been married for a number of years or have children. The legal issues that may arise when addressing a parenting plan, determining alimony or establishing an equitable division of property, including dividing a retirement, business, professional practice or ownership of real property is complicated and requires consideration of property law, tax implications and family law. Self-help kits cannot provide the guidance and legal advice necessary to protect you from critical errors that may impose substantial costs or adversely impact a party’s legal rights.
Incomplete Documents: Most of these kits do not provide all of the documentation you need to successfully file for divorce in Florida. The requirements for filing may differ even from county to county. When the forms are incomplete or not properly drafted, it can cause delay or undesired outcomes on key issues in your divorce.
No Representation in Court: A Florida divorce court can be a difficult place to be without legal representation. If your spouse has an attorney, you are at an enormous disadvantage. The attorney will know the types of evidence and legal standards to make persuasive arguments on issues of property division, child custody issues (parenting plans under Florida law) and the factors involved in determining alimony. These issues are often open to competing evidence and interpretations so it is important that you be represented by someone that understands how to apply appropriate facts to the factors that govern family law issues in Florida.
If you are involved in a divorce in Florida or contemplating a divorce, our experienced Florida divorce attorneys at Klein and Associates can provide legal advice and representation to protect your rights and work to make sure that you do not make critical mistakes. Eric N. Klein & Associates provides legal representation throughout Florida and offers a free initial consultation so call us today at 954-580-8080.
Reform of Alimony in Florida: Is It Really a Positive Step?
June 15th, 2012We have previously discussed the effort by Floridians For Alimony Reform (FAR), which is a group largely comprised of husband’s ordered to pay alimony, to reform Florida’s alimony law to eliminate the type of alimony called “permanent alimony.” The Family Law Section of the Florida Bar Association, which is comprised of 4,000 family law attorneys in Florida, has opposed these efforts. Many Florida family law attorneys contend that the change would increase the frequency and cost of litigation on the issue of determining alimony and create financial hardships for children.
The Florida alimony reform efforts that are likely to be renewed next year have targeted the elimination of “permanent alimony.” Permanent alimony is designed to provide financial support for spouses (most frequently wives) that assume primary responsibility for taking care of the family home and children during a long-term marriage. Florida is one of the most liberal states in recognizing that a spouse that forgoes a career, educational opportunities and the funding of a retirement will typically be at a permanent financial disadvantage following a divorce.
Although the reform groups contend that permanent alimony is unfair, this position fails to account for key aspects in Florida’s permanent alimony system that prevent unfairness to the paying spouse. A key prerequisite to awarding permanent alimony is the need of the recipient spouse and the ability to pay of the spouse facing a permanent alimony obligation. This means that the higher wage earner in the marriage will not be obligated to pay alimony or will not have a substantial payment unless the spouse’s income and assets provide the financial ability to pay alimony.
Opponents of the current system also complain that the system may work inequitable results if the paying spouse is suddenly unable to pay because of an unanticipated event. However, permanent alimony remains modifiable by either party if one of the parties establishes that there has been substantial change in circumstances. Where the parties reach an agreement on permanent alimony to make it non-modifiable, each party presumably obtains a benefit which is a material part of their bargain. Florida’s current alimony system motivates many couples to reach a negotiated agreement on alimony rather than driving up the litigation costs of parties to a Florida divorce.
It also is argued that eliminating permanent alimony will escalate the financial burden on taxpayers by increasing court costs and the demand for social services by shifting support obligations to public taxpayers. While the alimony reform effort failed this year, the movement is likely to be renewed next year. If you need representation in a Florida divorce, the Florida family law attorneys at Eric N. Klein, P.A. offer a free no obligation consultation so call us at 954-580-8080.
Attempt to Reform Florida Alimony Law Fails
June 8th, 2012A legislative attempt to reform Florida alimony laws has failed but many critics contend that the Florida system remains extremely unfair for many ordered to pay alimony. One case receiving national media attention involves a man who suffered permanent injuries in a motor vehicle accident but is still required to pay thousands of dollars per month in alimony. The man is unable to work but was not able to obtain relief from the obligation to pay alimony. He has indicated that he is prepared to go to jail because he knows that it is impossible for him to comply with the child support order.
The media reports indicate that the man is obligated to pay $2000 per month in permanent alimony. The man who suffered severe injuries in a motor vehicle collision can barely walk or talk because of his injuries and cannot pay his medical bills. The man is also unable to work because the car accident has left him permanently disabled and dependent on government financial assistance to pay for his basic necessities. The man’s dilemma is rooted in Florida being one of the only states that grant permanent alimony awards. The proposed reform legislation was being pushed by the Florida Alimony Reform Group. The group is trying to limit the amount of discretion that a Florida judge has in granting an alimony request.
The organization contends that the rationale for Florida’s alimony laws are based on outdated assumptions about gender roles. They argue that the existing legal framework is founded on antiquated stereotypes where the father is the sole family wage earner and the villain in a divorce. Despite some legislative support for the reform effort, it failed to pass and no similar alimony reform can be proposed for a year. The family law section of the Florida Bar supports Florida alimony law in its current form.
