Probate

The court process by which a Will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.

When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a Personal Representative to distribute the decedent's property according to the laws of Descent and Distribution. These laws direct the distribution of assets based on hereditary succession.

In general, the probate process involves collecting the decedent's assets, addressing creditors, paying necessary taxes, and distributing property to heirs.

Probate of a Will

The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent's property to the heirs according to its terms.

As a general rule, a will has no legal effect until it is ratified by the Court.  A will should be probated immediately, and no one has the right to suppress it. The person with possession of a will, usually the personal representative or the decedent's attorney, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time.

Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in a another state, the will disposing of these assets must also be probated in that state. To qualify as a will in probate, an instrument must be of testamentary character and comply with all statutory requirements. A will that has been properly executed by a competent person—the testator—as required by law is entitled to be probated.

As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a properly proved copy or duplicate of a will that has been lost or destroyed is presented to the court, it may be admitted to probate. A thorough and diligent search for the will is necessary before a copy can be probated as a lost will.

A codicil, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to statute.

Proceedings

A probate proceeding may involve either formal or informal procedures. Small estates may benefit from an informal and abbreviated probate proceeding.  However, a probate proceeding may be switched from informal to formal during the course of administration, if issues so warrant.

The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will.

Guardianship of Minor Children

Wills often contain instructions on who should be appointed legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.

Collaborative Family Law Promotes Divorce with Dignity

Divorce can be a confusing, complicated, and stressful time for military couples. However, gaining a general understanding of how this process works, while seeking to identify the specific issues that may apply in your case, can greatly reduce the time, expense, and emotional strain of a divorce. While you will largely follow the same process and procedures as a civilian couple when filing for divorce, there are unique legal issues which may apply result of military service. These issues may include determining the custody of children, calculating child and spousal support, and determining if any post-divorce benefits apply.

While divorce is largely governed by state law and local procedures, depending on where you file, there are certain federal statutes and military regulations which may be applicable to your divorce. Examples include the Uniformed Services Former Spouses' Protection Act, which can affect how disposable military retired pay is divided between the service member and former spouse, as well as determining eligibility for continued medical, commissary, installation exchange, and other benefits.

Overview

Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander's authority is limited, absent a civilian court order.

Service members and their spouses have access to military legal assistance services at no cost through the installation legal assistance offices. In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in the representation of both parties. Communications between a client and a legal assistance attorney are private, confidential and are generally covered by the attorney-client privilege. While military legal assistance attorneys may not be able to draft specific court documents or represent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills.

Legal assistance offices also provide notary services free of charge. For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.

Servicemembers Civil Relief Act protections related to divorce proceedings

The Servicemembers Civil Relief Act helps protect service members' legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.

In regard to divorce proceedings, service members may obtain a "stay" or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment. This is not an automatic right, and a military judge must find there good cause to do so, based on the justification provided by the military member.

The Servicemembers Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant's interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.

The impact of a divorce on children's eligibility for medical benefits through TRICARE

In addition to parenting issues and support,  another topic to address as part a divorce is deciding who gets what; whether assets or debts.  . Property covers both real property, such as your home, and personal property, such as household items or cars.

Equitable Distribution

Florida courts divide a couple's assets in an ''equitable'' (fair) manner, called equitable distribution. Equitable is what is fair to both spouses, and fair may not mean equal.

Florida statute 61.075 gives the factors courts use in deciding what is "equitable." Factors include:

• a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
• (b) The economic circumstances of the parties.
• (c) The duration of the marriage.
• (d) Any interruption of personal careers or educational opportunities of either party.
• (e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
• (f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
• (g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
• (h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
• (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
• (j) Any other factors necessary to do equity and justice between the parties.

Before deciding how marital property is to be shared, the Court must determine what property is marital and what is the non marital property of each spouse.  Your attorney will work with you to identify what assets and debts are subject to distribution between you and your spouse. 

Property Settlement Agreements

If you and your spouse can agree on how to divide your assets, whether it follows Florida’s guidelines or not, your lawyers will write up a formal agreement called a ''property settlement agreement" or a "marital settlement agreement" (MSA).. Detailed lists of who gets what are included in this agreement.

Often, a voluntary property settlement is preferred to having the court decide those issues. There's no way to predict or guarantee how a court will decide property division issues, so many couples prefer to work out a property settlement on their own.

The language of a settlement agreement is important- a poorly worded agreement may be unenforceable, and not worth the paper it’s written on.  An attorney’s involvement in drafting and reviewing the agreement is vital to ensure that you get what you agree to.  Do read the property settlement agreement carefully, and ask your lawyer about anything you don't understand. Once an agreement is signed and approved by the court, it's likely be difficult and expensive to change.

Taking a Property Inventory

Before you can negotiate aproperty settlement, you need to know what there is to divide. . One of your first tasks, even if you're thinking about a divorce, is to make a property inventory. It's vital to list all property you and your spouse own. Don't try to hide assets as it will only complicate dividing your property.

