How Can We Agree On Child Custody?

One of the most sensitive and emotional issues involved in a divorce is child custody. The children are an important consideration and it is essential to make decisions that will help them recover from a divorce quickly and easily. There are several issues that must be resolved considering the children. These include child custody, child support, and visitation. In Florida the courts prefer that parents try to work out these issues and come to an agreement on how to handle the children.  The welfare of the children is the most important thing to keep in mind while making all decisions. The courts will always act in the best interest of the children. There are two types of custody including legal custody and physical custody.

Legal and Physical Custody

When thinking about the children you’ll need to consider two aspects of custody. Physical custody is where the child resides while legal custody pertains to the decisions that must be made about the children. For example, the legal custodian is responsible for making important decisions such as where the child will attend school, what church the child will belong to, and medical decisions to name just a few. Many parents today choose to co-parent. This arrangement, also called joint parenting, is very common. Joint parenting is best accomplished when both parents are able to communicate well with each other and agree to put aside any other differences in order to do what is best for the child. Every type of child custody arrangement must be put in writing and ordered by the court.

Visitation and Support

Children usually reside with one parent for the majority of the time. The non-residential parent has visitation rights. Visitation is typically ordered based on the current needs of the children and family. If visitation needs to change it must go through the court system. Visitation is usually set up on a weekly basis but is determined based on what works for the family. Sometimes the child will spend alternate weekends at the non-residential parent’s home while other times visitation is done on a day by day basis. The non-residential parent is responsible for paying child support. The amount of child support that must be paid is determined using a formula that takes into account the salary of the parent. Once child support is ordered a court order must be made to change it.

Best Interest of the Child

Decisions made regarding child support, child custody, and visitation, should be done with the best interest of the child in mind. The court takes care to make sure that a child is properly cared for. Parents are encouraged to come to an agreement with regards to the major issues. When parents are unable to agree the court may ask you to work out the issues with a mediator. Additionally, the court may provide a guardian ad-litem to the child. This guardian, for court purposes only, represents the child and is the child’s voice during the decision-making process. In cases where children are older (usually over the age of 12) they may be asked for their input, particularly when it comes to physical custody arrangements. Courts prefer to allow children to stay in their current home environment where they have attended school and have friends. If you are going through a divorce discuss the various issues regarding the children with your attorney before making any decisions.

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We’re Getting Married – Do We Need a Prenup?

Many couples may want to consider signing a prenuptial agreement prior to their wedding. A prenup is a legal document that outlines many of the terms of a divorce should one ever occur. While some people think a prenup may doom the marriage, the reasoning behind the prenup is valid. If a marriage ends in divorce the couple may disagree about how to distribute assets and how to care for the children. A prenuptial addresses any or all of the issues that could be encountered in the event of a divorce. In Florida the assets attained during a marriage belong equally to both parties, unless a prenuptial or other agreement is in place.

Who Needs a Prenuptial Agreement

Some people erroneously believe that they don’t need a prenup because they don’t yet have any assets. It’s important to understand that a prenuptial agreement isn’t only for the wealthy. The agreement is put into place to address both current and future assets. It will also address some things that you may not have even thought of. For example, when a couple works and has a pension plan, the document can discuss how that pension plan is to be divided should the couple split up. Couples can also discuss how to handle issues regarding the children in the event of a divorce. Prenups can provide settlement decisions regarding how to handle some of the tough financial choices that must be determined during a break up.

Prenuptial vs. Postnuptial

A prenuptial is a document that is signed prior to the marriage while a postnuptial agreement is made during the marriage. A postnuptial agreement has become more popular lately, however, in many cases, the reason for the postnup is unclear. A postnup that is made immediately prior to a divorce is actually a divorce settlement. In Florida, couples do not have the ability to get a legal separation. For this reason, the postnuptial is not necessarily going to do anything to help either party. However, a prenuptial, once in place, may need to be updated. If this occurs after the marriage takes place, the result is technically a postnuptial agreement.  Either way, it’s best to have the document drafted by an attorney to make sure that it covers and protects you as you intend.

