by Kristin Kirkner | Jan 12, 2013 | Divorce, Family Law
In today’s economic climate, it may be tempting to try to complete a dissolution of marriage on your own. You know your family, your assets and debt, and you know how you want it divided. Sounds easy, right? Not so fast…
In the years I have been practicing, I typically earn more fees in a case where I am fixing the mistakes that people made in the initial case than I would have made had I just represented the party when the divorce was initially filed. There is a reason that lawyers have to go to school, pass the bar and gain valuable experience before they are able to competently represent someone — the law is complicated! One small error could cost thousands of dollars over a lifetime.
Take for example a military pension. If the coverture fraction is incorrect, the final judgment doesn’t provide for COLA or SBP, or the retirement is ordered as of date of retirement and not as of the date of filing, the difference could be several hundred dollars per month, which adds up over a lifetime. It is critical to hire an attorney who is familiar with the specific issues in your case so that you can get the best outcome for the long term.
If you would like more information about the Florida divorce process and dissolutions for military members and their spouses, please contact me at 813-254-0156 or visit my website at www.decortkirknerlaw.com .
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by Kristin Kirkner | Jan 1, 2013 | Divorce, Family Law
Annulment is the nullification of marriage, and most states allow it only on very narrow grounds. One such ground is mental incapacity at the time of marriage. The law expects that the parties entering the marriage contract should be able to understand the nature and consequences of marriage.
Mental incapacity can be described as the absence of the capacity to make decisions for oneself or the ability to express such decisions. As such, mental incapacity may be due to mental illness, stroke, Alzheimer’s disease, congenital disability, and brain injury, among other causes.
Under the law, a marriage is voidable in cases where either of the spouses is incapable of understanding the contract of marriage. Some states hold that if the party is incapable of understanding because of insanity or serious mental disorder, the marriage is void. Some state statutes provide that mental illness can be a ground for annulment if the defect prevents the afflicted spouse from appreciating the contract and conferring thoughtful consent to the marriage. Mere mental weakness alone cannot be a ground for annulment in some states. Moreover, mere variation from normal human behavior or human thinking is insufficient to justify adjudging a person as mentally ill.
In the case of a ward who has been declared mentally incapable before the marriage, the ward’s guardian can give consent on behalf of the ward for the marriage. Without such guardian consent, the ward’s marriage becomes void or voidable. Such a marriage can be annulled because it was without the consent of the guardian, and the ward was incapable of consenting to the marriage. In that situation, the guardian can bring an action to annul the marriage on behalf of the ward. A mentally ill person can enter a valid marriage if he or she is capable of understanding the nature and expectations of marriage. The ability to understand the duties and the responsibilities associated with marriage is the key factor for evaluating mental capacity to enter into marriage.
The foremost evidence to prove a spouse’s mental incapacity is adjudication of mental incapacity by an appropriate authority. That usually involves expert testimony by a psychologist or psychiatrist. A marriage with a person who is mentally incapable usually is valid and legally binding unless and until a court annuls it.
by Kristin Kirkner | Jan 1, 2013 | Divorce, Family Law
Divorce statutes in most states consider several defenses in case of fault-based divorce, such as recrimination, condonation, reconciliation, collusion, and connivance. States traditionally have allowed mental illness as a common law affirmative defense in fault-based divorce actions, particularly against charges of adultery, cruelty, and desertion. Under a typical scenario, the defendant was required to plead the defense and prove that mental illness prevented the defendant from recognizing that the offending act was wrong. In states that allow fault-based divorce and that have detailed statutory schemes governing divorce actions, the general movement has been to limit or eliminate common law divorce defenses such as mental illness.
Mental illness can be defined as a person’s inability to manage his or her own personal affairs, health, property, or day-to-day activities or the inability to express personal opinions, desires, wishes, feelings, and intentions due to brain damage or mental incapacity, mental disorder, imperfect or delayed brain development, or impairment or deterioration of the brain.
Mental incapacity is the basic inability to understand the consequences of conduct of the afflicted person and of others. The main way to prove a spouse’s mental incapacity is by adjudication of mental incapacity by an appropriate authority. This usually involves expert testimony by a psychologist or psychiatrist. Confinement to a mental health or rehabilitation institution also can be persuasive evidence of mental illness or incapacity.
To use mental illness as a defense to a fault-based divorce action, the afflicted party generally must prove that he or she was not able to understand and recognize that the offending act was legally wrong. When considering mental illness as a defense to fault-based divorce, courts examine the severity and the degree of mental illness and whether the mental incapacity is responsible for the alleged divorce grounds. If the party is found to be able to understand the consequences of his or her conduct, then mental illness usually fails as a defense. Generally, the mental impairment should of the same severity and degree as those used in the criminal law context.
by Kristin Kirkner | Jan 1, 2013 | Divorce, Family Law
Date of Valuation With Respect to Property Division in Divorce
One important factor in property division in divorce is the date of valuation of the spouses’ assets and liabilities for purposes of dividing marital property. The courts must consider the date of valuation in order to establish a consistent basis for determining a fair distribution of marital property. Fixing values for different assets and liabilities at different times can affect the true value of assets and liabilities that a spouse receives.
