What Constitutes Separate Property?
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
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
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.
Deciding on the Best Parenting Plan
January 23rd, 2012When a divorce or marital dissolution is brought to court, the child visitation settlement is also considered along with the child custody agreement at the same time and according to many similar factors. Child visitation is the time when the parent who was or is not granted custody is allowed to meet with his or her child or children. Though, within particular circumstances, a mother or father can be denied any visitation or custody if sole physical custody is granted to one of the child or children’s parents. A child’s visitation is typically accompanied with “parenting plan”, which usually refers to the legal and or physical custody of the mother and father and usually states when the child or children will visit the non-custodial parent. Parents do have the option of coming to an agreement on their own, which typically is the best option, or a court will make a decision regarding this, which can be a very poor choice.
Usually the best decision for child custody and/or child visitation is when the parents settle the matter together outside or court, in order to come to a decision that will work best for each party involved, which includes the children. Any agreements or agreement that is reached between both parents during this time become what is known as the “parenting plan.” After the plan is made and child custody and child visitation is resolved, it should not require any issues being brought to court for a judge to decide. Ten years ago, family courts would usually give guidelines to infant visitation, which in turn, prevents the parent without custody from spending too much time with his or her child. Restrictions such as these are not used anymore, but continuous and recurrent visitation with both of the child’s parents is encouraged. Agreements that are made out of court regarding child custody and visitation do not have to be made into a written contract, but its encouraged that both parties have a signed parenting contract available for future reference if ever a disagreement arises. Also, the parenting plan can be used as a requirement between both parents to honor the contract in order to facilitate any enforcement purposes.
If the parents are not able to come to an agreement, then the matter is often brought to court in order for a judge to decide. However, the parents can go through with a mediation which may help in deciding an agreement between the parents as to who will have custody of the child or children.
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.
Does Florida Family Law Recognize Legal Separation?
January 16th, 2012The distinction between divorce and legal separation and its applicability under Florida law is an issue of significant confusion for many Florida couples. Many states recognize a formal legal separation action which depending on state law may result in a judgment on all of the issues in a typical divorce except that the marital status is not dissolved. The many states that have legal separation statutes may allow a spouse to petition for property and debt division, child and spousal support as well as attorney fees.
Florida does not have a legal separation statute that can make it difficult for a spouse that needs to keep marital status intact but also recognizes the need to separate oneself financially from a spouse. Although Florida does not have a legal separation status, a parent who is the primary residential parent to the minor children of a marriage may seek child support without filing for divorce despite the lack of a marital separation statute. The parent may also file for alimony without filing for divorce, but it is not typically granted.
There are a number of reasons that a party may need to delay the termination of marital status. For example, a marriage that is ten years in duration can mean a substantial difference in the benefits received by the spouse of a person in the military. If a person who has decided to divorce is close to the ten year time limit, it may make sense to wait until the ten year threshold has been met.
Challenges in obtaining alimony are not the only disadvantage to Florida not having a marital separation statute. Without filing for divorce in Florida, there is no legal authority to separate marital assets and debts. Many parties to a divorce need access to these marital assets as a financial basis to rebuild their life.
Despite the limitations under Florida law when it comes to dividing marital assets without a divorce filing, there are reasons that determination of physical and financial separation can be important even if it is not advisable to terminate one’s marital status by way of divorce until some later date. The date of separation is a very important point in a subsequent divorce.
If you are physically and or financially separated from your spouse, this date of separation may provide the date from when the obligation to pay child support begins. This means that the other parent may be ordered to pay child support arrearages starting at the date of separation. Usually, the parents must at least be living in separate households and typically will be expected to have separated their finances meaning separate bank accounts and not continuing to commingle financial transactions.
The Florida family law firm of Eric N. Klein & Associates represents parties in divorce and family law matters in Fort Lauderdale, West Palm Beach and Boca Raton. Our experienced Florida divorce attorneys understand the emotional pain and stress that often accompanies the divorce process. We are committed to helping our clients rebuild their lives without unnecessarily increasing the conflict in our clients’ Florida family law matters. We offer a free initial case evaluation so call our family law attorneys today at 954-580-8080.