Getting a Prenuptial Agreement

Both parties need to discuss the items in the prenuptial agreement and each should have their own attorney review the terms of the document. Don’t sign any type of legal agreement without first reading all the terms. It’s okay to review the issues and discuss them with your partner. If there are terms you don’t agree with you should not sign the agreement until your attorney has been able to make the necessary amendments. A prenuptial agreement may seem like a cold view of marriage, however, it can actually solve a lot of issues later on and relieve stress and anguish should you ever divorce. To be effective, a prenuptial agreement should be beneficial to both sides and should be properly executed to ensure legitimacy later on if it’s ever needed.

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What Are Grounds for Divorce in Florida?

In Florida, as in other states, the laws have been revised to accommodate no-fault divorces. The most common grounds for divorce are irreconcilable differences. This means that the couple agrees that neither one is responsible for the divorce – the couple is unable to reconcile. In Florida, there is no legal separation so couples will move to the divorce phase when ready. Irreconcilable differences is a catch-all category that allows couples to divorce without complication.  Residents of Florida are able to seek a dissolution of marriage with no-fault. There are other grounds for divorce that are possible and are available when needed.

Grounds for Divorce

In Florida, a couple can seek a no-fault dissolution of marriage without the need to specify a reason. They must only claim that the marriage is irretrievably broken. While grounds for divorce are not necessary for a dissolution of marriage, there are some circumstances that can be used. Some of these include:

• Adultery
• Cruelty
• Desertion
• Criminal behavior

When any of these factors are present it may be possible to use them as grounds for divorce or as a way to determine asset distribution and child custody. In Florida, property that is acquired during the marriage belongs equally to both people. However, there may be some circumstances, such as those listed above, that may influence how assets are distributed in a divorce. Child custody, visitation, and support issues are also impacted by these factors.

Seeking a Divorce

The first step in seeking a divorce is to speak to an experienced divorce attorney. Your lawyer will be able to review your circumstances and assist you in determining the best way to proceed. Both partners need separate representation for dissolution of marriage – you can’t use the same lawyer as your spouse. The attorney will answer all of your questions and walk you through the process. Couples are encouraged to resolve the major issues of the divorce including such things as asset distribution, alimony, child custody, child support, and visitation. When a couple cannot easily agree on these terms the court may request you to get help from a mediator. A mediator is a professional who assists couples in identifying and resolving issues in a divorce.

Dissolution of Marriage

A simple dissolution of marriage in Florida may take only a few months. When the couple is unable to agree on the settlement terms, the divorce can take much longer. It’s important to understand that in most cases the couple will need to compromise on many issues because an equitable settlement is the goal. Discuss all aspects of your case with your lawyer in order to get the best possible results. Divorces become more complicated when couples have been married a long time, when they have a large amount of assets, and when young children are involved. These issues must be satisfactorily resolved in order to get through the process and have the marriage dissolved.

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Who Will Keep the House in a Divorce?

The decision to divorce is usually a difficult one. Many people find that as soon as they decide to divorce there are many decisions that must be made and questions that have to be answered. The most common disagreements arise over finances and children. If the couple owns a home, this is often one of the most problematic areas of the divorce. Couples need to work together to try to come to an agreement on how to divide assets including the home. In Florida, assets including property acquired during the marriage are considered marital property. All marital property is to be divided equitably in a divorce. Those who own a home will need to decide what to do with it. It’s best to consult with an experienced divorce attorney before making any decisions concerning division of property.

Options

There are generally three options to consider when deciding what to do with the home.

