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Why you may need a parental power of attorney

If you are the parent of young children, you may occasionally need to leave them in the care of a close friend during a quick business trip, or perhaps with the grandparents while you take a kid-free holiday. Or, you may routinely leave your children in the care of a nanny. When and if you do, you should consider taking the step of creating a Parental Power of Attorney (POA), also called a Power of Attorney for Child.

Like all POAs, this legal instrument grants another person, called the “agent,” the authority to make decisions that only you would otherwise be able to make. If you are not immediately reachable during a time-sensitive situation, whether a life-threatening emergency or a more routine matter, the parental POA allows your trusted agent to make decisions for your child on your behalf.

An example of such a situation is a case of a medical emergency, perhaps a broken limb or appendicitis. Another is an activity that requires parental consent, such as a field trip for school or a visit to the go-cart track with friends. In these cases, a parental POA allows your agent to provide consent, preventing delayed medical care or exclusion from activities.

Like any POA, a parental POA is highly customizable in terms of the scope of authority granted and its duration. Sometimes a simple note is sufficient, but this more robust option can give you greater peace of mind and flexibility. If you plan to leave your child in the care of another for any significant length of time, speak with your estate planning attorney about a parental power of attorney.

Posted on Friday, December 30th, 2016 at 7:06 pm under Divorce and Family Law.
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Another family law reform bill falls to Gov. Scott’s veto pen

Florida Gov. Rick Scott vetoed a contentious bill that would have reformed the state’s alimony system and altered rules on child custody in divorces.

The bill would have required judges in divorce proceedings to adopt a premise for approximately equal time-sharing of children between spouses. Judges could adjust the split based on 20 factors listed in state law.

Scott objected to that provision, saying it would put some parents’ interests ahead of those of their children.

Scott did not comment on the bill’s proposed changes to alimony rules, which would create a formula for payments based on each spouse’s income and the length of the marriage. It also would have terminated permanent alimony payments upon a spouse’s remarriage and allowed for a review upon their reaching retirement age.

Another controversial provision would have permitted alimony renegotiation if the recipient’s income rises by 10 percent. Opponents of the bill said that trigger was set too low, endangering the welfare of recipients, primarily women, who through hard work made progress in providing for their children.

In 2013, Gov. Scott also vetoed a major family law reform bill, which likewise created a presumption for equal child custody. He said that bill would have been unfair to alimony recipients because it would have applied retroactively to longstanding alimony judgments. This year’s bill did not contain retroactive provisions.

Posted on Wednesday, May 18th, 2016 at 11:29 am under Divorce and Family Law, News and Press.
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Studies Show Divorce’s Ill Effects on Children, but Risks Can Be Mitigated

Everyone who gets married hopes to stay that way forever. But despite everyone’s best efforts and intentions, sometimes divorce really is the only solution. For childless couples, divorce is a decision that does not greatly impact anyone but the couple themselves. Of course, the same cannot be said of parents who divorce.

Divorce can have a profound effect on children. And children do not really have a say in whether their parents stay together. Obviously, having children gives parents an enormous incentive to work things out. But in the end, the decision to keep the family together or split it up rests with the parents.

Health scientists and social scientists want to know exactly how divorce affects children. A pair of recent studies on the consequences of divorce showed harm, but those problems can be solved, mitigated or avoided altogether by a loving, but divided, family.

The first study showed that children of divorced parents may be at greater risk of health problems. Researchers at the University College of London studied the blood of 7,462 people age 44. They found that the subjects whose parents had divorced before they reached age 16 showed elevated levels of a protein that is associated with increased risk of adult-onset diabetes and heart disease.

Dr. Rebecca Lacey, who led the study, said that it is not necessarily the divorce itself that caused the physiological changes, but rather the socioeconomic hardships that often accompany divorce when compared to two-parent households. For instance, children of divorced parents can face greater economic challenges and more limited educational opportunities.

