5 Things to Avoid During a Divorce

Divorce is an emotionally charged process.  When going through, people often do and say things they would, under different circumstances, normally not do or say.  They may lash out at their former spouse, not be completely honest with their attorney, or commit a host of other missteps that can negatively affect their lives and the outcome of their divorce.  Scott P. Davis, a Tampa, Fl divorce attorney, outlines a few of the most import of these mistakes that all parties going through a divorce should avoid.

Don’t Air Dirty Laundry on Social Media Sites

Bashing or bad mouthing your ex on facebook or twitter can lead to a host of unintended consequences.  Also, f you are hiding assets or other information from your spouse and talking about it on social media, it can be used against you in court. Don’t testify against yourself, keep it classy on social media.

Lead With Your Head, Not Your Heart

Again, a divorce is a difficult and emotional experience.  It can be frustrating, infuriating, and devastating all at the same time.  When making decisions, try and leave emotion out of it and truly think logically.

Stay Out Of Your Exes Email and Social Media Accounts

As tempting as it may be to snoop around and go through your former spouse’s email, it is illegal and can be used against you in court.  If the court needs the information, it can get access to it.

Do Not Be Unrealistic With Your Demands

It may be difficult to come to grips with, but the fact of the matter is that you simply can’t get everything.  If you want to be treated fairly, you may have to compromise on some of the issues.  Figure out what is most important to you and make decisions accordingly.

Don’t Hide Anything From Your Attorney

This is a big one.  Even if you think it may be damaging or you are embarrassed by it, do not keep anything from your attorney.  They can’t help you with what they don’t know and being blindsided in negotiations or in court can be damaging to the outcome of your case.

Under What Circumstances Can a Child Support Order be Modified?

San Jose Modification Attorney Aeschleman LawChild support is the court-determined monthly payment that the noncustodial parent pays to the custodial parent, to be used for the child’s expenses such as food, clothing, school and entertainment.

In accordance with the federal Child Support Enforcement Act of 1984, each state has developed its own guidelines to calculate the amount of child support to be paid in any particular case. There is a variety of general factors that are used nationwide to help determine the amount of monetary support to be paid.

Firstly, courts consider each parent’s current income including occupational wages, assets such as stocks and bonds, and welfare benefits. Other considerations that calculate child support payments include the number of children involved, specific needs of the child, needs of the custodial parent to support the child, day care expenses, and ability to pay and the child’s standard of living before the divorce or separation.

Child support payments may be modified over time for several reasons approved by the court. One legitimate reason for modification is a substantial change of financial circumstances due to a shift in either parents’ earnings, job loss or promotion, inheritance or any additional income from a remarriage. Changes in child’s expenses, such as high medical or dental expenses not covered by insurance, may also compel a child support modification for financial hardship purposes. Some child support orders include a cost of living adjustment (COLA), which provides that payments are to increase annually at a rate equal to the annual cost of living increase.

Another reason that may necessitate child support modification is a change in the parenting plan. For example, if the child goes from seeing the noncustodial parent only during weekends, to being in their care for an extended period of time, the noncustodial parent’s payments will probably decrease.
Many parents make the mistake of engaging in verbal agreements when modifying child support payment plans. The problem with oral agreements is that they are often vague and can lead to later misunderstandings and confusion. Parents who want to make modifications to their child support plan are encouraged to speak with a lawyer and have a court determine the amount to be paid.

Real Housewife of New York Files for Divorce

Bethenny Frankel and Jason Hoppy walking through the streets of New York with their 2 year-old daughter Bryn

It seems as though Bethenny Frankel will soon be an ex-wife of New York now?

The beloved reality star and successful businesswoman from Real Housewives of New York is calling it quits with husband Jason Hoppy, a pharmaceutical sales representative, after nearly three years of marriage.

The announcement was made via twitter just a few days before Christmas as Frankel expressed to the world, “To those of you who are being supportive: thank you. To those of you who are judging: I totally get it.”

The couple claims that they will continue amicably co-raise their two year-old daughter together and make her their first priority as they consider their separation to be on good terms and continually share much love and respect for one another.

