Separation and Bankruptcy in Florida: Can I file without my spouse if we are separated?

In addition to being emotionally draining for most people, divorces can cause a myriad of issues with the most substantial problems being financial issues.  Sometimes couples split, but don’t legally divorce.  Some states recognize legal separation, but Florida does not.  Living separately from your spouse while still being married is fine, but in Florida it does not have any special legal recognition.  When an individual who is simply living separate from his or her spouse (or is going through a divorce) considers bankruptcy, they often want to know if they can proceed with a bankruptcy without involving their spouse.

The current bankruptcy laws allow a debtor to file an individual bankruptcy regardless of whether he or she is married or in the process of getting a divorce. A debtor is allowed to file a joint or individual bankruptcy during a marriage or during an ongoing divorce.  Generally, when a person is married and filing bankruptcy, either individually or jointly, the income of both spouses determines what type of bankruptcy a debtor can file; either a Chapter 7, 13 or 11. This is known as household income in bankruptcy. Even if only one spouse is filing bankruptcy, the income of the other non-filing spouse will be taken into consideration and must be disclosed to the trustee and court.

Having the income of both parties included can create a huge problem when a married couple is separating and living apart and one spouse wants to file bankruptcy. They may be able to qualify for a Chapter 7 alone, but not when their non-filing spouse’s income is taken into consideration. When married couples are living separately, this means there are two houses and two sets of expenses.

Luckily, Florida has something called the “marital adjustment” in bankruptcy. The marital adjustment allows a spouse who is filing individually to subtract from their non-filing spouses income expenses that solely belong to the non-filing spouse. For example, if the non-filing spouse has a monthly car payment for a vehicle owned exclusively by the non-filing spouse, these type of expenses may be subtracted from the couples total income. This allows the filing spouse to not be penalized for expenses that are not for his or her benefit.

Call the Law Office of David Goldman PLLC today at 904-685-1200 for more information.  Our experience divorce lawyers and bankruptcy lawyers can help.

by Kendal Sander, Esq.

movingkidsIn Florida, the biological fathers of children born out of wedlock have few, or no rights, regarding the children until the court establishes paternity.  Florida Statute 744.301 makes a child’s mother the natural guardian when a child is born to unmarried parents.  Mothers are deemed to have automatic custody when the child is born. This means a single mother has the parental responsibility to make important decisions regarding the child’s wellbeing and the child lives with the mother.  Generally, there are two methods for a biological father to gain parental rights. He can formally petition the court for these rights, or he may establish through an informal method with the mother’s consent.

Petitioning the court.

A father may take legal action to establish his parental rights. He can prove that he is the biological father and petition the court for parental rights. In Florida, a father can file a Petition to Establish Paternity to establish parental rights. The court may then issue a parenting plan, which will describe in detail how the mother and father will be responsible for the daily upbringing of the child, the time-sharing schedule, and methods of communication with the child.

After a court has established paternity through this method, the father has the same rights as he would if he were married to the child’s mother. The mother can also ask the court to order the father to pay child support. The amount of child support to be paid usually depends on the father’s income and guidelines established by state law.

What does it mean to be a putative father?

In Florida, the term “putative father” means an individual who is or may be the biological father of a child whose paternity has not been established and whose mother was unmarried when the child was conceived and born. In order to establish rights as a father, the putative father must file a notarized claim of paternity form with Florida’s Department of Health, which maintains the Florida Putative Father Registry. A claim of paternity may be filed at any time prior to the child’s birth, but a claim may not be filed after the date a petition is filed for termination of parental rights. Once a claim is filed with this department, the registrant expressly consents to submit to DNA testing upon the request of any party, the registrant, or the adoption entity with respect to the child referenced in the claim of paternity, according to Florida Statute 63.054.

A claim of paternity form does require the alleged father provide some information such as the name, address, date of birth and a physical description of the mother and the father. It also must provide the date, place, and location of conception of the child if known. Continue reading

Child custody and time sharing battles in Florida divorces are always stressful situations for the people involved.  Jacksonville divorce lawyers and custody lawyers zealously represent clients who each want something different when it comes to custody or time sharing.  The judge hearing the case has to decide what is in the children’s best interest.  This is the standard that is always applied.  What the parties want, including the children, is not the controlling factor.  When the husband and wife are both fit parents and can provide a stable environment for children, difficult decisions have to be made.   So what factors will the judge consider in determining child custody and time sharing battles in Florida divorces?

man-woman-heart-5-1056041-mFlorida Statutes 61.13(3) lists several factors that judges can consider, but gives judges discretion to consider any facts that the judge deems relevant.  Click the link above to view the complete list and the full body of the statute.  Florida’s state policy is that each parent is afforded the chance to build a strong relationship with children.  The first factor on the list of things the judge is to consider is, “The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.”  In view of the State policy and the importance of having both parents actively in children’s lives to help produce healthy, emotionally balanced children, it is no coincidence that this factor is listed first.  Other factors include the future division of parental responsibility, the reasonable preference of the children, school and community records of children, moral fitness of parents, and more.

