gay-adoption.jpgAccording to recent census data and other studies, the number of children being raised by lesbian and gay parents is increasing rapidly. This increase is evidenced not only throughout the country, but at home in Florida as well. The conflicting laws of the various states as to the legal recognition of same-sex parenting rights present not only complications but is fraught with legal challenges.

A nagging question is what happens when same-sex parents become parents in one state, but then move to a state that does not provide the same protection to the parties parent-child relationships?

The 2009 Florida case Embry v. Ryan (11 So. 3d 408, Fla. 2nd DCA) examined this issue involving a same-sex couple who became parents while living in Washington State, and then moved to Florida. While living in Washington, one of the partners gave birth to a child. A few months later the other partner adopted the child. After moving to Florida, and 4 years after the birth of their daughter, the couple broke up. The former partners initially entered into an amicable visitation and custody agreement, which lasted for approximately 3 years. However, like many relationships, their relationship became strained. The birth mother then refused to let her former partner have any contact with the child. Litigation ensued.

The adoptive (non-birth) mom filed a lawsuit seeking declaratory relief and a petition to determine parental responsibility, contact and support. The birth mom sought to dismiss the petition arguing that Florida was not required to give “full faith and credit” to the Washington state adoption as it was contrary to Florida public policy which prohibited same-sex couple adoptions.

The United States Constitution’s Full Faith and Credit Clause provides that states give effect to judgments from sister states. The United States Supreme Court has made it clear that a “final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment qualifies for recognition throughout the land.”

The Court further stated that there are no public policy exceptions to the full faith and credit clause which is due to judgments entered in another state.

The Florida Court of Appeals in the Embry case held that “regardless of whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida, it was improper for the trial court to refuse to give the Washington judgment full faith and credit.

The Florida court declared that the same-sex relationship was irrelevant for the purpose of enforcing the adoptive mother’s rights and obligations as an adoptive parent. Florida law specifically states that adoption decrees from other states must be recognized as though the judgment was issued by a court of this state. There is no exception for gay second-parent adoption built into this Florida provision.

If you have any questions about your legal rights concerning gay, lesbian or same-sex partner adoption in the State of Florida, contact a Jacksonville gay and lesbian estate planning lawyer.

Divorce HouseOne of the most common questions that divorce attorneys hear is: “What will happen to our house?” While courts do have the power to order the sale of the marital residence, what happens to the house usually is left up to the parties themselves. Typically, the house situation has a lot to do with whether there are children residing in the home and whether one party can afford to buy out the interest of the other, either through cash or by offsetting the equity (or debt) with other assets.

As we mentioned, the first consideration is usually whether minor children are residing in the home. If there are children in the house and it has been their home for a significant period of time, the courts are often reluctant to order the property sold and the children uprooted. Usually, the Court will give the party residing in the house a chance to come up with a plan to make the mortgage payments and retain the property.

Judges prefer to have the parties themselves come up with a plan regarding the house than have to order the home sold. Even if the parties refuse to decide amongst themselves, a judge may still decide no to order a sale until the children are grown and gone. The court is also able to offset the equity in the house against the value of other assets (including retirement funds, stocks, bonds, etc.).

If there are no minor children living at home the sale of the house becomes more likely. This is doubly true if the equity in the house represents the primary marital assets of the couple. If there are other assets, they can often be used to buy out the value of the marital home if one party is adamant about not selling. Though judges usually don’t have a problem allowing one party to “buy out” the other, this can be tricky if not impossible when there are limited financial resources.

If a “buy out” does occur, the value of the home must first be determined. Certified real estate appraisers are often used to arrive at a fair number. The appraisals are then coupled with the rest of the couple’s financial picture to determine each spouse’s interest in the home.

Given the current real estate market many couples are reluctant to sell and take a loss. Even when they do agree to sell the house the process can take a significant amount of time and no court order can speed that along.

If you have questions about a divorce proceeding and would like a divorce attorney to assist you in the matter, call us at (904) 685-1200.

Source: “Dividing Real Estate in Divorce – What Happens to the House?,” by Maury D. Beaulier, published at HG.org.

Equitable DistributionDivorce and Annulment courts in Florida apply the legal concept of equitable distribution when it comes time to divide the assets of a divorcing couple. This means that the entire marital estate, assets and debts, must be divided in an equitable, though not necessarily equal, manner. There is no fixed standard for dividing property, each case will be decided on the merits, and the trial court’s discretion will not likely be disturbed on appeal without a showing of clear abuse.

