Parent Education and Stabilization Course (aka Child First in Divorce)

The State of Florida requires all parties who have children who are divorcing (or if the parties were never married, but wish to establish custody, visitation, and/or child support, or a parenting plan) to attend a state approved Parent Education and Stabilization Course a/k/a Child First in Divorce. This class usually takes place on a Saturday and lasts about 4 hours. The class teaches parents how to adjust to the changes in their family and how to co-parent in a non-adversarial and nurturing way toward the children. This class is required by all judges in the State of Florida. If the class is not completed within 45 days of the service of the Petition, the judge may suspend or deny visitation of the parent who has not completed the class until the class is completed. The class is available online for those parents who do not reside within the State of Florida. The online class must be approved by the State of Florida and is only acceptable if the parent no longer resides in the State of Florida.

In Nassau County, this class is offered by McPherson Training Concepts in Yulee and Clear View Concepts in Fernandina Beach. Clear View Concepts is a new provider who has recently received certification and judicial approval. Both providers charge approximately $45 per person to take the course. Additional courses are available from each provider and may be taken as an option on an individual basis or ordered by the judge hearing the parenting plan case.

Other providers are located in Jacksonville, if those locations are more convenient for you. Click here for a state-wide list of providers, locations, fees, dates, and times.

Basics of Annulment

An annulment is when a party seeks to have the marriage to be determined as invalid.  In a sense, an annulment seeks to “undo” the marriage, as if the marriage never happened.  First, for an annulment to be considered by the Court, the marriage must have been a valid marriage.  Next, there have to be grounds (a reason for the Court to grant the annulment) that were present at the time of the marriage.  Grounds for annulment include:  1) lack of consent or capacity, 2) lack of intent to be bound by the marriage, 3) existence of bigamy or polygamy, 4) if the marriage is incestuous, 5) under the statutory age of consent, and 6) incurable physical impotence. 

 

Lack of consent or capacity

Each person must knowingly and voluntarily enter into the marriage.  The marriage may be annulled if one or both of the parties did not agree to enter into the marriage, were forced or coerced into the marriage, did not have the mental capacity necessary to understand they were entering into a marriage (although there are some additional issues when drugs and/or alcohol is involved), or the marriage was a fraud.

 

Lack of intent to be bound by the marriage

Each person must intend to accept the rights and responsibilities that come along with marriage.  If two parties marry solely so one can attain citizenship, this marriage may be annulled.

 

Existence of bigamy or polygamy

If either party has another living spouse, the marriage may be annulled.

 

Incestuous marriage

An individual cannot marry a direct blood ascendant or descendant such as a parent, sibling, or aunt/uncle, or cousin.  If your marriage would make your family tree a wreath, you probably can’t do it!

 

Age of consent

In Florida, the legal age of consent is 18.  If an individual is under 18, there are some exceptions.  If a party is married while underage and does not meet an exception, the married may be annulled.

 

Incurable physical impotence

If the other party is not aware of the incurable physical impotence before the marriage the marriage may be annulled.  If the individual is unaware of the incurable physical impotence until after the marriage; but consents or agrees to the situation, this is not grounds for annulment.

 

Defenses to Annulment

The defenses most frequently raised are that the charging party consented after the marriage, or ratified the marriage by their conduct or behavior. 

 

Alimony

Generally permanent alimony is not awarded; however temporary alimony while annulment proceedings are pending is possible.

 

Property Division

The Courts will try to put the individuals in the same position they were in prior to the marriage.

 

Note:  this article is a very general discussion of the grounds for an annulment.  Please contact my office for an appointment to discuss how the law may apply to your unique situation.

