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Long, Murphy & Zung, P.A.
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What can and cannot be agreed to in a prenup?:
To a layperson, a prenuptial agreement may be seen as a catch-all type of document. Future husbands or wives that have assets may think that they can easily include anything in it that they want to remain theirs if an eventual divorce happens and that a judge will let it fly. If you're hoping for this, then think again. There are many restrictions as to what can and cannot be included in a prenuptial agreement.
Let's take the bad news first. For starters, nothing illegal can be agreed to through a prenuptial agreement. The prenup cannot make mention of a spouse receiving any financial incentive for walking away from a marriage. A spouse also can't be asked to relinquish his or her rights to request alimony either. Judges will also often rush to strike down any prenuptial agreements that delve into personal as opposed to financial matters. This means that no prenup can talk about which of the two of you is responsible for household chores, child rearing, time spent with relatives or how holidays should be celebrated. Prenups cannot reference how custody of children will be handled nor how child support will be calculated, either. The right to decide this remains in the hands of the judge, who is charged with ensuring that they do what is in the "best interest of the child". While there are many terms that can't be agreed to in a prenup, there are many things that can. The prenup can reference whether a property belongs to you alone or you two as a married couple. You can lay claim to your pension, bank account or business in the prenup as well. You can even use it to document how much in savings each is going to contribute to an account at different intervals. You can also use it to delineate who is responsible for paying for the different household expenses, making credit card payments and other bills as well. Some couples may use a prenuptial agreement to document a spouse's promises to pay for any schooling that he or she may initiate. Couples may even use prenups to spell out their desired way of resolving legal matters if marital discord arises, such as pursuing arbitration or mediation. One of the benefits of having a Naples prenuptial agreements attorney review your document in advance is that it can help you avoid having it thrown out by a judge. Source: FindLaw, "What can and cannot be included in prenuptial agreements," accessed May 18, 2018
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Do I have to pay child support if I have joint custody?:
Florida, like just about every other state, has a formula for determining child support obligations that one parent may have to pay another when it to cover the basic necessities of the child. How much one parent has to pay in child support often depends on the amount of days that a child is scheduled to be with each parent each month. Oftentimes, the parent who brings in the most income pays the most in child support. One exception to this rule, though, is if the existing formula used to determine the amount of support that should be paid shows that it would be cost-prohibitive or otherwise unfair to do so.
Even in cases in which both parents share equal time or joint custody, one parent may be ordered to pay the other child support. Factors a judge will weigh in determining how much one has to pay the other for support in this type of case include the incomes of both parents and how many other children they each may have to care for. Alternatively, in some jurisdictions, a judge may simply cut a statutory support obligation in half. In some cases, parents may negotiate an oral agreement that will allow them to discontinue paying child support when their child is in their own custody. Most jurisdictions' laws don't explicitly allow this to occur automatically, however. If both parents agree to different child support terms or payment dates other than what was originally ordered by a judge, then it's important for them to put such an agreement in writing and have a judge sign off on it. Any failure to do so can result in one or both parents being held in contempt of court. Whether you're just at the initial stages of requesting child support from your ex or you need to have your previous order modified, an experienced Naples attorney can provide guidance in your legal matter. Source: Verywell Family, "Joint custody child support," Debrina Washington, accessed May 11, 2018
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Placing a value on unusual assets in a complex Florida divorce:
Financial and professional success early in life can begin to feel like a curse if you're considering divorce. You may have spent years building equity in your home and funding a retirement account, only to lose half of what you had acquired. The more assets you have, the greater the potential for complications in the asset division process and disagreements with your spouse during your divorce. After all, you probably both have strong opinions about what would be a fair and reasonable outcome to the divorce process for your family. You will also have many more assets for the courts to review and decide how to split up. However, in order to do that, the courts require that you provide an accurate and thorough financial inventory of all your possessions, assets and debts. Many couples struggle with how to fairly value complex or unusual assets in a divorce.
