I remember discussing this when the statute was being drafted. Everyone meant to say that the 50 miles was by car. Most of us, after all, don’t travel by helicopter. But it was never specifically listed that way in the statute. (Whoops.)

So the appellate court in Orlando disagrees. They say that the fifty miles is as the crow flies, not “as the car drives.” That can be a long, long drive in a crowded, trafficky place like Tampa or Miami or, uh, Orlando. Until another appellate court disagrees–which probably won’t happen–or until the legislature changes the statute–which probably will happen–the law throughout Florida is that kids can’t be moved more than 50 miles as a compass would draw on a map.

Relocation is a complicated and tricky procedure in Florida. DO NOT try this at home (or without a lawyer). Call us if you want to relocate a child.

Here is a classic mistake made by unrepresented parties when trying to modify timeshare (the more modern term for “custody” and/or “visitation”): asking for 50/50, split, or rotating timeshare. Here’s why:

Once timeshare is set, either by the judge as part of a divorce or paternity case or by the parties in a settlement agreement, timeshare is pretty much locked in. It is very difficult to change timeshare. But it can be done. The person wanting the change has to prove to the judge that there is an unexpected and substantial change in circumstance.

“Unexpected” means there was no way to know it when the judge made the decision or when the agreement was signed. “The kids are now in school” or “the kids want to be with me more” or “inflation has gone up” are bad reasons because they are all predictable. “Mom is running a meth lab in front of the kids” is a good reason, because it probably couldn’t have been predicted.

A “substantial” change is a really big change. It can’t be “Dad moved to a new house across town” or “Mom had three more kids.” These might be big life events, but to change timeshare, a judge has to see something huge, something like, “Mom’s new boyfriend is a child molester who attacked my child.”

So if something has to be that big and that bad for timeshare to change, why a person ever ask for timeshare to go to 50/50? I see people alleging, “Mom is now a prostitute, living on the streets with the kids, hooked on drugs, and the kids are flunking out of school, therefore I want the kids half the time.” Half?! And you want this disaster of a mother to have them the other half?!

Judges aren’t dumb. Everyone knows child support gets gutted as the amount of timeshare increases, and that’s exactly what they’re thinking when they see a petition like this. Another deadbeat doesn’t care about the kids and just wants to reduce child support. If something is serious enough for timeshare to change, that is, for the old agreement or judgment to be completely broken, it’s probably serious enough that the other parent should be very restricted in seeing the kids.

Bottom line: be careful in seeking modification of timeshare, but if you do seek modification, speak to lawyers like us first, and never ask for 50/50, rotating timeshare, or “split custody.”

Lump sum alimony is alimony paid all at one time, in one “lump sum.” It is very, very rare, and is usually used for creative tax purposes (alimony is always tax deductible to the payor), bankruptcy purposes (alimony can never be discharged in bankruptcy), or because there is no other way to obtain “equitable distribution,” that is, to fairly divide the parties’ assets.

The solution I have come up with involves a prenuptial agreement in addition to an LLC where the protected spouse owns 51% and other family members own smaller percentages. The protected spouse would be the managing member of the LLC. All of the “family” money would go into the LLC and the prenuptial would have a provision that specified that any marital money that went into the LLC would be nonmarital.

These and other questions can be answered at the Orsini & Rose Law Firm.

Scott

Strangely, I get a lot of questions about asset protection from people who don’t have any assets and aren’t planning on marriage. Well, first, get the assets.  There’s not much point in speaking with a family lawyer about asset protection until you actually have assets to protect.  But once you have assets, consider putting them into an irrevocable living trust. Then meet the new spouse.

The next step should be prenuptial agreement, then the marriage.

Sounds simple doesn’t it?  The nuts and bolts are that the irrevocable living trust protects your assets from non-purchase money, third party creditors.   A “non-purchase money, third party creditor” is someone who doesn’t have a lien on something you own.  For example, a hospital debt: the hospital is a third-party (not you or someone you signed off with on the loan), non-purchase money (they don’t have a lien) creditor (someone you owe money to).

But an irrevocable living trust does not protect your house from a mortgage holder.  They’re a purchase-money creditor because they have a lien on the house.  They gave you money to purchase the house.

The trust is basically an artificial person that you control. So when you get married, if your assets are in a trust, you don’t technically own anything.  The “artificial person” does.  (Actually, Brent says his ex-wife was pretty artificial, but that’s another story.)

The prenuptial agreement is basically icing on the cake so that if you contribute to the trust during your marriage, the trust doesn’t become comingled and a marital asset.  (Your new spouse can’t say, “Marital money was put in to the trust during the marriage, so I want half of the trust when we divorce.”)

For a more detailed explanation or if you are interested in protecting your assets, contact us directly.

Scott

Another means of recovery from a spouse’s injury happens in a divorce.  In a divorce, a spouse of an injured person is usually only entitled to half the portion of the money recovered that would be a “marital asset.”  The “marital asset” part of a recovery would be things like lost wages, lost contribution to a 401(k), etc.  The spouse doesn’t usually share in the “big money” part of the lawsuit, which is the money for things like pain and suffering and loss of enjoyment of life.  And, of course, when they hand out settlements, they just give one big check to the law firm; they don’t divide the money up or demarcate it into “lost wages,” “pain and suffering,” etc., so sometimes we have to fight about how much a spouse is entitled to.

So it works like this: Dick and Jane are married.  Jane is in a horrible car accident and is out of work for a year.  She normally makes $100,000 per year and her company normally puts $10,000 per year in her 401(k).  She settles with the insurance company for $300,000, of which her personal injury lawyer takes $100,000.  She gets a check for $200,000.

