In Florida, the courts believe that both parents should take responsibility for their child’s best interests. While the goal is to achieve equal time-sharing, one parent may have the majority of time-sharing.  This is known as “sole custody” in other states. There are also scenarios when one parent is designated as the “custodial parent”. The custodial parent has more parenting time with the child. In this case, the other parent is the “noncustodial parent.”

The judge can make a decision such as who gets sole custody, becomes the secondary parent, or how to divide time-sharing equally. However, the courts can also revoke child custody without hesitation, especially if a parent endangers their child or there is substantial evidence that the terms of the agreement have been violated. Here are the top 3 reasons why a parent may lose their child custody rights:

1.   Parental Alienation

If the parents got along, they probably would not have divorced in the first place. Therefore, it’s understandable that ex-partners will not have good things to say about one another. However, when a parent engages in a consistent pattern of behavior that intentionally hurts their child’s relationship with the other parent, this is could be “parental alienation.” One parent may do this to turn their child against the parent. The parent engaging in this behavior is hoping to deprive their ex-spouse of a relationship with the child. Other parents may think this is a good strategy to “win” as the custodial parent may receive more financial support.

These acts of manipulation are far too common, and the courts have created protections against these behaviors. In Florida child custody cases, acts of parental alienation may be reason enough for the courts to reduce parenting time.  The court may also order supervised visitations.  In extreme circumstances, the offending parent could or lose all custodial rights.

2.   Unsafe Environment

A parent living in a home that poses safety hazard risks may lose custody rights. Allowing a child to live in an unhealthy and dangerous environment is a form of neglect. This doesn’t only apply to the parent’s house but also the neighborhood or the building since the child will be exposed to the surroundings beyond their home. Filthy and unsanitary living conditions infested with vermin or mold are examples of environments to which no child should be exposed. Substance abuse by a parent that endangers a child is also unsafe. Custodial rights may be revoked or limited for these reasons.

3.   Unfit Parent

Florida Statute 751.05 describes a parent as unfit if they have “abused, abandoned, or neglected the child.” Parents that are deemed unfit by Florida courts can lose child custody for not only failing to meet the child’s best interest but also endangering the child. Parents that have a severe mental illness or substance abuse fall under this category, along with parents proven to abuse their child physically and mentally. The courts will revoke child custody to distance the child from erratic behavior that puts their health, wellness, and life in danger.

If you have any more questions about child custody in Florida, call Debora A. Diaz Esquire at 727-846-1802 to schedule a consultation or use the Scheduling Link: https://deboradiazlawscheduling.as.me/.  For efficiency, all consultations are by telephone or video conferencing to protect our staff and clients.

Attorney Diaz exclusively practices divorce and family law in Florida. She has been providing legal services since 1995.  She has extensive experience in high conflict cases. Debora A. Diaz is also a Florida Supreme Court Certified Family Mediator.

Divorce & Estate Planning

The Importance of Estate Planning Documents When Divorcing in Florida

Few couples enter marriage already anticipating divorce; otherwise, why would they go through with the wedding. People also do not marry, contemplating their eventual deaths. They are thinking of the full lives ahead of them to spend together. For these reasons, estate planning ends up getting pushed back of mind. Couples may believe that their assets will naturally pass down to their children or parents.

But while conversations surrounding untimely deaths or the potential of divorce are uncomfortable, they are necessary to have. Because while you and your spouse may have created an estate plan and assigned beneficiaries, that agreement on who should inherit your assets may change when you part ways. Here are the top reasons why discussing estate planning with your divorce lawyer is crucial:

Legal Safeguards Protect Assets and Persons

Estate planning documents like Powers of Attorney, Durable Powers of Attorney, Last Will and Testaments, Healthcare Surrogates, and Living Wills protect your assets and the people important to you. If you do not update these during a pending divorce and you die before your divorce is finalized, the last provisions in your estate plans will remain effective. This means that all your assets may still go to the spouse you are in the process of divorcing. A recent example of this is Radio Host Larry King.  He was in the middle of a divorce and died.  There is currently litigation of whether a handwritten last-minute change is a valid will under state law.

