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Wednesday, April 27, 2011

Do I Really Need an Attorney for my Family Law Case?

Do you need an attorney for your family law case?

In our opinion, it is always in your best interest to be represented by a practicing family law attorney in a domestic relations case.  The truth of the matter is however, that you are not required to be represented by an attorney.  You can represent yourself, pro se.  Many civil courthouses even have Supreme Court approved forms available to assist you in your pro se family law case.  At the Orange County, Orlando, Florida courthouse, for example, you can purchase all the necessary forms to file your Dissolution of Marriage case for $15.00.  You can also go to http://www.flcourts.org/ and download the forms.

Nevertheless there are situations in which we would strongly encourage you to hire an attorney, some of those situation include:

1.         The opposing party is represented by an attorney in a contested divorce.  Time and time again we see clients who were railroaded in their divorce case after having represented themselves against an attorney.

2.         Domestic Violence Injunction.  Having a domestic violence injunction issued against you can adversely affect many aspects of your life including your employment and visitation/time-sharing with your minor child.  Often times, a parent will file for an injunction against the other parent, on behalf of their minor child, asserting that the parent filing for the injunction fears that the parent filed against will harm the minor child.  In a case such as this, the parent against whom the injunction is sought faces the possibility of having a court order that he or she may not have any contact with their child for a substantial amount of time.

3.         Mediation.  In Florida, most domestic relations cases will be referred to mediation before the court will hear any of the issues.  Having an attorney at mediation is helpful so you can be sure that your legal rights are being protected during the mediation process.  Even if your mediator is an attorney, he or she is a neutral third party and cannot give you legal advice … and remember that once you sign a mediation agreement it becomes a binding agreement that is difficult to alter.

4.         Hearings and Trial.  There are many parts of a domestic relations proceeding that do not involve appearing before a judge.  However, at hearings and trial you will be appearing before a judge in a court of law and there are numerous rules governing those proceedings that you probably won’t know or understand.  This lack of knowledge can be detrimental to your case because "ignorance of the law is not a defense".  If you are representing yourself in a court proceeding you are held to the same standard as an attorney.  Therefore, it is possible that certain material evidence that could have a vast impact on your case will not be admitted or considered by the judge because you did not know the procedure for properly entering it.  It’s also possible that the judge could receive and consider evidence entered by the opposing party that damages your case; but, had you known the proper objection, that damaging evidence might never have been admitted for consideration.  And once again, any order that comes from that hearing or trial is binding and difficult to alter or ammend.

Many people decide to represent themselves in domestic relations proceedings to save money only to find that in the long run, it costs them much more that it would have cost if they had hired an attorney at the outset.  If you find yourself in a situation where you feel that you cannot afford an attorney for the entirety of your case, consider hiring an attorney for limited representation to represent you at mediation, hearings, or trial.

Information about that Law Office of Frank P. Remsen, P.A., can be found at http://www.remsenlaw.com/About-Us.shtml

Information about our attorneys can be found at http://www.remsenlaw.com/Attorneys/



Thursday, April 14, 2011

Imputing Income for Support Calculations



In Florida, a court can impute income to a spouse or parent in spousal and/or child support proceedings.  This means that, for purposes of calculating child support or determining spousal support, a court can treat a party as though his or her income is higher than it actually is.  A court will consider imputing income to a party if it finds that the party is capable of working and is voluntarily unemployed or underemployed.

What does that mean?  Voluntary unemployment is when a party doesn’t have a job due to reasons subject to that party’s control; for example, a party will likely be deemed voluntarily unemployed if that party quit their job or was “fired with cause” from their job.  Voluntary underemployment is when a party “chooses” a job that pays less than that party’s earning capacity; for example, if a party was “fired with cause” from his job as a construction worker and he subsequently finds employment as a construction worker with another company but earns less at his new job, that party could be deemed voluntarily underemployed.

Why does the court do this?  Sadly, parties will attempt to lower their support obligation to the other party and/or increase the support obligation from the other party, by purposefully earning less than they are capable of or reporting less income then they actually make.  Because of these shenanigans, voluntary unemployment and voluntary underemployment can be considered evidence of a party’s bad faith in support proceedings and imputing income to the offending party is the court’s remedy.  


Another reason for imputing income is to reinforce an individual’s obligation to be self-supportive and to enforce their duty to support any minor children.  In a divorce scenario for example, generally one party cannot be reasonably expected to solely bear the burden of supporting and maintaining two households; both parties must contribute.  Be forewarned: a spouse who has never worked but has the ability to work and does not have any compelling reasons (recognized under the law) to continue not working, can be imputed to full time, minimum wage income for support purposes.


