Criminal and Juvenile Defense

In addition to Family Law, I also handle Criminal and Juvenile Defense. I read this recently and, of course, it happened in our wonderfully strange state of Florida.

Sean Slocum, age 21, of West Palm Beach, Florida, is clearly not a very bright guy. The idiotic criminal decided the best way to get out of an arrest was to call 911, and report that he was getting kidnapped by the police. According to the police report, deputies were called to the Girafas Bar and Grill on January 11, 2014, after getting calls of a bar fight. By the time they arrived the fight had ended, but an employee pointed out that a man allegedly involved in the fight was outside sitting in a car across the street. Slocum was the one inside the car, and, according to reports, left the vehicle and started walking away when the police cruiser was approaching him. Deputies temporarily detained Slocum until they could find out whether or not he was involved in the bar fight. According to the report, in the presence of deputies, Slocum “made several false calls to 911 claiming that he was being kidnapped.” The operator had to explain to Slocum that he was not, in fact, a victim of a kidnapping, but simply being held for police questioning. In fact, he wasn’t even technically arrested. Despite that, “over a period of 10 or so [minutes] Sean called 911 about 4 times.” It was then that police arrested him on the charges of misuse of 911.

By pulling this stunt, he has been charged with another crime. This is a great example of where a suspect should have followed probably the most common criminal defense advice given – just keep your mouth shut! This applies not only to police questioning, but talking at all. Talking to anyone about your case, or lying about it, as in this case will not help.

From: http://www.crimelibrary.com/blog/2014/01/16/florida-man-calls-911-when-police-detain-him-reports-a-kidnapping/index.html

 

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.

Juvenile Arrest and Juvenile Criminal Charges

Part 3: Right to Counsel

A Juvenile’s right to counsel is governed in part by Florida Statute 985.033.  It states that “A child is entitled to representation by legal counsel at all stages of any delinquency court proceedings…”

In the Juvenile Delinquency system, the State Attorney’s Office represents the State of Florida, just as they do in the adult criminal system.  They have all the same resources at their disposal as they do in the adult criminal system.  It is therefore very important that a child charged with a crime have competent experienced legal representation, just as it is in the adult criminal system.  I have represented Juveniles in Florida since 1998 in both matters that have stayed in the Juvenile system and have been direct filed to the adult system.

Many times, the child is unaware that they have the right to counsel when they are questioned by law enforcement.  They are also unaware that they can request that, at a minimum, that they speak with their parents.  This is not always communicated to the child before they start to speak with law enforcement.  It is important, therefore, as parents, to inform your child of his or her rights under the law.  This may be an uncomfortable conversation, but knowledge is sometimes the child’s best defense when they are being accused of a crime they may not have committed.

Additionally, a child’s right to counsel can not be interfered with by an unwilling parent.  Many times parents may be frustrated with their child and do not wish to hire an attorney for their child.  If the parents and the child are deemed indigent, a Public Defender may be appointed to represent the child in a Juvenile Delinquency proceeding.  If, however, the parents or legal guardians are not declared indigent, even if the child is indigent (which is usually the case, as children rarely have their own financial resources) then those parents or legal guardians are required to secure counsel for their child.  Florida Statute 985.033 states, in part, that “A parent or legal guardian of an indigent child who has been ordered to obtain private counsel for the child and who willfully fails to follow the court order shall be punished by the court in civil contempt proceedings.”  This may come as somewhat of a surprise that a parent can be forced into hiring private counsel, but it is not necessarily all bad news.  Many attorney’s, including myself, charge significantly less to represent a juvenile than an adult for similar offenses.
Another important thing to consider when hiring an attorney to represent a child in a Juvenile Delinquency proceeding is that your child’s attorney represents the child, not the parents or legal guardians.  This means that the child’s discussions with the attorney are confidential.  The parents, although often present during consultations, do not have a right to be present during the consultations.  The attorney represents the interests of the child, which may be contrary to the interests of the parents.  Understand, though, that these are the child’s rights.  Practically, most of my Juvenile clients wish their parents to be involved in the entire process and I take the parents input very seriously.  I will be as cooperative as I can be with the parents of the child, but I cannot violated confidences between the child and myself unless the child wishes me to do so.

Finally, its is important to hire an attorney to represent a child so that the attorney may determine whether there is any legal basis for the charges against the child as well as whether all the legal requirements were property met prior to the charges being filed.

I am happy to discuss any issues you may have if your child is charged in delinquency court during a free consultation.

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

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Juvenile Arrest and Juvenile Charges

Part 2: Treating Juveniles as Children or Adults in the Criminal Justice System.

In the vast majority of cases, a child in the Juvenile Delinquency system will remain there.  IF the police charge the child, the information goes to the Department of Juvenile Justice and the State Attorney’s Office for them to review.  The State Attorney will decide whether or not to file charges.  If they do, they will file a “delinquency petition”.  The Department of Juvenile Justice will contact you to arrange a conference to discuss the charge and your child’s background.  Please remember, though, that your child does have the right to remain silent when it comes to discussing any facts about the case.  Often times, though, cooperation about family history, the child’s grades, etc., can be beneficial if it is communicated to the Department of Juvenile Justice.  It is wise to contact an attorney prior to this meeting if it is possible.

