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Quattrone Family Law

Quattrone Family Law

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Wednesday, 09 March 2016 00:00

Probate Law

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, liquidating liabilities, paying necessary taxes, and distributing property to heirs. Probate procedures are governed by state law and have been the subject of debate and reform since the 1960s. The Uniform Probate Code (UPC) was first proposed in 1969 by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the American Bar Association. The prime focus of the UPC is to simplify the probate process. The UPC, which has been amended numerous times, has been adopted in its entirety by 16 states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. The other 36 states have adopted some part of the UPC but still retain distinct procedures.

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 probated. 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 document is testamentary when it does not take effect until after the death of the person making it and allows the individual to retain the property under personal control during her or his lifetime. A will that has been properly executed by a competent person—the testator—as required by law is entitled to be probated, even if some of its provisions are invalid, obscure, or cannot be implemented.

A will made as a result of Fraud or Undue Influence or a will that has been altered so that all its provisions are revoked will be denied probate. If the alteration only revokes certain provisions of the will, the remaining provisions can be admitted to probate.

All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.

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. Some states have special proceedings to handle such occurrences. 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. If it is complete in itself and can stand as a separate testamentary instrument independent of the will, the codicil alone can be admitted to probate. A codicil that has been subsequently revoked by another codicil is not entitled to probate.

A will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements. A translation usually must accompany the will.

Proceedings

A probate proceeding may involve either formal or informal procedures. Traditionally, probate proceedings were governed by formal procedures that required the probate court to hold hearings and issue orders involving routine matters. Consequently, the legal costs of probating an estate could be substantial. States that have adopted the UPC provisions on probate procedures allow informal probate proceedings that remove the probate court from most stages of the process, with the result that informal probate is cheaper and quicker than formal probate. Most small estates benefit from an informal probate proceeding.

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. In states governed by the UPC, the personal representative must elect whether to proceed with formal or informal probate at the time of filing. However, a probate proceeding may be switched from informal to formal during the course of administration, if issues so warrant.

In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it will be declared void, and the testator's property will pass according to the laws of descent and distribution.

When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of "self-authenticating" wills. These wills contain a statement signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the personal representative of costly procedures if the witnesses are unavailable.

If no one objects to the will at the hearing, it will be admitted to probate.

Informal probate proceedings generally do not require a hearing. The personal representative files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent's creditors have been paid, and the estate's assets have been collected, appraised, and distributed to the designated heirs.

Contested Probate Proceedings

The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.

Will contests are concerned only with external validity, such as failure of due execution, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the instrument be a will. Issues of internal validity, such as violation of the Rule against Perpetuities, must be raised in proceedings at a later stage of administration. Although a will has been probated as a genuine expression of the testator's intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribution if the testamentary provisions violate the law.

Only a person having some interest that will be affected by the probate can contest it. Such persons include next of kin who will receive property if the will is set aside and intestacy results, purchasers of property from the heir or heirs, administrators or personal representatives under prior wills, and the state, if there is a possibility of Escheat, which means that the government will receive the property if no living heirs can be found. Creditors, however, generally are not entitled to contest the will of a debtor.

A personal representative must defend the will against attack and must employ his or her best efforts to have it sustained if he or she reasonably believes that the will is valid.

Methods by which a will can be contested generally include a contest in the court having jurisdiction over probate, an appeal from the order granting or denying probate, and separate actions to set aside the order granting or denying probate.

There is no constitutional right to trial by jury in probate or will contest proceedings. Most states, however, have statutes making a trial by jury available in a will contest. Statutes usually impose time limits on the institution of will contests.

Agreement not to Contest

A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the contract is supported by consideration—something of value—and the agreement is otherwise valid, the heirs will be prevented from contesting the will. The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will. States vary as to the remedies a party to an agreement not to contest a will has upon breach. These include an Injunction against the prosecution of the contest, an action at law for damages, or a defense to the contest.

An agreement among heirs and beneficiaries not to contest a will is a way to avoid a costly will contest proceeding. The heirs and beneficiaries negotiate a settlement that may defeat the intention of the testator in how the assets are distributed. A settlement will be valid if all interested parties agree, but it must not exclude anyone entitled to property under the will. Under some statutes the compromise or settlement must be submitted to the probate court for approval.