Property Transfer After the Divorce

As soon as the property settlement is approved or the court finalizes the divorce, you'll want to take care of the details of the property transfer. This includes preparing and signing the documents needed to transfer ownership.

While it may be the last thing you want to do, taking care of these details will save future trouble and make it easier to gain closure on this chapter of your life.

Restraining orders, often also called protection orders, are orders issued by judges that tell people to do or not do certain things. They can be used in non-criminal situations, such as telling property owners to stop activities that constitute a public nuisance and directing parties in a civil lawsuit to leave each other alone. Restraining orders in a civil context may also be called temporary injunctions (which can become permanent injunctions).

How Are Restraining Orders Issued?

In a typical situation, a victim applies to a judge for an order directing the aggressor to do a specific act, back off, or stay away. It is not uncommon for a party in a divorce or family law case to seek an injunction.  The two cases are separate, but related, and having a qualified attorney who can handle both cases may save you time and money.   

What does the applicant need to prove?

People who ask for restraining or protective orders need to convince the judge that they’re necessary to prevent continuing or imminent harm. In a domestic violence situation, for example, the victim (the petitioner) supplies a sworn statement alleging facts that support a claim of serious and/or imminent harm, which enables a judge to issue a temporary order then and there, without notice to the object of the order (the respondent). After the respondent receives notice and within a few days, the judge will hold a hearing to determine whether to make the restraining order final.

At the hearing, the plaintiff must prove the truth of the allegations (by a preponderance of the evidence, not the stricter standard of beyond a reasonable doubt).

How long do protective orders last?

Most protective orders set a time limit on the duration of a final order (though extensions can be granted).  But even final orders can be modified if either party asks the judge to do so (and if the judge agrees).

How Are Restraining Orders Enforced?

Contempt can only come into play after a court has issued judgments, orders or decrees to govern the behavior of the parents, which it can do at any point during the divorce proceedings. Once a court has issued such decrees, it is important for you to observe them to the best of your ability and, at the same time, to take note of any potential violations on the part of your ex-husband/wife or former partner. Courts have been known to take it personally when a parent disregards their orders.

If an attorney and his client can produce evidence that their opponents have willfully disregarded a court decree, then they can “make a motion” or “move” for a contempt ruling.

If the court goes on to rule for contempt, then it can hand down new or modified decrees binding the parent whom it has found to be in contempt.

Conditions of Contempt

Technically, a contempt action is appropriate anytime a party “contemptuously” violates any provision of the decree. As a practical matter, however, the violation or violations should be significant.

To find a party guilty of contempt, the court cannot simply conclude that the accused party did not act in accordance with the decree. The court must also conclude that the accused party did have the ability to comply and therefore violated the decree both deliberately and without good reason.

It is then up to the accused to present evidence that he or she did not have the ability to comply or that it was an “honest mistake.”

Consequences of Contempt

Of course, the evidence for a contempt ruling often does exist, and if you and your attorney can produce it, you will substantially improve your case. In fact, your attorney will often file a motion of contempt in tandem with a motion to modify.

Bear in mind that an initial contempt is a civil (not a criminal) offense, so the court can only hand down orders designed to stimulate your husband/wife’s compliance, not simply to punish him/her.

Still, to stimulate compliance, the court has a whole range of remedies that you can request, ranging from a simple warning to incarceration to attorney’s fees to compensatory custody time (and more).

In other words, contempt can be a very powerful tool. It simply requires evidence.

What is Modification of Decrees?

Post-decree modifications of court orders are a part of life in family law.  Sometimes things don’t go as they should.  Sometimes the court orders that used to work just don’t work anymore.  Perhaps the court heard all the evidence, and didn’t rule in your favor, but things have changed since then.  Perhaps you made an agreement with your ex, which the court made an order, but now they aren’t holding up their end of the bargain. Perhaps the needs of the child have changed and your ex can no longer meet the child’s needs, or perhaps your ex has changed and they can no longer parent your child properly.  Whatever the reason, if you have had a change in circumstances, it may be time for a change in your custody, visitation, shared parenting, child support or spousal support orders.

Quattrone Family Law knows that in Tampa, post-decree modifications are not simply another bite at the apple.  You need to know what the law requires to get the changes you want, and you need to have evidence to meet your burden of proof. Evidence comes in many forms, including exhibits and testimony, but your evidence must be admissible under the Florida Rules of Evidence.  Each Florida Family Law Attorney at our firm has the experience to provide you with advice regarding the law, your evidence, and the strengths and weaknesses of your post-decree modification case.

At Quattrone Family Law, we believe in straight talk.  If we think you don’t have your ducks in a row yet, we’ll tell you.  If you have a case, but need some help understanding what is evidence, what is not, and how to start collecting your evidence, we’ll help you with that.  We know that preparation is the key to success, and we want you to be involved in preparing your case.  The best results are achieved when the client participates in the gathering and organization of his or her case and evidence.

Many people have been led to believe there is an advantage to filing a divorce complaint first.  That's not the case.

The difference in being the party who files for divorce and being the party is who is served with divorce papers is negligible and one thing you needn't worry about.