Property includes anything of value, tangible or not: personal items (such as cars, furniture and art work) and real property (land and houses). Debts include anything you owe money on: mortgages, car loans, and credit card bills. Really anything the two of you possess is thrown into the mix before it’s all divided.

It’s important to know that not all property is subject to equitable division. Items that qualify as non-marital may include the following: property acquired by either party before the marriage; property acquired after certain stages of the divorce process; property excluded by a written contract between the parties (likely a prenuptial agreement); and any increase in value of non-marital property that did not result from efforts of the other spouse.

Judges consider a multitude of factors when deciding how to divide property between spouses and it’s sometimes hard to know which issues hold the most sway. Here are some examples of the things judges consider when dividing property:

• The length of the marriage.
• The financial contributions of each spouse to the marriage.
• The age and health of the parties.
• Misconduct in the marriage and whether one of the spouses is the reason for the dissolution.
• The child custody arrangement.
• Any potential spousal support awards.

After determining what percentage of the marital estate each spouse should have, the next step involves coming up with the proper asset division to achieve the mandated split. This is the stage where it’s decided who gets what: the house, the cars and other assets. The division continues until each party receives their appropriate share of the marital estate.

It is important to note that even though the Family Law Court can order one party to pay a joint debt, if that person does not pay, the other party will still be liable. Your judge can order someone to pay, but he or she cannot modify the terms of an otherwise valid contract because of your divorce.

If you have questions about a divorce proceeding and would like a divorce attorney to assist you, contact us at (904) 685-1200.

Source: “Who Gets What Where,” published at EqualityInMarriage.org.

Parental Kidnapping“Forum Shopping” occurs when a party attempts to choose a judge or court because they feel that judge or court will favor their position over the other party. This is looked down upon by the courts, but isn’t often addressed. There are strict rules when it comes to which judges have jurisdiction, but jurisdiction over a case can change if the parties relocate.

What used to happen a lot in Florida was situations where a child’s parent would move to a state far away from the other parent and take the child with them. This would force the non-moving parent to sell their home and quit their job if they were to have a good chance to get visitation rights with their child.

People complained to the Florida Legislature and to address the issue they proposed and passed Florida Statute 61.13001 which permits a judge to enter an injunction against a party moving move than 50 miles from the other parent. If court permission to move is not granted and a move still occurs, the court can order the return of the child to the jurisdiction.

Unfortunately, many people are unaware the statute exists and when too much time passes, the jurisdiction over the child may change to the new state. As the saying goes, “If you sit on your rights, you lose them.” Meaning that you must take action if you wish to preserve your right to claim something or else you lose that right.

Personally, I have seen too many children’s relationships with their parents damaged by the other parent’s inability to cope with the strong negative emotions they have for their ex. Many people want to take their children away and start a new life. Unfortunate as it is, a child is part of both parents and though the other parent may seem terrible at the job, it takes an impartial judicial system to determine what role that person should have in the child’s life.

Halle BerryAmerican Actress and Model Halle Berry has been engaged in an emblazoned custody battle with her former boyfriend Gabriel Aubry. Berry has asked that their child, four year old Nahla, be permitted to leave with Berry to live in France. The Los Angeles Court must determine that the move is in the best interest of the child to permit it. The same standard is used here in Florida to permit a moving parent to relocate more than 50 miles away from the other parent.

Proving “best interest of the child” is not always an easy standard. It typically involves a weighing of the pros and cons of moving or staying. In Berry’s case, she argues that France has stronger protection for Nahla from the great amount of media attention she would otherwise get here in the states. This sounds like a good argument. Surely, a great amount of media attention and privacy invasion is bad for a child.

Mr. Aubry argues that the real reason for the move is Berry following her new fiance, Oliver Martinez, whom is a french film actor. He cites the fact that she has had two earlier failed marriages which is evidence that this marriage too, is likely to fail.

The courts are also considering the relationship Nahla will be able to have with her father when she lives in France, vs. the relationship they’d have if she remained here. This is a common problem in Family Law where a parent seeks to relocate to a different state with their new partner, often alienating the parent who remains behind.

A Child Custody Evaluation’s findings showed that it was not in the best interest of the child to move away, however Judge’s may not be bound by the evaluators recommendations.