The second study indicated that children of divorced parents regard their relationships with their parents as weaker than other children’s. Researchers at the University of Illinois at Urbana-Champaign surveyed 7,335 men and women averaging 24 years old. Those from divorced families less often saw their current relationship with their parents as “secure.” The effect was more pronounced in those whose parents divorced before they reached age 5.

Studies like this can be disheartening to families contemplating divorce, because they feel conflicted about the actions that are best for their children and for themselves. But not every divorce or troubled relationship or child is the same.

Notice one thing both the studies mentioned have in common: the negative effects of divorce on children are worse for younger children. No divorce at all gives kids the best chance, but if divorce must happen, later is better than sooner. If you and your partner can stay amicable and on the same team for the sake of your child – even for just a couple more years – the benefits can be significant. Couples therapy can go a long way to help you make this happen.

If divorce is inevitable, at the very least, it can be peaceful. “Collaborative divorce” is a process by which couples agree from the outset to cooperate and negotiate toward a solution that is satisfactory to both parties and their children. They agree not to litigate against each other. The process is not only often faster and less expensive than litigious divorce, but far less emotionally draining.

Many couples with prenuptial agreements find that the documents give a certain peace of mind and help them avoid fights. If you are considering divorce, it is too late for a prenuptial agreement, of course, but not for a postnuptial agreement. “Postnups” are just like prenups, but for couples already married. Sometimes it can help prevent conflict to have a written agreement in place, and if a divorce still comes to pass, the outcome is largely prenegotiated and the process can be relatively quick and painless.

When a divorce is finalized, parents can still give their children enormous advantages by actively maintaining healthy, happy relationships – both with your children and your ex. Children who see their parents maintain civility and cooperation and keep close ties with both of them will fare far better than those who do not.

Posted on Friday, October 3rd, 2014 at 11:08 am under Divorce and Family Law, News and Press.
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When Contemplating Both Divorce and Bankruptcy, Weigh All Options Together

Financial trouble plays a role in many divorces. Often, one or both parties are considering filing bankruptcy at the same time the couple is contemplating divorce.

Each spouse is equally responsible for debts incurred by either party while married. Debts will be divided equally between the two divorcing parties, but if one spouse becomes delinquent on payments, the creditor can legally try to collect the entire debt from the other.

Consider a couple who divorces and splits debts, after which the former husband files for bankruptcy. In this case, his former wife remains liable for the entire debt, not just her half. She can use the divorce agreement to compel her husband to pay his share, but if the husband simply cannot pay it, and the wife cannot pay the entire obligation, she remains stuck in debt.

In order for both the husband and the wife to escape the debt, they must both declare bankruptcy. Doing so decreases their debt burden, but it harms their ability to borrow. If the wife elects instead to sue the husband, her credit may not be affected, but she will remain in debt. Each option has serious downsides.

Divorcing couples who foresee any difficulty in making payments on debt should weigh all their options for bankruptcy and divorce proceedings at one time. They may find their best option is to declare bankruptcy jointly prior to divorce.

Court filing fees for joint bankruptcy are the same as for individual bankruptcy, and attorney fees for one joint bankruptcy are usually far lower than for two individual bankruptcies. In Florida, couples filing joint bankruptcy are allowed to double many exemptions. Exemptions are the assets that are protected from creditors and that remain the property of the bankruptcy filer.

For these reasons, bankruptcy before divorce may be a good idea, but it is not always the answer. A Chapter 7 bankruptcy is usually completed relatively quickly, and so is a workable option even if divorce is certain. A Chapter 13 bankruptcy, on the other hand, can last several years, and so is probably best filed after divorce.

The attorneys at Olivero Laws are well-prepared to help you understand the legal pros and cons of bankruptcy, divorce and legal timing.

Posted on Sunday, September 14th, 2014 at 11:09 am under Bankruptcy, Divorce and Family Law.
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To Ensure Wishes for Their Estates Are Met, Divorcees Must Consider Beneficiary Designations

Many people incorrectly contain their idea of estate planning entirely within the process of creating a will. They feel that as long as their will reflects their current wishes, they can rest assured that their rightful heirs will inherit their assets.

