Divorce and Division of Assets

I recently read an interesting article involving divorce and division of assets. Sue Ann Arnall, who divorced oil magnate Harold Hamm in Oklahoma, intends to move forward with her appeal of the November 2014 Divorce Order even after cashing a $975 million check from the Husband which was the entire balance owed to her of the roughly $1 billion she was awarded. So he wrote her the check. Case closed. So far this sounds like a normal outcome of a case and it was all resolved, right?

As it turns out, it wasn’t. The Wife is appealing because her Husband is worth about $18 billion and she wants more. This is where, in Florida, the determination of what is marital and what is non-marital assets would come into issue. For example, if the Husband earned that money long before the marriage, she would not necessarily be automatically entitled to ½ of it.

Since she cashed the check, the Wife might have trouble pursuing her appeal. The Husband’s lawyers argue that the Wife’s deposit of the check was likely to end her case, and if she continues her appeal, they will try getting it dismissed since she had already accepted the money from the earlier ruling. While I don’t handle appeals of divorces, this sounds to me that this argument against appeal is faulted. The Wife cashing the check is not the same as her entering into an agreement, which would not be appealable. But, again, I don’t do appeals and I certainly don’t know Oklahoma law as I practice Family law in Florida.

The Husband also is looking into appealing due to the falling gas prices taking billions from his personal fortune. I have to assume he will argue that the trial court incorrectly valued his assets. This is certainly a potentially appealable issue. However, it is important to note that because the divorce has been ongoing since 2012, another interesting issue will arise as to when to value the assets. The valuation of assets in a Florida Divorce is usually taken at the date of filing the case. However, if those assets rise or fall during the case, the court can usually do what is “equitable”. It will be interesting to see how this plays out.

From:

http://www.huffingtonpost.com/2015/01/12/harold-hamms-ex-appeals-divorce-case_n_6458368.html

Kissimmee Divorce Attorney Shawn Hungate.

Family Law and Divorce

What is a Divorce? Actually, in Florida, this is technically called a “Dissolution of Marriage”, but “Divorce” is still an accepted and widely used term. A Dissolution of Marriage is just what is says, the dissolution (or dissolving or ending) of a marriage and the resolution of the issues that come along with it. Some of those issues are the division of property, division of debts, time sharing, and contact with minor children (“custody”), child support, and alimony. In a majority of cases, it is these issues that are the source of argument, not the actual ending of the marriage.

Grounds for Dissolution of Marriage: In Florida, the Husband or Wife may file alleging that the marriage is irretrievably broken. This can be due to “irreconcilable differences”. There is no “fault based” divorce in Florida. While issues such as adultery, abandonment, or domestic violence are not legal grounds alone to dissolve a marriage, they can, to differing degrees, be important to the other issues of the case.

Residency Requirement: You or your spouse must reside in Florida for at least six months before filing for a Dissolution of Marriage. This establishes jurisdiction over the marriage. Additionally, the case can be filed in the county in which you last resided together as Husband and Wife, or in a county mutually agreed upon by the parties. If the parties live in different states or different counties, it is best to contact an attorney who is knowledgeable and competent with ALL issues of jurisdiction, and venue. Not knowing all the law regarding jurisdiction and venue can get your case transferred, or worse, dismissed.

Parental Responsibility and Time Sharing: In Florida, the word “custody” is, for the most part, not used. Years ago, the legislature got rid of “custody” and started to use the term “primary residence”. More recently, the legislature decided to eliminate this term also and this has resulted in a lot of confusion and vagueness regarding which parent has “custody”. The idea is to promote the idea that both parents are equal, or at least start out that way, in the eyes of the law. This does not necessarily mean that rotating custody happens in every case, but it is becoming more common than in years past. Ultimately, the best interests of the child will determine Parental Responsibility and Time Sharing (or “custody”).

Child Support: Child support is based on the number of overnights and income of the parties. Some other minor factors can change the calculated number.

Alimony: (or “Spousal Support”): In Florida, you can ask for temporary or permanent support in a variety of ways. The Court will consider several factors including the length of the marriage and the relative incomes of the parties.  Some forms of alimony can be modified later, such as permanent periodic alimony, and some generally cannot, such as lump-sum alimony.