How military divorces are different from civilian divorces

Military divorce proceedings present many challenges that are generally not present in a civilian divorce.  These aspects include:

 

• locating the military member,
• service of process upon the military member,
• service of process abroad,
• the Servicemembers Civil Relief Act which may stay the proceedings against a military member;
• which jurisdiction to file the proceeding;
• determining the military member’s legal domicile,
• creating appropriate custody and visitation schedules (now included as part of a comprehensive parenting plan and termed time-sharing and parental responsibility),
• calculating child and family support,
• obtaining child support without a Court order,
• garnishment of wages through the military pay system; and
• pension and property division including the Uniform Services Former Spouses’ Protection Act, calculating the military member’s vested time in the military and the spouse’s vested time for benefits, reenlistment bonuses, accrued leave time, military medical benefits, military commissary and exchange shopping privileges, and military ID cards. 
• A new benefit, worth up to $85,000, will become an issue on the near horizon.  Military members can transfer some of the G.I. bill benefit to their spouse and/or children.  What if a spouse takes advantage of this benefit, receives an education at the service member’s expense, then files for divorce? 

To discover how these aspects of military divorce affect your unique situation, please contact my office at (904) 321-0987.

Divorce and Bankruptcy

Bankruptcy During Divorce
by Sherrie Bennett
(from lawyers.com)

If you think you’re headed for divorce and have a lot of debt between the two of you, it might make sense to file for bankruptcy before starting a legal divorce proceeding. Filing bankruptcy first can simplify the divorce by clearing out some of your debt. This can make it easier to negotiate how the remaining debts should be divided, and protect you from your soon-to-be-ex’s bankruptcy filing down the road.

Also, you and your spouse might want to consider filing a joint bankruptcy before the divorce. Not only will this make the final division of any remaining debts even easier, but filing a joint bankruptcy is cheaper than filing two separate ones.

In either event, bankruptcies and divorces have serious impacts on each other, especially with respect to your property and personal finances.
Effect of Bankruptcy on Divorce

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

When you or your spouse file a bankruptcy, an automatic stay immediately prevents creditors from collecting on most debts. But the automatic stay doesn’t prevent you from asking a divorce court to order your spouse to pay child support or alimony.

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

Some examples of federal exemptions include:

* A specified dollar amount for real property that is for his or her residence, and
* A specified dollar amount for one motor vehicle, such as your primary car

Property Settlements and Bankruptcy

Negotiating a property settlement in the midst of bankruptcy is complicated. Debts related to a property settlement are presumed to be “nondischargeable” in bankruptcy, meaning that the person who files bankruptcy can’t have those debts wiped out and must still be responsible for them. But the bankruptcy court will wipe out those debts if the person filing for bankruptcy can show:

* That he or she can’t pay the debt and still take care of him or herself and any dependents, or
* That wiping out the debt would result in a benefit to the person filing the bankruptcy that outweighs any harm done to his or her former spouse or child by nonpayment

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

How do bankruptcy courts decide what’s support and what’s property settlement? It varies greatly by state, but courts have based their decisions on such questions as:

* Does the obligation terminate or reduce with the occurrence of certain events, like remarriage or a child turning 18?
* Is the obligation in installments or a lump sum?
* Are there minor children?
* What is the relative health and education of the parties?
* Was there a need for support at the time of the divorce?

If your bankruptcy hasn’t been filed yet, these distinctions and problems probably won’t effect you. For many bankruptcies filed on or after October 17, 2005, any obligation between former spouses can’t be dischargedin bankruptcy. So, a spouse with an alimony and/or child support obligation can’t have that obligation discharged in bankruptcy if the bankruptcy petition was filed on or after October 17, 2005.
Property Liens

One way to protect yourself in a divorce negotiation if you think your spouse may be contemplating bankruptcy in the future is to take a security lien as a backup to debts your spouse is to pay you after the divorce. The lien should be on property your spouse is to be awarded in the divorce, preferably property that means a lot to your spouse. That way, if your spouse later asks the bankruptcy court to discharge the debt he or she is supposed to pay, you can seize the property to pay the debt.
Indemnity Clauses

Another precaution in the face of a soon-to-be-ex-spouse talking about bankruptcy is to have a “hold harmless” or “indemnity” clause written into the divorce decree, requiring your spouse to pay certain debts or repay you if a creditor makes you pay the debt. If your ex-spouse later files bankruptcy, you can go to bankruptcy court and ask the judge to enforce the indemnity agreement. While an indemnity agreement won’t guarantee you’ll get paid, it’s one more factor for the bankruptcy judge to consider.