Enforcing A Florida Injunction for Protection Against Domestic Violence
January 10th, 2012There are some cases in which a spouse is fearful for their safety or the safety of their children during or after a divorce. Our law firm often provides information or answers to questions concerning protection orders and how to enforce a Domestic Violence Injunction. Although a protective order is just a piece of paper, it contains important enforceable powers and legal protections provided by Florida law. In the event you have a protection order and you are confronted by a violent spouse, the protection order itself cannot provide protection should the offender be willing to violate the protective order. A protection order does offer you the opportunity to utilize law enforcement effectively against the abusive spouse.
The Petitioner is defined as the individual seeking or filing a protective order from the Court. The Respondent is the individual alleged to have committed an act off domestic violence. The Respondent will decide whether or not he or she will respond to the allegations in court.
A Domestic Violence Restraining Order is a legal instrument that bars someone from visiting your home, terminates all forms of contact, and provides that the individual cannot come within 100 feet of your auto. If an individual violates the order, you may contact the police and have the violator arrested. When the violator is arrested, he or she will be held until they are brought before the Court. At that time they will have a bail hearing. Again, a violation of the provisions within a Domestic Protective Order is a crime in the State of Florida.
Most people are unaware that a Domestic Violence Injunction or Restraining Order prohibits all direct or indirect contact with the individual that filed the order. It is a violation of the order for the Respondent to have other individuals follow or contact the petitioner (the one who files the protective order) of the order. Once you have obtained your protective order, it is important that you keep the document on you at all times. The protective order will contain provisions or instructions for law enforcement as it pertains to you and/or your children.
If you or a loved one is interested in seeking divorce or protective order advice, call the experienced Florida divorce attorneys at Eric N. Klein & Associates. We offer a free consultation so contact us today at 954-580-8080.
Should An Accountant Be Retained To Assist My Fort Lauderdale Divorce Attorney?
January 3rd, 2012In some cases, it may be in the best interest of our client to retain a highly skilled accountant to assist in a complex divorce case with significant assets at stake. However, CPAs are certainly not needed in every situation.
If one of the parties of the divorce has a significantly lower earnings capacity that the other, a dispute over alimony is likely. If one of the divorcing parties has limited earnings capabilities, he or she may seek permanent support, temporary support or support while seeking full time employment. If your marital relationship involves ownership of all or a portion of a business, there may a dispute over the actual value of the business. In both of these complicated financial situations it may be advisable to retain a forensic accountant to present a viewpoint to the judge. A CPA can be helpful in providing a fair assessment of your standard of living or the value of the business.
It is also important that your divorce attorney has considerable experience in proving the marital standard of life and examining the value of business in Divorce Court. This ensures that you receive the best opportunity to obtain a fair financial settlement from the court. Clients with a high income or net worth are also advised to hire a professional accountant to study the financial amounts at stake and to provide the court with an opinion in regards to spousal support and the business valuation. Our Fort Lauderdale divorce attorneys have the experience to know which accountants have appeared in court previously and have integrity and credibility in this area of expertise.
The bottom line: It is typically in your best interest to retain an accountant to review you and your spouses finances in order to provide an expert opinion to the judge that supports your interests.
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.
What is a Marital Settlement Agreement?
December 28th, 2011If you are going through a divorce you may have heard of a Marital Settlement Agreement and wondered whether it would be useful in your particular situation. Essentially a MSA is a legal document which both parties to the divorce sign which spells out how the case will be settled between the spouses. Because litigating disagreements in front of a judge can incur significant legal fees and court costs—not to mention emotional trauma—entering into an agreement as to how the various issues will be decided can promote an expedient end to the divorce allowing both spouses to move forward with their life.