Nearly every decision when it comes to Florida children is made based on the “best interest of the child” standard. If you have questions about your unique situation and how we may be able to argue the best interest of your child, contact us at (904) 685-1200 for a free initial consultation.

gay colors and gavel.jpgAmong the various legal documents that will ensure that you and your gay or lesbian Florida partner are protected, a change of name through a legal proceeding is also an available option. The change of name statute is found at Florida Statutes, Section 68.07.

The Petition must be verified (sworn under penalty of perjury) by the person requesting the name change. The petitioner must be a resident and domiciled in the county where the change of name is sought. The petitioner seeking a change of name (other than the restoration of a former name) must submit a set of fingerprints for the purpose of processing a state and national criminal records check. These results are then transmitted to the clerk of court.

A Petition for name change that is “facially sufficient”, follows the requirement established by the statute and is not filed for a wrongful or illegal purpose must be granted. Although the trial court has the authority to deny the petition, denial will not be upheld without evidence that the petition is being filed for an illegal or wrongful purpose or that granting it would result in harm to others.

A hearing on a petition for restoration of a former name may be held immediately after the filing of the petition. The hearing on any other petition for a name change may be held after the clerk receives the results of the criminal history records check.

After the final judgment has been granted and filed, if the petitioner was born in Florida, the clerk of the court must send a completed form provided by the Department of Health to the Office of Vital Statistics. The form must contain sufficient information to identify the original birth certificate of the person, and the new name. The report is then filed by the department and becomes a part of the vital statistics records of this state.

The clerk of court must also send a report of the judgment to the Department of Law Enforcement, which must then forward a copy of the report to the Department of Highway Safety and Motor Vehicles.

If you have been contemplating a change of name, contact a Jacksonville Gay and Lesbian Estate Planning Lawyer to learn more about the legal process and how easy it is to get started.

Alimony IssuesEvery person in the state of Florida, who is either thinking about getting married, engaged, or already married is concerned about the battle over the state’s alimony laws. WJHG.com recently reported about a man, who wished to remain anonymous, that was required to continue to pay his ex-wife $2000 in alimony payment even though he had been injured in an accident and could not even pay his medical bills. Despite his obvious change in financial circumstances, he is still required by law to meet his alimony obligations because Florida is one of the few states in the nation that allows for permanent alimony.

Because of these laws, the Florida Alimony Reform Group has surfaced and has made the reformation of Florida’s alimony laws its primary purpose. Their website states their legislative and political goals. One of the goals is to limit the amount of discretion that judges have in awarding alimony in divorce cases. The group believes that antiquated attitudes regarding gender roles and stereotypes have influenced the way that Florida adjudicates alimony claims. The group expresses its concerns in the following way: “While divorces in Florida are technically ‘no-fault,’ they reflect attitudes and realities from America in the 1950s, when the divorcing husband was the sole breadwinner and always considered ‘the bad guy’ in divorce, while the wife was considered ‘the helpless victim.’ These antiquated stereotypes still drive much of what happens in the state’s family courts. Because of these laws and attitudes, it is common for healthy, employed women in their 30s and 40s to receive permanent alimony.”

This year, the Florida Alimony Reform Group suffered a major setback when it proposed legislation that would drastically reform the state’s alimony provisions, but the bill failed to pass the Senate. Now the group must wait for at least one year before it hopes to see any changes in the alimony laws. The family law section of the Florida Bar is prepared to fight to support the law as it is now.

If you have questions about a divorce proceeding and would like a Jacksonville Divorce Attorney to assist you in the matter, contact the Law Office of David M. Goldman PLLC today at (904) 685-1200.

Source: “Alimony Battle Continues in Florida,” by Bryan Anderson, published at WJHG.com.

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Social Media Pressures Get Jewish DivorceSome creative Boca Raton residents are using social media pressure to get one woman’s husband to sign their divorce papers. A Jewish woman has found out the hard way that her husband is not willing to grant her a Jewish divorce. Although she has received a civil divorce, Jewish divorce laws require that the husband sign a Get, a Jewish divorce decree, which would allow his ex-wife to remarry.

Yomin Postelnik and Leah Postelnik went through a tumultuous divorce and Yomin refused to grant his wife a Get, even though a host of rabbinical courts handed down orders for him to sign the document. A rabbi in Boca Raton heard about the case and mounted a social media campaign against Yomin to pressure him into signing the document. He urged several in the South Florida Jewish community to blackball Yomin until he granted Leah the divorce.