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.

Right of Review

A right of appeal from a probate decree is given to any person who would suffer a direct financial loss as a result of the decree. The appellate court is restricted to a consideration of the questions presented to and determined by the lower court. An issue not presented to the probate court usually will not be considered.

Monday, 29 February 2016 00:00

FAQ

  • What type of motion, objection, appeal? Can I file an objection to the ruling and a stay of execution to the ruling of the judge?

    I went to court on Jan. 8, 2015. I do not agree with the judges final decision nor is the paperwork consistant with the parenting plan that was submitted. The attorney did not get alot of it correct and it is being submitted to the court for signature. What should I do?

    Melanie’s Answer

    on Jan 7
    Not sure if there is a typo in your submission- if you had a hearing on 1/8 of last year, it would be highly unusual for the order to be submitted a year later. You should consult with an attorney as soon as possible.- the matter may well be time sensitive.

    Read More
  • How do i stop paying child support for a child that is not mine?

    I took a home DNA test for a child that was suppose to be mine and it came back that she wasnt. I am currently paying child support for her.

    Melanie’s Answer

    on Dec 1, 2015
    I agree with the previous answer- you should speak with an attorney about the details of your circumstances, as they will greatly affect the likelihood of whether you would be able to disestablish paternity. I also agree that a home test will not suffice in disproving that she isn't your biological child.

    Read More
  • What should I do try & settle out of court or go to court?

    i'm currenlty in the process of starting court in order to try & stop my childs mother from leaving florida & moving to hawaii with her new husband who's in the navy. currently i pay $530 a month for child support & $260 a month for daycare. shes stated in a deposition that when she gets to hawaii shes not going to be working she going to continue going to school. she is also trying to increase the amount of child support i pay. my question is what are the odds that she has to stay in florida & if my child support increases about how much would it increase? i make $24.12 & work overtime sometimes.

    Melanie’s Answer

    on May 21, 2015
    An assessment of the odds that relocation will be granted and how much your child support might increase can't be made from the limited information provided. The factors considered in whether to grant a relocation are contained in florida statute 61.13001. If she relocates and your time sharing % decreases, it could affect the child support. You should consult with a family law attorney in your area and discuss the details.

  • How can we go about getting our daughter last name changed?

    Another person is on the birth certificate that is not the biological father in which a test proved. I am currently married to the biological father and we are wanting to remove the name and add my husband name and also change our child last name as well.

    Melanie’s Answer

    on Apr 16, 2015
    I agree with the previous submissions. You may have to include/address the man who is listed on the birth certificate in the name change, but you also might be better served by seeking a different form of legal relief and have her name changed via that process. You should consult with a local attorney about the matter to determine your best course of action.

  • Visitation

    What is the minimum visitation a father gets. My ex never was part of my son's life. Now because the DOR is going after him for unpaid support he's trying to get more custody to either get even with me or pay less money. Let me add I have a 5 year injunction. He can see our son but can't go near me. Would a judge give him shared custody? Oh and our son is on the autism spectrum. I'm very worried.

    Melanie’s Answer

    on Mar 31, 2015
    I agree with the previous submissions- there is no minimum time sharing. Determinations are made on a case by case basis. You should consult with an attorney in your area.

  • What if the other party can not be served?

    My x husband is in the middle of places so there is no address for him other than a work address. What if he can not be served before court date? Can I serve him the papers myself?

    Melanie’s Answer

    on Mar 25, 2015
    I agree with the previous submissions. I strongly encourage you to seek legal counsel in your area. Although I don't know your circumstances, service is generally one of the more straight forward matters in a case. I expect that you are going to have many other questions during litigation and would likely benefit from legal assistance.

  • Will a judge take away my timesharing over Extracurricular Activities.

    My ex signed my son up for sports with out even asking me first. I have him every Saturday. I went ahead and did that season but asked her not to sign him up for the following season since I have made family plans. (I do have other children) But I would consider doing it again the season after next. And games were every Saturday. Well she signed him up with out any regards to what I have asked and demanded me to take him on my time. When I refused. She filed a petition to modify the final judgment as to timesharing and for the judge to force me to take him to activities, pay half of them and make her sole authority decision maker. Also filed a motion for contempt. Our final Judgment says NOTHING about extracurricular activities or the cost of them. Will a Judge actually take away my time? Will he make her sole authority decision maker and make me pay for them when I asked her not to sign him up?