Provisions of a Will That Become Void Upon Divorce

According to Florida Statutes 732.507 on Estates and Trusts, “any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage.”

While this seems reasonable given that you’re divorcing and don’t want your ex-spouse to be entitled to your assets after your death, this poses a problem if they are the only person named in your will. This may cause family drama should adult children or relatives feel entitled to an inheritance.

Protecting Your Beneficiaries

Assets that do not go through probate include life insurance policies, employee benefit plans, bank accounts, and individual retirement plans. Until the divorce is final, the spouse named the beneficiary in the estate plan will still be entitled to inherit these non-probate assets. Protect your beneficiaries by updating your estate planning documents as soon as you begin the divorce process.

If your beneficiary is a minor child, remember that Florida state laws require guardianship until your child turns 18. Update your estate planning documents if you don’t think it is acceptable that your ex-spouse, appointed guardian, may gain control of the assets you leave behind to your child.

Conclusion

When you first created your estate plan, you may have only named your spouse as the sole beneficiary. And even if your ex-spouse is no longer entitled to your assets once your divorce is finalized, you should still update your estate planning documents to ensure your assets are allocated based on your final wishes. A lot can change over the years; you may have children, commit to a charity, or belong to an organization.

It is also important to remember that some divorces can take years to resolve. Much can happen during a multi-year divorce battle, making it crucial to prioritize estate planning.

If you would like to discuss the specifics of your estate planning and divorce or need help with other family law issues call Debora A. Diaz Esquire at 727-846-1802 to schedule a consultation or use the Scheduling Link: https://deboradiazlawscheduling.as.me/.  At this time, all consultations are by telephone or video conferencing in order to protect our staff and clients.

Attorney Diaz practices exclusively in divorce and family law in Florida. Debora A. Diaz is also a Florida Supreme Court Certified Family Mediator.

 Contact Debora A Diaz today to learn more about the importance of estate planning and divorce.

Written by Debora A. Diaz, Esq.

Social media and mobile use have become so common that it’s almost impossible to meet someone who isn’t on at least one of the major social networking sites – Facebook, Instagram, or Twitter, or uses their mobile phone to communicate. But while using social media is primarily done to stay connected to family and friends, updated on pop culture, and for entertainment, what you share can be used to build a case against you in court. 

It only takes a few seconds to post on social media or send a text message. However, these actions could have long-lasting and unforeseen implications in divorce and child custody cases. Here’s how your social media use and texting behavior can be used against you in family law litigation. 

Used as Admissible Evidence 

In Florida, “relevant evidence is evidence tending to prove or disprove a material fact.” Therefore, internet use such as social media postings, direct messaging, or even text messaging can be used as evidence as long as they are relevant, authentic, and demonstrate that the posting “falls within a recognized exception to hearsay.” 

Influence a Child Custody Case 

What if you text your spouse claiming that you can’t pick up your child for your weekend because of a work-related retreat, but then your social media exposes a different story? 

The opposing side can use your social media posts and text messages against you in a child custody or child support case. Posts and texts from months or years ago may come back and haunt you, particularly if they reveal that you are an unfit parent or that you are living somewhere that may endanger your child’s safety. Your social media profile may even reveal romantic relations with someone who is not your spouse or frequent partying with drug and alcohol use. 

Because Florida judges use the best interest of the child as a primary consideration in ruling on parenting arrangements, social media posts and text messages that expose poor parenting may ultimately hurt you in court. 

Proof of Financial Standing 

What if your ex-spouse claimed in court that they didn’t have work, yet they posted online about their job? What if you claim to have low income, but your Instagram feed is full of all your expensive vacations and purchases? 

Florida law requires that assets and debts of the divorcing couple be divided in a fair and equitable manner. Because equitable doesn’t always result in an equal split, one or both of the spouses may not be so honest about their financial standing. 

But because relevant social media posts and other digital behavior can be used as evidence against you, anything you post that reveals the truth about your finances may be used by the opposing side. So if you’re in the middle of a divorce case, think twice before you post photos of you on a yacht you haven’t declared or show off how the luxurious lifestyle that you have no trouble affording. 