Sadly, not all divorces happen with this much understanding between spouses. If you are going through a divorce, contact an experienced family law and divorce attorney who can help you through this difficult time as quick and seamless as possible.


Military vs. Civilian Divorce

Military vs. Civilian Divorce:

According to the U.S. census, civilian divorce rates across the country have been falling since the year 2000 while military divorces are becoming more and more frequent.  In fact, they have risen by 25% over the last ten years.

By the end of the 2011 fiscal year, 3.7% of marriages in which there was at least one service member, ended in divorce. This means that nearly a staggering 30,000 military marriages ended last year, the highest percentage since 1999. Enlisted women have been found to be twice as likely to divorce, as their divorce rates have reached almost 10%.

Stress is expected to be the most influential cause of military divorce. At the beginning of the war in Afghanistan, the military divorce rate was at 2.6% and has raised nearly a full percentage since then. While the service member is away, changes for each party can alter their definitions of normalcy. Service members may experience months or years of violence, only to be reintroduced to their growing families. Some military members find themselves unable to relate to their children who they come to learn they barely know, or their spouse who has learned how to live without them. Similarly, the husband or wife at home can go through hectic life changes while having to cope without present support.

There are differences to consider when comparing military divorce to civil divorce, in regards to rules regarding division of military pensions, residency requirements for filing for divorce, certain legal protections for the military member and emergency court orders pertaining to child support. One of the biggest dissimilarities that service members consider is the USFSPA (Uniformed Services Former Spouses’ Protection Act.) The USFSPA applies only under certain conditions (for example the marriage must have lasted at least 20 years) and allows states to divide military disposable retired pay as marital property upon divorce, including language about medical, commissary and exchange privileges. The service members Civil Relief act is another distinction in the process of military divorce. Under this act, military members are protected from lawsuits including divorce proceedings so that they can devote all of their attention to the defense needs of the nation.

Even with the high volume of military families in the state of Florida, not every divorce lawyer is able to help  military families through their divorce issues. As mentioned, military divorces, and child custody cases, come with a unique set of circumstances, especially when a service member is deployed.

Divorce can be stressful and tragic under any condition, and it is unfortunate that so many military members serving our country who return home to reunite with family wind up in a divorce.

Divorce vs. Legal Separation

All marriages have their ups and downs, but when pitfalls become more commonplace and a couple finds themselves in a position where major changes need to be made, many couples either opt for a legal separation or a divorce. While a divorce is a proceeding that legally dissolves a marriage and allows each party to go on to embark on separate lives and romantic relationships, a legal separation allows a couple’s marriage to remain intact while the parties live separately.

A couple becomes legally separated when they wish to remain legally married, but live separate lives. The parties separate and receive a court order regarding issues like the division of property, alimony, child support, custody and visitation. Alimony and child support for legally separated couples are gained through a motion “pendente lite,” which is Latin for “while the action is pending” or “during litigation.” This motion is more commonly known as a separation agreement, and exists to protect the parties’ interests until a final decision to file for divorce is made. Separation agreements are very relevant and important, as they take precedent in a divorce proceeding. In a divorce proceeding a judge commonly assumes that the parties were pleased with the separation agreement, and will assign divorce conditions accordingly by simply converting the separation agreement to a divorce agreement.

Far more uncommon than a divorce, couples usually opt for legal separation for religious, financial or personal purposes. Most religions frown upon divorce, so especially religious parties will choose a legal separation in order to continue on with their own lives while remaining married for religious purposes. In many cases couples can benefit financially from remaining married. Maintaining a ten year marriage qualifies couples to take advantage of certain social security benefits, and marriages in which one or more spouses is a member of the military have especially profitable options. Many other times a couple simply needs to test the waters in order to discover whether or not they would like to continue their individual lives on their own or return to the marriage.

An important aspect of a legal separation is that parties may not enter another marriage or domestic partnership. To file for separation, one party must reside in the county where the papers are filed at the time the case has begun. There is no required length of residency for a legal separation. If you are a Southern California resident facing the difficult decision of filing for legal separation or divorce, consult with a divorce attorney in San Diego, such as Tara Yelman of Yelman & Associates, who can help guide you on your path.