    Melanie’s Answer

    on Mar 11, 2015
    It is certainly within the court's power to award her what she is asking for, if she shows that there has been a substantial change in circumstances since entry of the final judgment and that the changes requested are in the children's best interests. However, the relief requested seems a bit extreme based on the facts, although limited, that you provided. You should consult with an attorney in your area to discuss the matter and to protect your and the children's interests.

  • Sole custody of my son who also does not want to be with father ...

    My son father has been in an out of prison and before he went he was being abusive to me and now since hes out he is trying to see my son (he been out since aug 2013)I tried to bring my son to see him but when i did he argued with me an hit me in my mouth and said he would knock me out an took my keys to my car an he did this in front of my son , so when i finally got free to go i have not brung my son to see him and one time even threatened to kill me over the phone, so now he is talking about getting an lawyer to see my son but im scared and dont trust him he even told me he would he would take him and not give him back how can i get sole custody?

    Melanie’s Answer

    on Feb 25, 2015
    Selected as best answer
    You should talk to an attorney in your area immediately about the situation and your options. In addition to the family law issues raised by your inquiry, you may want to seek a protective injunction if is a potential danger to you and/or your son.

  • Can I request a letter from her doctor stating my ex's grandma doesn't have c dif?

    My ex has said his grandma has c dif and then he said she doesn't. Our 9 month old is supposed to start going to his home with which he lives with his grandma this weekend. I would like to request a written note from his grandma's dr stating she does not have c dif. He has refused to get a letter. I am very concerned since c dif is highly contagious.

    Melanie’s Answer

    on Feb 4, 2015
    You can ask for it, but you don't have any authority on your own to compel it. There is not enough information in your submission to give you guidance in the matter. Generally, if there is a court order regarding time sharing already in place, then it needs to be followed. You may be able to seek modification of it based on your concerns. If you were never married to the father and there is no order regarding the child in place, then you are entitled to make decisions on time sharing. You should consult with a family law attorney to discuss your circumstances and to determine your options.

  • I am a single mom of my 6 year old and I have no custody agreement and his father pays no financial support can I move out of FL

    I am being offered a better job in upstate NY plus this is where my 4 other children reside in addition to extended family. The cost of living is lower and the town that my children live in where I will be relocating Rouses Point, NY has practically no crime and just a safer place to raise my son. His father I know will not be like Sure go to NY but I am not sure if he will take it to the point to fight me over it, currently he pays no support we have no visitiation custody nothing on paper he is on the birth certificate, he takes our son about 6 days out of the month and 4 of those 6 days overnight. Where do I start, what are my rights? Can I leave the state of FL to move to NY without his premission? Desperate HELP

    Melanie’s Answer

    on Jan 27, 2015
    If you were not married and his paternity was never established, he does not have legally enforceable rights and you are entitled to leave the state with your son. However, he could then initiate a paternity action and ask that the Court require you to return your son to Florida. You should consult with a family law attorney about your specific circumstances and to determine your best course of action.

  • 1
Friday, 19 September 2014 00:00

Collaborative Divorce

Collaborative Family Law Promotes Divorce with Dignity

​Q: What, exactly, is collaborative family law, and how does it work?
A: Collaborative family law is a process through which the parties to a divorce and their individual attorneys commit to resolve all issues of the divorce by negotiated agreement without resorting to or threatening litigation. 

Collaborative law requires all parties—spouses and attorneys—to sign a collaborative law participation agreement, pledging to take a reasoned approach on all issues. All participants agree to create proposals that meet the fundamental needs of both parties and, if necessary, to compromise to settle all issues. After this agreement is signed, each spouse meets with his or her lawyer. Then, both spouses and their attorneys attend the first collaborative meeting. 
 
Almost all collaboration business is done in four-way meetings, with both attorneys and both parties present. Nothing happens in secret, and no one may threaten litigation, play games or take advantage.
 