For help with child custody and time sharing issues, contact the Law Office of David M. Goldman, PLLC today at (904) 685-1200.  Initial consultations are free.  Our experienced Jacksonville divorce lawyers can help you understand your rights as a parent and coach you through a stressful divorce.  Our attorneys have years of litigation experience and are prepared to fight for you when needed, but are also skilled in assisting you with uncontested divorces or collaborative divorce.  Schedule a consultation today.

Reasons for a name change can vary widely.  The reasons a for a name change could be as unique as snowflakes or fingerprints.  Sometimes a woman going through a divorce wants to change her name back to her maiden name, or someone with dreams of becoming a big shot movie director may want a name that is worthy of success.  The most common is a name change associated with a stepparent adoption or adoption in general.  Whatever your reason for a name change, the process of getting a name change in Florida is pretty simple and straight forward.  A name change is also a relatively inexpensive process.  Our experienced Jacksonville name change lawyers at the Law Office of David M. Goldman, PLLC can help.  The Process has three parts: (1) The Petition for Name Change; (2) Fingerprinting/Criminal History Check; and (3) The Hearing.

whats in a nameThe petition submitted to the court must have certain information about the petitioner, including current name, the name you wish to use, prior addresses, mother’s and father’s names, professional license, information, criminal history, and bankruptcy information, among other things.  The petitioner must swear that his or her name is not being changed for some illegal or improper purpose, such as to escape an outstanding warrant or to avoid creditors.

A petitioner has to have his or her fingerprints taken and a criminal history records investigation done by the Florida Department of Law Enforcement (FDLE).  The results will be sent directly to the court.  Being dishonest about your criminal history can be a reason to have the Petition for Name Change denied.

Once the results of the fingerprint/criminal history check have been sent to the court, your case can be set for a hearing.  Testimony must be submitted to the court about the basic information contained in the petition for name change and the reason for the name change.  If the court is satisfied that the request for name change is legitimate, the court will grant the petition and sign an order changing your name.  Certified copies of the order must be provided to agencies like Vital Statistics so that your personal records, such as your driver’s license, can be updated. Call us today at (904) 685-1200 for a free consultation.

 

Can children choose what parent to live with after a divorce?  The short answer is probably “no”.  Most child custody lawyers would agree that custody and visitation are probably the most highly contested issues between people when relationships don’t work and the couple has had children.  Whether there is a genuine belief by a parent that children will be better off with him or her, or whether a parent is being spiteful when requesting majority timesharing, one argument that comes up is that the children prefer to live with one parent over the other.

Section 61.13, Florida Statutes states that a child’s reasonable preference about what parent to live with may be considered; however, the child’s choice will not control the court’s decision.  The court will weigh and relevant factors and decide what is in the child’s best interest.  A child’s desire to live with the “fun parent” won’t simply be taken at face value.  A child’s preference doesn’t always come into the equation, but when the preference is at issue, a child’s age, maturity level, and so on will be taken into account.  In practice, the child’s preference is likely to have little bearing on the court’s decision without there being more objective evidence that shows that the child’s preference is in line with the child’s best interest.  There are many things that come into play when the child’s best interest is being decided.  Typically, giving a child continuity and stability will be high on the priority list.  Things like whether one parent is likely to encourage a loving and nurturing relationship between the children and the other parent is important too.

For more information on child custody, visitation, divorce, and family law issues, called the experienced family lawyers at the Law Office of David M. Goldman, PLLC today at (904) 685-1200 for a free initial consultation.

150502_hand-in-handI live life with the blessing of being fascinated by small, simple things.  I can’t begin to tell you how excited I am about the new seedlings that have sprouted in my garden.  It’s a very warm and fuzzy feeling, but It’s not quite like bringing a new child into the world.  If you are a parent yourself or have shared in the experience of welcoming a child to life, you know that the new addition to the family brings in an avalanche of beautiful emotion.  What you may not be aware of is that Stepparents often feel a similar sense of elation when they adopt their spouse’s children.

I’ve had the pleasure to assist many families with stepparent adoptions as a Jacksonville family lawyer.  Although in every situation that I’ve been a part of, the stepmother or stepfather has been a part of the child’s life for years, when the adoption is final, the new parent is overwhelmed with joy.  Once the adoption is final, a legal parent-child relationship is created to go along with the emotional bond that already exists.  The child even gets a new birth certificate with the stepparent’s name on it.  The court records are then sealed, as all adoptions are private matters. Continue reading

498955_holding_moneyAlimony Reduction and Termination: Alimony is often one of the most contested issues in divorce cases.  For many people, the idea of paying money to financially support an ex-spouse is a disgusting idea.  When the love and reverence turns to hate and disdain, making alimony payments to the ex-spouse is painful.  The pain is only magnified by a judge’s ruling that the payments are to be permanent.  An award of permanent alimony normally stays in place until the re-marriage of the recipient or the death of one of the parties.  However, under some circumstances, modification or termination of permanent alimony payments can be accomplished.

