Blog

Issue: Emergency Temporary Custody

Posted on Wed, May 29, 2013

This Court may grant to Petitioner/Father temporary emergency custody of the minor child because Petitioner/Father has established the presumption that he is the legal father of the minor child, and a true emergency exists justifying the need for emergency custody. Paternity is conclusively established when both parties sign an acknowledgment of paternity and within sixty days, that acknowledgment is not rescinded by either party. Allison v. Medlock, 983 So. 2d 789 (Fla. 4th DCA 2008). Once the acknowledgment has been signed and the time period to rescind has passed, paternity is presumptively established. Id. Paternity may then only be disestablished where either party can establish fraud, duress, or material mistake of fact. Id.

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Kenny Leigh Q&A

Posted on Fri, May 24, 2013

Custody of Children

  • What does the term “majority timesharing” mean?
    It is the term that replaces the term “custody” in the state of Florida. “Majority timesharing” means “custody”.
  • How does a judge determine who receives custody?
    With an analysis of approximately 20 factors in Florida statutes, chapter 61. The child will receive majority time sharing with the parent who is better at more factors.
  • Can a child choose which parent to live with?
    Contrary to popular belief, a child cannot choose which parent to live with. The child’s choice is one small factor a judge may consider, but it is not dispositive of the entire issue.

Filing a Family Law Case

  • Where should an original divorce be filed?
    The proper place to file an original divorce is the last county the husband and wife last lived together. In a paternity action, the case can be filed in the county where the mother or father lives.
  • How is an order enforced or modified?
    It first goes to the original county that the original action was in. If no one lives in said county anymore, then it usually can be filed in any counties that the parties reside in, provided they are still in the same state.
  • How is a time sharing arrangement modified?
    The action usually must be filed in the county that the child currently resides. There are some exceptions.

Marital Property

  • What is marital property?
    Generally, everything that was acquired during the marriage from the day of marriage to the day of filing the petition for dissolution is classified as marital. Exceptions include inheritance, outside gifts to a specific spouse, etc. By and large most everything will be considered marital.
  • Is a gift from one spouse to another considered marital?
    Yes and it will be divided during the divorce process. This includes jewelry, watches, and anything of the sort. It does not matter whose name the property is in. If it was acquired during the marriage with marital effort and/or funds, it is considered marital property.
  • Can social security benefits be included as part of an equitable distribution award?
    Under Hisquerdo v. Hisquerdo, 439 U.S. 572 (1979), social security benefits cannot, under any circumstances, be included as part of an equitable distribution award.
  • How are replacement plans divided in Florida?
    Replacement plans are not the same as social security benefits. Thus, replacement plans are equitably divided in Florida without regard to the position the nonparticipating spouse will be in upon retirement.
  • How do courts compensate for the inequity of the positions of the spouses?
    Depending on the circumstances, there is an argument for the court requiring the participating spouse to pay alimony to the nonparticipating spouse if the equitable distribution places the nonparticipating spouse in a position of need, and gives the participating spouse the ability to pay.
  • How does a court award alimony?
    Alimony can be used to correct the “mechanical” equitable distribution factors in order to avoid an unfair result. The court does not look at the disparity in income of the parties when awarding alimony.
  • How is alimony determined?
    Alimony is determined in the state of Florida by referring to statutes 61.08 and case law.
  • What types of alimony are there?
    There are four types of alimony that can be given as a result of a divorce proceeding.  They are called bridge the gap alimony, rehabilitative alimony, durational alimony, and permanent alimony.
  • What is bridge the gap alimony?
    It is designed to assist a party transition from married life to single life. It is nonmodifiable and may not exceed two years.
  • What is rehabilitative alimony?
    It is designed to help a person become self-supporting. There must be a specific plan for rehabilitation. It is modifiable.
  • What is durational alimony?
    It cannot extend past the length of marriage. It is modifiable but can be no longer than the length of the marriage.
  • What is permanent alimony?
    It can last forever. It is modifiable and terminates upon remarriage or potential cohabitation of the receiving spouse. It is designed for a long term marriage, although there are exceptions.
  • How does cohabitation affect alimony?
    Florida statutes allow the person who is paying alimony to modify that alimony or even terminate it based on cohabitation.
  • How does one prove cohabitation?
    There are many factors involved in proving cohabitation. The biggest is proving that there is a supportive relationship. This is possible through joint bank accounts, shared home bills, and other things that show their similarity to an actual married couple. Length of time living together is also another factor.
  • How is child support issued when a parent is receiving disability?
    When a parent is disabled and receiving money from the government, frequently a separate check for child support will also be sent.
  • What is the proper way to handle a disabled parent’s child support payment?
    Add it to the income of the disabled parent and then calculate the guidelines with the parent receiving both disability checks as their income.
  • What is subsequent children’s defense?
    A child born after the child who is in need of child support can be considered by the court in the deviation of the guideline amount of child support. This is typically done by figuring out what the child support would be for the subsequent child and using that and the other calculation for child support.
  • How does one establish paternity?
    The legal father has an unmistakable interest in maintaining a relationship with the child, and a putative father generally lacks standing to challenge paternity. However, if the unwed father shows a substantial concern for the welfare of his illegitimate child, he may be accorded standing to assert an interest with respect to that child.
  • What can be done about an injunction filed against a person?
The injunction must be taken very seriously. A person must do everything possible to win that hearing. Witnesses are crucial.

By Kenny Leigh

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How Far Back Can You Check For Hidden Assets?

Posted on Tue, May 21, 2013

Divorce is quite common these days, yet the trauma and turmoil it brings to the people caught up in the divorce process can be hard to handle.  This is particularly true when one party wants the divorce and the other one doesn’t, or when one party is financially stronger than the other. In these kinds of cases, if the split is amicable, then the distribution of property and assets can be easily achieved. However if there is acrimony and a feeling of betrayal, it will make the one who’s being divorced hard to handle and vindictive.

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Issue: Administrative Support Orders

Posted on Mon, May 20, 2013

Question:  Whether an administrative support order may be modified by a circuit court when the parties to the administrative order where married at the time the support order was entered, the parties have subsequently filed for dissolution of marriage, and the same children whose support was ordered administratively are subject to the dissolution of marriage action.

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Issue: Jurisdiction in Paternity Actions

Posted on Thu, May 16, 2013

Issue:  Whether a paternity action can be filed in Florida when the child and the child’s mother reside in another state. Neither the child nor the mother has ever resided in Florida. The putative father resides in Florida.

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Can I Remove My Spouse from Insurance Before Divorce?

Posted on Tue, May 14, 2013

More than one-third of all marriages end in divorce. If you are contemplating divorce, it is time to consolidate and protect your assets, especially if you don’t have a pre-nuptial agreement between yourself and your spouse. This is a highly emotionally distraught and upsetting process, and so you need a trustworthy and supportive divorce attorney who is well-versed in the family law in your state of residence to argue successfully on your behalf. Your divorce attorney should be from the local area so that he will know the district circuit judges and courts, not to mention their likely reactions to any given situation.

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Should Lifetime Alimony be Allowed?

Posted on Thu, May 09, 2013

The following article was published on April 19th 2013 by First Coast News of Jacksonville Florida. The article is titled “should lifetime alimony be allowed?” with original quotes from attorney at law Kenny Leigh, written by Ken Amaro.

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