Division of Property: Florida has “equitable” division of property. This, for the most part, means that all marital property is divided equally, with a few exceptions. This applies to real estate and personal property. Of course, you and your spouse can agree to divide up the property how you wish as well, saving you time, money, and avoiding frustration.

Divorce Attorney Kissimmee

Family Law – Shared Parenting

SHARED PARENTING Part 2

by Shawn Hungate.

Shared parenting is the most positive method to restructure the family after a divorce or, in the case of unmarried couples, an establishment of paternity.  But, in cases where there is serious child abuse, ongoing and serious domestic violence, or other extreme situations, like one parent going to prison for a significant amount of time, the Court may order that shared parenting would be harmful to the children.  In those cases, the Court can order Sole Parental Responsibility.  These cases are very rare, and the Court is generally loathe to order it.  This kind of case creates a situation where one parent makes all the decisions regarding the child.

In divorce and paternity cases where the Court finds that both parents are unfit to care for the children, the Court may award custody to a third party.  In Domestic Relations Court (where divorces and paternity cases are heard), this is extremely rare, as before anything like that comes up, the Florida Department of Children and Families usually will get involved and a Juvenile Dependency case is filed.

Florida has a public policy to ensure that children have continuing and meaningful contact with both of their parents.  As the parents no longer reside together after a divorce, they have to come up with a time-sharing schedule.  This is now done through a Parenting Plan, which is required in all divorces or paternity cases.  It used to be the law that one parent was granted “custody”, or “primary residential responsibility”.  Those terms are no longer used in Florida.  Although one parent may be designated as the custodial parent for purposes of laws outside of the state, the closest term used now is the parent with the “majority of overnights”.  This is not to say that parent has “custody”, though.  Most divorces or paternity cases still grant both  parents equal rights in raising the children regardless of where the children spend most of their time.

The time sharing schedule can be as flexible or as structured as is needed by the Mother and Father, and, for that matter, the children.  This schedule can include an old-fashioned every other weekend, evenly divided holidays, and half the summer, type schedule; or an equal time sharing, or “rotating” schedule.  Although it is not necessarily the rule in all cases, “rotating” schedules have become much more common recently, as the Courts have begun to recognize Father’s rights to participate in the raising of their children more and more over the years.  In fact, no preference is given any more to the Mother simply because she is the Mother.

There are several factors spelled out in Florida Statutes Chapter 61 that guide the Court in determining the Parenting Plan and time sharing schedule for the children if the parties cannot reach a resolution on their own.  If possible, it is better for the parents to come up with their own Parenting Plan and time sharing schedule, as the Court can never know the particulars of any given case as well as the parents.

If you have any questions about Time Sharing or Parenting Plans, feel free to call me at 407-846-1529 (407-846-1-LAW) for a free initial consultation.  Shawn L. Hungate, Attorney at Law, 811 Patrick Street, Kissimmee, Florida, 34741.

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Family Law – Shared Parenting

SHARED PARENTING part 1

by Shawn Hungate.

Commonly referred to as custody, the concept of shared parenting comes up after a dissolution of marriage (divorce), or the establishment of paternity.  Shared parenting does not necessarily mean rotating custody, but is the term used to describe the relationship that is established between the parents and the children after a divorce or establishment of paternity.

Parents must protect their children from undue hurt and turmoil.  One of the most difficult things about a divorce is the effect it has on the children of the parties.  Parents need to remember that in a divorce, they are ending their marriage to the Husband or Wife, not ending the relationship with their children.  Parents will always remain Mother and Father to their children.

Divorce is a stressful and major crisis for both the adults and for the children.  The stress can result in both physical and emotional problems.  Different aged children can react differently to divorce.  This may range from irritability to severe behavioral changes like drug use.  Parents should look for signs of trouble and react to them early to help prevent potential serious problems in the future.  It is best if the parents can work out the parenting issues to help avoid, or at least minimize, the harm the children may suffer.  Sometimes avoiding a court fight and attempting an uncontested divorce can help in this.  However, if parent are unable to do so, the Court will have to decide parenting issues for them.

