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What Do Family Law Attorneys Do?

What Do Family Law Attorneys Do? Florida Family Law and Divorce Help Family Law and Divorce Lawyers help guide people through some of the worst times of their lives.

People many times liken a divorce to the same grieving process as if a close family member or spouse has passed away.

There are so many scary and foreign feelings that well up inside of people during a divorce or a contested family law matter.

We are here to be a…

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I am divorced and I pay alimony. Can I stop paying alimony if I file bankruptcy?

Generally, no.  

Spouses must continue to pay alimony even if they file 
bankruptcy. This includes the payment of past due alimony.  
Section 523 is entitled “Exceptions to discharge.”  A person 
cannot discharge (or get rid) of the debts listed in that section. 
Subsection (a)(5) states that a spouse cannot discharge a 
“domestic support obligation.”

The bankruptcy code defines domestic support obligation at 11 U.
S.C. 101(14A), and it includes obligations that are in the nature of 
alimony, maintenance, or support of a spouse or former spouse.

Sometimes, parties will disagree with what is truly “alimony” or a 
domestic support obligation.  

For example, what if the state divorce court makes a spouse pay 
his or her spouses’ attorneys’ fees and costs in the divorce case?

If the bankruptcy court rules the a all or a portion of the alimony 
is not truly a domestic support obligation, then the spouse could 
possibly modify that obligation or get rid of it in the bankruptcy 
case.  

Bankruptcy courts look at the substance of the obligation as to 
whether it constitutes alimony, maintenance, or support, largely 
disregarding what the parties or the state court called the 
obligation.  

The question is whether the obligation is “in the nature of 
support.”  A debt is “in the nature of support” if, at the time the 
debt was created, the parties intended the obligation to function 
as support.  The key determination in whether a debt is non-
dischargeable alimony or a domestic support obligation under the 
bankruptcy code is the “intent” of the parties.

Whether a given debt is in the nature of support is an issue of 
federal law. Cummings v. Cummings, 244 F.3d 1263 (11th Cir. 
2001), citing In re Strickland, 90 F.3d 444, 446 (11th Cir. 1996).  

Although federal law controls, state law does “provide guidance in 
determining whether the obligation should be considered ‘support’ 
under § 523(a)(5).” Id.

In short, the bankruptcy code was written so that a person could 
not use “the protection of a bankruptcy filing in order to avoid 
legitimate marital and child support obligations.’” In re Proyect, 
503 B.R. 765, 773 (Bankr. N.D. Ga. 2013)(quoting H.R.Rep. No. 
103-835, at 54 (Oct. 4, 1994), reprinted in 1994 U.S.C.C.A.N. 
3340, 3363).  Instead, a spouse can retain a divorce attorney and 
apply for relief with the state divorce court that originally awarded 
the alimony in order to reduce or modify the spouse’s alimony 
obligations in light of the financial hardship.  

Bankruptcy and divorce issues are often complicated.  

It is important that you retain an attorney if you believe that you 
might have any bankruptcy or family law issues.

With questions about family law, please contact William S. Foley, 
Esquire, with William S. Foley, P.A., at 
www.wfoleylaw.com.  

With questions about bankruptcy law, please contact Alfred 
Villoch, III, Esquire, with Savage, Combs & Villoch, PLLC, at
www.savagelaw.us.

Guest Blog Written By Alfred Villoch III
of Savage, Combs & Villoch, PLLC - September 2014
All rights Reserved

What is Baseball’s Paternity List?

Many fans of America’s favorite past time were surprised to hear 
about this when it first surfaced in the news a few months ago – I 
know this author was – but it’s true, Major League baseball has a 
“Paternity List” which allows players to lawfully leave a team when 
their spouse is in the process of delivering birth to a child.

Pursuant to Major League Baseball’s 2011 collective bargaining 
agreement with the Player’s Union, major league baseball players 
are afforded three days of paternity leave. This provision came to 
light when New York Mets second baseman, Daniel Murphy, 
exercised his right to paternity leave in early April 2014 to join his 
wife and new son.

Murphy’s decision to take paternity leave was not greeted 
enthusiastically by many in the sports world. 
Boomer Esiason 
suggested that Murphy’s wife should have had a “c-section” before 
the season so that Murphy would not miss any games.

Not cool Boomer.

Additionally, New York radio host 
Mike Francesa on WFAN was 
equally upset with Murphy and went as far to say that Murphy’s 
wife really didn’t need him to be there in the first few days 
following birth.

The surfacing of Murphy’s case in the media raises some unique 
questions.

For example, should professional athletes be given paternity leave 
or is the obligation to their teams and fans too great to justify 
paternity leave?

Furthermore, is it time that the country in general starts a 
comprehensive dialogue on the subject of paternity leave for all 
Americans?

