Tampa Divorce and Family Law

Initial Consultation Questions to ask your Florida Divorce Lawyer

What kinds of questions should you ask an attorney during your divorce initial consultation?

It is important to understand that each attorney is different and therefore each attorney will have their own specific process for each of their consultations. Some attorneys will want you to fill out information prior to the consultation and also to discuss with the attorney specific background information that the attorney will need to know. Therefore, please understand that each attorney’s initial consultation is different and most of your specific questions should be answered during the attorney’s specific questioning that they have done hundreds/thousands of times with other people.

Here are some questions to ask during your divorce initial consultation:

1) Do you an area of practice that you focus on?

               If the attorney does not focus on divorce and family law matters, you may want to follow up with - have you ever handled a divorce before?

2) How long is the range that a case like this could last?

              Again, the attorney is in no way a fortune-teller and cannot predict the future of how long your case will last with your specific set of circumstances, but if they can tell you a range; this may help you have a handle on the situation if you have approximate time-frame that the attorney has seen in their experience.

3) If I forget to ask you something today during the initial consultation, can I call later to ask a question, or would I have to pay for another consultation?

Generally, I do not personally charge another consultation fee if a client has another question after the consultation, but some attorneys may charge and may need to see the potential client again. A reason why could include that a great deal of time may have passed and circumstances could have changed. Overall, it can put you at ease if you know that you can call later if you forget something during the consultation. During the consultation, you will be hit with a great deal of information and as it is also a confusing and emotional time, sometimes people can forget to ask all of the questions they have during their initial consultation.

4) What is the law in the state of Florida on: Parental Responsibility, Time-sharing, Parenting Plans, Child Support, Alimony, Equitable Distribution of Assets and Liabilities and Attorney’s Fees?

             Depending on what the issues in your case are, it is very important to know what the basic boiled down approach of the law is in some of the important areas of your case. Right from the start. It may not be the appropriate time to go into the minutiae of the law and specific cases, etc. But it is helpful know the State’s view on certain areas of divorce law so you can start understanding the process you are about to undertake.

5) What about the law applied to my situation? What can I ask for? What should I ask for?

                Your attorney will begin the process of analyzing your situation as soon as you provide back the new client questionnaire. As you are speaking to him or her, they will start to formulate how they wish to approach the case. As each lawyer’s approach may differ, sometimes there is not a right and wrong way to approach it; it may just be one lawyer’s view on the issues. So, feel comfortable with the lawyer’s approach to the case. Try to determine what your own goals are and if they are reasonable from the attorney. Any attorney can promise you the world, but if it is not realistic and they are only reciting back to you what you want to hear, then that may not be helpful to you in your divorce proceeding.

6) Are there any time-frames/deadlines that I need to know about?

                  This is very important as certain situations call for certain time-frames and deadlines. Speak more with your attorney about the specifics related to your case.

7) How much is the initial retainer for my case?

                Lawyers have different retainer amounts for different cases. Some attorneys ask for a refundable retainer and some ask for a non-refundable retainer.  Some retainers can be split up into a payment plan at some offices. The amount is really an important aspect of the consultation. This attorney will let you know at the end of the consultation as they will need to know your full situation before quoting you a retainer.

8) What is your hourly rate?

                 There is no set hourly rate for divorce lawyers in Florida. Each Divorce lawyer sets their own hourly rate, or it is set by their firm. Therefore, you need to know the hourly rates of the attorney and each member of the firm that may be billing on your case.

This is not an exhaustive list of questions to ask your attorney, but hopefully this will give you a basis for asking a Florida Divorce Lawyer questions during your initial consultation. 

Unique Divorce Service in the Southwest

A unique service that has been offered for two decades in San Diego is now being offered in Las Vegas as well for those seeking information about a potential or pending divorce. An event titled “Second Saturday Divorce Consultation Service” hosts events on the Second Saturday of every month at different locations. So far, the events have only taken place in the Southwest. Bordering the unconventional, the purpose of these events is to inform women that divorce does not have to be as financially draining for the parties involved as is commonly understood.

Organizer Jacqueline Thornhill takes a “glass half-full” approach in educating women on the details of divorce, focusing on “moving a woman’s life forward in as positive manner as possible.” The event showcases financial planning, family therapy, mediation, and legal counsel. The event helps women to create both short and long term financial plans and provides access to expert advice and services related to divorce.

See Phelps, Laura. View. “Monthly Events Help Couples Navigate Divorce”. http://www.lvrj.com/view/monthly-events-help-couples-navigate-divorce-186041611.html

HELP! I AM IN THE MIDDLE OF A CUSTODY FIGHT!