It is also possible for your child to be charged with a violation of law relating to the operation of a Motor Vehicle.  Motor Vehicle charges are charges like Driving While License Suspended or Revoked, Racing, Driving Under the Influence, No Valid License, Attaching a Tag Not Assigned, and Reckless Driving.  In cases like these, the child’s case will be put into the same court that handles traffic and motor vehicle offenses for adults.  Understand that Traffic Court will often have special rules that are different than the other criminal (misdemeanor and felony) and juvenile courts.  One such rule, at least in Osceola County, is that most traffic criminal cases are NOT eligible for any kind of diversion program.  The DUI Diversion program is an exception to this.

In rare, more serious cases, a child may be tried in adult court.  This is called “direct filing”.  In Florida, a child may NOT be put in adult jail unless they have been convicted in adult court or are being transferred to adult court for the first time.  A child may be “direct filed” into the adult system if the child’s age and the crime the child is charged with meets certain criteria.  If the child does go to adult jail, they must be completely secured from adult inmates.

A “direct filing” considers many factors, including the crime that is charged.  Crimes like Homicide (Murder, Manslaughter, etc.), Armed Robbery, Firearm charges, Burglary of an Occupied Dwelling, Sexual Battery, and other serious offenses are the most likely to be direct filed into the adult criminal justice system.

I have both successfully negotiated cases to remain in the juvenile system and have handled cases that have been direct filed on with successful outcomes.  In rare cases, it is possible for the Judge to still hand out Juvenile Sanctions (punishment) for the child even in adult felony court.  If your child is charged with any crime, regardless of how serious it is, please give me a call to discuss your child’s rights.  My consultation is free.

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

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Juvenile Arrest and Juvenile Charges

Part 1: Rights, Some Differences with Adult Criminal Court.

There are some important things to know if your child is arrested or charged with a crime.  The first is that the purpose of the Juvenile Justice System in Florida is to protect society by trying to rehabilitate the child who committed the crime.  The purpose is not simply to punish the child.  Punishment is, though, one of the purposes of the adult criminal system in Florida.  Also, the Juvenile criminal system in Florida is known as Juvenile Delinquency.  Juvenile Dependency is a separate, but related, system that deals with children who have been, or at risk of being, abused, neglected or abandoned.  Understand that the term “child” in Florida generally means anyone under the age of 18.

Florida Juvenile Delinquency courts work with many different entities, including the Florida Department of Juvenile Justice, the State Attorney’s Office, the child’s attorney (usually a criminal defense attorney), and the Judge to devise a rehabilitation plan for the child who is in trouble with the law.  The court will attempt to ensure the child learns from the experience.  This is so the child has a better chance of returning to society as a productive citizen without suffering permanent harm.  Adult Criminal Court may hope to return an productive adult to society, but they also have goals of prevention of future crimes by the same person, deterring others from committing similar crimes, and simply punishing those who commit crimes.  The adult criminal system is, therefore, much more unforgiving than the Juvenile criminal (or Juvenile Delinquency) system is.

Many rights that adults have in criminal court are mirrored in Juvenile Delinquency Court.  Some of these rights are not the same, though.  One in particular, is the right to a trial by a jury of your peers.  While an adult charged with a crime is entitled to a jury trial, a juvenile charged with a crime is entitled only to a trial with a Judge.

A child, though, does have the right to remain silent.  As it is with an adult who speaks with law enforcement, anything the child says can be used against that child in court.  So should your child cooperate with law enforcement if he or she is questioned?  This is not a simple yes or no answer.  Your child should be cooperative, but should NOT answer any questions regarding the allegations or the charges until and unless you speak to an attorney.  Confessions of children are NOT automatically deemed not admissible simply because the suspect is a child.  In other words, it is entirely possible for a child to confess to a crime.

Children, like adults, have the right to an attorney before answering any questions.  The child has the right to request an attorney just like an adult.

Law enforcement is allowed to take your child to the county jail and hold them for questioning for a limited amount of time.  They may be fingerprinted and photographed upon law enforcement’s reasonable belief that the child has committed a criminal act.  These records, though, are not public.  After this period of time has elapsed, the child may be released to a parent or an alternate responsible adult relative of the child.  The child may also be detained in a secure juvenile detention facility.  Finally, the Department of Children and Families can be contacted if circumstances allow for this.  This may happen if the child has no parent nor adult relative to take the child.

A child may be put into detention care while they are awaiting a court hearing.  This may be in a juvenile detention facility or home detention.  This detention may not normally last beyond 24 hours without a hearing in front of a Judge who determines whether or not the child should be held for a longer period of time.  If a child is placed into detention, that child has the right to an adjudicatory hearing (or a juvenile “trial”) within 21 days.  In most cases, the juvenile system runs much more swiftly than the adult criminal system.