But in fact, many investment accounts, including 401(k) accounts and individual retirement accounts (IRAs), have beneficiary provisions that supersede wills. These provisions are sometimes called “substitute wills” because of their ironclad legal status.

Beneficiary designations on investment accounts are an important and useful estate planning tool. They enable the probate process to be bypassed for those assets, meaning their transfer to beneficiaries is quick and easy, with a minimum of paperwork or legal hassle. But just as efficiently as these provisions can bring about the decedent’s wishes, they can bestow assets upon the wrong person if they are not kept up to date.

This potential problem is aptly illustrated in cases of divorce. If someone names his or her spouse as beneficiary, then gets a divorce, but fails to change beneficiaries, the ex-spouse could inherit the bulk of the estate.

In a different example, a man has children from a previous marriage. He has since divorced and remarried. Because the law dictates that his 401(k) goes to his current wife by default, he must file certain paperwork if he instead wishes to leave the funds to his children. A prenuptial agreement to this effect is not enough; the man’s current wife must specifically relinquish her claim on the account.

The following must be considered to ensure retirement account assets go to the right people:

  • Beneficiary designations and wills should work together to form a cohesive estate plan. The estate itself may be designated as the beneficiary. This is useful when assets must be distributed in specific ways to achieve specific goals — to, for example, minimize taxes or qualify a special-needs child for government benefits.
  • A will should reflect and confirm beneficiary designations to minimize disagreement.
  • Divorcees should update the beneficiaries on their retirement accounts to reflect their current wishes.
  • Married and remarried individuals who wish to leave their 401(k) accounts to anyone other than their current spouses must file specific paperwork to that effect.
Posted on Thursday, September 4th, 2014 at 11:07 am under Divorce and Family Law.

Florida Divorce Case Sees Income Imputed to Voluntarily Unemployed Wife

The financial circumstances of each party, as well as a host of other factors, govern whether and how much a Florida court will award in alimony and child support in a divorce. Each party’s assets, debts, income and expenses are compiled, compared and considered as part of a bigger picture to arrive at fair dollar figures.

One part of that “bigger picture” is each party’s earning potential – that is, not what he or she actually earns, but what he or she could earn. Parties to divorce who are voluntarily unemployed or underemployed, and who could probably earn more with reasonable effort, can expect the court to make alimony and child support determinations as if they actually earn that amount. This is called “imputing” income, and a recent case from Florida’s Fourth District Court of Appeals (DCA) illustrates the legal concept well.

In Adelberg v. Adelberg, the wife, 59, had a master’s degree in urban planning and experience running her own public relations firm, but she was unemployed when she and her husband filed for divorce. A vocational expert testified at the trial that, although the wife had been unemployed for eight years, she was qualified for positions in public relations and fundraising that paid $40,000 to $50,000 per year.

Despite this evidence, the trial court did not impute income to the wife. But on appeal, the Fourth DCA reversed the order. The case was remanded to the trial court for recalculation of alimony.

Determining alimony is a complex process that is very open to interpretation. Those seeking divorce who believe their spouse is voluntarily unemployed should speak with their divorce attorney about imputing income.

Posted on Friday, August 29th, 2014 at 11:06 am under Divorce and Family Law.

Bitcoin a Potential New Method of Asset Concealment in Divorces

In marriages in which one spouse is the primary breadwinner, divorce can represent a large decrease in assets and income for the higher earner. Concealment of assets is therefore a problem as old as divorce itself, and it rears its head in many forms. 

Today, unscrupulous spouses may be employing a new, high-tech innovation to do so: electronic currencies like Bitcoin.

Bitcoin is the best-known of a class of computer-generated currencies invented within the past several years. These crypto-currencies may be used to purchase practically any good or service. 