Before you post on Facebook, Instagram, Twitter, Snapchat, or whatever your favorite social networking channel is, think about how the contents of your posts may be introduced in a case against you someday, impacting alimony/spousal support, child custody, child support, and property division. 

If you need help with your divorce or child custody case, and you worry about your digital footprint and social media and texting history, call Debora A. Diaz Esquire at 727-846-1802.

Attorney Diaz is also a Supreme Court Certified Family Law Mediator and is available to mediate your case.

Written by Debora A. Diaz, Esquire

Parenting Plan

As time goes by and your child gets older, their needs and interests will change. With these new developments in their life come changes in their routine and schedule, which also impact parents. For example, pre-school age children will have a different schedule than school age children and time-sharing may have to be modified.  Big changes can happen for the parent, too; you may get a new job that means different hours, responsibilities, and a different commute. Any significant job changes may affect the time you or your ex-spouse have available for your child. Less time for you could mean your co-parent may have to step in to help, while more time may allow you to be with your child.

One of the parents may even get a job that requires them to move, which would be considered a substantial change. This relocation could mean a different school district for the parent who has custody of the child over the school year.  If relocation is anticipated the best interest of the children will be considered.  It may be appropriate for child to remain at their current school, so as not to disrupt their schedules, activities, and take them away from friends and favorite teachers. In this case, both parents may agree to modify the parenting plan rather than have the court do it through litigation.

Because life forces us to change, grow, and adapt, parenting plans can be modified to suit new circumstances, especially if the old custody arrangement is no longer in the child’s best interest.

How to prepare for a parenting plan modification hearing

 When the current parenting plan no longer works and needs to be amended to meet the best interests of the child, you and your co-parent should discuss and try to agree to the modifications before you file a new parenting plan with the court.

Once you have reached an agreement, draft a new parenting plan with the help of your attorneys. Each parent must sign the parenting plan in front of a notary or court clerk before it’s filed. At the final hearing if necessary, a judge will review the plan to determine if the current custody arrangements need to be modified.

A court will only agree to a modification of a parenting plan if the changes are “substantial, material, and unanticipated” and affect the best interests of the child. Florida legislature categorizes these changes under job change, family change, and removal of disability. Beyond a change in the child’s schedule or a parent moving, the following scenarios may warrant a parenting plan modification:

• The child’s physical safety and emotional wellbeing are in immediate danger.
• A parent remarries, and the new spouse is not a good role model (may be struggling with addiction or mental health issues).
• Parental alienation by one parent.

If you and your co-parent find it too challenging to create a new plan you both agree on, you may need to seek the help of a family counselor or attend custody mediation. You can also file a petition in court.

It is important to know your rights. If you would like to discuss the specifics of your custody case or need help with modifying your current parenting plan, call Debora A. Diaz ,Esquire at 727-846-1802.

Attorney Diaz is also a Supreme Court Certified Family Law Mediator and is also available to mediate your case.

Written by Debora A. Diaz, Esq.