• Sell the home, divide the profits
• One spouse can buy out the other’s share of the home
• Keep the home together

These options each have pros and cons. Selling the home may make sense in some cases. However, if the market won’t bring a good price (or if you owe more than your home is worth) the choice to sell the home may not be the best option. One spouse may decide to buy out the other’s portion of the home. The spouse may obtain a mortgage in his or her own name. Some couples choose to keep the home together and sell at a later date. This requires couples to agree on how to pay for home expenses and upkeep in the meantime. Whatever your choice, both parties will need to agree on what to do. Both parties need to consider the value of the home, the equity in the home, and whether the children currently reside in the house.

Children and the Home

Couples with children must consider some important points when deciding what to do with the home. If the children are settled in the home, attend local school, and have friends in the neighborhood, it’s usually best not to uproot them. In this case, the custodial parent will often remain in the home with the children while the other spouse moves out. This doesn’t necessarily mean that the parent living in the home will keep it – but it is very often the case. This is why it’s essential to consider the home immediately when the couple separates. Talk to an attorney to learn what the choices are and how to proceed when children are involved. Even if one parent stays in the home, it doesn’t mean they get to keep the home without paying for it. The house is part of the assets that couples will divide equitably during the divorce process. The home will need to be appraised or evaluated to determine the current market value for purposes of the divorce.

Current Market Value

The value of the home must be determined before the couple can determine how to equitably split it. Remember that the amount of money you paid for the home may not indicate what the current value is. For that to be assessed you’ll need to have an appraisal completed. This should be done by a certified appraiser that is agreed to by both parties and their attorneys. Getting a fair appraisal will help avoid future disputes. Because the housing market has been trending downward for several years, your home may not be worth what it was just a few years ago. For this reason, you’ll want to look at the current value of your home in relation to the price that you paid and how much is still owed on the property. Remember that you may need to take a slight loss in order to resolve your divorce in an amicable way.

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What is a Relationship Contract?

Most people have heard of prenuptial agreements, but what is a relationship agreement? A relationship agreement or contract is a document that is intended to answer questions that a couple may have in their relationship in the future. A relationship contract may attempt to discuss various issues of the relationship such as areas of finance, work, living arrangements, sex, and other personal issues. Unlike a prenuptial agreement, a relationship contract is not normally part of a divorce. In fact, this type of arrangement may not be legally upheld. Relationship contracts are certainly a new type of device that attempts to keep couples from doing things that each don’t like.

Is a Relationship Contract Serious?

Some couples attempt to write up a relationship contract as a legal document. Unfortunately, most of the items in the contract can’t be legally enforced. For example, a couple may decide that neither couple should gain more than 30 pounds. If one person does end up gaining more weight, the law cannot force the person to lose weight. Because the issues of the relationship contract are personal they are typically not enforceable. The relationship contract is a way for couples to attempt to create a secure relationship. Relationships, however, simply don’t come with any guarantee. Either person may decide to end a relationship when they want and for any reason they have.

Prenuptial vs. Relationship Contracts

Unlike a relationship contract that attempts to set personal guidelines, the prenuptial is a legal document that determines how financial (and other) divorce settlement terms are to be handled. A prenuptial agreement is made between two people that indicates exactly how assets are divided should a divorce occur. The prenup does not try to address personality or personal traits of the couple nor does it make any provisions for such actions. Should a divorce happen in the future, a prenuptial agreement can make the divorce process easier and faster because both parties have already agreed to the major terms of division of property. A relationship contract, by contrast, doesn’t address these settlement terms and instead discusses personal preferences – things that aren’t really governed by the law.

Do We Need a Relationship Contract or Prenup?

In general, a prenup can be an important document that is legally binding when properly written and executed. Relationship issues are typically best handled with a therapist or family counselor. If you’re considering a prenuptial it’s best to have it written up by a qualified attorney. Your lawyer will review all of your needs and ensure that the prenup covers your current and future financial concerns. Discuss the contract with your partner and together work with an attorney to make a document that you can both endorse.

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Why Do Some Divorces Take So Long?