Sometimes, the price you paid can set the value for an asset Complex assets, such as fine art, collectibles, jewelry or even investment real estate properties, can be quite difficult to put an accurate price on during a divorce. In some cases, the easiest way to determine what value to assign to an item will come from reviewing your records of the purchase. You can reasonably claim to the courts in some cases that the purchase price reflects the accurate value of an item. However, for that to be a reasonable assertion, the purchase should be relatively recent. Also, there should not be any factors, like the death of an artist or the end of production of a popular item, that could dramatically increase the value of that item. Working with professionals can help you price other assets If you want to determine a reasonable value for a fine art painting you purchased in the 1990s, you will likely require the advice of an experienced art dealer. Depending on the nature of the assets, you can usually locate professionals who can estimate a reasonable fair market value given the item's quality and condition. Real estate appraisers, for example, can can look at unimproved land you purchased as a long-term real estate investment and advise of its likely current selling price. Those who auction off antiques or sell fine jewelry can review your collection and place a fair price on individual pieces or the collection as a whole. Once you have a price established for the complex or unusual assets you acquired during your marriage, you can proceed with creating a thorough and accurate inventory of your possessions. That, in turn, will make it easier for you to fight for a fair and reasonable division of your assets as your divorce proceeds through court.
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What happens to my inheritance if I file for divorce in Florida?:
Florida is an equitable distribution state when it comes to dividing up assets during a divorce. In states like ours, property is divided up according to how each spouse contributed financially to the marriage. This contrasts from other states where community property rules are in effect. In states like those, assets are often divided equally among spouses. This is an important factor that impacts how inheritances are handled when a couple divorces. Inheritances are one of those things that are traditionally exempt from equitable distribution. Family law judges in Florida have traditionally been steadfast in understanding inheritances to belong only to a husband or wife that they were specifically designated for and not to both when making decisions about how to split up their assets.
There are some exceptions to this rule, however. If you received an inheritance as the heir to a loved one's estate and then deposited those proceeds into a joint bank account you share with your spouse, then your husband or wife may also be entitled to those funds. Even if you didn't comingle those funds with your spouse's, he or she may be able to stake a claim to your inheritance if you used those funds to make improvements to the home you two shared. Also it's important to note that although you may be under the impression that any inheritance you received prior to your marriage is yours alone, it may not be. Once again, it matters whether you ever took those funds and put them in a joint account you shared with your eventual spouse. If you happened to open an inheritance account and at any point also deposited marital funds into it, then you may have made it where what you inherited now also belongs to your soon-to-be ex. Prenuptial agreements can serve as an ideal tool to protecting your right to inheritance and other property you may either come into your marriage with or acquire during it. If you didn't have a prenup in place at the time you were married and your ex is staking a claim for your inheritance, then a Naples attorney can advise you of options available to you in your legal matter. Source: FindLaw, "Inheritance and divorce," accessed May 04, 2018
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Sooner is better when discussing summer child custody plans:
As summer fast approaches, many parents will likely want to take their kids on vacation or have them for extended periods of time while they're out of school. When it comes to making child custody and visitation arrangements, it's important to always try to balance what's in the best interest of your child with what you and your ex need. Starting early and asking your children for their input as to what they may wish to do over the summer while out of school is important. If you have younger kids, they may wish to stay close to their primary residence to participate in a summer camp with some of their classmates. If you have teenagers, they may cause problems if you tell them that they have to go stay with another parent if they don't want to.