Dick’s divorce lawyer (of course they filed for divorce after the horrible accident and the year they’ve had) is asking for half of the $200,000 check.  But we know Dick’s not entitled to half.  Most of that money is “pain and suffering.”  How do we know?  Well, we don’t.  We’re just guessing because we know that most of an injury settlement or verdict is usually pain and suffering.  The lawyers will just have to argue it out.  But, well, that’s what lawyers do.

I do have to admit that filing for legal separation is rare.  For one thing, if one spouse files for separation (which is basically saying, “I don’t want to divorce you, but I want you to pay me alimony and/or child support”), that other spouse normally just counterclaims for divorce.

But there are good reasons for filing legal separation as opposed to divorce.  The obvious one is that one spouse may want to move out, yet still take time to work on the marriage.  If the moving spouse can’t afford to live on his or her own while the couple attends counseling (or does whatever they need to do to work on the marriage), the court can set up temporary alimony or support for the interim.

And there are legal reason not to divorce, too, like collecting a spouse’s social security credits or remaining on a spouse’s health insurance.

The other upside to separation as opposed to divorce is that filing separation has no residency requirement in Florida.  Remember, you have to be a Florida resident for six months before you can file divorce here.  But you can move to Florida and file for legal separation the next day.   That way, you could start collecting alimony or child support and convert your legal separation case to a divorce case after you’ve lived in Florida for six months.

So not only does legal separation exist in Florida, it’s downright useful in a lot of circumstances.  Give us a call or send an email if you want to know more.

The argument for ending lifetime alimony is that it legalizes lifetime servitude and also treats women as if they are the weaker sex and not as employable as men. There is talk of expanding unequal distribution to compensate for the elimination of some forms of alimony.

If you are seeking divorce and alimony with a long term marriage, you may want to contact us and file quickly. If you are already divorced and are paying alimony, you should contact us as well.

1. Traditions must change

I firmly believe that it’s important for families to have traditions.  It’s part of what brings us together and builds a bond between us.  But once a divorce or separation occurs, the previous “family” no longer exists.  Step-families may form.  New relatives may enter the picture.  While it may have been true that Christmas Eve was always spent at Grandma Betty’s, that probably can’t happen anymore, at least not every year.  And it probably shouldn’t.  Maybe it can only happen every other year.  Maybe it won’t happen ever again.  Things must change.  Worse, parents will often use traditions as weapons: “The kids have spent Christmas Eve at Grandma Betty’s for the past five years, so I have to ‘get’ them on Christmas Eve every year.”  Divorce and separation are times of change.  Traditions must change, too.  Start making new traditions.  Introduce them slowly, but allow the children to know that, as the family changes, traditions will change.  And make sure you let them know that they can be part of the change.  Allow the kids to help you think of new traditions.  Make it an exciting time for them.

2. It’s about the kids, not you

I hear so often that “it’s important for the kids to wake up at my house on Christmas morning,” but do you think it’s so important to the kids?  Realize that kids just want to wake up and play with toys, and it’s a whole lot less important to them where they wake up after Santa has come than it is to you.  Brace your self for this, but for kids, at least younger kids, Christmas is about Santa, and a whole lot less about you.  And don’t be so quick to rush them over to your house on Christmas day if they wake up at the other parent’s house on Christmas morning.  You want to pick them up by 10 a.m. or so so that you get “your fair share” of the time, but what they really want is to play with their toys.  Give them a little time with the other parent and their new toys before you wisk them away.  Consider delaying the pickup until mid or late afternoon.  Or, if it’s a long drive to your house, here’s a radical thought: maybe just alternate Christmas with the other parent altogether.  That’s a tough way to go because you wouldn’t see the kids at all every other Christmas, but think about what’s best for the kids.

3. On the other hand, the kids are not in control

Don’t ever ask the kids where they want to spend their holidays or who they want to spend them with (or, for that matter, if they want to spend timeshare–holiday or otherwise–with the other parent).  It’s not their decision until they turn 18.  You’re the parents.  The two of you will decide and will tell them where timeshare will be spent, and children should never be put in the position of having to decide between parents.

4. Coordinate gifts with your ex

If the gifts aren’t of the type a child would normally have at both parents’ houses, like a bicycle or a computer, check with your ex to make sure the two of you aren’t duplicating gifts.  Nothing is more disappointing to a child than to receive the exact same dollhouse or guitar from both parents just because that’s the gift the child has been asking for.  Actually, there is a bigger rule here: get along with and communicate with your ex.  I know this can be a tough one, but it makes life so much easier on you and the kids.

5. DON’T BE SAD!

I know this is easier said than done for a lot of people, especially people who are recently divorced.  You’ve spent the past twelve or so holidays as a complete family, then this year you have no one.  In the meantime, your recent ex is dating your boss because “he makes double what you make” or a stripper who is twenty years younger than you, and they’re going to Aruba for Christmas (and yet the child support is three months late).  But, somehow, make this the best holiday ever for the kids.  Make this the year you finally go back up north to visit the family.  Make this the year you go all out on the tree.  If money is tight (like it is for everyone), then spend lots of time with friends who have kids, buy a cheap camera and take your kids on a nature walk, buy a bunch of inexpensive crafts or a cheap gingerbread house at Wal-Mart and make those with the kids.  If you live in a city in Florida like me, there are tons of free outdoor movies, symphonies, rock concerts, and all kinds of things to do in December.  You have children!  What could be more wonderful?  Make your kids happy, and how can you possibly be sad?