The attorneys agree ahead of time NOT to file a contested divorce with the court. Rather, they agree in advance that they will withdraw from the case if it cannot be resolved out of court. This gives the attorneys a financial incentive to help resolve problems.
 
Q: What are the benefits and limitations of the collaborative process?
A: A collaborative process is less time-consuming, less expensive and less confrontational than a traditional adversarial divorce. Reducing such stress allows parties to focus on problem resolution. The parties’ lawyers represent their respective interests and can prepare all necessary paperwork, but the parties have more control over a collaborative settlement than a traditional divorce. The collaborative process is also more private than a contested divorce, which generates court filings, transcripts and hearings in open court. Where parties cannot work out differences, or do not value a negotiated solution, the collaborative process will probably not be effective.
 
Q: How do collaboration and mediation compare?
A: In divorce mediation, a neutral mediator meets with both parties to help them reconcile their differences, but provides no legal advice to either party. The mediator is not authorized to make any decisions on the parties’ behalf. Like collaboration, mediation works only when the parties intend to be reasonable and fair. Frequently, agreement on certain issues may be reached through mediation, while other issues are referred to a court proceeding or a binding arbitration. Mediators generally do not prepare court paperwork or appear in court with clients. Parties using mediation generally consult with their lawyers outside the mediation process. 

In collaboration, each party is fully and individually represented by legal counsel throughout the process. Collaborative attorneys can prepare all necessary paperwork and attend the required hearing where the divorce agreement is presented to the court for approval. The costs for collaboration and mediation are roughly comparable.
 
Q: How does collaborative law address technical issues like tax questions and property appraisals?
A: Most collaborative family law practice groups include non-lawyer members who are collaboratively trained financial professionals and can act as neutral advisors on tax and planning issues. Some groups also include, as adjunct members, licensed real estate appraisers who are committed to doing neutral appraisals so the divorcing couple does not have to pay for two appraisals as well as for two appraisers to argue in court.
 
Q: How does collaborative law tackle parenting issues?
A: Most collaborative family law practice groups also have non-lawyer members including psychologists, family counselors and child specialists or licensed independent social workers. Such an individual may act as a “coach” for a client who is struggling with the emotional side of a domestic case, or as a neutral child specialist who helps clients work out an effective, age-appropriate parenting plan.
Friday, 19 September 2014 00:00

Military Law

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.

Specifically, the courts will look to whether military service materially affected the service member's ability to take or defend an action in court. If the service member submits a written communication to the court showing:

  • How military requirements materially affect the ability to appear
  • The date when the service member will be available to appear, and
  • Communication from the commanding officer stating that duty prevents appearance and leave is not authorized, the court must grant a stay of at least 90 days. Because some state courts have strict requirements of what specific information must be contained in this notice in order to grant a stay, service members should promptly consult with a legal assistance attorney if they intend to make such a request.

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.

Uniformed Services Former Spouse Protection Act benefits related to divorce proceedings

The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of the exchanges and commissaries. For detailed information about this act and how it may impact your divorce proceedings, please read the article Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military.

Eligibility for military benefits

Whether you are entitled to commissary, exchange or medical benefits depends on the length of time you were married, the length of time your spouse served in the military and the number of years your marriage overlapped with his or her military service. To retain full military benefits and privileges upon divorce from a servicemember, you must meet the requirements of what is known as the "20/20/20 Rule."

20/20/20 former spouse: An un-remarried former spouse receives medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program if:

  • He or she was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment.
  • The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to actually be retired from active duty).
  • The former spouse was married to the member during at least 20 years of the member's retirement-creditable service.

Therefore, if you were married for at least 20 years, and your former spouse performed at least 20 years of service creditable for retired pay, and there was at least a 20-year overlap of the marriage and the military service, you are entitled to full commissary, exchange and health care benefits after the divorce.

20/20/15 former spouse: In the event that you cannot qualify under the "20/20/20 Rule," you may still be eligible to one year of transitional military benefits for purposes of military medical care only. Similarly, the 20/20/15 rule requires the former spouse to show three things:

  • The service member performed at least 20 years of creditable service;
  • The parties' marriage lasted at least 20 years;
  • The period of the marriage overlapped the period of service by at least 15 years.