Bringing your kids into the fold to express their wants and desires can greatly reduce strife. It can also take significant heat off you and your ex if you let your children decide what they prefer to do. It's also important to start early in discussing potential plans and making arrangements. Many parenting experts recommend beginning preliminary discussions as soon as January so that both parents and kids have time to work through any potential conflicts in advance. They also recommend that discussions about summer visitation should emphasize a give and take approach. Both parents should be able to spend time with their children. Parents should be flexible about giving up a week or switching days during this timeframe to allow their children to experience something new or that they enjoy. Parenting experts warn that last minute switches to plans and ultimatum-type demands should be avoided at all costs. If you and your ex are having difficulty reaching an agreement as to how to share your child over summer break, a Naples custody litigation attorney can provide guidance. Source: Huffington Post, "How to handle the visitation arrangements with your ex over summer vacacation," Steve Mindel, accessed April 27, 2018
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Pittfalls you must avoid to ensure your prenup is upheld:
While many future spouses who are asked to sign prenuptial agreements may see the request to do so as some type of punishment, it's not. Instead, many future husband and wives ask their beloved to sign them in an effort to protect long-passed-down family assets such as homes, jewelry, artwork and wealth. In other cases, one spouse may request that the person that they're looking to marry sign a prenup because they have children from a previous marriage that they want to continue to be able to provide for. In this case, if the requesting spouse were to get married without one, that could leave the owner of those assets particularly financially vulnerable. That vulnerability could make it difficult for him or her to provide for their kids as they'd intended to.
Finally, a prenup can help keep divorce litigation to minimum and thus keep legal costs low. It can help keep personal details of your relationship, divorce and finances private from prying eyes as well. For prenups to be upheld by judges, it's important that it be clear that one party didn't coerce the other into signing the agreement. It's also important that both parties confirm that they had time to read the document. In some jurisdictions, it may even be necessary for each to demonstrate that they reviewed the document with an attorney prior to signing it. Prenups are generally only valid if they are comprehensive in listing all of an individual's assets that they're looking to protect from their future spouse. They also cannot be written to purposefully disadvantage one spouse. If the language in a prenuptial agreement would cause one spouse to become less financially well off than when they entered the marriage, that may also invalidate the agreement. The prenup can't contain invalid provisions such as requiring a spouse to engage in illicit activity or revoking the requirement to pay child or spousal support. Whether you're looking to have a prenup drafted or you've been asked to sign one, a Naples prenuptial and postnuptial agreements attorney can guide you through that process.
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April is Parental Alienation Awareness Month in Brevard County:
A Florida advocate for father's rights has succeeded in bringing more awareness to the problem of parental alienation in Brevard County. The Brevard County School Board has established April as Parental Alienation Awareness Month. That said, voting by the school board on the proclamation was split. The measure only gained approval via a vote of three for and two against. Here are the arguments promoted by the measure: When parents engage in alienating behaviors -- which may happen in contentious divorces -- children experience mental and emotional anguish. They are also deprived of their right to receive love and love their parents. Cases of parental alienation involve one parent manipulating the emotional suggestibility of children, which takes away their right to feel secure and causes psychological consequences for them as adults. Parental alienation is harmful to kids. Parental Alienation Awareness Month is a time for caregivers, parents and service providers to remember the damage this behavior causes to children, and to promote everyone to do their part to prevent it.
The lawmakers who voted against the measure worried that the issue was not that cut-and-dry. One dissenting school board member suggested that not all parents should be in the lives of their children in certain cases. If you're being deprived of your relationship with your kids because the other parent is poisoning your children against you, it could represent a violation of your legal rights. As such, you might be able to stand up for your rights in court and force the other parent not to discourage a loving relationship between you and your children. Source: Florida Today, "Fathers' rights advocate gets victory with Brevard School Board's approval of proclamation," Dave Berman, April 06, 2018
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Keep an eye on business income during divorce:
Building a business is a difficult journey. When you and your spouse make this journey together, you will both reap the benefits of the hard work. But, what happens if you end up divorcing? The answer to this isn't always easy. For spouses who are in this position, there is one huge factor that you have to watch out for. There is a chance that your soon-to-be ex will try to skew the income figures for the business in order to walk away with a larger share of the divorce settlement. This is known as sudden income deficit syndrome.