The idea of Shared Parenting is to provide a framework for effect co-parenting.  It is public policy in the State of Florida to promote the sharing of rights and responsibilities of raising their children.  Shared Parental Responsibility is a court ordered in just about every case.  It means that both parents retain full parental rights and full parental responsibilities over their children.  It means that the parents shall discuss with each other all major decisions affecting the children and their welfare.  It means that the decisions regarding the children shall be made jointly.  Shared Parenting is ordered to protect the children’s right t an ongoing relationship with both parents.

Each parent has certain duties when it comes to raising their children after a divorce or establishment of paternity.  When the children are with one parent, that parent shall make the day to day decisions regarding the children’s regular care, maintenance, and welfare.  The parents should consult with one another when larger issues come up like religious upbringing, discipline, financial issues, morality issues, major recreational activities, and non-emergency medical care.  In other words, while a parent doesn’t need to call the other parent to discuss what the children are going to have for dinner every night(unless there are medical issues), they should discuss and resolve where the children are going to summer camp, or whether they are going to enroll in the local soccer league.  Each parent should take an active role in providing sound environment for their children and attempt to resolve any differences as amicably as possible.  This also means that the parents should not only discuss these issues, but carry themselves in a way that promotes and fosters the best interest of the children.  If the children see a parent arguing, yelling, or acting inappropriately, they are likely to copy that behavior.

Sometimes parents after a divorce do not realize what should be pretty obvious, and that is sharing information about the children.  A parent should immediately notify the other parent about any serious illness or accident that affects the children.  Likewise, both parents have the right to access records and information pertaining to the minor children, including, but not necessarily limited to, medical, dental, optical, and school records.

Ultimately, both parents have a duty to promote a good relationship between the children and the other parent.  Under shared parenting, both must attempt to make sure that the children have free access and unhindered contact with the other parent.  If one parent desires to relocate, than the other parent must be notified and their right to ongoing contact and access with the other parent must be considered..  In fact, if the parent the children spend the majority of time with (what used to be known as the “custodial parent”, the “parent with custody”, or the “parent with primary residential responsibility), than that parent has to follow the law established in Florida Statute 61.13001, “Parental Relocation with a Child”.  The natural development of the children’s love and respect for the other parent must not be interfered with by the other parent.

I have handled many family law cases, including divorces, paternity cases, modifications, and enforcements since 1998.  If you have any questions regarding your situation, please feel free to contact me at 407-846-1529.  Shawn L. Hungate, Attorney at Law, 811 Patrick Street, Kissimmee, Florida, 34741.

Contested Divorce Basics

Contested Divorce Basics

by Shawn Hungate.

When someone hears the word “divorce”, a contested divorce, with all its procedures, is what often comes to mind.  This process begins with a Petition for Dissolution of Marriage filed with the clerk of courts.  This Petition can be filed by either the Husband or the Wife (or either “party”).  That party becomes the Petitioner.  This Petition is then served on the other party, who is called the Respondent.  The Respondent typically has 20 days to answer the Petition.

The Petition contains allegations about the marriage.  It must allege that the marriage is irretrievably broken.  It may contain other allegations including, but not necessarily, a request to divide assets and debts, a claim for time sharing with children, a claim for child support, and claims for alimony, among other things.

The Respondent then must file an Answer or risk being defaulted, allowing the Petitioner to go forth to the Judge for a final hearing.  The Respondent may also file a Counter-Petition.  The Counter-Petition would contain allegations just like a Petition would and must be answered by the other party.

Often times, financial disclosure is provided with, or soon after, service of the initial Petition for Dissolution of Marriage.  If this is not done, financial disclosure (or “Mandatory Disclosure”) is required within 45 days of the service of the initial petition.  The amount of disclosure can vary depending on the parties’ incomes and expenses.  This financial disclosure is often required prior to temporary relief hearings.  In Osceola County, Mediation is usually also required before temporary relief matters are heard.  In all cases, at minimum, a Financial Affidavit is required.