If you and your spouse have chosen to proceed with your divorce through an MSA, remember that the Code of Professional Responsibility which governs lawyers prohibits one attorney from representing both parties. Even in the face of an apparently amicable divorce, attorneys are strictly prohibited from representing parties who have potentially different interests. Typically one spouse will have their divorce attorney prepare the MSA then the other spouse will have their own lawyer review the agreement. This divides the costs between the two attorneys, easing the burden for both spouses.
What is Covered in an MSA?
Each divorce is unique, of course, but a good Marital Settlement Agreement should cover the following items at a bare minimum:
- A dispute resolution provision which states how any future disagreements will be resolved in the future.
- A detail of the total marital debt including who will be responsible for which debts.
- Instruction on future income tax filings.
- A marital home provision which sets out who will be granted the marital home or whether it will be sold and if so how the proceeds will be divided.
- An itemized list of all the marital vehicles, home furnishings and personal property and specifically how it is to be divided.
- An order detailing any agreed-upon alimony, including whether it will be short-term or long-term, the monthly or yearly amount, how the monies are to be paid, under what conditions alimony will terminate and whether the alimony amount and term can be reviewed or revisited at a later date for possible changes.
- An order which sets forth the amount of child support to be paid each month, how it will be paid, when it will end and any agreed upon penalties should the support check be delinquent.
- Finally—and possibly most important—an MSA should contain a comprehensive Parenting Agreement which details the type of custody granted each parent, the visitation schedule and all other matters which relate to raising minor children.
Getting Court Approval for Your MSA
Although the majority of courts and judges are fully aware that a final Marital Settlement Agreement represents a hard-earned victory between the spouses and are reluctant to interfere with the details however there are certain instances where a court will not accept the agreement, either in whole or parts of it. Should a judge believe that one spouse is relinquishing significant assets while receiving little in return or if one of the spouses appears unaware of his or her rights regarding property distribution, then the judge may refuse to accept the MSA. In other cases where one spouse gives the judge reason to believe the MSA was not voluntarily entered into then the judge may be less likely to approve the agreement. Finally, should a judge become aware that the custodial parent has either waived or accepted substantially reduced child support or when one spouse relinquishes their interest in the other spouse’s retirement accounts he is likely to intervene.
Just because an MSA offers the parties a little more latitude in creating a workable plan that is unique to their individual situation, don’t try and construct one without benefit of experienced legal advice.
How Child Support Can Affect Parental Taxes in Florida
December 21st, 2011Whether you are the responsible party or the recipient of child support it can impact your taxes. The first thing to note is that for money to truly qualify as child support it cannot be based on a verbal agreement between the parents or cannot be “extra” money that one parent gives another. Payments for child support must be designated as child support in the legal documents of the divorce or separation agreement. A specific amount as well as the time frame for payments will be set forth in these documents therefore is the only money which can truly be considered as child support.
It’s important to have a knowledgeable divorce attorney who can ensure the payments have not inadvertently been put together with other payments under a heading such as alimony or family support. Should this happen, none of the money can be considered child support as far as taxes are concerned. While spousal support or alimony is generally tax-deductible by the party making the payments, payments for child support are not tax deductible. How your divorce documents characterize the financial support for the children can have significant tax implications in the future.
How is the Recipient Taxed?
The recipient of spousal support must pay taxes on the money they get however the parent who receives designated child support is not responsible for paying taxes on the money. While it may not seem fair, no matter how the money is actually used, the government only cares about what it is called. Even though the disbursement and acceptance of financial maintenance on behalf of the children does not alter either parent’s taxes, there are other tax issues divorced parents must consider.
Who Gets to Claim the Children?
When parents are married, there is no decision to make on who claims the children as dependents and gets the accompanying tax break. Complications arise when parents are divorced or separated since only one parent is allowed to claim the dependent exemption. Lest you think the IRS will never know, think again since they cross-check dependent’s Social Security numbers to ensure taxpayers stay honest. Although the logical solution would be for the parent who needs the exemption the most to take it, divorced parents rarely work this amicably together.