Zooey Deschanel and Ben Gibbard Finalize Divorce

Zooey Deschanel, the beloved and award winning actress from “New Girl” and “500 Days of Summer”, has finalized her divorce with indie rocker and Death Cab for Cutie frontman Ben Gibbard.

What seemed like the perfect match made in hipster heaven is now over after only 3 years.

The couple had no children together and according to reports had been separated for 2 months prior to the divorce.

Wednesdays court documents did not reveal how they planned to split the estate but did show that the couple felt they were to far apart to be reconciled by counseling or mediation.

Zoey and Ben sadly now make the ever growing list of celebrity marriages that just couldn’t work.

If you are going through a divorce make sure to contact an attorney specializing in high asset division divorce immediately who can get you through this difficult time and started on your new life as quick and seamless as possible.

Uniform Child Custody Jurisdiction and Enforcement Act

Multiple laws have been created to deter interstate parental kidnapping. The most relevant and comprehensive law that prevents “seize-and-run” situations in the United States is the Uniform Child-Custody Jurisdiction and Enforcement Act which was drafted in 1997. The UCCJEA compiles a set of rules regarding child custody and visitation, however it does not regulate child support.

Prior to UCCJEA, a parent could take their child to another state and get granted sole custody, and then the original state would have to abide by the ruling. This changed after UCCJEA passed. Before making a custody determination in any interstate case the court must have jurisdiction over the parties by giving notice to the other parent in the form of a “notice to appear” or a “summons.” The UCCJEA vests “exclusive and continuing jurisdiction” for child custody litigation in the courts of the child’s “home state.” There are four criteria that will be looked at when determining which state has jurisdiction under UCCJEA. They appear in order from the most simple and ideal to the most complex:

The “home state” is where the child is and has been living with a parent for 6 months or immediately prior to the filing of the proceeding, and extending for another 6 months as long as a parent remains in the home state.
If there is no home state, the state with a “significant connection” would be the next in line for jurisdiction. This will generally be the state in which the child is attending school.
“More appropriate jurisdiction” will be relevant when there is no home state, no significant connection or either of the previous mentioned have declined jurisdiction. This situation can arise in cases where one or both parents is a migrant worker.
“Vacuum jurisdiction” is when no other state can or will take jurisdiction.

Once a court has made a custody determination under any of the above jurisdiction requirements, the court will be awarded exclusive jurisdiction, meaning that the court will have sole jurisdiction over any further custody issues. It is important to note that although the wording “exclusive and continuing jurisdiction” is used in the UCCJEA, a court can decline jurisdiction if the location, since determined, has become inconvenient for both parties, or if there has been misconduct on the part of either parent. The UCCJEA also allows a court to issue temporary “emergency orders” when the child is present in the state that does not have jurisdiction, as long as the child is in danger and is in need of immediate protection.

Many child custody attorneys practice in a single state. If you are involved with an interstate child custody case it is imperative that you consult an attorney who is aware of all interstate laws and can help you understand your rights.

Divorce Related Tax Considerations

Jacksonville Divorce & Family AttorneyGoing through a divorce can be an emotional roller coaster leaving profound lasting effects on not only your relationship with your soon to be ex, but the surrounding people close to you. It’s a battle of who gets what and how much of it. There’s a third party, however, that might be the most difficult one to deal with, and that is Uncle Sam and his various tax repercussions that arise.

While married, a couple can file a joint tax return which in most cases results to lower taxes. With joint tax returns, instead of only being able to claim one exemption, you can claim one for yourself and one for your spouse. Usually, the only risk involved in filing joint tax returns is that any mistakes made by either spouse, both will be held responsible for. However, once the two of you decide to take separate paths, you no longer qualify for these joint tax returns and are now back to being single in the eyes of the IRS.