If you’ve been following the Kardashian – Humphries divorce you’ll be glad to know that the saga is finally over. Kardashian and Humphries were granted a divorce in a case that lasted three times longer than their marriage. Why do some divorces seem to take so long while others appear to end quickly? Every couple is different and each divorce has a unique set of circumstances. The reason some divorces don’t end easily is because couples cannot agree on the settlement terms. Settlement terms often get hung up when it comes to divorce hot spots that often have to do with finances or children. If one person simply won’t agree to terms and refuse to cooperate, the result can be a difficult and long lasting divorce process.

Prenuptial Agreements

A prenuptial agreement may be one way to help ensure that a divorce will be smooth and easy. However, just because you have a prenup doesn’t mean a simple divorce will happen. A prenup can certainly help in the case of a divorce but only when the prenup is written and executed properly. Avoid using any pre-made forms and instead opt for a prenuptial agreement that is written specifically for you. An experienced divorce attorney will have the knowledge necessary to create an agreement that addresses all the most important aspects while protecting your rights should a divorce occur. Should a prenuptial agreement become outdated you should have it revised if necessary. A properly written and well-executed prenuptial agreement should provide at least some protection in a divorce and will help to shorten the time needed to finalize the process.

Settlement Terms

Some divorces are simply more difficult than others. When a marriage is long or when the couple has accumulated a lot of assets, the result could mean a more lengthy process. In Florida as in other states, marital property is considered to be owned jointly. This means that for the most part, assets that the couple acquired while married should be divided equitably. Even so, many people argue about finances during a divorce. Another area that can prolong the divorce process is child custody. When parents can’t agree on issues regarding where the children will live and who will have legal custody, the divorce can stall. Most often, courts prefer that couples agree on the major terms of the divorce. When they are unable or unwilling to come to an agreement, the judge may order mediation.

Resolving Divorce Issues

Mediation is one of the ways that issues can be resolved in a divorce. A mediator is a professional trained to provide unbiased assistance to couples in order to resolve disagreements. If you find that you and your spouse are stuck on divorce issues discuss the matter with your attorney. Your lawyer may be able to assist in getting some of the problems resolved and will help guide you through the process in order to make compromises that make sense now and for the future. Remember that sometimes to speed the divorce along there will need to be some give and take – both spouses need to treat each other fairly. Always seek professional help as soon as you see that unresolved issues may be escalating.

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Can I Get a Modification to Child Support or Custody?

When couples go through a divorce some of the hardest and most emotional decisions are those regarding the children. In Florida, couples are required to work together to come to an agreement on a parenting plan. This parenting plan will become part of the legal order of the court. While you can modify a child support of custody agreement, the procedure requires you to file for a court hearing in the matter. In order to get a hearing the judge will review why the modification request has been filed to determine whether there is a suitable reason to grant a hearing. Keep in mind that the goal of the court system is to ensure that everything is done in the best interest of the children.

Modification Hearing

A modification hearing may be granted if the judge decides that a change is in the best interest of the child. Some of the reasons that the modification hearing may be granted include such things as:

• Current living conditions are dangerous to the child
• One parent is interfering with proper parenting by the other
• When the parenting arrangement is not working well
• When both parents agree to the modification

It is important to note that parents cannot make a verbal (or written) change to a parenting plan or custody arrangement once it is court ordered. Many times the parents agree amongst themselves to make changes to the schedule or other terms of the order without going through the court system. The court will not enforce these changes since they are not part of the original court order. The only way to legally make changes is to seek a modification through the legal system.

Handling Disputes

Disputes are very common among divorced parents. As children get older and parents begin to move on with their own lives, the terms of the agreement may no longer seem to apply. Very often, both parents are not in agreement on changes to the original agreement. When a modification hearing is scheduled both parents are required to attend. At this hearing you’ll be able to present your side and explain why you disagree with the potential modification. Your attorney will be able to assist in the preparation for this hearing. It is essential that you address your concerns as to how the modification will negatively impact the child. In other words, you can’t simply disagree for no reason. Always be prepared for a hearing so that you will be assured of the best possible results.