Article Written By William S. Foley —All rights Reserved

So what happens when you find yourself in the middle of a custody fight?

Is this something that you ever thought would happen to you?

Sometimes it is inevitable in certain cases dealing with children’s issues that they turn into a custody fight. It is usually not expected and almost never wanted. However, it does happen. Why does it happen so often? Well, both parents want the same thing. They both want the child.

The love of the child may cause people to act in ways they have never acted in their whole lives. Divorce attorneys see it every single day.

Sometimes it can also prompt some people to fight for their children to make ensure that the children’s best interests are taken into account. In these types of situations where the parent is truly looking out for the best interest of the minor child a custody battle may be warranted if it is not in the best interests for the other parent to have a majority of the time, and the other side will not agree to be reasonable and look out for the best interest of the child.

Parties can only reach an agreement when both parents are on board. This is a legal system in which agreements can be set aside and therefore such agreements must be entered into knowingly and willfully. So therefore both parties must come together in a meeting of the minds in order to form this agreement on how to handle the time-sharing of their minor children.

If the parents are unable to agree on what is in the best interests of the children then sometimes the parties feel that it is appropriate to have a third person make that decision, or assist them in making the decision.

One option is to use an expert who is trained in evaluating time-sharing, custody, parenting plans and contact with the minor children and the parent. This expert can be a social worker or psychologist but foremost has to understand the family law issues and factors that go into child custody and the time-sharing determinations. This article is written in Hillsborough County, Florida therefore it follows Florida statute 61.13, which dictates the factors the court will use to decide a time-sharing and a parenting plan.

Some factors are the facilitation of time-sharing and if one parent is more likely to facility the time-sharing with the other parent. Another factor includes making educational decisions and which parent has historically made those decisions. Other factors include domestic violence, child and sexual abuse, and related issues to the time-sharing with the minor children and the parents.

So therefore the expert may make a similar determination as the court would and sometimes they can make this the primary determination before the court even look at the issues.

Some judges are very receptive to theses evaluations and find it very helpful to the court in determining what is in the best interests of the children. However, if the evaluator does not follow the appropriate methods their recommendation is not as helpful, and the court will give little weight to the evaluation in its determination. These experts may testify at a final hearing and can be deposed, but their overall purpose and charge is to create a report and recommendation that details what the time-sharing and parenting plan should be. This recommendation can be extremely helpful to the Trier of Fact (the judge).

However, sometimes even with the assistance of an expert the parties are still unable to come to an agreement. That is when the judge makes the decision. In theses circumstance the expert may come to the court to testify or in other circumstances the parties will not use an expert to look at the child custody situation and the court must make the determination on their own with the assistance of the presented witnesses and the evidence.

The parties have to understand that just as they are human so is the Judge. Judges are human and therefore the only thing the judges can rely on is what is in front of them during that final hearing. The cannot read minds, they cannot tell the future and they cannot decide on evidence that is not presented to them.

If the final hearing only lasts a few hours it is very clear the parties will be in their Sunday best, acting their best, bringing in witnesses that will say they are the best parent possible, and generally in a normal child custody battle, they will be stating that it is not in the best interest of the minor child for the other parent to have primary residence or the majority of the time-sharing. So the courts, who are learned in this regard and understand this “best image” process, want to determine in light of the evidence and witnesses that are presented at the final hearing what is in the best interests of the minor children and not solely what one party has said about the other.

Because many of these hearings come down to a “he said-she said” argument where one side said something and the other side said the complete opposite, the court has to make a determination on who is correct and who is incorrect or untruthful. The court will normally be able to do this by weighing third party testimony or evidence the evidence presented to them. This is why it is very important in a child custody battle or fight which occurs through litigation to present witnesses and evidence that supports your case.

Your Judge cannot see into your home.

Your Judge does not know how you act with your child.

Your Judge will most likely not speak to your child (unless appropriate motions are filed and granted, under certain circumstances) and therefore does not have the same view point on the situation that either: (1) the parents could if they were able come to an agreement on their own, or (2) that an expert could see since the expert is able to speak to the child, to other family members, to both parties and review all types of evidence that the court may not be able to in this legal context.

So this author feels that while there may be some cases where there is no other option but trial and a custody battle in which the judge ultimately decides, the vast majority of cases are ready and able to be settled.

When both parties take a good long hard look in the mirror at themselves, the situation, and especially at their children, most times they are able to come to the realization that they can settle this issue; without the court as a third party judge, who will most likely never see them again but will have to dictate how the next eighteen years or however many years until the child reaches the age of majority to them. So it is always suggested that the parties do everything in their power to mediate and attempt to cooperatively settle these issues for the children, even if it is with the use of a neutral child custody expert.