Decrease related to the divorce Sudden income deficit syndrome, or SIDS, doesn't occur because of fluctuations with the business. Instead, it is purposeful deceit by one spouse. In many cases, the decrease in income starts when the divorce is filed. However, some spouses will begin to diminish the income figure even before the divorce papers are filed. When spouses start long before the divorce is filed, it is usually because they have already decided that the marriage is over. They attempt to slowly cut back on the income that their wives or husbands know is streaming in so that they won't have to explain a sudden drop that occurred in conjunction with the divorce. Finding the discrepancies The chance of SIDS occurring is one of the main reasons why divorcing with a business is so difficult. You need to be aware that even if you don't think that your spouse would do this, that there is a chance it still may occur. Remember that protecting yourself is your top priority right now. In order to do this, you will likely need to have a forensic accountant investigate the situation. These individuals are trained in finding key points about discrepancies in business income. They use a variety of methods, including checking public records, bank statements, receipts and tax records to discern what is truly going on with the finances. Handling the division You have a lot to think about when you are trying to determine how assets and liabilities will be divided in the divorce. When it comes to the business, there are a few different ways to handle it. You might buy your ex out of the business, your ex could purchase your share, you might sell the business and halve the profits or you may continue to run the business together. No matter what option you and your soon-to-be ex-spouse choose, make sure that you have the knowledge to protect yourself.
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Why commingling trust assets can affect your divorce settlement:
When a couple divorces, a spouse having a significant portion of their assets tied up in a trust can cause the other spouse to feel somehow entitled to receive more of a settlement than half the marital assets. Oftentimes the nontrust-holding spouse will argue that receiving more from the divorce settlement is the only way of equalizing the playing field, financially speaking, between the two exes. In other cases, a nontrust-holding spouse will pull out any number of stops to find potential loopholes with the way the trust is drafted or handled that somehow allows him or her to gain access to the trust's funds. While it is possible that a greedy spouse may claim a legal right to a trust, the trust must be craftily written and strictly adhered to in order to ensure that this does not occur.
One of the most common reasons exes lay claim to trusts belonging to their spouses is because assets were pulled out during the marriage and commingled with the couple's finances. In that situation, had the trust-wielding husband or wife simply kept the funds separate from his or her spouse's, then they would have been untouchable by the other on down the line. Trusts work very much like any other asset does in a divorce. If a spouse owned something prior to the marriage, then it will continue to only belong to the original owner. The only factor that can change this end result is if any portion of the asset comes to be shared with his or her spouse. If your ex is laying claim to your trust on the grounds that some of the funds once contained in it were commingled with his or hers at some point, then a Naples attorney can advise you of your rights in your case.
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Bird nest custody may truly be in the best interest of your child:
Historically, child custody arrangements have involved kids behing shuttled between one parent's home and another's. A new type of custody arrangement, bird nesting, is quickly becoming popular though. While it's not ideal for many, some parents who are truly interested in doing what's in the best interest of their child are beginning to pursue it. The way bird nesting works is that children remain in the only home that they've known and their parents come and go according to who is scheduled to spend time with the kids for that period of time.
Many parents who choose bird nest parenting will have one parent take on daytime duties with their child at the home while another parent is at work. When the mom or dad returns home from his or her job, that daytime parent will go back to his or her own residence and leave the child in the care of the other one for the night. Other parents who raise their kids using the bird nest approach may alternate spending an entire week with their child in the home. In one instance in Canada, the bird nesting approach was ordered by a judge until a child custody hearing could be scheduled in a case. When the case came before him, he learned just how beneficial this custody approach could be for kids ages 3 through 5 who had only known one home their entire life. He noted that keeping a consistent home for them instead of exchanging them back-and-forth between parents and homes helped create a sense of stability that was much needed in their lives. This observation seems to be in alignment with child psychologists' conclusions about the benefits of this custody style. While this child-centric approach is not for all parents, they note that maybe it should be. For parents, it can be a particularly cost-effective option, especially if they can share in buying toys, bedding and clothes for a single home versus two separate ones. What's more, child psychologists say that adults are better conditioned to move back-and-forth between homes. It's more disruptive for kids to have to do the same. If you're embroiled in a dispute over how you and your ex are going to split time with the kids, then a Naples child custody litigation attorney can advise you of options available in your case.
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