The Postelnik’s are not the only Jewish couple going through a divorce and who have experienced social media pressure. Tara Epstein and Aharon Friedman had a similar experience to the Poselniks. Friedman refused to grant Epstien a religious divorce. The social media campaign against Friedman was so aggressive that some were even demanding that he be fired from his job with United States Representative Dave Champ, R-Mich.

While this case involves Jewish litigants, it is possible that social media could be used to harass and pressure divorce litigants regardless of their faith. It is not advisable that anyone engage in such an aggressive campaign. When going through a divorce proceeding, it is important that litigants be careful what they post on social media websites. If that information is available to the public, it can be used against the poster in future legal proceedings.

If you have questions about a divorce proceeding and would like a Jacksonville divorce attorney to assist you in the matter by email or by calling today at (904) 685-1200.

Source: “Desperate for a divorce,” by Lois K. Solomon, published at Sun-Sentinel.com.

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Yulee Divorce Attorney: Divorce Concerns

Most Jacksonville, Florida residents thinking of filing their own divorce haven’t heard the phrase, “He who represents himself has a fool for a client.” Unfortunately the court system is complicated, but it’s complicated because our lives are complicated. Some people say that their divorce is a “simple” one, some attorney’s say that there’s no such thing as a “simple divorce”. Just as I don’t dare to do simple mechanic work such as an oil change because I’m not a mechanic, a non-lawyer has to remember that a case that might be considered simple by an attorney isn’t necessarily simple for them.

There are complex pleadings that are required to make a divorce judgment final. Just because it says “Final” in the title doesn’t make it so. You can’t depend on a judge to tell you if you’ve made a mistake either, they’re not allowed to give you legal advice and are often so busy with their heavy case loads that they’ll sign almost anything you agree to.

A recent case I saw was that of a woman who had become pregnant from an adulterous affair while living with her husband. Under Florida law, the only people who have the right to contest the parentage of a baby born during a marriage while the couple is cohabitation is the wife and husband. This is because Florida values the interest of preserving the marriage above the rights of unmarried fornicators to raise their own children.

In my case, the husband allowed himself to be named on the birth certificate but a year later when they divorced, he had a DNA test done and submitted it to the court so that the former-wife could execute a name change for her son. The court denied the name change as they hadn’t done their pleading correctly. What the former-husband didn’t realize is that by providing a DNA test showing that he was not the father he started the clock on his ability to disestablish his paternity. He failed to bring an action to disestablish his paternity within one year of submitting that DNA test and is now the legal father of that child, liable for child support etc., until the child becomes an adult. By trying to save money and taking matters into his own hands, he instead made himself liable for child support (a debt not discharged in a bankruptcy) for eighteen years.

If you or a friend are attempting to take legal matters into their own hands, you should know the risks. Contact a Jacksonville Divorce Attorney or call us at (904) 685-1200 for a free initial consultation.

gay_divorce_2006_thumb.jpgSame-sex marriage is only legally recognized in a few states. However, many gay and lesbian couples reside in Florida. As a Jacksonville Gay and Lesbian Issues Lawyer, I receive numerous calls from same-sex couples that live in Jacksonville, Florida seeking a divorce.

Florida, like the majority of states that don’t recognize same-sex marriage, does not recognize same-sex divorce. This is because granting a same-sex couple a divorce is basically a legal recognition that the couple was married in the first place. If you live in Florida and have been married in a state which allows for same-sex marriages, getting a divorce in Florida is not possible. Obtaining a divorce might require, among other conditions, that you establish residency in the state in which you were married. Generally speaking, most states require residency in their state for six months, a year, or even more.

If you were married in California, however, you may have a new option. California’s governor Jerry Brown recently signed into law a bill that allows couples who were married in California to file for divorce in California — even if the couple no longer lives there. For example, if you were married in California’s Orange County, moved to Florida’s Orange County, and are now seeking a divorce, the California County that married you still has jurisdiction to grant your divorce.

While this is good news for couples that were married in California, couples married in other states will still have trouble securing a divorce. If you and your partner have decided to draw your relationship to a close, talk with a Jacksonville Gay and Lesbian Issues Lawyer to discuss some of your options.

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