As you can see, the issues of going through divorce and bankruptcy at the same time are confusing at best, and highly damaging at worst. If you find yourself in this position, it makes sense to find a bankruptcy lawyer who can help you with all the issues.

Tips to Avoid Mistakes Women Make When they Marry

Here are the highlights of Lenore Skomal’s article, “Finances:  Tips to Avoid the Top Seven Mistakes Women Make When They Marry.”  Some of these may be more “doable” than others, but these tips offer your best protection.

1. Take charge of the finances and have a workable budget.
2. No joint anything–especially accounts.
3. Don’t give up your potential to earn money.
4. Know your property rights.
5. Save for retirement.
6. Have a will.
7. Understand the tax forms you sign.

Go here for the full article.

Divorce, Children, and the Holidays

The holiday season is particularly difficult for children whose parents are divorced, especially the first post-divorce holiday season.  Abby Deliz’s article “Helping Children of Divorce Cope During Holidays: Tips for Divorced Parents to Survive the Holiday Season,” discusses how the children may feel and tips to help your children deal with the situation, including:

• Don’t overindulge the child with too many gifts
• Parents shouldn’t compete with each other over who gets to give the “better” gift
• Have a set holiday schedule that the child knows about in advance
• Make new holiday traditions
• Set a positive example by getting along with your ex and allowing your child to visit both parents

Please see the entire article for more on the emotional health of your child during the holidays and more tips!

Divorce Mistakes and Tips

Divorce Mistakes and Tips

1.      Don’t use your children as pawns

2.      Don’t start a new relationship first, then put your divorce second on the “to-do” list

3.      Not hiring an attorney

4.      Using verbal abuse

5.      Rubbing salt in the wound

6.      Using a difficult attorney

7.      Becoming passive

8.      Arguing over who gets what

9.      Serving spouse with divorce papers in embarrassing places

10.  Responding with anger

11.  Not knowing (liquidity) of assets

12.  Failure to consider tax consequences

13.  Not understanding retirement accounts

14.  Overlooking debt and credit rating issues

15.  Not maintaining control over insurance policies

16.  Failure to budget (lifestyle; alimony, child support, etc.)

17.  Failure to identify hidden assets

18.  Negotiating w/o a proper inventory

19.  Letting friends tell you what you need or how to feel

20.  Trying to win spouse back by being generous

21.  Viewing divorce filing as “scare tactic” and therefore, not serious

22.  Being unprepared

23.  Not seeking financial advice

24.  Rushing to court

25.  Failing to untangle your assets

26.  Not considering mediation

27.  Emotional attachment to assets during divorce negotiations

28.  Using your divorce lawyer as a financial planner, therapist, or messenger

29.  Beware of settlement offer that looks too good

30.  Forgetting to update Estate documents

31.  Is there a Power of Attorney, living will, etc. involved

32.  Being in a hurry to settle, for unfavorable terms

33.  Taking advice from lay people

34.  Hiring a lawyer who is not a good fit personally

35.  Hiring a lawyer in a hurry

36.  Getting stuck on minor details, or alimony

37.  Not keeping accurate records of child support payments

38.  Doing a quick and sloppy job on financial records

39.  Neglecting the kids

40.  Not taking outside consultants seriously

41.  Talking too much

42.  Concealing information from your lawyer

43.  Becoming consumed by your divorce

44.  Not seeking emotional counseling

45.  Making unreasonable demands

46.  Making recorded statements to others

47.  Speaking with Opposing Counsel

48.  Not taking your attorney’s advice

49.  Not keeping a parenting notebook

50.  Involving your children in the divorce proceedings

10 Tips if Divorce is Imminent

1.    Consult an Attorney

Make sure you know what your rights and obligations are.  Be aware of how your behavior could affect the outcome of any potential divorce proceedings, i.e., should you move out of the marital home?