Should these requirements be met, the former spouse will be entitled to retain TRICARE medical coverage, but only for a transitional period of one year. Unlike a 20/20/20 former spouse, a 20/20/15 former spouse will not have access to the military exchange, installation privileges or commissary privileges.

Effect of Divorce on Military Benefits

Unless you meet the strict requirements of the 20/20 Rule, you will not be eligible to continue using the commissaries and exchanges once your divorce, dissolution or annulment is finalized. Until your divorce is final you may retain your identification card and can continue to receive your commissary, exchange and health care benefits. Here are some additional issues for you to consider:

  • Installation housing. The service member does not have the authority to evict you; only the installation commander has that authority. By law, military family housing can only be occupied by service members who reside with their family members (with some exceptions). Each of the branches of service has regulations which require the family housing unit to be vacated usually within 30 days if the service member stops residing there or if there are no family members residing there. As a result, if you are separating from your spouse and you are not in the military, you and your family must vacate military family housing.
  • Health care benefits. If you are neither a 20/20/20 nor a 20/20/15 former spouse, you will not be entitled to any military health benefits after your divorce, dissolution or annulment is final. However, you can receive health care coverage through the DoD Continued Health Care Benefit Program, a premium-based temporary health care coverage program, for 36 months of coverage until alternative coverage can be obtained. Further information about this program is available on the TRICARE website.
  • Spousal and Child Support. Each of the military services has policies requiring service members to support family members upon separation in the absence of an agreement or court order. Please note these policies are designed to be temporary measures and that a commander's authority is limited without a court order. In order to receive alimony or child support you must specifically request that a civilian court do so. Additionally, you must send Defense Finance and Accounting Service an order from a court or child support enforcement agency that directs the government to pay monies for support or alimony.
  • State courts with jurisdiction over dependent children or a state agency with the proper authority can order child support payments. Alimony payments can also be ordered by the court and satisfied through a garnishment order submitted to DFAS. The allotment will go into effect 30 days after the notice was sent to the military member by DFAS. You must obtain the garnishment order from a state court over the military member and provide it to DFAS. An overview of the garnishment process is available on the DFAS website.
  • Child support can additionally be secured through what is known as a statutory allotment. Statutory allotments are initiated by a complainant parent, state agency, or private attorney, who can establish a support obligation greater or equal to two months.

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

When there is a divorce, the service member must update the information in the Defense Enrollment Eligibility Reporting System along with a copy of the divorce decree. After this information is updated, spouses are no longer considered dependents and lose their eligibility to continue receiving health care benefits through TRICARE.

Biological and adopted children of the service member remain eligible for TRICARE up to age 21 (or age 23 if enrolled in college) as long as the child remains a dependent child of the service member. Dependent children of the service member over the age of 21 (or 23 if enrolled in college) are eligible to purchase coverage through TRICARE Young Adult up to age 26. Stepchildren who were not adopted by the service member lose their TRICARE eligibility once DEERS is updated. Stepchildren may be eligible to purchase coverage under the Continued Health Care Benefit Program.

When both of the divorced parents are service members, you must decide together which parent should be the sponsor of the child's benefits. If an agreement cannot be reached, visit an ID card office for additional guidance on how to resolve the issue. If custody of your child is shared, and you and your former service member spouse live in different TRICARE regions, you should decide carefully which health plan option your child(ren) should use based on the amount of time they stay with each parent. If you need further assistance, contact your regional contractor.

Divorce in overseas locations

While service members and their spouses can file for divorce through overseas jurisdictions, the courts of the United States may or may not recognize the ruling. Generally, if either you or your spouse is domiciled in the jurisdiction that grants the divorce, and there is proper service and notice, then that court (foreign or domestic) will have the power to grant the divorce and the U.S. courts will recognize it.

You can avoid this potential issue by filing for divorce in a state, rather than through a foreign country. Military divorce laws allow service members and their spouses to file for divorce in either the state where the service member is currently stationed, the state where the service member claims legal residency or the state where the non-military spouse resides. When determining in which state to file, it is important to remember that the Uniformed Services Former Spouse Protection Act grants the power to divide the military pension in a divorce to the state where the service member claims legal residency. One caveat is if you own property, such as a house, in a foreign country. You may wish to consult your military legal assistance attorney or your civilian lawyer in such situations.