They began as a concept of interest mainly to computer scientists, but soon, they began to attract wider attention for their clandestine properties. All Bitcoin transactions are recorded on a public ledger viewable by anyone, but the parties to those transactions are anonymous “addresses” – strings of letters and numbers akin, perhaps, to a Swiss bank account. Bitcoin rivals or surpasses cash in terms of its anonymity of ownership, ease of transfer and simplicity of concealment.

While there are few, if any, currently documented cases of Bitcoin or other electronic currencies used to conceal assets in divorce, there is little doubt that the option will become attractive to those desperate enough to break the law in the pursuit of financial gain.

Bitcoins are often purchased online by wire transfer or electronic bank transfer. This method is also employed by those with nothing to hide, but it could present significant obstacles to asset discovery for those who desire it. Bitcoins can also be purchased in person with cash — potentially leaving no paper trail whatsoever.

If it is easy to conceal the actual purchase of bitcoins, concealment of ownership is even easier. The use of the currency depends on a long password, called a “key.” Bitcoin keys are easily stored on USB flash drives, memory cards or paper printouts, then hidden anywhere. They may even be memorized, leaving absolutely no physical evidence.

The transfer of bitcoins is a trivial task involving a few keystrokes and a tiny transaction fee. A divorcing spouse could have a trusted friend or relative hold on to the currency in his or her own accounts.

The problem of uncovering assets in an adversarial divorce is a very old one. Electronic currency may be the latest method available to cheating spouses, but it will not be the last. Parties to divorce, family law attorneys and judges all need to be vigilant in ensuring a fair and lawful outcome in every divorce case.

Posted on Wednesday, August 13th, 2014 at 12:06 am under Divorce and Family Law.
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The Steps: How Florida Courts Determine Child Support Obligations

Child support is an often-misunderstood topic in Florida family law.

In Florida, child support is not an obligation that one parent has to the other. Instead, it is an obligation that each parent has to the child — from the day he or she is born until he or she reaches adulthood. 

Florida Statute §61.30 sets the guidelines that Florida courts use to determine how much child support a parent owes. The statute establishes minimum levels of support based on the parents’ combined income. Courts use these guidelines to determine each parent’s individual child support obligation based on his or her proportion of the couple’s combined income.

The income used to make this determination is net income – gross income minus certain deductions. Gross income includes employment income (such as wages, salary, commissions and bonuses) and retirement, pension and social security benefits. Allowable deductions include federal, state and local taxes, mandatory retirement contributions, union dues and health insurance premiums.

The child support figure that results from this series of calculations is generally presumed to be correct, but the court may deviate from the guidelines. Taking into account “all relevant factors,” including the child’s needs and the financial status of each parent, the court may increase or decrease this amount by up to five percent. The court may alter the figure by an even greater amount if it provides written findings explaining its reasoning.

The court that enters a child support order retains jurisdiction to alter that support in the future. The court may do so when it is in the child’s best interests or when circumstances change substantially. 

A parent who wishes to modify his or her child support obligation must show that the change in their circumstances is material, significant, permanent and involuntary. For instance, a parent who chooses to quit a high-paying job for a lower-paying job would not be eligible for a modification because the change is voluntary. Parents who choose to have income significantly less than that readily available to them may find the court will attribute additional income to them. This is called “imputing” income.

If you have questions or concerns about your current or possible child support obligation, contact Olivero Laws.

Posted on Wednesday, July 2nd, 2014 at 11:28 am under Divorce and Family Law, News and Press.
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Attorney General Bondi Offends in Florida Same-Sex Marriage Case, but Larger Issues Are at Stake

Florida’s attorney general raised eyebrows with a brief filed in a case that challenges the state’s same-sex marriage ban.

Eight gay couples who were married in states that recognize same-sex marriages joined with the American Civil Liberties Union in filing suit against Florida. Their lawsuit argues that the state unfairly discriminates against them by not recognizing their marriage, violating the Florida and U.S. Constitutions.

Florida Attorney General Pam Bondi filed a response asking the federal judge in charge of the case to throw it out. This is no surprise. Arguably, it is required of her office. But it is her choice of words that has some gay marriage advocates expressing indignation.