In the end, this case is yet another example of how the fields of 
family law and policy have become completely intertwined with 
multiple facets of American society.

It’s difficult to say with certainty how the concept of paternity 
leave will evolve but it seems likely that the topic will remain 
within the public discourse.

One thing is for sure, at least for now, paternity leave is here to 
stay in Major League Baseball.

Prenups: I do or I don’t


Why should we get a prenup?
No one should enter into a marriage anticipating
       failure but premarital agreements (aka prenup) protect both
   parties and their families should something go wrong.
       Advantages include:
       •      Avoiding Litigation Costs
       •      Protecting against Fears of Family Members
       •      Protecting Family Assets
       •      Protecting Business Assets
       •      Protection Against Creditors and debt
       •      Estate planning/Predetermined Disposition of Property

Such agreements also open the door to “full disclosure” 
concerning assets and debt.

What is the difference between a prenuptial agreement 
and a premarital agreement?
Nothing significant…A pre-nuptial, or premarital agreement, is 
an agreement between two prospective spouses made before 
marriage and becomes effective when you and your spouse 
marry.

In Florida the agreement is referred to as a “premarital 
agreement” which means an agreement between prospective 
spouses made in contemplation of marriage and to be effective 
upon marriage.

Are there specific requirements to make a premarital 
agreement valid?
Yes. Under Florida law, among other requirements, a premarital 
agreement must be in writing and signed by both parties and 
enforceable upon marriage. You can speak with William S. 
Foley, PA for other advice on ensuring that you premarital 
agreement is valid.

How does Florida handle premarital agreements?
Florida Statute §61.079 follows a version of the Uniform 
Premarital Agreement Act (UPAA) which governs premarital 
agreements entered on or after October 1, 2007. The UPAA 
follows Florida Family Law Rules of Procedure.

Can we do it ourselves?
In the eyes of the law, marriage is a contract between two 
people. A premarital agreement is also a contract, and if done 
incorrectly can be invalid or misconstrued to the original intent 
of the parties/couple.
*It is always best to have a professional look over any contract.

Do we both need lawyers?
It is a contract…the drafting attorney is doing what is best for 
his client. It only makes sense to have someone look out for 
your best interest as well.

What makes a premarital agreement unenforceable and 
who decides the enforceability?
An agreement is unenforceable if it was involuntary, the product 
of fraud, duress, coercion, or the agreement was 
unconscionable.

Courts occasionally invalidate premarital agreements, these are 
normally ones prepared without the help of attorneys, or ones 
where there was coercion in getting one partner’s signature.

If you have a properly drafted agreement, and there was no 
duress, there is a better chance that it will stand up in court

What should be included in a premarital agreement?
The specific needs of each couple will vary. But the Florida 
statute recognizes the need to contract on property, spousal 
support (you should speak to an attorney regarding the state of 
the Law in Florida on temporary support, as this is a tricky area 
of the law), creation of a will or trust, benefits from life 
insurance, the choice of law governing the construction of the 
agreement, and any matter including personal rights and 
obligations that does not violate public policy of this state or 
law imposing a criminal penalty.

Does it have to be done before we are married?
A premarital agreement must be completed and signed before 
the marriage to be a “pre-marital” agreement. Only premarital 
agreements fall under the UPAA guidelines.

But a “post-marital” agreement (or Postnuptial Agreement) can 
be drafted at anytime during the marriage and can accomplish
the same objectives as a premarital agreement.

Do you also draft Postnuptial Agreements?
Yes! Postnuptial Agreements are agreements entered into 
AFTER the marriage. We prepare those as well and they can be 
very helpful even if the premarital agreement was not entered 
into prior to the marriage.

How long before the marriage should we make a 
premarital agreement?
Depending on the complexity of the issues and the parties’ 
financial status, drafting the agreement should be done several 
months before the wedding but the signing of the agreement ca 
be done anytime before the ceremony.

Are premarital agreements expensive?
No. Compared to the cost of an average wedding or an average 
divorce, a premarital agreement is a bargain. The best way to 
think about it is like buying insurance: it’s a small one-time cost 
for something you never hope to use, but if you ever need it, 
you’ll be glad you have it, and it will save you a lot of money.

Can a premarital agreement be terminated or modified?
Yes, after marriage, a premarital agreement may be amended, 
revoked, or abandoned only by a written agreement signed by 
both the parties.

Call William S. Foley, a Tampa Prenup Lawyer at (813) 272-
2345 so that wcan set up an initial consultation on
your prenuptial agreement.

IF MY SPOUSE RELOCATES, WHO IS GOING TO PAY FOR THE TRANSPORTATION COSTS?

If the Court orders relocation either through agreement of the parties or during a hearing, one of the factors the Court looks into is what the transportation costs are going to be for the non-custodial parent.

 What does this mean in plain English?

 If my spouse is the one that relocates the kids, how much is it going to cost me to see my kids?

