Archive for February, 2012
What Constitutes Separate Property?
Friday, February 10th, 2012Courts in those states which abide by community property laws tend to be a bit more consistent in their decisions to leave separate property with the party who owns it while equitable distribution states offer a certain degree of leeway when dealing with separate property.
What is Considered Separate Property?
Any property you owned prior to your marriage is essentially considered community property, as is any property you have acquired during the marriage by virtue of a gift or inheritance meant solely for you. An example of this would be if your parents gave you money with the explicit instructions that the money would be placed in a separate bank account and was meant only for you. Any income which comes as a result of a gift or an inheritance meant solely for one party in the marriage is also considered separate property.
Any property or other assets acquired during your marriage, but bought with your sole and separate gift or inheritance also becomes separate property. Finally, any earnings, gains or winnings received following your legal date of separation are considered separate property. If you and your spouse have made the decision to divorce and have either filed initial separation or divorce papers, then you happened to win the state lottery after that date, the money you won would be considered separate property–much to the likely dismay of your spouse. Some states count the date of separation simply as the date both parties decided to terminate their marriage or when one spouse moved out of the marital home. However both these dates are extremely subjective and could be challenged in court, so if you expect any glitches regarding your separate property, be sure to make your separation legal.
Separate Property Unless…
These basic rules of separate property apply only as long as you keep the property you brought to the marriage or property you acquired during the marriage as the result of a gift or inheritance entirely in your name. Should you mix this property with marital or community property, then it becomes part of your marital property. Should you receive a sum of money from Great Aunt Hazel intended solely for your use, it is, indeed separate property.
However, if you put this money into your joint bank account, it has then become commingled and is now part of your marital property rather than your separate property. The same goes for anything you brought into the marriage, whether in the form of property, vehicles or money. As long as you keep those things firmly in your name only, they do not become part of the marital property, but should you add your spouse’s name to your car title, property title or bank account, you have just turned your separate property into marital property.
What if My Spouse Gives Me a Gift?
If, during your marriage, your spouse makes you a gift of, say, a cabin in Colorado, and it is in your name only, then it will be considered separate property. However, if he makes you the same “gift” of the cabin, however both your names are on the title, the property taxes, insurance, etc., then should you divorce you would have a hard time proving he gave you the cabin, especially if he denies it. Note that during a divorce you and your spouse are perfectly free to completely ignore the legalities of separate and marital property, making any division you see fit so long as you both agree, and it appears relatively fair to both parties. Should you have any doubts regarding whether your separate property will remain so during your divorce, contact an experienced divorce attorney early on in the process who can ensure you are able to keep property that is not a marital asset.
If you or someone you love is considering filing for divorce, we can explain your rights and guide you through the appropriate divorce process. At Eric N. Klein & Associates, P.A., our Fort Lauderdale divorce attorneys are dedicated to providing the legal help our clients need. To learn more about what we may be able to do for you, contact us today by calling 954-580-8080.
Visitation with Stepchildren After a Divorce
Tuesday, February 7th, 2012While we are all familiar with the struggles parents face during a divorce when deciding custody and visitation, where do stepchildren fit into the picture? Many couples married when one or the other had a small child from a former relationship. After spending years being a parent to the child or children, the step-parent finds out that during the divorce they have virtually no rights, and may not even be able to have visitation with the child. Like many things in our world, changes happen so fast that the law has not yet caught up, and this is a good example of that.
The Law Recognizes the Rights of the Biological Parent
Generally speaking, step-parents generally have rights concerning children they may have raised for years and years only if the children’s biological parents are deceased or suffer from a disability. So long as one or both of the child’s biological parents are alive and not deemed incompetent, they have control over their child’s life, and can refuse visits from the step-parent if they desire. The law operates under the assumption that the biological parent will make decisions based on the best interests of their child, meaning grandparents and step-parents have little recourse if they want visitation with a child following the divorce. There are a few select states which have recognized the role of step-parents in a child’s life, therefore if the step-parent played a substantial role in the child’s life while the couple was married, the law allows the step-parent to request the right to visit the child, and in a very few cases, partial or full custody of the step-children.
