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  • Michael Fender 3:31 pm on April 22, 2010 Permalink | Reply
    Tags: , custody, , grandparent, , , relative, temporary custody   

    Temporary Custody of Minor Children by Extended Family 

    The purposes of the Florida law found at Chapter 751, Florida Statutes, providing for temporary custody of minor children by extended family are as follows:
    (1) Recognize that many minor children in Florida live with and are well cared for by members of their extended families. The parents of these children have often provided for their care by placing them temporarily with another family member who is better able to care for them. Because of the care being provided the children by their extended families, they are not dependent children.
    (2) Provide for the welfare of a minor child who is living with extended family members. At present, such family members are unable to give complete care to the child in their custody because they lack a legal document that explains and defines their relationship to the child, and they are unable effectively to consent to the care of the child by third parties.
    (3) Provide temporary custody of a minor child to a family member having physical custody of the minor child to enable the custodian to:
    (a) Consent to all necessary and reasonable medical and dental care for the child, including nonemergency surgery and psychiatric care;
    (b) Secure copies of the child’s records, held by third parties, that are necessary to the care of the child, including, but not limited to:
    1. Medical, dental, and psychiatric records;
    2. Birth certificates and other records; and
    3. Educational records;
    (c) Enroll the child in school and grant or withhold consent for a child to be tested or placed in special school programs, including exceptional education; and
    (d) Do all other things necessary for the care of the child.

    The following individuals may bring proceedings in the circuit court to determine the temporary custody of a minor child:
    (1) Any extended family member who has the signed, notarized consent of the child’s legal parents; or
    (2) Any extended family member who is caring full time for the child in the role of a substitute parent and with whom the child is presently living.

    Each petition for temporary custody of a minor child must be verified by the petitioner and must contain statements, to the best of petitioner’s knowledge and belief, showing:
    (1) The name, date of birth, and current address of the child;
    (2) The names and current addresses of the child’s parents;
    (3) The names and current addresses of the persons with whom the child has lived during the past 5 years;
    (4) The places where the child has lived during the past 5 years;
    (5) Information concerning any custody proceeding in this or any other state with respect to the child;
    (6) The residence and post office address of the petitioner;
    (7) The petitioner’s relationship to the child;
    (8) The consent of the child’s parents, or the specific acts or omissions of the parents which demonstrate that the parents have abused, abandoned, or neglected the child as defined in chapter 39;
    (9) Any temporary or permanent orders for child support, the court entering the order, and the case number;
    (10) Any temporary or permanent order for protection entered on behalf of or against either parent, the petitioner, or the child; the court entering the order; and the case number;
    (11) That it is in the best interest of the child for the petitioner to have custody of the child; and
    (12) A statement of the period of time the petitioner is requesting temporary custody, including a statement of the reasons supporting that request.

    Only an extended family member may file a petition for temporary custody. The term “extended family member” is any person who is:
    (1) A relative within the third degree by blood or marriage to the parent; or
    (2) The stepparent of a child if the stepparent is currently married to the parent of the child and is not a party in a pending dissolution, separate maintenance, domestic violence, or other civil or criminal proceeding in any court of competent jurisdiction involving one or both of the child’s parents as an adverse party.

    Order granting temporary custody.

    At the hearing on the petition for temporary custody, the court must hear the evidence concerning a minor child’s need for care by the petitioner, all other matters required to be set forth in the petition, and the objections or other testimony of the child’s parents, if present.

    Unless the minor child’s parents object, the court shall award the temporary custody of the child to the petitioner when it is in the best interest of the child to do so.

    If one of the minor child’s parents objects to the granting of temporary custody to the petitioner, the court shall grant the petition only upon a finding, by clear and convincing evidence, that the child’s parent or parents are unfit to provide the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.

    The order granting temporary custody of the minor child to the petitioner may also grant visitation rights to the child’s parent or parents, if it is in the best interest of the child to do so.

    The order granting temporary custody of the minor child to the petitioner may not include an order for the support of the child unless the parent has received personal or substituted service of process, the petition requests an order for the support of the child, and there is evidence of the parent’s ability to pay the support ordered.