One thing that we know is that long distance travel and transportation costs can be extremely expensive in certain situations.  We’ve seen various costs associated with transportation ranging from a small amount of gas money for a trip, to extensive airfare associated with overseas and international travel. 

 The factors for costs of the transportation differ on where the parents live, depending on if it’s a flight situation, whether there is an airport hub or multiple connecting flights and depending on the age of the child if they can fly without an adult. These different factors will all affect the transportation costs associated with the relocation. 

 So when making my long distance agreement, what do I need to take into consideration for the costs?

 Let’s use an example that your child is 2 years old when you agree to a relocation of the other party with the child, that would equal at least 16 years of transportation expenses associated with your time-sharing with the minor child.  Multiple that by each child if you have more than 1 child.

 To start to get an idea of the costs involved, let’s say in the example above the long distance timesharing was limited to:

                - one full month  (30 days) during the summer for the       

                 noncustodial parent, and

                - then some time at Christmas (how about 10 days?), and

                - let’s also include every other thanksgiving and spring break.

             * this is not necessarily a normal schedule, it’s just an example.

Christmas is one of the most expensive times to fly as children are normally out of school at that time and it is a peak travel time; this is usually true for Christmas, Thanksgiving, spring break, and summer break. These breaks all turn into good periods of time to make up time for the noncustodial parent if you live 2,000 miles away from each other; as every other weekend is not likely going to occur.  The transportation costs are going to be higher than a weekend in September, as these periods are the most regularly traveled periods. This has to be factored into the analysis of payment of transportation costs.

So if in the example the noncustodial parent is flying in to pick up the child that would be a roundtrip ticket home and then to bring the child back and then fly back would be another roundtrip ticket plus the child’s roundtrip ticket.  So just for one timesharing break if you bring the child back to the noncustodial’s home that could be a number of roundtrip tickets and if you multiply that over two to four times per year and then multiple that by 16 years, the costs associated with the timesharing could be substantial while the child is a minor. Keep in mind there are a lot of other variables for timesharing, which could necessitate additional costs associated with transportation.  So again this is a very important factor to remember to remember that this may not just be someone paying for a tank of gas for a 3-hour round-trip drive from city to city. 

How do people figure the payment of the transportation costs out?

 Of course we have to give the normal legal answer that every situation is usually different.

 Why is this so? Why can’t it be one size fits all?

Well, there are different situations that necessitate different results:

  • Sometimes parties will split the costs pursuant to a percentage either 50/50, 75/25, 90/10 – dependent on a whole host of factors, or
  • Sometimes one party bears all the costs, again this is based on each parties’ set of unique circumstances
  •  and then again it can be taken into consideration for child support and the Courts can take into consideration for a deviation from the child support guidelines based upon the expenses associated with the noncustodial parent’s timesharing.  Again, we stress the word “can”, the Court is free to Order what they feel is in the best interest of the child and what is fair and just for each situation. The parties can settle out of Court for payment that they deem to be fair as well if the Court will approve it.

What if I want more time?

 In some situations the parties are able to fly in for weekend timesharing or if they lived close they can drive if the financial circumstances allow for this type of timesharing.  Again, flights to and from distant locations for a short weekend are less prevalent. Sometimes we will see flights in to a locale and staying in a hotel or apartment near the other party’s residence for weekend timesharing, but again, the most frequent long distance time-sharing does not include more than about 5-8 weekends out of the year. This is an option to use floating weekends that can occur during the year at the request of the noncustodial parent, so it won’t be 26 every other weekends during the year, but it will be almost monthly contact with the minor child.

Again, this article does NOT suggest that relocations are always granted, but merely that IF the relocation is agreed to or Ordered by the Court, everyone needs to look at the transportation costs as this is a big issue in most cases. The Courts look at many factors in deciding a relocation, but this is not the topic of this article.

In conclusion it’s very important to keep this very potentially expensive factor in mind when you’re agreeing to or formulating a long-distance timesharing schedule, or an agreement based upon a proposed relocation. 

Our office deals with relocations on a regular basis and you can give us a call at (813) 272-2345 to set up a consultation relating to your proposed relocation or if you are the noncustodial parent and you are objecting to a relocation.  Sometimes it’s also helpful to speak to an attorney if either party is thinking about agreeing to the relocation and wishes to have more information or have an attorney assist in the process of negotiating the long distance timesharing and payment of transportation costs

By: William S. Foley, Esq.

Jurisdiction: Florida

Tampa Divorce and Family Law turned 5 today!

Tampa Divorce and Family Law turned 5 today!

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What if I need support but I don’t want a divorce?

            Sometimes when parties are married they choose for whatever reason not to proceed forward with a divorce but they still separate.  As there is no legal separation in Florida, one method used is to file an action called “support unconnected with a divorce” in order to receive support without filing for the divorce. 