If you are living overseas when your marriage is terminated by divorce or annulment, you and your children (as well as your possessions) may be able to return to the United States (or your country of origin if you are foreign nationals) at the government's expense. Service members permanently stationed outside the United States may request early return of dependents, authorizing the return of command-sponsored family members and their household goods before the service member's tour ends.

Friday, 19 September 2014 00:00

Property Division

Behind child custody and alimony, another hotly contested part of divorce is deciding who gets what; dividing the property brought into the marriage as well as what you purchased jointly. Property covers both real property, such as your home, and personal property, such as household items or cars. Courts use many factors in deciding property division issues and final orders.

Community Property Division

In community property states, each spouse is generally entitled to half the property acquired during the marriage. This is the community property.

Not all property is community property. Spouses may have and keep their separate property. ''Separate property'' typically includes:

  • Property or businesses you owned before marriage
  • Gifts and inheritances received by you
  • Pension proceeds that vested before marriage

Ten states have community property laws. Alaska law allows couples to enter into community property agreements or a community property trust.

Equitable Distribution

In most other states, 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.

State laws give the factors courts use in deciding what is "equitable." Generally, factors include:

  • Marriage length
  • The work history and job prospects of each spouse
  • The physical and mental health of each spouse
  • The source of particular assets
  • The type of assets, and liquidity of the assets
  • Whether or not one spouse should keep the family home, or the right to live there for a time
  • Tax considerations

Property Settlement Agreements

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

Many states' laws spell out that 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.

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.

 

Breaking Down Property Division Issues

Whether you and your spouse agree on a property settlement, or have the court decide the issues, a lot of work and planning goes into this part of your divorce. The basic step of completing a property inventory and planning for tax impacts are important.

Taking a Property Inventory

Before you can nail down a property settlement, you need a big picture of what your assets are. 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.

Many lawyers have property checklists to help clients complete their inventories. You may be surprised about assets you may have forgotten about.

Tax Considerations

Generally, the property division in your divorce doesn't create tax consequences to worry about on your next tax return. The reason is that usually there's no federal tax gain or loss when a property transfer of is "incident to the divorce." This means that the transfer:

  • Happens within a year of the date the marriage ends, or
  • Is related to the end of your marriage

Further, for a transfer to be related to the end of a marriage, your divorce or separation decree must also provide for it, and it has to be done within six years of the end of the marriage.

Review possible tax impacts of your property division with your lawyer or accountant as you work towards the final terms.

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.

Questions for Your Attorney

  • My spouse and I have moved a lot. Does that affect whether community property or equitable division methods are used to divide our assets?
  • Does my separate property lose its character if I use it to benefit my family? What if it's a major asset, such as the family home?
  • My spouse and I agreed to put much of the income we save into my spouse's 401(k) account. How will that factor into our property settlement agreement?
Friday, 19 September 2014 00:00

Protection Order

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).

 

In a criminal context, judges use restraining or protective orders to prohibit abusive spouses or partners from contacting or harming the other spouse or partner, and to keep stalkers or harassers at bay. This article focuses on the use of such orders in a criminal context.

How Are Restraining Orders Issued?

In a typical situation, a victim or would-be victim of annoying and potential criminal activity applies to a judge for an order directing the aggressor to do a specific act, back off, or stay away. In federal courts, the object of the order is not necessarily entitled to notice of the application; in state courts, notice is typically required, though the time period may be quite short and it may be dispensed with altogether in a domestic violence situation.

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 plaintiff) supplies a sworn statement alleging facts that support a claim of serious, imminent harm, which enables a judge to issue a temporary order then and there, without notice to the object of the order (the defendant). After the defendant 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). Permanent orders (but generally not temporary ones) can be appealed to a higher court.

How long do protective orders last?

Many states set a time limit on the duration of a final order (though extensions can be granted); others allow the judge to make the order permanent. 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?

An order directed at a domestic abuser or stalker is enforced by the police. Many statutes say that the police “shall” enforce the order, by arresting the violator. Sadly, however, police departments consistently fail to take requests for enforcement seriously, sometimes resulting in tragedy.