Each state has its own rules for determining the date of valuation. Most courts use one of three dates: the date the divorce petition is filed, the date of the final hearing, or the date of the decree. Some states use the date of actual separation.
In cases in which the spouses have a property division agreement or a prenuptial agreement, the court can accept the valuation date stipulated in the agreement. For assets that change value rapidly, courts may vary from the normal dates if necessary to achieve an equitable valuation and division.
For assets with seasonal price fluctuations or assets with high price volatility, such as volatile securities or commodity inventories, courts can use an average price or a moving average of the price computed over a time interval. Courts perhaps are less likely to deviate on their own from a fixed valuation date, and are more likely to rely on expert testimony to support a deviation from a fixed date. When both parties are well represented by counsel, courts are more likely to allow the parties to stipulate to valuations and the dates used to fix valuations.
by Kristin Kirkner | Jan 1, 2013 | Child Support, Custody, Divorce, Family Law
Preference of Child in Custody Determinations
In awarding or modifying custody, one of the factors considered by a court is the preference of a child, However, the extent to which the court will consider an expressed wish and how much weight the court will give that wish depends on the age and maturity of the child and the circumstances under which the choice was made.
When Preferences Are Given Little Weight
As a rule, children love both of their parents and one of the most difficult decisions for the child to make is whether to live with one parent rather than the other. Children want both parents to live together, and they want to live with both of them. No court wants to place a child in the position of choosing, and courts often ignore or give very little weight to an expressed preference, particularly when the child is very young. Some courts will not permit the child to testify as to a preference. One reason is that the court may be concerned that the child has been coached. Where the child is living with one parent prior to a court hearing, not only the parent, but the parent’s relatives all too often seek to sway the child. It is for the court to determine what is in the child’s best interests in deciding custody regardless of the stated preference of the child.
When Preferences Are Considered
As a child grows older and begins to form independent decisions, the court will listen to the child to find out which parent, if either, the child would prefer to live with and the reasons the child gives for that desire. A child might want to live with a parent because that parent has been the primary caretaker during the course of the marriage. A daughter may want to live with a father because the mother and daughter are constantly battling and the daughter feels closer to the father. On the other hand, a child might want to live in the house that is bigger, has more expensive toys, and the parent is wealthier, but if that parent works excessive hours and is not available for the child, the court could deny the request. A child may want to change schools because of the difficulty of the school program or because of the type of students. Before a court grants the request, the court is required to determine what is best for the child.
Where a child has reached the age where the child may petition the court for a change in custody, courts often grant the child’s wishes. However, the request will be denied if the person the child chooses to live with is abusive or violent, or where there is clear evidence that the choice is not in the best interests of the child.
by Kristin Kirkner | Jan 1, 2013 | Custody, Divorce, Family Law
Modification of Custody based on Parental Unfitness
If subsequent to the time a court awarded joint or sole legal custody to a parent, the parent becomes unfit to have custody of the child, a court will not hesitate to modify custody.
Unfit Parent
There are various reasons for finding parents, or a parent, to be unfit to have the care and custody of a minor child. A mother who carried on an affair with another man for years, passing off her child with that man as the son of her husband, was found to be unfit as lacking morals and unable to teach values to her child. A parent who abuses drugs or alcohol and is unable to care for the children will be found unfit to have custody. A parent who unfortunately was severely injured in an accident or who suffers from a disabling disease, and as a result cannot care for herself or himself, may not be able to care for a child and would be found “unfit.” A parent who cannot keep a job or an apartment, and cannot demonstrate an ability to provide a stable home environment for a child may be found unfit. A parent who physically and mentally abuses a child is unfit. A parent who ignores the needs of a child, fails to provide an education, fails to provide health care, and fails to provide adequate clothing or food will also be found unfit.
A court will look not only at the mental and physical ability of a parent to have custody of a child, but will also look at the parent’s morals. A parent who fails to show up for scheduled court appearances will be seen as lacking in respect and will not be viewed as a positive influence on the child. A parent who consistently brings a child late to school and permits the child to miss excessive days of school is not a parent who puts the needs of the child first and in some states is subject to having the child removed by the local social services agency. A parent, who leaves children under the age of six in a home, while the parent goes to work, goes on a date, or goes shopping, may be found guilty of neglect and not fit to have the care and custody of the children. A parent who uses excessive force in disciplining a child or who disciplines a child in an abusive manner or at times when no discipline is warranted may also be found unfit. A parent who works excessive hours, so that he or she is not awake and able to care for the child or supervise the child’s activities, may be found unfit.
Although a court is required to show a change of circumstances before modifying an award of custody, where there is a showing that a parent is unfit to have custody, the court may modify custody and grant custody to the other parent. If the other parent is not available or fit to have the care and custody of the child, the court may decide to place custody of the child or children with another relative, such as a grandparent, aunt, or uncle, or with a foster family.
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