Dividing retirement assets

How Are Retirement Plan Assets Divided in a Divorce?
Retirement assets such as IRAs, pension plans, and 401k plans are deferred compensation plans that are divisible as part of a property settlement in divorce.
Because retirement benefits may be part of the division of marital assets regardless of who is named on the plan, it’s essential to know how they are valued and divided. Here’s what you should know about dividing retirement plans in divorce:
Types of Retirement Assets
How retirement assets share will depend on factors such as the type of deferred compensation plan. The following are the two primary forms:
Defined Benefit plans – A defined benefit plan is a company retirement plan such as a pension plan that is based on an employee’s years of service and salary history. At the beginning of retirement age, the employee is provided a monthly benefit with payment continuing for the rest of their life.
Defined Contribution plans – A defined contribution plan’s value is determined by the contribution amounts made into a retirement account, commonly a savings plan such as 401k, IRA, or ESOP.
Methods of Dividing a Retirement Account
Before dividing a retirement account, the present value of the benefits must first be determined. With a defined contribution plan, the present value is the current vested value and will divide the value between the two parties. A professional usually is required to obtain the correct value.
Dividing a defined benefit plan is a little more complicated. There are two different methods of sharing the pension; the present value calculation or the division of future benefit. The division of future benefit approach is also known as the “deferred distribution method;” in this case, the couple shares the future stream of monthly benefits.
With the present value calculation, also known as the “Immediate Offset Method,” the current value of the pension is divided at the time of the divorce. In this scenario, the non-pension holder gives up any rights to future pension payment, and the pension plan holder keeps 100% of all future pension benefits. It is usually the method for couples who do not want to have anything that ties them together, well into their retirement age. However, there are tax implications when dividing a pensions present value.
In a case of division of future benefit, a Qualified Domestic Relations Order (QDRO) is drafted to instruct how the pension plan is paid out to the non-plan-holder spouse.
Qualified Domestic Relations Order (QDRO) Explained
A QDRO is short for Qualified Domestic Relations Order. It can protect your interests in a situation where your spouse is the primary breadwinner, and you need to ensure your share of their retirement account. A QDRO is a court order or judgment that can guarantee you receive the benefits in which you are legally entitled. QDRO is used for private company pensions. A different tyro of order is required for Military pensions. Another order is required for federal civil pensions such as from the Post office. The document is typically written out by a divorce lawyer that specializes in preparing QDROs and other pension orders. It is then signed by a judge, outlining specific instructions to the administrator of the pension how future pension benefits will be divided between the plan holder and ex-spouse and submitted to the retirement plan administrator.
You do not need a QDRO for IRA’s as they can just be divided as necessary.
If you would like to discuss the specifics of your divorce case or need more information about protecting and dividing assets in the divorce, call Debora A. Diaz at 727-846-1802.
Written by: Debora A. Diaz Esquire

It can be a complicated issue, further exacerbated by one or both of the spouses attempting to hide their assets from the court in order to be favored in the court’s decision. If you’re going through a divorce in Florida, you might benefit from learning more about assets and income:

What Are Assets?

Assets are certain pieces of property which have a measurable present value. More often than not, they are material possessions such as real estate properties, vehicles, valuable collectibles, etc. However, trademarks, copyrights, patents and other things without a tangible value can also be considered assets.

What Is Income?

On the other hand, income streams differ slightly from assets as they classify as anything that can yield regular income. Some examples include income from renting a property, income from a retirement account, as well as income from home business.

The significance of income streams in divorce proceedings is tied to the court’s decision on whether one of the spouses should have alimony awarded. Additionally, if the ex-spouses have children together, income streams are essential for the court to be able to determine the appropriate amount of child support.

How Are Assets and Income Divided?

In Florida, courts strive to divide all assets equitably. It does not imply a 50-50 division, but rather that each of the spouses will be treated fairly. For example, if one of the spouses wishes to retain an asset of higher value as it holds a specific significance to them, the other person will likely be rewarded with additional assets to keep the division balanced.

When it comes to income streams, the division is a little more complicated, but still done honoring the principles of equity. An ongoing source of income is usually divided based on a percentage that one spouse should pay to another, and the court sets that amount.

What If an Item Is Both an Asset and Income?

In some rare cases, an item is considered both an asset and income, and it does happen that the line gets blurry between the two. For example, in the case of a property that the ex-spouses renovated and turned into a rental property which yielded regular income, it can be unclear whether the property should be considered an asset or an income stream.

Sometimes courts can classify an item as both, although this practice was not used until recently. The main concern of allowing this practice is that it may enable the spouses benefiting from asset division to have double benefits from a single item. However, the courts are permitted to consider income streams coming from assets that were previously equitably divided, to determine whether to award alimony and how much it should be.

Divorce can get quite complicated, and it’s crucial to know your rights and consult with a family law professional to make the process as smooth as possible.

If you would like to discuss the specifics of your divorce case or need more information about assets and income in Florida divorce, call Debora A. Diaz at 727-846-1802.