Seeking a Modification

One of the most common reasons why parents may want a change to the custody arrangement is when one of them plans to move. Parents, especially those who are co-parenting, must live near each other in order for the parenting plan to work. When one parent wants to move further away a modification may be needed. Depending on the circumstances, it may be difficult for a parent to move away with the children.  Both parents should be represented by an attorney during the modification process in order to ensure that the result is agreeable to both parents and is done in the best interest of the children.

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How to Create a Parenting Plan

In Florida, as in other states, courts encourage parents to resolve the issues regarding their children as part of the divorce process. A parenting plan outlines the main issues regarding children after the divorce is final. The plan should address physical and legal custody, visitation schedules, relocation guidelines, and how to resolve future disputes.  Issues regarding how to care for children after the divorce are certainly emotional for everyone involved. An experienced divorce attorney will be able to assist you in creating a plan that encompasses all the points necessary to make future parenting easier. The parenting plan should contain some important points.

Parenting Plan

A parenting plan should address the main items that govern your children’s lives. It is always to be made in the best interest of the children. Parents need to come to agreement on physical and legal custody. Physical custody is where the child will reside while legal custody involves being able to make important decisions for the child. These legal decisions encompass such things as education, religion, and health care. Many parents prefer to have a joint parenting arrangement. One parent may have primary physical custody, meaning the child resides with one parent most of the time. The child may visit the non-residential parent including some weekends and other extended periods of time.

Factors to Consider in a Parenting Plan

Many factors need to be considered when creating a workable parenting plan. Some of these factors are:

• Each parent’s ability to parent
• Each parent’s ability to provide a safe home environment
• Child’s age and health
• Lifestyle of each parent
• Which parent has been the primary caregiver to the children
• Preference of the child (if older)

When parents are not able to agree on the terms of the parenting plan the court may require mediation. While the courts prefer that couples come to an agreement, if this doesn’t happen the courts will use some of the factors listed to make decisions regarding the children. If parents have a difficult time agreeing on the parenting plan the result may be a more lengthy divorce process.

Negotiation and Mediation

Parents need to work to resolve any disputes they have when creating the parenting plan. When disputes arise they can often be resolved through negotiation. The attorneys can often work together to make suggestions about the divorce settlement terms. When negotiations break down the couple may need to seek mediation. A mediator is a professional with expertise assisting couples resolve issues in a controlled setting. The mediator may or may not be an attorney and is not there to provide legal advice, only to help bring about a mutually acceptable resolution. It is always a good idea to have your own attorney review any recommendations before finalizing any type of agreement.

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By Scott Morgan

With divorce being one of the most common legal events that people experience, hiring a divorce lawyer is something that most people will do at some point in their life. As anyone who has been through an ugly or drawn out divorce can tell you, hiring the right divorce lawyer for your case is extremely important. Here are three tips that will help you through the selection process.

Get a Lawyer with Lots of Divorce Experience

There are a lot of attorneys who will take just about any case that walks in the door. This was commonplace 50 years ago when most solo attorneys and small law firms were general practitioners and handled many different fields of law. For better or worse, we now live in a legal world that is much more specialized. If you want a good result in your divorce then you will need an attorney who has a lot of experience handling divorce cases.

You do not want a lawyer who is essentially getting on-the-job training from your case. An inexperienced lawyer who goes up against a very experienced divorce attorney will be at a significant disadvantage. Family law and divorce are very unique areas of law that require a lot of attention in order to stay current and effective.

Check out Reviews of the Lawyer by Past Clients

In some cases you may have a friend or colleague who has used a divorce lawyer previously and can recommend him or her to you. Since the best predictor of how good a job the lawyer will do on your case is how good a job they did on someone else’s case, this is a great way to find a good divorce lawyer.