Whether or not income will be imputed and how much income will be imputed depends on the specific circumstances of each case.  The courts look at multiple factors when determining income imputation.  Some of those factors include, but (as always) are not limited to: the nature of the party’s unemployment or underemployment (can it be classified as “voluntary”), earning capacity, education level, prior work history, and whether or not you are actively looking for gainful employment. 

More information on child support can be found at http://www.remsenlaw.com/Child-Support/

Tuesday, April 12, 2011

Shared Parental Responsibility and Co-Parenting


When minor children are involved in a divorce, a divorce-reality that is difficult for many people to understand and accept is the concept of shared parental responsibility.  Parental responsibility refers to the authority of a parent to make decisions regarding their child’s education, health care, religion, and any other responsibilities that the court finds unique to a particular family.

More often than not, a court will order that the parents share parental responsibility so that both parents retain full decision making responsibility.  Accordingly, the parents are required to co-parent by conferring and acting jointly when making major decisions affecting the welfare of the minor child; the parents are expected to work together.  Co-parenting is almost always in the best interest of the child involved because, when done effectively, it allows both parents to be a significant part of the child’s life without compromising the child’s relationship with either parent. 


Co-parenting requires the parents to effectively communicate with each other in regards to their children.  This can be difficult especially since communication breakdowns between a husband and wife are almost always one of the culprits behind a divorce.  Studies show that children of divorced parents who can successfully co-parent are able to deal with their parents’ divorce more successfully than those children whose parents are unable to cooperatively co-parent.

The basic legal principles behind shared parental responsibility and co-parenting are the same for parents who were never married.  Some useful co-parenting strategies that we suggest are:


1.         Treat co-parenting like a business relationship.  Make a list of what needs to be discussed to keep you on track during the conversation.

2.         Focus on your children.  Don’t allow yourself to get drawn into past or current marital issues and disputes; reserve those for your therapist.

3.         Do not use your children to send messages to the other parent.  – They are your kids, not a messenger service.  Your children do not deserve to be put in the middle of your problems with the other parent.

4.         Refrain from using language that you would not use in conversation with a priest.

5.         Be reasonable and willing to compromise.  It can’t be your way all the time.  Believe it or not, the other parent might not be acting purely out of spite and might actually have some good ideas.

Tuesday, April 5, 2011

Alimony in Florida

Alimony (also commonly referred to as “spousal support”) is a major source of contention among divorcing spouses.  While one spouse is threatening to take the other spouse for “everything he’s got,” the other spouse can usually be found promising that the first spouse will “never see a dime in alimony.”  More often than not, those who are making these types of threats do not understand the nature of alimony or the laws governing it.

The purpose of alimony is to ensure that any financial burdens directly resulting from a divorce are balanced fairly between the divorcing spouses.  The four main types of alimony that are available in Florida are: (1) Bridge-the-Gap, (2) Rehabilitative, (3) Durational, and (4) Permanent.  Each kind of alimony serves a distinct purpose and has specific criteria that must be met before an award will be made.  

Bridge-the-Gap Alimony.  Bridge-the-gap alimony is awarded to ease a spouse’s transition from being married to being single.  It is specifically intended to take care of a spouse’s legitimate and identifiable short-term needs.  Therefore, bridge-the-gap alimony cannot last longer than two years and will only be awarded if a spouse can present evidence that clearly identifies a specific need and tends to proves that such need is genuine and necessary.

Rehabilitative Alimony. Rehabilitative alimony is awarded to help a spouse establish the ability to be self-supportive.  The objective is for the supported spouse to become self-sufficient and obtain steady employment.  A spouse can become self-supportive either by redeveloping previous skills or credentials or by pursuing the education or training necessary to develop appropriate skills or credentials.  The spouse seeking rehabilitative alimony is required to provide a cohesive rehabilitative plan to the court.  If the rehabilitative plan is accepted, then alimony is awarded to the spouse while he or she undergoes the process of “rehabilitation.”

Durational Alimony.  Durational alimony is somewhat vague.  According to Florida law, it is awarded when permanent alimony is not appropriate.  Durational alimony is designed to provide a spouse with financial assistance for a set period of time.  Typically following a marriage of short or moderate duration, the length of an award of durational alimony cannot exceed the length of the marriage.

Permanent Alimony.  Permanent alimony is awarded to a spouse who is unable to take care of his or her own financial needs after a divorce.  For purposes of permanent alimony, a spouse’s financial needs are determined by the standard of living that was established during the marriage.  Permanent alimony is usually reserved for moderate to long-term marriages; however, it can be awarded following a short-term marriage if there are exceptional circumstances.  

This is just the tip of the alimony iceberg.  For more information about alimony visit our website http://www.remsenlaw.com/Family-Custody-Divorce-Law/Alimony.shtml and schedule a free consultation with one of our attorneys.