Generally speaking the parent with sole custody will naturally be entitled to claim the children as dependents on their tax return since they provide over 50% of the child’s support each year. According to the IRS the parent who has the children in their custody, living in their home for the most time will receive the exemption. Even in cases where the non-custodial parent provides more than 50% of the children’s expenses yet the children live primarily with one parent then the custodial parent receives the exemption. When parents share joint custody, however, it gets trickier. Some parents’ simply alternate years, while others have who is entitled to the yearly exemption clearly spelled out in the divorce decree.
When the Non-custodial Parent Can Claim the Exception
When both parents agree that the parent without custody will derive greater benefit from claiming the children as dependents then a legal and binding agreement must be in place, signed by both parents. The custodial parent must state that he or she is declining to exercise the right to claim the children as dependents. Your divorce attorney will likely have a wealth of knowledge regarding tax issues and child support and can be an important resource should you have any questions regarding the issue.
Religion and Child Custody Cases in The State of Florida
December 12th, 2011If you think your marriage encountered difficulties because of different religions between you and your spouse, imagine how you will agree on what faith your children will abide by after the divorce. Because the divorce rate continues to rise, and there are more interfaith marriages than ever, the issue of religion and child custody is being debated in courts across the nation. No rule book exists to assist judges in making these crucial decisions so you will see an assortment of decisions which incorporate different standards and establish very different rules from one situation to the next.
Balancing Competing Concerns
The goal of the courts is generally to balance the competing concerns of the two parents. The First Amendment rights of each parent must be fully protected as well as the privilege of exercising free will in the choice of religion. Parents are allowed to choose how they want to raise their children, including what religion they choose to bring them up under so long as does not jeopardize the child’s welfare. The courts are also charged with protecting the wellbeing of the children, therefore when one party asserts that activities practiced in the name of the other parent’s faith not only do not benefit them but may be causing harm, the court must take notice. This puts the court in the unenviable position of having to decide to what point they must stomp on the First Amendment rights of the parent by limiting religious activities the children are required to participate in.
Do the Children’s Wishes Come into Play?
When a judge is charged with resolving disagreements between divorced parents who have sharply differing view on how their children should be raised regarding religion he has the option of listening to the wishes of the child if he or she is old enough to have a good grasp on the issue. Courts try to listen consider the opinions of children who are twelve and older, not only on religious issues but custody and visitation as well.
Legal Standards for Making the Determination
Most states will apply one of three widely accepted legal standards when determining cases regarding religion and child custody. A parent’s First Amendment rights will usually be curtailed only if their religious practices can be considered harmful to the child. If those same practices might interfere in the child’s future, then the rights of the parents may be limited. Finally, it is considered the right of the parent with primary custody to influence the religious upbringing of the children in any way he or she sees fit as well as to challenge the non-custodial parent’s religious activities. Courts will almost always defer to the parent who has primary custody of the children, therefore the issue of religion and child custody usually only arises in joint custody situations.
What is Considered Harmful?
When asserting that harm is being done to the children due to one parent’s religious activities, that “harm” must be serious or substantial enough to be readily apparent. Some examples of prior court rulings on the subject include a 1971 court ruling which held that subjecting children to more than one religion is not, in itself, harmful, therefore cannot be used to justify the restriction of a parent’s faith and the activities related to that faith. A 1991 Ohio Supreme Court decision held that faith-based customs which curtail a child’s other activities—even if those customs divide the child from his friends and peers—are not enough to warrant court interference unless the mental or physical health of the child is being damaged. On the other hand, a Massachusetts court held that a particular father who directed physical abuse and verbal threats toward his children in order to restrict their religious practices should have his own rights restricted as a result. A handful of states don’t consider the whether these types of harm exist rather allow religious teachings from both parents in joint custody situations while allowing absolute discretion of religious practices for parents with sole custody.
Should you find yourself embroiled in a heated debate regarding which faith your children will be raised under, it’s important to seek experienced legal advice before the situation escalates to the point it cannot be settled. Your family law attorney has the necessary knowledge to guide you through such a sticky situation so take advantage of it.
