Who will get Custody of my Kids?

When facing divorce, many parents assume the mother will automatically be awarded custody of the children with the father getting limited visitation. Florida courts have done away with this presumption and will now divide time between parents in the child’s best interest. The courts no longer have a presumption as to which parent will automatically get the most time, but look at the facts of each case individually.

Without an attorney, it can be easy for a mother to incorrectly assume she will automatically get sole custody simply for being the mother. On the other side, a father may think it is useless to ask for more time since it is already a done deal that the mother will win custody of their children, not realizing that he could have fought for more.

Child time sharing is but one of the issues a divorce brings, and hiring an attorney to represent you through this process is the best thing you can do for you and your children. Mackey Law Group has represented many parents in divorce proceedings and we can help you through yours.

Jorge Martinez, Esq.

 

 

Abandonment Myth: Moving Out of the Marital Home and Divorce

There is a common misconception that if one spouse moves out of the marital home prior to or during a divorce proceeding that they have “abandoned” the home and are no longer entitled to any of its value in the divorce.  In Florida family law courts this simply is not the case.

Regardless of whether one spouse leaves the home voluntarily or involuntarily, they are still Abandonmententitled to a portion of the equity (or debt) of that residence as part of the divorce.  Credits may be given to the remaining spouse or either spouse who continues to pay the mortgage when dividing the equity, but this still does not lend itself to any issue as to whether abandonment has occurred or whether one party is relinquishing a right to an interest in the property by moving out.

There are, however, many other issues to consider when one spouse leaves the home, and Mackey Law Group is willing and ready provide advice if you are contemplating a divorce.

By: B. Kyle Stalnaker, Esq.

Splitting-Up Property

People, even husbands, wives, and relatives, often own property with others; whether it is a home or a vehicle. And it is typical that one owner pays more of the expenses than the other or other disagreements arise between the owners. When two property owners cannot agree, this can create a stalemate where they no longer want to continue in co-ownership. If you find yourself in this situation, Florida law provides you withhow-a-property-can-be-partitioned-between-co-owners a way out: force the sale of the property and receive your portion of the sale proceeds. This is a legal remedy known as partition.

To commence a partition action, you must file a complaint, requesting a partition of the property. The lawsuit must be filed in the county where the property is located. Each person with an interest in the property must be included as a party to the lawsuit and the complaint must identify certain information about the parties and the property involved.

Each owner has an opportunity to make claims for expenses that he or she has incurred (contribution claims). Each co-owner is responsible for their portion of the property related expenses. For example, if two owners each own 50% of the property, then each party is responsible one-half of the expenses. Therefore, if one of the co-owners pays more than 50% of the expenses, he or she will receive a credit against the other co-owners portion of the sale proceeds. The reimbursable expenses include mortgage payments, insurance, taxes and necessary repairs.

Typically, the court will determine the rights of the parties and decide how it is best to divide up the property. If the property cannot be physically divided amongst the parties, the court will require that the property be sold and the proceeds divided between the parties. Keep in mind though that mortgages/liens and attorney’s fees and costs will be paid from the sale proceeds prior to distribution to the owners/sellers. This is a benefit to the petitioner because it essentially splits the attorney’s fees and costs between the former co-owners.

We have handled many partition cases in land and property ownership, business breakups and divorce proceedings. Call Mackey Law Group for this and all your real property needs.

By: Catherine Mackey, Esq.

T.R. Smith, Esq.

THINKING OF DIVORCE? DON’T COMMINGLE YOUR ASSETS!

Don't Commingle AssetsIf you are thinking you will be involved in a divorce action soon, or if you are currently involved in a divorce, you want to carefully govern yourself so you’re not surprised by unwanted consequences. For instance you may want to avoid commingling your assets.

In Florida, the courts look at all of your assets like a snapshot the moment a petition for dissolution of marriage is filed. Although there are exceptions, the general rule is that everything that has been accumulated during the marriage is split evenly between the spouses. Normally, assets obtained before the marriage are not marital assets or funds subject to sharing. Likewise, assets obtained by either party after the petition for dissolution of marriage is filed may also not be subject to sharing.

Many people are surprised to find out that if they take their separate assets/funds and commingle them with marital assets or in joint accounts; they may no longer able to keep what is theirs. In essence, those assets lose their character as a non-marital asset. What you do with your separate property before and during the marriage and what you do after the petition is filed can impact how much of your separate assets you get to keep.

This is true even in short term marriages. In a recent Manatee County divorce case, a medical doctor was married for less than 90 days prior to filing for dissolution of marriage. The doctor brought a bank account with a substantial amount of money in it, into the marriage. After the petition was filed, he allowed his new wife to continue to deposit her small paychecks into that account and let her have a debit card for that account to pay household expenses. At the final hearing the court ruled that ALL of the money in the doctor’s account had become marital funds that had to be shared equally. In doing so, the court cited the rule that when one spouse deposits funds into a joint account, where they are commingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided one-half interest in the funds.

So beware and behave smartly if divorce is on your horizon. You should seek the counsel of an experienced marital and family law attorney if you believe you are heading for divorce. Mackey Law Group, P.A. has been representing people in divorces and many various family law matters successfully in Bradenton and Manatee and Sarasota counties for years. Give us a call if you’re wondering how you should plan. All consultations are confidential.

By:      Catherine Mackey

Drew Chesanek