If you have questions about divorce, child support, shared parental responsibility, time-sharing/parenting time, and parenting plans, contact Debora A. Diaz Esquire at 727-846-1802 to schedule a consultation or use the Scheduling Link: https://deboradiazlawscheduling.as.me/.

At this time, all consultations are by telephone or video conferencing in order to protect our staff and clients.

Attorney Diaz practices exclusively in divorce and family law in Florida. Debora A. Diaz is also a Florida Supreme Court Certified Family Mediator.

Written by: Debora A. Diaz Esquire

However, in Florida law, there is specific terminology and legal concepts that you should be acquainted with before creating a parenting plan. Let’s have a closer look at what parenting plans are, and what you can do to ensure that yours will cover what is best for the children:

What’s a Parenting Plan and What Should It Contain?

Since a parenting plan is supposed to outline your childcare arrangements with the other parent, there is specific information it has to include:

• Time-sharing schedule;
• Information about which parent will be responsible for health care;
• Written description and provisions about how the parents are going to share the responsibility for raising the child;
• Information about which parent will be in charge of the school and extracurricular activities;
• Information about whose address will be listed and used for school-boundary determination as well as registration;
• Information about the technologies that the parents intend to use for communication with the child.

Florida Terminology Related to Parenting Plans

You might be familiar with terms such as custody and visitation, but in Florida law, they are replaced with parental responsibility and time-sharing.

When it comes to parental responsibility, it can share with the other parent, or one parent could have the sole obligation. It refers to the authority each parent has to make decisions about, and, for the child, including matters such as health care, education, discipline, etc. It’s up to the parents to agree how they are going to divide their parental duties. Courts prefer they shared parental responsibility unless it is not in the child’s best interests.

Time-sharing outlines how much time each parent will spend with the child. In case you have sole parental responsibility, it can be with or without time-sharing with the other parent.

Creating a Parenting Plan with the Other Parent

To create a good parenting plan for your kids, you and the other parent should cooperate and consider the child’s best interests. It might be necessary to go through the parenting coordination program to attain an agreement. If you fail to reach an agreement with the other parent regarding the parenting plan even with the help of the coordinator, then it will be up to the court to determine your parenting plan and order it.

It is best if the parents can settle on a plan which they both agree. In that case, once the program is complete, it is submitted to the court and accepted by the judge. When creating a parenting plan, it’s important to consider different factors:

• Whether the parents live close to one another or not;
• The ability of each parent to maintain a good relationship with the child and provide them with a stable and safe environment;
• How stable each of the parents is when it comes to their physical, emotional and mental well-being.

Divorce is never easy, but with some effort, you might avoid it negatively impacting your children by creating a good parenting plan with the other parent.

It is important to know your rights. If you would like to discuss the specifics of your divorce case or need help with creating a parenting plan, call Debora A. Diaz Esquire at 727-846-1802.

Attorney Diaz is also a Supreme Court Certified Family Law Mediator and is available to mediate your case.

Written by Debora A. Diaz, Esq.