Florida Statute 61.14 authorizes the circuit court to reconsider alimony when the parties’ circumstances or financial ability change.  Courts interpret this by requiring three things: (1) a substantial change in circumstances; (2) the change was not anticipated at the time of the final judgment; and (3) the change is sufficient, material, permanent, and involuntary.  Applying this test, alimony can be either decreased or increased.

Florida courts have deemed that a former wife’s increased living expenses related to her condominium were enough to justify an increase in alimony.  It has also been determined that a former husband who voluntarily retires after reaching retirement age and has less income as a result should have that fact considered when the former husband asks for a reduction in alimony payments.  For more information, or for a free initial consultation regarding the specific facts in your case, call the Law Office of David M. Goldman, PLLC at (904) 685-1200.  Our experienced Jacksonville alimony lawyers and divorce lawyers can help you or a loved one work toward the best outcome in your case.

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Social media has become an everyday part of life for many people, including Florida residents.  Oftentimes, conflicts between people begin on social media platforms.  Other times, issues begin in the “real world”, but are carried out in forums like Facebook and Twitter.  Recently, I encountered a situation that falls into the latter category.  Most Jacksonville injunction and family lawyers are all too familiar with the story of the old spouse  and the new spouse having issues with each other.  Petitions for injunctions or restraining orders end up being filed in many cases.  Physical violence is not always what prompts the petitions being filed.  When the feud manages to stay verbal, rather than become physical, the next best way to elevate the conflict for many is often to turn to social media.  Mean and nasty things are said, sometimes even threatening things, with a very large social media audience watching and weighing in themselves.

So what happens when one person harasses, stalks, threatens, or cyberstalks the other on Facebook, Twitter, Instagram, etc…?  If both parties live in Florida, the answer is simple: an injunction petition or a petition for a restraining order may be filed.  Florida laws allows for the petition for protection against stalking to be filed in the Florida county where the defendant lives or in the county where the action accrues , meaning the place where the acts are committed.  Florida Statute 784.0485 creates a cause of action that specifically allows an individual, or an adult on behalf of a child, to file a petition for protection against stalking.  The petitioner, through the petition for a protective order, will ask the court to order the violator to have no contact with and stay away from the petitioner.  The court will weigh the evidence and make a decision whether to grant the request for an injunction.  However, when the conduct that is complained about takes place entirely on social media, like Facebook or Twitter, the court may have more of an issue when determining whether the injunction should or can be issued if the violator is a resident of another state.

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As a Jacksonville divorce lawyer, I am familiar with how messy things can get in a divorce case. People tend to have emotional responses during divorces that can sometimes cloud their judgement. For instance, the Florida Family Law Rules come right out and tell us what financial disclosures must be provided to the other side, yet there will still be disputes regarding what information has to be provided. Oftentimes, the motivation not to provide information as required under the Florida Family Law Rules stems from spite. Divorces are understandably very emotionally draining and tough events to endure for most people. It is your divorce lawyer’s role to help by being your legal counsel and help you make the best decisions in your case.

Thumbnail image for 150130_accounting-calculator-9-90373-m.jpgRule 12.285, entitled Mandatory Disclosure, lists the disclosures that must be made, such as pay stubs, bank statements, tax returns, and more. There can be sanctions for parties that refuse to comply with the rules. You could end up paying your spouse’s attorney fees associated with asking the court to compel you to comply. It is important to only refuse to produce the information if there is a valid objection to be made. Any objection must be timely. If your objection is not made five (5) days or more before the due date of the disclosure, your objection is considered waived.

Working with your attorney to quickly comply with the rules and time limits can save you time, money, and stress. At the Law Office of David M. Goldman, PLLC, we have experienced Jacksonville divorce and family lawyers that can help guide you through the divorce process with care and understanding. It is our pleasure to help with a stressful situation in your time of need. Call us today (904) 685-1200 to schedule a free consultation regarding your divorce case.

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There are numerous reasons that spouses cite when filing for divorce. These reasons vary greatly. However no matter what the reason, in recent years a new trend has developed on when spouses actually file for divorce- and it is right after New Years Day.

The most common time of year for filing for divorce is the month of January, which is now nicknamed divorce month. In the month of January, the most popular day to file is January 2nd and January 3rd, which is right after the New Years’s Day holiday.

There are probably many reasons why divorce filings double during this period of time. Many spouses report wanting to stick it through the holidays because they feel it will be easier on the family and/or the children. Some couples believe that the togetherness and emphasis on family that comes with the holidays of Thanksgiving and Christmas will solve all of the preceding year’s problems. Sometimes the stress of the holidays makes an already declining marriage much worse.

Since the New Year’s Holiday seems to bring with it a period of reflection and review of the previous year, it may be the last reflection that a spouse needs in order to get them to file. No matter what the reason for the split is, divorce filings double in January. Statistics show that approximately 10 percent of couples don’t make it to their fifth wedding anniversary and roughly 25 percent divorce before they make it to their tenth wedding anniversary.
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