Mediation is a major part of a contested divorce and is required in most cases (cases without a default entered) to give the parties an opportunity to settle their case prior to going to a final hearing.  This can help the parties avoid a protracted process preparing for a trial.  The purpose of mediation is not to save a broken marriage, but to give the husband and wife a chance to dictate there own terms of the divorce without the Judge deciding their case for them.  The parties should realize that compromise is important in a mediation if you want to successfully settle their case.  There can be one or several mediations in a single divorce proceeding.  A mediation can settle some issues, all issues, or no issues.  Mediations are attended by the Husband, the Wife, their attorneys, and a mediator.  Third parties are typically not allowed to attend mediations.

If the case is not settled at mediation, the parties can still attempt to settle out of court, or have their attorneys try to work toward a settlement.  If no settlement is reached, cases often proceed with depositions, interrogatories, and further discovery.  Eventually, the parties would go to a final hearing (a Trial) and have the Judge decide the issues that were not settled on at mediation.  At this Trial, each side will have an opportunity to present their side and make their requests to the Judge.

Anyone going through a divorce, especially a contested divorce, should realize that it is unrealistic to expect to be “happy” with their divorce.  A divorce can be emotionally and financially devastating.  The parties now living apart and, often times, alone can be difficult.  In cases with children, the time spent away from them can be very trying.  Finally, the simple fact that there are two households to support instead of one is enough to cause a serious financial strain on the parties.

It is always a good idea to consult an attorney before you proceed with a divorce and I would be happy to talk to you about your own unique circumstances.

Shawn L Hungate Attorney at Law, 811 Patrick Street, Kissimmee, FL 34741  407-846-1529

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Basics About Divorce in Florida

SOME BASICS ABOUT DIVORCE IN FLORIDA

by Shawn Hungate.

Going through a divorce can be a trying time for anyone.  Dealing with custody, visitation, child support, alimony, property division only adds to the stress and emotional turmoil that comes with a divorce.

Before you decide to take legal steps to file for divorce and end your marriage, you should make sure that you have taken the steps to see if you can save it.  There is help out there from professional help, to religious organizations, even talking to family and friends.  Ultimately, if you do decide to file for divorce, it is important that you consult with an attorney to know your rights.

A divorce in Florida is officially called a Dissolution of Marriage.  In Florida, you do not have to prove that anyone is at fault for the divorce.  Thus, Florida, as far as divorce law goes, is a no-fault state.  This can reduce potential harm to the parties and their children, fi they have any, by not having to show things like adultery or abandonment.  The most common grounds for divorce in Florida are simply that the marriage is irretrievably broken.  Additionally, either the Husband or Wife must have been a Florida resident for at least six months.  Circumstances that would otherwise constitute “fault” can sometimes be used, though, in the determination of alimony or child support.  Be sure to speak to an attorney about this, though, as many factors that may feel like “fault” will not be considered by the Court.

Divorces in Florida can be handled in many ways.  One way is the traditional “Contested Divorce”.  This is where one party files a Petition for Dissolution of Marriage with the Court and has the other party served with the Petition.  The other party must answer within a given time period and the lawsuit proceeds from there.  Usually, Mediation is had and, if the case does not settle there, further litigation will likely be required.

Another way to get a divorce in Florida is an “Uncontested Divorce”.  This is where the parties enter into an agreement about how their property will be divided, how they will continue to raise their children (with a “Parenting Plan”), what child support will be paid, and if alimony is to be paid.  Although this sounds like an easier process, it is still imperative to seek out a lawyer to help you with this process.  You still need to be advised of your rights.  Additionally, the likelihood of having to go back to court later on is increased greatly if you try to do this on your own or simply hire a paralegal to prepare documents, as they are unable to give you any kind of legal advice.  A special kind of Uncontested Divorce is a “Simplified Divorce” and is filed only in certain circumstances.

A third way to get a divorce in Florida is through a rather new method called a “Collaborative Divorce”.  This is where both parties obtain counsel, but it is done with the idea of reaching a settlement.  Both parties, and their attorneys, must enter into a Collaborative Agreement.  I will discuss more about Collaborative Divorces in a later post.

Additionally, Judges and Clerks cannot give legal advice.  They can only answer the most basic questions you may have, and this is normally limited to procedural questions.  Only an attorney can give you legal advice about your Divorce.  Call my office or email me and I would be happy to set up a time to speak with you about your unique case.

Shawn L Hungate Attorney at Law, 811 Patrick Street, Kissimmee, FL 34741  407-846-1529

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