Consequences for Failing to Obey a Restraining Order

Assuming the police do intervene when a defendant has violated the terms of a restraining order, what happens next? The police in many states are directed by statute to arrest the defendant, and prosecutors can charge him or her with a crime for violating the order (such as contempt of court). Of course, if the violation (an assault, for example) is also a crime, the defendant should be charged with that, as well.

For a state-by-state explanation of domestic violence laws, see Domestic Violence and Abuse.

Questions to Ask Your Lawyer

If you are the victim of stalking or domestic violence and need a protective order, you can apply directly to the prosecuting attorney in your area (also called the “district attorney”). Or, you can engage a criminal defense attorney to bring the matter to the attention of the authorities on your behalf. You might ask your attorney:

  • Can the behavior I’m experiencing support a request for a restraining order?
  • What kinds of evidence will I need to show the judge?
  • In our area, what are the chances that the police will take reported violations seriously, and investigate and arrest if appropriate?
  • What else should I do to stay safe?
Friday, 19 September 2014 00:00

Contempt Proceedings

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.

Friday, 19 September 2014 00:00

Spousal Maintenance

In some instances a spouse will ask for alimony, the court-ordered payment of money to your spouse after the dissolution of marriage. If you made more money (especially if you were the primary breadwinner), there is a good chance your spouse will seek alimony. The bigger the difference in earnings and the longer you were married, the larger the alimony payment will be.

Will Maintenance Be Awarded?

The general standard in most locations holds that maintenance can be awarded if the spouse lacks sufficient property, including marital property apportioned to her to provide for her reasonable needs and expenses, and is unable to support herself through appropriate employment.

Reducing Your Exposure to Maintenance:

If the divorce is not going to occur for some time, the spouse should consider the following actions to reduce his exposure to alimony:

* reduce the current household expenses;

* if the parties have separated, establish a precedent of the spouse supporting her own needs with little or no financial support from the his/her spouse;

* reduce debt;

* help get the spouse a job or more education;

* maximize time with the children;

* investigate marital misconduct;

* don’t engage in marital misconduct;

* allow a temporary disability to improve; and

* if income is trending down, it would make sense in holding off the divorce to use a lower income in calculating maintenance.

How Is Alimony Determined?

Generally, there are designated factors that the court has to consider in determining whether or not to order a party to pay alimony.

Courts usually consider the following when determining maintenance, though, of course, these vary by state so be sure to consult with a local, licensed attorney:

* length of the marriage;

* age and health of the parties;

* division of property;

* education level of each party at the time of the marriage and at the time the action is commenced;

* earning capacity of the parties;

* feasibility that the party seeking alimony/maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the time needed to achieve this goal;

* tax consequences to the parties;

* pre-marital and post-marital agreements;

* contribution of one party to the education, training or increased earning power of the other;

* and any other facts as the court may determine to be relevant.

Once the court determines that a party is entitled to alimony, the court then determines how much the person should receive per month and how long he or she should receive it.

How Much Maintenance Will I Have to Pay?

Spousal support awards vary from state to state. In some states, the laws even vary from county to county and even sometimes among judges.

There is a high level of inconsistency in spousal support awards because most state statutes do not address specifically how the award should be calculated. In fact, in some jurisdictions it can be difficult to predict what the spousal support would be because there are no guidelines.

When Can I Stop Paying Maintenance?

There are myriad other reasons that may terminate or reduce support, but the basic idea is that if there is no longer a need for support, then you can argue that it should be terminated. In general, support will likely stop upon the receiving party getting remarried, cohabitating with another individual in a marriage-like relationship or dies.

What Does Maintenance Pay For?

Maintenance can be ordered as either a substitute for a property division, short-term support to aid the ex-spouse in becoming self-sufficient, or lifetime support of a spouse who has limited earning ability or who is unemployable. The framework of the initial support decision is critical to whether the support obligation is subject to termination.

Friday, 19 September 2014 00:00

Modification of Decrees

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.

Tuesday, 02 September 2014 00:00

Should you rush to file?

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.

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If you need to hire a lawyer in order to protect your rights, you may want to pay a visit to Quattrone Family Law. Your attorney will provide the personal attention that your case requires. We’re available to assist citizens of Tampa and nearby communities while they try to deal with a range of family law matters.

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