There are studies that suggest, as would seem to be painfully clear, that divorce litigation, custody litigation, custody fights, and just the overall litigious nature that many couples exhibit towards each other are not conducive for the child’s development, for their upbringing, in their relationships with their parents, with friends, or in their future relationships. So therefore it is of the utmost importance for parents to at all times during custody litigation and during custody “fights” to take into extreme care the children’s best interests. That means keeping the children out of it.

The children in this regard, especially young children, feel that the divorce is their fault. Often, as they get older they seem to want to blame it on someone and later in life feel they want to blame it on both parents. There are many different stages that the child may go through during a divorce and it is always a trying and emotional time for them.

In conclusion, custody fights are not easy. They are extremely complicated. Everyone is emotional and there is no easy answer or recipe for success. Every single party is different, every single child is different, and every single judge is different so therefore what works in one situation is not necessarily what will work the next time. Therefore, the very first thing the parents must do is try to settle through mediation and negotiation without putting the issue before the judge. Then if the parents are unable to settle on their own they may choose to have an expert come in and evaluate their specific situation and recommend a custody arrangement prior to bringing the issue up before the judge. If neither option is appropriate for the parties’ situation then the case must go to trial and a stranger, the judge, will do their job and apply the law to the facts presented to them. The parties must be prepared, must be ready, and must understand that the judge’s review and determination may be a painful experience, but that the parties have exhausted every other option before requesting this and felt that going forward to trial was in the best interests of the minor child.

Jurisdiction: Hillsborough County, FL

Copyright 2009- 2013 William S. Foley, P.A.. All rights reserved.

Artificial Insemination and Potential Financial Responsibility for the Child

“Artificial Insemination and Potential Financial Responsibility for the Child”

                  An article posted by Yahoo and written by Kevin Murphy titled “Child Support Claim Rankles Sperm Donor to Lesbian Couple” reports on a legal issue that may arise for sperm donors in a number of states that still use what are considered by some to be outdated artificial insemination statutes. The article concerns a Kansas man named William Marotta that donated his sperm to a lesbian couple, free of charge, as a generous donation after always desiring to have children of his own.

                  A Kansas statute requires that a sperm donor must provide through a licensed physician in order to avoid financial responsibility of the child and any future financial obligations. The facts creating the legal issue arose when he donated the sperm to the lesbian couple directly instead of going through a licensed physician. As a result, the state of Kansas attached financial responsibility of the child and has filed an action for child support and $6000 in past emergency medical expenses.

                  Marotta’s argument is in alignment with the legal trend, as in a majority of states and including Florida, to allow a donor protection from future financial responsibilities if there was an agreement between the donor and the recipient couple. In a 2007 Kansas case, the Court ruled against a donor for reason that he did not have an agreement with the recipient couple. Marotta is arguing since he had such an agreement, no future financial responsibility attached.

                  The outcome of this case will determine if Kansas, one of the more conservative states on the issue, is going to move toward the modern trend to allow a donor immunity from future financial responsibility of the child if not going through a licensed physician so long as an agreement exists between the parties.

See

Murphy, Kevin. “Child Support Claim Rankles Sperm Donor to Lesbian Couple” http://news.yahoo.com/child-support-claim-rankles-sperm-donor-lesbian-couple-014725388.html

Forman, Deborah. “Using a Known Sperm Donor: Understanding the Risks and Challenges”

http://www.theafa.org/article/using-a-known-sperm-donor-understanding-the-legal-risks-and-challenges/

What to do where you are served with divorce papers in Hillsborough County, Florida

It is normal to be confused and a little scared when served with divorce papers. Sometimes you may be served by a sheriff or a private process server. Sometimes you are served at home in front of the child and sometimes at work. No matter how it happens, you need to know how to proceed.

STEP 1

Don’t panic!

Knock. Knock. You hear the door and upon opening it you are giving legal documents with a summons by a process server or the sheriff. This can be a frightening and confusing time for anyone. Especially if you did not know that you were going to be served with divorce papers.

Some spouses have their wife/husband served at work and some at home. No matter how it is effectuated, the first thing you need to do is to not panic. The process server is just doing their job, so it is not a good idea to yell at them or blame them. They can also be used as a witness, so be careful.

Make sure you read the title of the documents served and that you have actually be served with divorces papers, and not a domestic violence injunction by a police officer, or some other legal documents. Those other types of legal proceedings that are beyond the scope of this guide.

If you have been served with a petition for dissolution of marriage, then calm down and start reading the paperwork.