Bondi’s legal brief included the following: “The Court should also deny the preliminary injunction motions because there is no likelihood of success on the merits, there is no immediacy requiring a preliminary injunction and disrupting Florida’s existing marriage laws would impose significant public harm.”

On May 30, the attention of gay rights activists and the news media turned to that last word: “harm.” Some took it as evidence of the attorney general’s malice, bigotry or outdated prejudice.

In response, Allen Winsor released a statement from the attorney general’s office. It clarified that, “Florida is harmed whenever a federal court enjoins” – that is, prevents – “enforcement of its laws … Florida’s voters approved a constitutional amendment which is being challenged, and it is the attorney general’s duty to defend Florida law.”

Perhaps Bondi should have chosen her words more carefully. But what is truly important and interesting about this case is not the attorney general’s position on it, but the stakes for Florida family law and for Florida same-sex couples. In states where gay marriage is not recognized, the issues couples face are diverse.

First, of course, is the fact that many Florida same-sex couples wish to marry but cannot. Then, like the plaintiffs in this case, some are married under the laws of recognizing states, but live in a non-recognizing state. Still other couples – at least one of whom has filed a separate lawsuit against Florida – were legally married in another state but wish to divorce. The spouses are unable to do so because their marriage is not legally recognized in the Sunshine State.

In June 2013, the U.S. Supreme Court struck down both a federal law preventing the recognition of same-sex marriages for federal benefits and a California law banning same-sex marriage. Since then, efforts to fight such bans have gained momentum state by state. 

Many Floridians are anxious to see the outcome.

Posted on Thursday, June 19th, 2014 at 2:27 am under Divorce and Family Law.
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Tampa Recognized for Gay Rights Protections; Lawmakers and Advocates Hope to Further the Cause

A human rights group recently recognized Tampa as top in the state in its support of the LGBT community. Meanwhile, gay rights advocates hope to advance their cause statewide, and state lawmakers have a slate of civil rights bills planned for the 2014 legislative session.

Human Rights Campaign, an LGBT rights advocacy group, recently released its annual Municipal Equality Index. The Index serves as an evaluation of protections, benefits and services offered to LGBT people at the municipal level. Tampa received a score of 89 out of a possible 100 — a huge jump up from its score of 66 in last year’s survey.

Tampa has been recognized for its non-discrimination policies in housing and employment for the past two years. But until recently, Tampa’s score suffered for its lack of protections for transgender people and for its lack of requirements for municipal contractors to offer employment protection to LGBT individuals.

Another advocacy group, Equality Florida, recently issued a press release calling Florida “the new frontline” for gay rights in the South. The release recognized the quickly changing political landscape in the state, and it outlined three changes the group hopes to help achieve in Florida within the next three years.

The first is gay marriage. In 2008, Florida voters approved a constitutional amendment banning same-sex marriages, civil unions and domestic partnerships. Equality Florida says it is preparing to file a lawsuit to overturn the ban. The second goal strives for LGBT protections in employment, housing and public accommodations. In 30 states, U.S. law allows employers to fire employees for their sexual orientation. Third, the group plans to boost support to local initiatives to protect gay rights at the city and county level.

Advocacy groups will need some help from state lawmakers if they want to accomplish all their goals. Fortunately for them, Democrats in the Florida Senate are already advancing a number of civil rights bills for 2014, including protections against discrimination in housing, employment and banking.
Another measure would establish a statewide domestic partnership registry, similar to those already in place in Tampa, Clearwater and St. Petersburg. These registries, available to both same-sex and opposite-sex unmarried couples, ensure a host of legal protections that are automatically granted to married couples. These protections include the authority to make decisions regarding child care, health care and after-death care.

Equal protection for all Floridians under the law has not yet been achieved, but the work of lawmakers and advocacy groups has brought the goal much closer.

Posted on Saturday, February 15th, 2014 at 12:24 am under Divorce and Family Law.
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