FAQs
Family Law
While family law is mostly associated with the filing of a divorce or a child custody case, there are also many other types of cases that are covered by it. Family law cases can also include prenuptial agreements, alimony, child support, child time-sharing, and parenting plans (and their modifications), paternity establishment, father’s rights, restraining orders or orders of protection, adoptions, and dependency (CPS/DCF) cases.
Because family law cases often involve issues that are extremely personal and highly emotional, you should always be represented by an experienced family law attorney who will ensure that your rights and best interests are protected.
If you and your former spouse already have an established court order, but you do not feel it meets the best interests of your children, you may be able to modify the court order if you can show the court a substantial unanticipated change in circumstances.
If you are seeking any modifications to an existing court order, it is important to have a skilled family law attorney representing you to ensure that the best interests of both you and your children are met.
A “high-conflict” family law case is one in which the issues at question in the divorce or co-parenting agreement are unnecessarily litigious. High-conflict family law cases often involve “bad behavior” that a relatively normal person would not engage in—such as parental alienation, child abuse, false allegations of abuse, domestic violence, and other moral or ethical issues.
In a high-conflict family law case, the protection of your rights and best interests are generally at a greater risk than in other family law cases. You need specialized legal representation from a divorce and custody attorney who is experienced in handling family law cases that involve high-conflict issues.
You will need to file a petition to establish paternity. Once this is done, you are able to pursue legal action to establish time-sharing.
You should work with a family attorney who is experienced in paternity and father’s rights to assist you in establishing paternity and your rights as the child’s father.
When determining child time-sharing between the parents, the court will make the determination that they find to be in the child’s best interest. In Florida, the standard of the court is to assume that it is in the child’s best interest to have equitable time with both parents unless there are circumstances present, such as abuse, to prove otherwise.
Anytime you are establishing a time-sharing schedule or parenting plan, you should be represented by a custody lawyer who will ensure that your rights as a parent are protected, and the best interests of your children are observed.
The state of Florida recognizes there is a fine line they must balance between recognizing a parent’s right to move out of state for a legitimate reason and the other parent’s right to maintain a meaningful relationship with their child that includes regular time-sharing and visitation.
If you have a court order, you need to get permission from the other parent or the court before moving out of state.
Estate Planning
An estate plan is a detailed plan consisting of wills, trusts, power of attorneys, and other important legal documents that outline how an individual wants to have their assets managed and passed down upon their death or incapacity. It is common for people to assume the laws of their state will reasonably ensure that their assets are handed down to their surviving family members. While this may be true to some extent, the laws are designed around the belief of what is best for the general masses and do not account for your unique family situations or your personal desires.
Having a thoroughly prepared estate plan allows you to have the peace of mind of knowing your assets will be passed to those you wish in the manner you desire. It can also prevent disputes between family members, reduce stress for the entire family, and help minimize the impact of estate taxes. Each estate plan is unique to the individual it is designed for, so a lawyer should be consulted to determine the unique needs of your estate plan.
A will is a legal document that specifically outlines your personal wishes and desires regarding how your assets and properties will pass and to whom they will pass on upon your death. Your will specifically names the person you are entrusting to act as your personal representative or executor to ensure that your wishes are carried out. It can also specifically name your beneficiaries, provide funeral directions, assign a guardian to be responsible for the care of your dependents or pets, and your trustees.
A will protects your family from disputes and additional stress and ensures that your assets and properties pass ownership based on your wishes and not based on the judgment of the law. While there are a few do-it-yourself templates that allow you to make your own will, these templates typically don’t account for all the unique situations your family will need to include in a will.
Dying without a will is known as dying intestate. When this happens, the laws of Florida will determine how your assets and properties are managed and to whom they pass down. The courts will be responsible for distributing your property based on the law, not based on your own personal wishes, and this often leads to conflict and additional stress in the family.
State law is rarely able to account for the individual circumstance of a family, and it is likely that the way your assets and properties are handled by the courts and laws of the state will not match the way you would have directed for them to be handled if you had a will. This is why it is so important to have a skilled estate planning lawyer help you draw up a thorough and complete estate plan that includes a will.
It is very common for spouses to own major assets, such as their homes, automobiles, and even bank accounts, jointly with both of their names on the account. It is also common for elderly parents to add one or more of their children to their accounts to make it more convenient to pay bills and manage their accounts.
When you own joint property, that asset will pass directly to the other joint tenant named on the account automatically upon your death. Joint property is often one of the most contested items upon an individual’s death. Additionally, if both owners named on the account pass away, a will can outline how the account should be passed on.
It is important to work with a skilled estate planning attorney who can help you understand all of the legal implications of account ownership and create an estate plan that properly accounts for your wishes for these accounts.
A living will is a legal document that states your wishes for medical care and life-sustaining treatments if you become incapacitated or unable to express your own wishes. It can also be used to indicate your desire to be an organ donor and can name a representative who will be responsible for ensuring your wishes are carried out.
Having a living will be drafted by an estate lawyer can save your family and other close loved ones the heartache and stress of having to try to make these major medical decisions on their own.
A durable power of attorney enables you to designate another individual with the legal right to make decisions on your behalf. The durable power of attorney document should specifically list the rights and limitations your representative is allowed to take. It is important to remember that durable power of attorney is only effective while you are living, so you should ensure that you also have a thoroughly drafted will that designates a representative to handle your estate after your death. It is also important to know that the types of rights you are allowed to give a durable power of attorney may be limited by state law. It is always best to consult with a lawyer who has experience drafting a power of attorney to ensure that your durable power of attorney document is legally binding and enables your designee to make the appropriate decisions.
A trust is a legal document that acts similar to a will but with greater flexibility. It enables you to distribute your assets in a manner you see fit while you are living and after you pass away—and without your estate having to pass through probate court upon your passing. It can also enable you to control under what circumstances the assets and properties in the trust are distributed.
There are also different types of trusts, such as irrevocable trusts and revocable living trusts. It is best to work with a lawyer who is skilled in estate planning law and has experience working with all types of trusts to ensure that you choose the type of trust that is right for your needs and that it is drafted properly.
Probate Planning
It is sometimes possible to avoid the probate process by owning joint property, having assets that automatically pass on to a designated beneficiary, and transferring all other assets and properties into a trust to be distributed to your heirs upon your death.
The probate process is not generally designed to be a drawn-out process, and there is not always a real need or reason to avoid it. Additionally, it is not always realistic to structure assets and properties in a manner that will completely avoid probate. The truly important thing to focus on when estate planning is to ensure that the probate process will not be complicated by unnecessary objections and challenges to your will.
A skilled probate lawyer can aid you in completing a thorough estate plan that will either streamline or eliminate the probate process and can also help you through the probate process when it is needed.
The primary issues encountered during the probate process surround challenges of the validity of the will and determining who should inherit what assets and property.
If there are no will and no other estate planning documents, such as a trust, or if these documents were not drafted properly, then determinations of who should inherit what can be left up to Florida state law and the court’s interpretation of what the law allows. This is why it is so important to have the aid of a skilled estate planning lawyer to thoroughly draft an estate plan.