If you are facing the prospect of paying alimony in a pending divorce or struggling under your current alimony order, our experienced Boca Raton alimony attorneys at Eric N. Klein & Associates can review your situation and advise you regarding your rights and options. We represent both parties paying and receiving alimony and doggedly pursue the best possible outcome for our clients in Boca Raton alimony cases. Whether you need assistance with an initial alimony order or a modification, our experienced Boca Raton alimony attorneys may be able to help. The experienced Boca Raton family law firm of Eric N. Klein & Associates represents parents involved in divorces and alimony disputes throughout Florida with offices located in Boca Raton, Fort Lauderdale and Palm Beach Gardens. We understand the important financial impact of a Florida child support order so call us today at 954-580-8080 to see how we might be able to help.
Can the Party Who Owned a Home Before Marriage Change the Locks?
June 1st, 2012We often receive inquiries from spouses contemplating divorce whom have concerns about how to handle temporary control of the family residence during a divorce. One option some consider is to change the locks and exclude the other spouse from the residence. This type of unilateral action is usually not advisable even if there is no divorce action yet pending. If you have children, such unilateral action may also be considered by the judge when deciding parenting arrangements. Some married parties that call us presume that if they purchased the family home prior to marriage, they are merely claiming the property that is their separate property.
This assumption is ill-conceived on several grounds. Florida family law judges work diligently to reduce the negative impact of a divorce on minor children. An important consideration is stability in a child’s residence and school. Family law judges generally do not look favorably on unilateral decisions to lock the other parent out of the house and create instability and disruption for the minor children. While there may be exceptions if the act is done to protect the parent or child from abuse or domestic violence. A Florida family law judge will not look favorably on excluding a parent or minor children from the home based on a claim of separate property.
Even if you do not have children, it is generally not advisable to simply to change the locks and exclude a spouse from the family home. If you can negotiate an agreement with your spouse for temporary use of the family residence, then one of you can exercise temporary exclusive control and possession of the residence. Once the divorce has been filed neither party is authorized to exclude the other party from the family home without a court order. If your divorce is pending, we can file for a hearing to determine temporary control and possession of the family home.
Many parties in Florida divorces also misunderstand the notion of separate property when it comes to a family residence. Unless a home was paid off prior to marriage, community assets or income will often have been used to make mortgage payments, pay taxes, repair the home or otherwise preserve or improve the asset. When there are community contributions to the family residence you purchased before marriage, your spouse may also have a claim for a marital property interest in the amount of those contributions and any appreciation derived from such contributions. The experienced Boca Raton family law firm of Eric N. Klein & Associates provides legal representation in divorce, child custody disputes and other family law cases in Boca Raton, Fort Lauderdale and Palm Beach Gardens. We understand the challenges of resolving complex and contentious family law issues so call us today at 954-580-8080 to see how we might be able to help.
Dividing Debts in a Florida Divorce: Avoiding Common Pitfalls
May 25th, 2012While there are many difficult issues that must be effectively handled in a Florida divorce, the division of debts can be one that is filled with potential traps for unsuspecting parties. The fundamental principle to keep in mind when deciding how to divide the debts in your divorce is that creditors are not bound by your determination as to whom a particular debt should be assigned. This means if your spouse is assigned a particular credit card obligation that was a joint account, the creditor may try to collect against you regardless of what your judgement of marital dissolution says about your spouse’s obligation to pay the debt.
Parties that are not represented by a Florida divorce attorney frequently misunderstand this key fact about the legal responsibility for debts. As a general rule, debts incurred prior to marriage will remain the legal obligation of the party whose name is on the account. Debts incurred exclusively during the marriage will be share by both you and your spouse. There are other debts that may have more of a mixed character that will have both a marital debt component and a separate debt component. A home credit line with an existing balance at the time of marriage that is used during the marriage will have a mixed characterization.
Because marital debts and mixed characterization debts may still be enforceable against both spouses if it is not paid, all joint credit accounts should be closed during the divorce process. Sometimes balances from existing credit cards can be transferred to another credit card obtained only in the name of the spouse that is assuming responsibility for that debt. Another strategy to reduce potential problems is to assign debts that are in only one spouse’s name to that spouse. If the party to whom the debt is assigned elects to not pay the obligation, the creditor will generally only pursue the spouse whose name is on the debt.
If a joint debt in both spouses’ names is unpaid by the spouse to whom it is assigned, there are remedies, but they are somewhat imperfect solutions. Although the creditor is not limited by the divorce judgment, the parties to the divorce are bound by its terms. If a former spouse fails to comply with the terms of the divorce, our experienced Boca Raton debt division attorneys may be able to pursue a contempt action seeking enforcement of the terms of the judgement.
The experienced Boca Raton family law firm of Eric N. Klein & Associates provides legal representation in marital dissolution’s in Boca Raton, Fort Lauderdale and Palm Beach Gardens. We understand the challenges of resolving property and debt division issues so call us today at 954-580-8080 to see how we might be able to help.
