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Sarasota Legal Blog

How do Florida courts address issue of joint custody, shared parenting?

In Florida, as in other states, courts make decisions about child custody with the primary aim of ensuring the best interests of the child are met in any given arrangement. In Florida, the public policy is that minor children continue to have frequent and continuing contact with both parents after divorce, and courts will order shared parental responsibility unless it can be shown that doing so would be detrimental to the child.

In cases where shared parental responsibility would be detrimental, courts may order sole parental responsibility. One important aspect of Florida law, though, is that shared parental responsibility can be tailored to the needs of each family. Courts may divide responsibilities among parents and give one parent ultimate responsibility for certain areas of the child’s care, such as education or health care. 

Division of marital property: interspousal gifts and the issue of donative intent, P.2

Previously, we began looking at the issue of donative with respect to interspousal gifts. In determining whether a spouse had donative intent, in cases where this is in dispute, courts need to make sure there is enough evidence to support such a finding. In the decision we began looking at last time, the trial court sided with the husband—that the properties were separate.

That trial court’s decision was based on the “preponderance of evidence” standard, which requires sufficient evidence to prove that the requirements of the claim are more likely than not met. In reconsidering that decision, the court of appeals overturned the decision after determining the evidence didn’t meet the preponderance standard, but that decision was later overturned by the Supreme Court. 

Division of marital property: interspousal gifts and the issue of donative intent

One of the points we’ve previously mentioned on this blog is that it is important for couples, when dividing assets, to determine what property is separate and what property is part of the marital estate. Again, marital assets include those acquired during the marriage by either spouse, any increase in value and appreciation of separate property resulting from the efforts or contributions of either part during the marriage, and any value tied up in retirement, plans, insurance plans, and other benefit and funds.

Also included within the marital estate are interspousal gifts made during the marriage. By contrast, assets acquired by either party separately by noninterspousal gift, or by inheritance, are considered to be separate. When it comes to interspousal gifts, one of the issues that can come up is whether the spouse had the intention of giving property as a gift. This is known as “donative intent.”

When architects make mistakes: What to watch for

Architects play a foundational role in construction projects. They create both the big-picture vision as well as the all-important details of the finished structure. Considering their work combines aesthetics, math and science, it's no wonder architects undergo such intensive training and education.

Yet that doesn't mean they never make mistakes. Architectural errors can not only be costly, but also dangerous. They can jeopardize the success of the entire project.

Some pitfalls, considerations regarding wills in estate planning, P.2

In our last post, we began discussing some pitfalls surrounding wills, or things to keep in mind about wills. In addition to assessing the desirability of probate avoidance, periodic review of estate documents and beneficiary designations, and including less obvious assets, another potential pitfall it do-it-yourself wills.

A number of online companies offer consumers resources for drafting their own will and other basic estate planning documents. While it is to be commended that more folks are taking action with respect to their estate plan because of these offerings, there is the risk that substandard planning may be the result. 

Some pitfalls, considerations regarding wills in estate planning, P.1

Coming up with a well-thought-out estate plan is an important task for everybody, especially those who have children and/or significant assets. For many people, a last will and testament is the basis of a thorough estate plan. Still, just having a will doesn’t necessarily prevent all possibility of problems arising after death.

A recent article in the New York Times looked at this topic, and offered several pieces of advice with respect to wills. For one thing, consider whether it is even desirable to have a will in the first place, or whether it may be better to avoid probate altogether. If it is desirable and feasible to avoid probate, one should come up with a plan to ensure probate avoidance which avoids transferring accounts and assets to children prior to death, as doing so can cause problems. 

How can an attorney help ensure an effective family mediation? P.2

Previously, we began looking at the topic of family mediation, and how an attorney can help make sure the process is as effective as possible. As we pointed out last time, one thing an experienced attorney will do to make sure the process is productive is to gather as much information as possible in the discovery process. This ensures that there is a sufficient factual basis on which to conduct negotiations.

Weigh the risks of pursuing mediation, trial (risk analysis)

Work with experienced attorney to minimize potential will disputes after death

In previous posts, we took a brief look at some of the pitfalls folks sometimes fall into with will in their estate planning efforts. As we noted last time, one of these pitfalls is simply assuming that having a will can prevent family fighting after one’s death. While having a will certainly can help prevent disputes, this requires careful planning, proper drafting, and additional legwork to help ensure everything goes as smoothly as possible.

There are a number of things that can and should be done to help ensure the effectiveness of a last will and testament. For starters, it is important to work with an experienced attorney who can see to it that the will is property executed. In Florida, this means the proper signatures must be on the document, witnesses must have been present, properly signed and acknowledged the document. Proper execution also includes revoking previous wills, incorporating other estate planning documents, and properly executing codicils. Ensuring proper formalities cuts out one potential source of dispute. 

How are firearms divided in divorce?

For some Floridians, firearms are part of a way of life and a significant amount of money is tied up in firearms collection. For these folks, divorce can present issues not only in terms of dividing the value of firearms between the couple, but also when allegations of domestic violence come into play.

First of all, under Florida law, marital assets are distributed equally between the parties, and this would include firearms that are part of the marital estate. Firearms would not be considered part of the marital estate if they were acquired during the marriage by either spouse or if they were purchased by a spouse as a gift for the other. Firearms acquired prior to marriage or separately as a gift or by inheritance would not be subject to division in divorce. 

Navigating firearms possession in divorce cases involving allegations of abuse, violence

Previously, we briefly commented on how firearms would be handled in a Florida divorce cases. As we noted, firearms are generally dealt with as other marital assets, but exactly how firearms they are divided depends on the circumstances of the case and whether the couple seeking dissolution can agree on how to handle distribution of firearms that may have significant value.  

The way firearms are dealt with in divorce can become more complicated when there are allegations of abuse or violence. In these cases, of course, there is first the question of whether there is evidence to back up allegations of abuse or violence. Those who are convicted of a misdemeanor or felony domestic violence offense may not possess or purchase firearms, under federal law. 

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