2.    Copy Documents

Make copies of everything you can find: tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits handbooks, life insurance policies, medical/dental insurance policies, mortgage documents, applications for credit, deeds and titles to property, financial statements, credit card statements, wills, social security statements, automobile titles, any prenuptial or postnuptial agreements between the parties, documentation of any child support either spouse already pays, etc.  Remember to check the home computer for additional documentation.  Florida requires certain documents be disclosed in all divorce proceedings.  Find that list here.  It is easier to obtain these documents before you separate than after.

3.    Inventory Household and Family Possessions

List the major items: furniture, artwork, jewelry, appliances, automobiles, etc.  Did you forget about anything in storage or that someone else is holding for you or borrowed from you?

4.    Know the Household Budget and Expenses

Examine and record where every penny goes.  This is important to determine if there are temporary needs while the divorce is pending and to determine the amounts owed between parties when negotiating a settlement or final judgment.

5.    Determine How to Manage Family Debt

Try to pay down any debt you may have if you can before divorce.  Division of debt is often a sticking point in divorce proceedings.  Cancel credit accounts if one spouse is too willing to whip out the credit card for unnecessary items.

6.    Find Out Exactly What Your Spouse Earns

Gain this information through paystubs, other documents, or casual conversation with your spouse’s business partner.

7.    Make a Realistic Appraisal of Your Earning Potential

What is a realistic view of your earning potential before and after the divorce?  Will some changes need to be made here?  If you have been a homemaker for a lengthy period of time, will education help you become self-sufficient?  Will your work schedule or location be effected by your divorce and your ability to care for your children?  What child care needs should be considered?

8.    Examine Your Own Credit History

Either establish or reestablish credit in your own, individual name.

9.    Build a Net Egg of Your Own

Try to have access to your own money in case your spouse stops paying the household expenses or bills during the divorce proceedings.  You may also need additional money for an attorney’s retainer, security deposit on a new residence, deposits on utilities, costs of moving, etc.

10.  Put Your Kids at the Top of Your Agenda

Divorce is not about you or your spouse when children are involved.  Children generally have no choice in the matter and their needs and wellbeing should always be your first concern.  Keep their routines as normal as possible, don’t argue in front of the children, don’t bad-mouth the other party to the children, stay involved with your children and their activities as much as possible, and don’t use your children as your sounding board, psychologist, attorney, or counselor! 

Source for some information here.

Forced to Divorce to Receive Medical Care

A couple had been married over 50 years but were forced to divorce so the wife could qualify for Medicaid to pay her $2,800 per week chemotherapy treatment.  This couple is not alone, many otherwise happily married individuals are divorcing simply so they can qualify for medical coverage. 

Source:  “Medical Costs Force Couples to Divorce,” by Suevon Lee, Ocala Star-Banner.

Protecting Yourself From a Dangerous Spouse During Separation

1. Have a plan and a safety plan
2. Have a support group in place
3. Consider an order of protection

For help with all of the above, contact your local domestic violence project.  Most domestic violence projects have trained, certified counselors on staff who can attend to your special circumstances and help you safely plan the best strategy for you.  The staff can help you develop a safety plan, provide individual and group counseling, and many projects have court advocates to assist you with the order of protection paperwork.  Most or all of the above services are often free of charge!

NOTE:  Be aware that your abuser may be tracking your internet usage with cookies!

Nassau County, Florida:  www.micahsplace.org or hotline 1-800-500-1119.

Duval County, Florida:  www.hubbardhouse.org/hh or hotlines:  (800) 500-1119 or (904) 354-3114.

Nationally:  National Coalition of Domestic Violence www.ncadv.org 1-800-779-7233.