Although there have been many attempts to modify alimony and there is pending legislation to change alimony it currently is still an option in Florida.  Do not listen to people that say no alimony in Florida.  Talk to an attorney.
Approaching the issue of alimony can be tricky, and there are some factors to review when deciding whether to seek alimony in your divorce. Let’s have a closer look at what alimony in Florida entails by law and what you should consider when requesting maintenance:
What Is Alimony?
Alimony is the legal mechanism through which the spouse with greater financial capabilities makes an allowance to the other spouse after a divorce. There are different types of alimony available under Florida law.
Types of Alimony in Florida
• Temporary alimony — this type of maintenance is also known as alimony pendente lite, and it’s terminated automatically as soon as the divorce finalizes, when a different kind of alimony may replace it;
• Bridge-the-gap alimony — a transitional form of alimony that helps the recipient spouse adjust from being in a marriage to becoming single, and it’s meant to cover their short-term needs, so it usually cannot last more than two years;
• Rehabilitative alimony — this type of alimony is intended to help the recipient spouse become self-supporting by assisting them in payment for developing new skills or further training that helps them build their credentials;
• Durational alimony — a type of maintenance which has a specified duration, usually following marriages that lasted less than 17 years, and it cannot continue longer than the length of the marriage;
• Permanent alimony — if a party can’t fulfill their practical needs that were established during the marriage on their own, permanent alimony can be awarded to assist with that, usually in long or medium-length marriages (between 7 and 17 years).
Factors to Consider When Requesting Alimony
Determining what would be an appropriate alimony amount can be complicated under the Florida law. There are different things that a judge may consider, and you should be aware of them before requesting alimony. The factors that affect the amount to award include the recipient spouse’s need, which provides for their current standard of living.
Another critical factor is the duration of the marriage, where long-term marriages may suggest that the recipient spouse has given many years of their total life to the union. In those cases, permanent alimony might be the most appropriate. It’s also important to consider each party’s financial resources and their contribution to the marriage, which doesn’t exclude childcare and support of the other party’s career. There are several other factors that the court will look to in determining whether alimony is appropriate.
Every case is different and fact-specific, so it is essential to understand the underlying principles of alimony in Florida to know what you might expect.
If you are interested in learning more about the factors that affect alimony in Florida or if you wish to discuss the specifics of your case, call divorce attorney, Debora A. Diaz at 727-846-1802 to schedule a consultation. It is important to know your rights!

Written by Debora A. Diaz, Esq.

Holidays can be a difficult time for everyone. If we add the hardships of a break up of a relationship or a recent divorce into the mix, it can be an emotional nightmare to navigate. Remember the end of a relationship even if it was a bad relationship can be similar to a death. Sometimes people are just mourning the end of the relationship not necessarily the end of a relationship with a particular person. When everyone around you seems to be enjoying and basking in the holiday glow, and there is pressure to be joyous and grateful, grief can strike harder than usual. Here is how to survive the holiday season during a relationship breakup or divorce:

Take It One Day at a Time
Even though you might want to plan when it comes to the holidays, it is important to take those plans one day at a time. Break things down. You will not be able to adjust to your new life in a day, or a week, or even a month. It is perfectly natural to struggle with change, especially one so substantial such as the end of relationship or a divorce. Do not be too hard on yourself. Rely on your support system to carry you through the holiday season, and you will feel a lot better when it’s over.

Anticipate Problems
There might be divorce-related problems that will seem more aggravating by the holiday season, such as money or timesharing if there are children involved. If you have gone from two incomes to one, you might experience some financial difficulties, especially during Christmas time because of the pressure to buy gifts. Your family and friends are likely to be understanding if you cannot afford to go into debt to buy gifts.

Additionally, timesharing is something you will have to consider. If the children are with you during the holidays, think about the other parent in that situation. Consider letting the children call your ex-spouse or buy them a gift. Ultimately, it is in the child’s best interests to not feel like they have lost one of their parents with the divorce. It is never pleasant spending holidays alone, and it might be a good practice to treat your former spouse the way you would want to be treated.

Create an Agenda
Having a plan for all the activities and tasks you want to accomplish for the holiday season can be helpful. Do not put a lot of pressure on yourself. Try to let go of stress. Review what you want to accomplish and remove things that you really do not want to do. What is important? Time is one of the greatest gifts that you can give someone.

Make New Traditions
Perhaps the most challenging aspect of the holidays are the traditions you took part in as a family. After the breakup, the family unit doesn’t exist as it once did — but this gives you an opportunity to create new traditions with those that remain. Ask your children for input on what they would like to do for the holidays from now on and reassure them that the holidays can still be fun and heartwarming.

Replace Guilt with Taking Care of Yourself
Going through a divorce is challenging, so it’s imperative to take care of yourself. Try to avoid isolating yourself and spend some time with people you love. Let go of any guilt you may feel, whatever its cause may be. If you are feeling happy despite the circumstances, don’t fight it; if you’re feeling down, do something that improves your mood.

Holidays can make a problematic divorce worse, but they can also make it better. If you stay as positive as you can with the support of your extended family and friends, you can forge new traditions and pave the way to happier times.

Know your rights. To discuss divorce or other family law matters call 727-846-1802.

Written by Debora A. Diaz, Esq.