But sometimes you just don’t know anyone who has a good lawyer to refer. In this case you should look at the online reviews for the lawyer and law firm. Many lawyers have reviews from past clients posted on their own websites. Additionally, many other websites offer attorney reviews as well. Take a look at the reviews on the lawyer’s Google local listing, Yahoo local listing, avvo.com listing, and any other review sites where they may appear. Note that it is not uncommon for a very good lawyer to have a bad review. Every lawyer will have a client who is dissatisfied for some reason at some point, it is the nature of the field. But if you see multiple reviews that complain about the results or service you should probably scratch that lawyer off your list.

Are You Comfortable with the Lawyer?

A frequently overlooked and very important key to selecting the right lawyer for your case is to simply follow your instincts. If you have a bad feeling about the lawyer or just don’t feel comfortable with him or her, then follow that instinct and keep looking until you find a good lawyer that you are comfortable with. No lawyer is a good fit for every client. Sometimes personalities just don’t mesh and if you go against your intuition on this issue you are liable to run into problems in the future.

Follow these tips as you seek the best lawyer for your case and you will have a much better chance of finding the right attorney.

About the Author

Scott Morgan is a Houston divorce attorney and the founder of Morgan Law Firm. His firm has Texas offices in Houston, Austin, and Sugar Land. Scott is board certified in family law by the Texas Board of Legal Specialization.

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How Can I Receive Unpaid Child Support Owed to Me?

When a couple divorces, child support is just one of the many terms that is resolved. Child support is ordered by the court and must be paid if so ordered. Unfortunately, all too often child support goes unpaid for a period of time. When a parent is in arrears on child support payments, it certainly creates a frustrating situation. Without child support it can be difficult for the custodial parent to properly care for the children. There are some things that can be done to remedy the situation. In order to resolve the situation a court hearing must be requested. Both parents must attend the hearing, at which time a judge will review the child support order and determine whether there has been a violation.

Violation of Child Support Order

An order of child support is an official order. If child support goes unpaid, the parent is in contempt of court for failing to follow this order. The first step to take if child support has been unpaid is to speak to an experienced attorney. Your lawyer will review the information and will file a request for a court hearing. This is typically known as a “show cause” hearing. At the hearing, your attorney will present information showing that child support has not been paid and is in arrears. Both parents must attend this hearing. The parent in arrears of the support payments must explain why the money has not been paid. If the parent must show why the money hasn’t been paid and why the parent did not attempt to seek a child support modification. A modification hearing is required to make any changes to the amount of money paid in child support. Without a hearing, the parent continues to be responsible for the entire amount of the original court order.

What Can Be Done to Ensure Payment

In the court hearing the judge will review the information and speak to both parents. There are many things that can be done by the judge in order to enforce a child support order. Wage withholding is certainly the most common way to obtain child support payments. Many methods can be used to enforce child support orders including such things as:

• Interception of tax refunds
• Property liens
• Suspension of driver’s icense
• Report to credit bureau
• Wage garnishments
• Refusal of professional licenses

These methods are often employed as ways to make sure that current and future child support payments are properly made. Additionally, steps can be taken to require payment of back child support payments. When wage garnishment is used, it is done as a percentage of the paycheck, regardless of the initial amount of the support order.

What to do if the Parent is Missing

What happens quite often in these types of cases is that when a parent gets in serious arrears of child support payments he or she may simply move or become unavailable. When you can’t find the parent it can be very difficult to collect money owed. If your former spouse is missing it is essential to gather as much information together as you can. Your attorney will be able to present this information to the court so they may locate the individual. You’ll need as much data as you know such as the person’s social security number, date of birth, parent’s names, former employer’s names, former known addresses, and any other relevant information. It is essential to seek help in such an instance from an attorney. Your lawyer will work with you and will take the necessary steps to get you the money owed.

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