The effects of divorce on taxes do not end there. While married, you equally claim your children as dependents in order to receive tax exemptions, but when the two of you split-up, only one of the you is allowed to claim the children. The IRS says that the claiming parent must provide more than half of that person’s support in a calendar year, but if the divorcees can agree on alternative terms, the IRS will allow that as well.

The most notorious financial burden of divorce is alimony and child support. According to tax law, alimony is equated to receiving a monthly income by the receiving party, and is thus susceptible to being taxed. While the recipient pays a tax fee, the one paying gets a tax deduction whose amount depends on how much alimony they are paying. Child support, on the other hand, is completely tax-free for both parties and of no interest to Uncle Sam.

Going through a divorce is just as much a legal battle and it is an emotional one. While sometimes you cannot control your emotions, you can control how you handle the financial obstacles and IRS tricks. Finding the right attorney who can make sure that you are not just throwing money away can prove to be well worth the cost. Although you might be single in your love life, you should not be single in your legal one. Get in touch with the San Diego divorce lawyers at Yelman & Associates to find a partner in your battle with Uncle Sam and the IRS.

Child Custody on Halloween

Want to take the kids trick or treating?  Many times, a Standard Possession Order does not include a provision specifically for Halloween.  This can make Halloween extra scary for divorced parents who both want to spend time with their costumed boys and ghouls.

If Halloween doesn’t fall during your possession this year, you there are still alot of ways you can still share in the holiday fun. Setting up a Skype session or Facetime with your child in costume, surprising them with lunch at your child’s school if they dress up, or sending a Halloween balloon or cookie delivery. You can also celebrating before Halloween by making a trip to the pumpkin patch, carving jack-o-lanterns, or watching age-appropriate scary movies.  You can even through a neighborhood or family party before Halloween.

Some divorced families even put their differences aside for one night and go trick or treating together, although (depending upon your circumstances) this may not work for everyone.

If Halloween does fall during your possession time, make sure to take and send  lots of pictures of your child in costume to your ex.  They will want to see their children dressed up as much as you do.  Hopefully they will repay the gesture on a year when they have Halloween or another important holiday or event.  These small gestures can be huge in establishing and maintaining effective co-parenting and encouraging a healthy relationship with your child’s other parent.

For people who have not yet finalized their divorce, speak with your divorce lawyer as provisions can be included in your decree for special holidays that are not addressed by the Standard Possession Order, like Halloween, Easter, and the Fourth of July.

No matter what your relationship is like with your ex or what your decree says about Halloween, keep in mind that Halloween should be a fun holiday for your child and know that you, whether it is your day for possession or not, should have the ability to make that happen.  Happy Halloween and enjoy the candy!!


Florida and Equitable Property Division

Tampa Property DivisionGoing through a divorce is a difficult, chaotic, and sometimes painful process.  All you have to do is ask anyone who has been through one, and they’ll tell you just how tumultuous it can be. While it’s true that no couple ever embarks on the journey of marriage expecting things it to fall apart in the future, the reality is that, for many couples, it just doesn’t work out and they realize they would be better off alone.

Of all the points that can bring contention into the divorce process, the division of assets and property is usually the biggest one.

When couples get married, and as they grow through life together, they acquire assets.  The longer a couple has been together, the more complicated the division of assets can be. These can be physical items, such as property, stocks, bank accounts, 401ks, etc.  In high asset divorces, especially in Florida, dividing these assets can be very difficult.

Florida law dictates that assets are to be divided using “equitable distribution,” meaning that assets are not split straight down the middle, but rather are divided proportionately to each person.

This means that the division of assets is a more involved process, and can take a lot longer.  However, it also gives couples the ability to be flexible and work out deals that are more beneficial to both parties. For example, some couples will want to simply split the assets as close to 50/50 as possible, some couples will work out deals where one individual will receive most of the assets if they agree to monthly spousal support payments.

Depending on your personal needs and your situation, it should be possible to work out a deal that will benefit you as much as possible. Make sure that you discuss all of your needs and all of your finances and assets with your family law attorney, as they will need to have all the information if they are to help you properly divide assets.

Scott P. Davis, Family Law Attorney