This is only used in certain situations.  Again these cases are not routinely filed but it is another option available for alimony and child support for a party to receive some support prior to a final dissolution of marriage. 

The relevant Florida Statute is 61.09 and reads as follows:

61.09 Alimony and child support unconnected with dissolution.—If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.”

         61.10 is also another Florida statute which explains the adjudication of the support action:

61.10 Adjudication of obligation to support spouse or minor child unconnected with dissolution; parenting plan.—Except when relief is afforded by some other pending civil action or proceeding, a spouse residing in this state apart from his or her spouse and minor child, whether or not such separation is through his or her fault, may obtain an adjudication of obligation to maintain the spouse and minor child, if any. The court shall adjudicate his or her financial obligations to the spouse and child and shall establish the parenting plan for the parties. Such an action does not preclude either party from maintaining any other proceeding under this chapter for other or additional relief at any time.”

                              - 2013 version of statute

Speak to an attorney about this area of the law as again since it is not filed very often sometimes it can be confused by some parties as being an actual dissolution proceeding rather than just a support unconnected with a dissolution of marriage proceeding.

By: William S. Foley, Esq.

Jurisdiction: Florida

What is Mediation?

Mediation is an opportunity to get things done. 

What we mean by that is that litigation is time consuming, costly and many times results in an outcome that would be more advantageous if the parties were able to come to a settlement as it costs money to get to the judge. 

Mediation is that option to get the case moving in the right direction to come to a settlement. 

It takes a meeting of the minds. 

It takes restraint. 

It takes compromise. 

It also takes reason and sometimes what would seem like a little bit of luck but attorneys know that a lot of times through hard work, preparation and consistent contact with their clients prior to the mediation helps prepare them to better informed and more able to make a decision at the mediation. 

Mediation itself in Florida is confidential and privileged.  In family law and divorce cases, which is the subject of this article, the relevant rules provide for confidentiality of mediation and settlement negotiations that take place at mediation.  So if the parties do not enter into a settlement agreement, offers and counteroffers made in compromise should not be used against them later. 

Confidentiality is very helpful as sometimes parties may be more willing to offer more than they would be willing to offer when they go to court, so then they want to make sure that these offers of compromise and settlement are not used against them later if the mediation does not work out, so it gives a forum for parties to feel comfortable to make their best offer.

A mediator is neutral and works for the agreement. The mediator is NOT the Judge. The mediator does not make decisions for the parties; the mediator helps facilitate an agreement. If you can’t agree, that’s when you turn it over to the Judge for the Judge to decide.

If you are interested in mediation in Tampa, Florida, Saint Petersburg, Florida, Clearwater, Dade City, New Port Richie, Plant City, Sarasota, Bradenton, Bartow, Lakeland, Spring Hill, Hernando, please give our office a call at (813) 272-2345 to speak with a divorce and family law lawyer that deals with mediation and is experienced in settling and litigating divorce and family law issues.

By: William S. Foley, Esq.

Jurisdiction: Florida

 http://www.wfoleylaw.com

we can help… seriously.

We are here to help.

The mantra of our office is we are here to help you.

We believe in The Reasonable Divorce, and what that means is that if both parties are able to be reasonable about their lives, their property, their children, their finances and then we are here to help the parties come to an agreeable resolution.

We do know that some cases are unable to be settled and many times that’s due to one party being unreasonable. Sometimes, it’s just because both parties want the same exact thing, such as primary custody of the children. So we do our best to suggest reasonable behavior, but in some circumstances but parties just want the exact same thing.

The firm firmly believes that the vast majority of cases where both parties are being reasonable that an agreement settlement is imminent. We are here to help in all cases which the parties as well wish to be reasonable.

We feel our office has reasonable fees and reasonable staff to help you through your problems. This does not mean that we work for free as nothing in life is truly for free and again the phrase as everyone has heard a million times - you get what you pay for - we are clearly a proponent in that phrase, that we feel we are worth what we charge and that it’s a reasonable fee.

We feel we can show you as well how we can be of help to you in your family law matter. It can be divorce, paternity, child support or other related family law matter in Hillsborough, Pinellas, Pasco, Polk, Manatee, Orange, Seminole, or Hernando counties.

We are here to help and to be there for you during this time in your life.

We understand it’s hard.

We understand it’s stressful.

We’ve had hundreds of cases that have helped us to be able to know how to deal with your specific situation which is different than everybody else’s situation. We’re finally attuned to that, that we have to approach each situation differently and look it from the context of what our client’s goals are.

Again, if your goals are reasonable and your spouse’s goals are reasonable and there are two reasonable attorneys involved, we feel there’s a good opportunity for settlement so you can move on with your life, save money in the time being and create a better future for your children.

Again, call us today at (813) 272 2345, we’re here to help.

www.wfoleylaw.com