Division of Property and what is “Marital Property”?

In a Florida divorce, only “marital property” is subject to equitable division.  Simply put, marital property is property acquired during the marriage from the effort of one or both spouses.  It does not matter which spouse earned the money, nor the name is on the title.  Keep in mind, however, this is only for division of property and debts.  A court can award non-marital property to the other spouse in rare circumstances if the facts allow for it.

Marital property is not inheritance or a gift received by one spouse, as this is not earned from the effort of one or both spouses.  This is usually from that spouses’ parent or other relative.  However, a joint gift would be subject to equitable distribution in a divorce.

Also, if something is owned prior to the marriage it is usually considered non-marital, and thus, not subject to equitable division.  However, it can become marital if the owner spouse adds the other spouses name or it is “comingled” by adding a marital asset to it.  This could happen, for instance, if you put your inheritance into a joint checking account.

Florida divorce law also uses “Equitable division”.  For the most part this is “equal division”, but not exactly.

There are exceptions to equally dividing marital property.  For the most part, a Husband and Wife will equally divide all of their marital assets.  This even includes individually titled assets like retirement, cars, or even real estate.

However, we don’t simply liquidate everything in a divorce then divide it down the middle.  If the parties own a house worth $250,000.00 with a $100,000 mortgage and the Wife has an IRA worth $150,000.00, the court can award the house to the Husband with responsibility for the debt thereon, and let the Wife keep her whole pension.  Not every case is this clean, so a partial transfer of an asset can allow a similar outcome in your divorce..

Also keep in mind that debts are divided the same way.  One scenario I often see is when one spouse owns real estate prior to the marriage and keeps it in their own name.  If the parties stay married a long time, and pay down the note against the house (i.e. the mortgage) this can create an issue.  Usually, the spouse who is not on the deed will not gain any interest in the real estate unless there were substantial improvements to the house.  But, that spouse may have an interest in the amount the mortgage was reduced during the marriage.  This is a way that the other spouse can gain an “asset”.

How to give an asset a value can also present issues in a divorce.  Certain assets, like a business, are hard to value.  These are not limited to how much the inventory, vehicles, and buildings are worth, but other value the business may have.  Business may have value beyond the real, countable assets it owns.  Debt owned by the business can also reduce its value.

Few assets stay the same value during a marriage.  The date used to value assets or debts is one of several potential dates.  One is when the Divorce is filed with the clerk.   Another is the date the parties stop living together.   The Court can also use a date that it finds to be equitable or “fair”, given the unique circumstances surrounding the divorce.

Property division is the most common issue in a divorce.  It is often more predictable than other issues like time sharing or alimony.  It can be simple if there are few assets, or complicated if a married couple owns significant property.  You should consult with an attorney even if the parties are in agreement.  An attorney will know the proper way to divide assets and debts to best protect a spouses interest.  This is especially true in cases with real estate, retirement or other significant assets.

Jurisdiction and Venue: Where do I file my divorce or paternity case?

What is jurisdiction?  There are 2 main kinds of jurisdiction.  Personal Jurisdiction and Subject Matter Jurisdiction.

In layman’s terms, Personal Jurisdiction is the right of the state to make rulings over a party, specifically, the Respondent (or Defendant).  In order for that to happen, the Respondent must have a connection to the state in which the case is filed.  Usually, this means that the Respondent lives in that state.  However, in a divorce in Florida, this can be established by showing that the Respondent lived there during the marriage, even if they have moved out of state after separation.  It can also be found with a few more rare exceptions.  One way to obtain it is a little trickier.  It is by serving the Respondent while they are in Florida, even on vacation.  Personal Jurisdiction, unlike Subject Matter Jurisdiction below, can be consented to.  This can be tricky, as many Respondents may accidentally consent to jurisdiction if they do not follow the proper procedure.  An experienced divorce attorney should know this and property enter their appearance and file the correct motion to avoid this.  Respondents often consent, however, with knowledge in an uncontested divorce.

Subject Matter Jurisdiction is the ability of the Court to hear the matter itself.  In a divorce in Florida, it means has one of the parties resided in Florida for at least six months.  In a Paternity Case, it means have the children resided in Florida for at least six months.  However, in a divorce with children, you could, potentially, have jurisdiction to hear the divorce yet not have jurisdiction to rule on child related issues like time sharing if the children have not resided in Florida for six months.  This cannot be consented to, even if the divorce is amicable.

Finally, Venue is which county in Florida to file the divorce or paternity action.  In a divorce, it is where the parties last resided together or where the Respondent resides.  The Petitioner does not just get to choose.  However, Venue, like Personal Jurisdiction, can be agreed upon by the parties.  This is often the case with Uncontested Divorces.  I often file these in Osceola County even if both parties live in south Orange County when they agree it would be more convenient.  The rules are, ironically, a little looser in Paternity cases.

If you have any questions about where to file a Family Law case, be it a divorce or paternity case, you should contact an experienced, knowledgeable divorce attorney.

Should I co-own property with my spouse after divorce?

In general, it is not a good idea to co-own property with your ex-spouse after a divorce.  There are several reasons for this.

Real Estate owned by both parties during the marriage is often what we call a “tenancy by the entirety”.  The simplest way to explain this is that the property is owned not by the husband or wife, but by the marriage itself.  When you get a divorce, there is no marriage to own this property anymore.  At that point, the property becomes a “tenancy in common”.  This is no different than owning a piece of property with a business partner.  You lose many protections afforded by a tenancy in common.  Each party also owns a divisible interest in the property and could, potentially, sell their one-half interest in that property.  The latter may be fixed by completing a new deed to create a joint tenancy with right of survivorship, but this still does not afford the protections a tenancy in common has.

Additionally, if the mortgage stays in both names and one party, usually the one continuing to reside in the property, doesn’t pay, the lender can sue both parties, not just the one living in the house.

Vehicles owned by both parties after a divorce is also a bad idea.  If there is a debt against a vehicle, you can run into a similar issue to the mortgage scenario above.  If the spouse who drives the car doesn’t pay the debt, the lender can sue both parties.  More importantly, however, is that if there is a car accident, the driver is not the only person liable for damages. Any owner of the vehicle can be held responsible as well through something called vicarious liability.  This is why in my divorces, I always emphasize that the parties transfer the title of the vehicle to the person keeping the vehicle, regardless of the debt thereon.  A debt arising out a car accident can easily and significantly exceed any car loan.

In general, I advise against co-owning property after a divorce.  It is possible to do so and sometimes it is necessary due to the financial circumstances of the parties.  In any case, it is important to consult with an experienced attorney about this.

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.



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.

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Family Law – Shared Parenting


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


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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