Most courts are simply refusing to address the issue at all, leaving archaic laws on the books which do not allow step-parents to seek visitation. Illinois law does at least recognize that strong bonds can occur between a step-parent and children and that maintaining such a healthy relationship can benefit the child. In a rather unprecedented move, an Illinois Appellate Court declared the current law regarding step-parent visitation unconstitutional, and, in apparent agreement, the Illinois Supreme Court refused to review the decision, however the old law is still alive and well.
If a Biological Parent Dies
In certain states, should the biological parent (that the step-parent was married to) dies, the step-parent is allowed to petition to visit the step-child or for full or partial custody only if the following aspects are in place:
- The child must be at least twelve years old
- The marriage between the step-parent and the deceased biological parent must have lasted for a minimum of five years.
- The child must express a desire to engage in visits with the step-parent
- Such visitation must be deemed to be in the best interests of the child
- The step parent must have been providing care and control to the child before he or she initiates a visitation petition.
As you can see, even when a biological parent dies, there are still very strict criteria for petitioning the court for visitation rights, and even the states who allow visitation petitions seem to assume that the biological parent died while still married to the step-parent rather than providing visitation for a step-parent following a divorce.
Contact a Divorce Attorney
If you are interested in obtaining visitation rights with your step-child or children, it is important that you contact an experienced divorce attorney who is familiar with the laws regarding step-parent visitation rights in your particular state. Even if you are allowed to request visitation rights, don’t assume they will be awarded to you. You will be required to show that you functioned as the child’s parent during the period of time you were married to their biological parent, and an experienced divorce attorney your best chance of achieving the visitation rights you are seeking.
If you or someone you love is considering filing for divorce, we can explain your rights and guide you through the appropriate divorce process. At Eric N. Klein & Associates, P.A., our Fort Lauderdale divorce attorneys are dedicated to providing the legal help our clients need. To learn more about what we may be able to do for you, contact us today by calling 954-580-8080.
Divorce, The Real Outcomes
Thursday, February 2nd, 2012“The Golden Rule” is an aspect of life that we learn at an early age as we are playing on the playground with other children. It states that we should treat others, as we would want to be treated. At first, it can always be seen that children do not always follow the rules and one ends up hurt over the other. Yet, with time we begin to see that children begin to understand one another and soon accept the rules and results of the rule and infuse it within their lives in and out of the sandbox. However, as we grow with time does the rule always stick in our lives especially in divorce?
Divorce occurs now more commonly than it did in the past. Within an individual’s lifetime they are expected to not only see divorces occurring around them with friends and loved ones, but also within their own relationships. Statistics state now that one in three individuals have the likelihood of experiencing a divorce at some point or another with a spouse. Yet, what does a divorce truly do to you, your health, and your over all outlook on life.
Divorce is already a sad point in one’s life. It is a change from once either being in a happy, or already depressing relationship that either way is finally closed. With either situation individuals are bound to feel more than one emotion at a particular time.
Studies have shown that individuals are more likely to encounter thoughts of suicide and that of being diagnosed with clinical depression when a divorce is occurring. When a divorce is being mediated one party might lose the financial assets or other forms of property that truly meant the world to them such as their home, or maybe some form of money that was set aside for future plans.
Child custody is also another point in divorce that can truly weigh down on the hearts of both parties. Of course the mother would like primary custody of the child, but the father would also like to have an active role in their child’s life.
Divorce is never easy on anyone and if those ask for help they shall receive whether it be from a loved one or trained professional.
Call the experienced Florida divorce attorneys at Eric N. Klein & Associates. We are prepared to help you protect your financial interests. We offer a free consultation so contact us today at 954-580-8080.