Man Spends $60,000 on Custody Battle Over His Dog
May 18th, 2012When you are involved in a divorce in Boca Raton, issues involving custody and visitation may be among the most important and contentious issues that you face. However, these issues usually involve custody or visitation of a child rather than custody of the family dog or beloved cat. Divorce disputes involving the custody and timesharing of family pets are on the rise. Because the law has not caught up with this trend in Florida or most other states, pets are essentially treated as property to be divided as opposed to a member of the family for whom timesharing arrangements are designed.
A recent pet custody case in New York provides an indication of the magnitude of this issue. The man took to the Internet to solicit donations to support his custody dispute for a puggle named Knuckles. The man has already invested $60,000 fighting for custody of his dog. The man indicates on his website designed to solicit donations for his dog custody fight that he allowed his significant other to dog sit while he tried to find a new place to live following the breakup of their relationship. He indicated that when he returned to retrieve the dog, his significant other had moved with the dog to California.
This case exemplifies the close family bond that many pet owners feel toward their pet as well as the amount they may be willing to sacrifice to maintain that relationship. The man in the New York case told reporters that he knew some would view his actions as bizarre, but the felt a bond toward the dog similar to a parent-child relationship. Though pet owners may feel like their pet is essentially their child, the law treats animals as property to be divided like other marital assets in a Florida divorce.
This characterization of pets as property also means that the best interest of the pet is not a relevant consideration when determining who will end up with the pet. If a divorcing Florida couple have children, then the pets generally will reside with the parent who has the lion-share of custody of the children. However, the situation gets more complicated when there are no children or the timeshare arrangement for the parents is fairly equal. When this is the case, the family pet is treated no differently than a dishwasher or old sofa. The family pet becomes part of the marital property to be divided between the parents.
The Knuckles case reveals the potential problem with the laws approach to custody of the family pet. People typically have more attachment to the family dog than a living room sofa. This means that potentially these emotions and close ties can be manipulated to drive up the cost of litigation in a divorce or to leverage property concessions involving other assets. The experienced Boca Raton family law firm of Eric N. Klein & Associates provides legal representation in marital dissolutions in Boca Raton, Fort Lauderdale and Palm Beach Gardens. We understand the challenges of resolving custody and property division issues so call us today at 954-580-8080 to see how we might be able to help.
Think Your Florida Child Support Order Is Bad: Billionaire Asked to Pay $46,000 Per Month
May 11th, 2012There are a lot of parents, especially dads, that are ordered to pay child support and find that the amount of the child support order makes it difficult to pay their mortgage, household bills or provide for a new family. Unfortunately, these are not considerations that a judge may look at when making a child support order, but there is a silver lining for dads struggling to meet their child support obligations. While you may be struggling, you can take solace in the fact that you are not being asked to pay $46,000 per month in child support. Sadly, we did not pull this number out of thin air. Supermodel Linda Evangelista is requesting this amount of monthly child support from billionaire Francois-Henri Pinault, who also happens to be married to Salma Hayak. The billionaire owns the company that runs Gucci and YvesSaintLaurnet.
If the court grants Evangelista’s request, the child support order will be among the highest amounts of child support ordered by the court. While requests for child support in this stratosphere may seem ludicrous to some, it is not necessarily unrealistic given the rationale and objectives of child support. The guideline child support calculation is intended to ensure that a child benefits from the lifestyle and standard of living of both parents. Requested expenses like a 24-hour nanny, full-time driver and body guards for the 5-year-old child as well as maintenance on two separate residences including one near the child’s school may seem exorbitant and unreasonable to ordinary people making a middle class income but may simply be part of one’s standard of living to a billionaire.
The Florida child support statute specifically incorporates parental standard of living into the calculation of child support. The guideline formula uses the income of both parties which will obviously result in significant child support for very high income earners. Florida Statute, Section 61.30 (a) specifically enumerates the following as factors in the child support calculation:
- The needs of the child
- Station in life
- Financial status
- Standard of living
- Ability to pay
These factors taken together reflect a public policy that children should benefit from the lifestyle of both parents as if they were still together. Because the right to child support belongs to the child, large child support orders like these are not uncommon when the paying parent is extremely wealthy. Other examples of child support orders paid by ultra-high earners include:
- Kirk Kerkorian (Casino Mogul): $100,000 per month
- Jean-Claude Von Damme (Action Star): $27,000 per month
- Melissa Ethridge (Singer): $23,000 per month
Although this may not ease the stress of dads who must pay child support based on more normal earnings, it does show the role that the parental standard of living plays in the determination of child support. If you are facing a child support order as part of a divorce, paternity action or modification proceeding, our experienced Florida child support attorneys are prepared to fight for your financial interest no matter what your income. At the Law Office of Eric N. Klein & Associates, PA, we have provided effective legal representation in Boca Raton child support cases. Our experienced Boca Raton family law attorneys understand that you may have many questions about your legal rights when facing a potential child support order so contact us today at 954-580-8080.