STEP 2

Read the paperwork- NOW

I know it is confusing, but I have had a number of people come to see me that either did not even look at the paperwork or did not read certain documents they were served with.

In Hillsborough County, Florida, where I practice, if your case involves minor children, a standing order is put in place in your divorce case and you must abide by that standing order. You need to read the standing order and understand what the Court expects of you.

Read everything and then read it again.

STEP 3

Take notes

Again, an enormous amount of your petition package that you were served with is legal jargon, but do your best to understand what you were served with and take notes on a separate sheet of paper if possible! There are a number of people I have met with that have burned the midnight oil by staying up a highlighting and writing notes all over their petition, their spouses financial affidavit and any other motions that were filed.

Again, if you hire an attorney, or if you represent yourself during your case, you may need those documents, so please make a copy of the documents or write notes on a separate sheet of paper. You may want to start a divorce journal at this time, and writing notes in this journal would be a great start.

STEP 4

Calendar your deadline for answering the petition

If your summons states that you have 20 days to answer, then you need to abide by the petition. The normal amount of time to answer a petition for dissolution of marriage is 20 days and you must file your answer in the Court file prior to that deadline or your spouse may move for a default on your case. Also, calendar any dates in your case.

Do you have a case management order in your packet of paperwork?

If you are in Hillsborough County, you probably should. If you do not- call the clerk’s office immediately if you do not have that case management order in your packet of papers you were served with just to make sure when your next Court date is. See if there are any notices of hearings that inadvertently may not have been included in your paperwork as well. If you do have a notice of hearing or any other notices of dates to comply with in your case, calendar those dates as well.

STEP 5

Get on the internet or look for a referral to an attorney

You should start looking for an attorney immediately. Even if you do not retain an attorney for the case and you decide to proceed Pro Se (unrepresented) you would be better off served at least speaking to an attorney about some of the possibilities of things that you can plead for and if you need to file a Counter-Petition or not (beyond the scope of this guide, speak to an attorney about it if you have any other questions!) or any other emergency matters that need to be handled. While you are on the internet, start reading up on divorce topics on this site and other helpful sites to give you a basic understanding of divorce in Florida. Also, go to a bookstore and look at books on divorce, which again, are not a substitute for a lawyer, as they are not tailored to your specific set of circumstances, but they may be helpful in understanding the general process.

Jurisdiction: Hillsborough County, FL

STEP 6

Schedule one or more initial consultations with attorneys

Do yourself a favor. Get an attorney that you can live with. I have had cases that lasted years. It all depends on the facts and the parties involved. Normally, you don’t want a divorce to last that long, but sometimes complex cases and litigious cases do last a while.

So wouldn’t it be a good idea to find an attorney that you can deal with?

You are interviewing the attorney, just the same as the attorney is interviewing you at an initial consultation.

You can try to get free consultations, but at these consultations the attorneys may not give you any legal advice as it is usually just a way for the attorney to get some background in order to quote you an amount for your case. On the other hand, if you want an in-depth initial consultation, sometimes you will have to pay in order to sit down and get a good analysis of how the attorney would proceed in your set of circumstances and give you a background on Florida Divorce law.

STEP 7

Decide whether or not you want to represent yourself

The Florida Courts website is an amazing resource. www.flcourts.org as are many counties court’s websites that give information to parties that wish to proceed pro se (unrepresented) during their divorce. Some counties have forms clinics at the courthouse that you should look into if you wish to proceed without an attorney. Additionally, if you meet the standards for legal aid, you should speak to the different legal aid offices around the county to see if you qualify and if they can help you with your case.

You have a number of things that will be due very soon (i.e., mandatory disclosure, financial affidavit, discovery you were served with, etc.) so you need to know what these things are and how to prepare them.

STEP 8

File your responsive pleading

This guide cannot help you with what to file; as I said before, it is different in every case, under every set of circumstances.

Just make sure you DO FILE SOMETHING. Do not let your deadline come and pass thinking the judge may just give you a pass. Trust me, it is much more expensive for an attorney to un-do something that was done incorrectly (if they even can un-do it) rather than do it correctly in the first place.

So since this is a legal guide just for what to do in those first few days right after you are served with divorce papers in Hillsborough County, it is clear that it is beyond to scope for what needs to happen next or what may happen in other states or even some other counties. I would suggest you speak to an attorney to determine what is the best way to proceed in your case and what the law is in your jurisdiction, and they should be able to tell you what to file in your case in response to the Petition for Dissolution of Marriage.

Written by: William S. Foley, Esquire

For more information, please see William S. Foley’s website