If you have any other questions concerning charges filed against a child, please feel free to contact me to schedule a free consultation.

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

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Bankruptcy Basics

Bankruptcy Basics

by Shawn Hungate.

Here are some very basic concepts about Bankruptcy.  Please understand that every case is unique and these statements may not necessarily apply to your unique case.  But if you are considering filing a bankruptcy, some questions you may have are:

Do I qualify for a Bankruptcy?
What does a Bankruptcy do for me?
How long does a Bankruptcy take?
Do I need an attorney to file a bankruptcy?

1. DO I QUALIFY FOR A BANKRUPTCY?
Well, it depends on what chapter you are filing.  A chapter 7 bankruptcy (consumer) is generally for individuals who earn under $40,766.00 per year.  This number can change every year.  This allowed amount also goes up depending on family size.  A married couple can earn up to $49,729.00, a 3 person family can earn up to $52,840.00, and a four person family can earn up to $62,742.00.  These amounts are simply the easiest way to qualify for a chapter 7 bankruptcy, as you do not have to pass what the Bankruptcy Court calls  a “means test”.

NOTE:  These values can and do change!

For incomes higher than these, you would either have to pass the “means test” or consider filing a chapter 13 bankruptcy.  Other chapters do not generally apply to individuals or families, such as chapter 11 bankruptcies.  There are also Chapter 7 bankruptcies specifically designed for businesses.

Additionally, if you have recently filed a bankruptcy, you may not qualify to file another one for several years.  Feel free to call me for any questions about this at 407-846-1529 (407-846-1LAW).

2. WHAT DOES A BANKRUPTCY DO FOR ME?
The goal of a chapter 7 consumer bankruptcy is to give a family or individual a fresh start.  It discharges all allowed debt and will liquidate all unprotected assets.

The debts allowed to be discharged, for the most part, are credit card debt, medical bills, and other unsecured debt.  It can also discharge certain secured debt (mortgages, car loans, etc.) if you do not wish to keep the security (the home, the car, etc.).  It cannot usually discharge certain debts like student loans, taxes, or debt on secured property you wish to keep.

The assets that you can protect are generally:  Your homestead (if you wish to reaffirm the mortgage, or own your home without a mortgage), your personal property up to $1000.00 in value for an individual or $2000.00 for a married couple, equity in a vehicle (again $1000.00 for an individual or $2,000.00 for a married couple), most retirement plans, and certain other exempt assets.  Additionally, in Florida, you are allowed a $4,000.00 “wildcard” exemption if you do not use your homestead exemption.  These exemptions do not necessarily mean you will lose the assets that are unprotected, but you would have to “buy” the assets back from the trustee if they are not exempt.

A bankruptcy can also often stop pending lawsuits and eliminate judgments.  Once filed, it also stops harassing telephone calls from creditors.

If you want to stop harassing telephone calls from creditors, please give me a call at 407-846-1529 (407-846-1LAW).

3. HOW LONG DOES A BANKRUPTCY TAKE?
There are several steps in a bankruptcy, beginning with the initial filing of the Petition and related schedules.  The time frame for filing depends on the complexity of your individual case.  If you have few creditors, it can be done rather quickly, but with many creditors, the preparation of the petition can take several months, with a lot of communication between my office and you, the client.

After the Petition is filed, it will generally take about a month or two to get to your meeting of creditors.  Once that is done, and if there are no objections or filings by the creditors to challenge the bankruptcy, it takes a minimum of 90 days before a discharge can be granted.  The case is closed soon thereafter.

Even if this seems to take a long time, understand that it is important to carefully prepare the filing of a bankruptcy in order to avoid problems that can result in you having to appear in front of a Federal Judge.  A rushed bankruptcy is not something anyone should try.  Additionally, many of the benefits of the bankruptcy are realized upon filing (such as creditors generally stop calling), instead of at the end of the case.

The time can vary from file to file, but I will always respond promptly to your questions and issues.  Give me a call at 407-846-1529 (407-846-1LAW) if you have any questions.

4. DO I NEED AN ATTORNEY TO FILE A BANKRUPTCY?
Technically, no, you do not.  But I would NEVER recommend someone file a bankruptcy without an attorney.  Filing a Bankruptcy is extremely detailed and complicated.  Only an attorney can correctly evaluate your case and file a petition while giving you advice on every step.  Additionally, an attorney can attend your meeting of creditors with you.  If you do see an attorney about filing a bankruptcy, ask if they will personally attend the meeting with you, or if they hire someone else to cover the hearing for them.  I always personally attend all meetings with my clients.

Also, the chances of messing something up increases greatly without the aid of an attorney.  If you do make a mistake when filing a bankruptcy, you may end up with your case dismissed or even investigated by the FBI.  You really should strongly consider hiring an attorney to help you through this complex and detailed legal procedure.

If you have any questions, please feel free to contact me.  You can schedule a free initial consultation by calling me:

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

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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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