    The order granting temporary custody may redirect all or part of an existing child support obligation to be paid to the extended family member who is granted temporary custody of the child. If the court redirects an existing child support obligation, the order granting temporary custody must include, if possible, the determination of arrearages owed to the obligee and the person awarded temporary custody and must order payment of the arrearages. The clerk of the circuit court in which the temporary custody order is entered shall transmit a certified copy thereof to the court originally entering the child support order. The temporary custody order shall be recorded and filed in the original action in which child support was determined and become a part thereof. A copy of the temporary custody order shall be filed with the depository that serves as the official recordkeeper for support payments due under the support order. The depository shall maintain separate accounts and separate account numbers for individual obligees.

    At any time, either or both of the child’s parents may petition the court to modify or terminate the order granting temporary custody. The court shall terminate the order upon a finding that the parent is a fit parent, or by consent of the parties. The court may modify an order granting temporary custody if the parties consent or if modification is in the best interest of the child.

    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer for representation or advice, please contact Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

     

  • Michael Fender 2:04 pm on April 22, 2010 Permalink | Reply
    Tags: , , , , , , premarital,   

    Basics of Premarital or Prenuptial Agreements in Orlando, Florida 

    “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

    “Property” includes, but is not limited to, an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.

    A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

    Parties to a premarital agreement may contract with respect to:

    1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
    2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
    3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
    4. The establishment, modification, waiver, or elimination of spousal support;
    5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
    6. The ownership rights in and disposition of the death benefit from a life insurance policy;
    7. The choice of law governing the construction of the agreement; and
    8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

    The right of a child to support may not be adversely affected by a premarital agreement.

    A premarital agreement becomes effective upon marriage of the parties.

    After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.

    A premarital agreement is not enforceable in an action proceeding in a divorce under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:
    1. The party did not execute the agreement voluntarily;
    2. The agreement was the product of fraud, duress, coercion, or overreaching; or
    3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
    a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
    c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

    If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution or divorce, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

    An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

    If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

    Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer for representation or advice, please contact Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

     

  • Michael Fender 10:21 am on April 6, 2010 Permalink | Reply
    Tags: , , , , no fault,   

    No Fault Divorce in Orlando, Florida 

    In 1971, F.S. 61.041 (Fault based divorce) was repealed when the legislature enacted the Dissolution of Marriage law, which provided that fault was not an element requiring proof to entitle a spouse to a dissolution of marriage. Since there was no “fault,” the legal defenses of condonation, collusion, recrimination, and laches were abolished.

    The no-fault concept has been presumed to be in the best interest of the parties. Its objectives are to enable persons to obtain a divorce without becoming adversaries or colluding with each other to mislead the court, to encourage reconciliation by the elimination of “mudslinging” and mutual accusations, and to keep the parties “dirty linen” in the closet and out of the courtroom.

    All fifty states have made the transition to the no-fault concept of divorce, although their nomenclature may differ. The most commonly used terminology is that the marriage is “irretrievably broken.” No fault grounds may take the form of “incompatibility,” “living separate and apart”, and mutual consent. Florida’s no-fault concept has been held to be constitutional. Florida courts generally have considered the “no fault” concept to be an improvement over the fault concept to divorce proceedings with all of its attendant atrocities.

    The basis for almost all divorces in Florida is irretrievable breakdown of the marriage. The statutory test for determining if a marriage is irretrievably broken is simply whether for whatever reason or cause (no matter whose fault) the marriage relationship is for all intents and purposes ended, no longer viable, a hollow sham beyond hope of reconciliation or repair.

    It is not necessary for both parties to agree that the marriage is irretrievably broken. It evidently requires two willing spouses to remain married and only one unwilling spouse to end that relationship.

    The only other ground for divorce or dissolution of marriage is the mental incapacity of one of the parties. To use this ground, the party alleged to be incapacitated must be so adjudged pursuant to Florida law a minimum of three years before filing.

    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, plese contact Michael Fender’s office at 407-629-1886 or visit Attorney Michael Fender’s main website.

     

  • Michael Fender 9:24 am on April 2, 2010 Permalink | Reply
    Tags: , , , , ,   

    What Happens to the Marital Home when the Divorce is Final in Orlando, Florida? 

    In a divorce, there are many different possible results to resolve the issue of what happens to the marital home. First and most obvious, the home can be sold with the equity being split by the parties either equally or whatever distribution works.
    Secondly, one party can buy-out the interest of the other party. This can be done by acquiring the fair market value from three reputable realtors and taking an average or hiring a certified appraiser to obtain a value. The party who is going to remain as owner should re-finance the mortgage to remove the non-owner from any liability. Additionally, the party being bought-out should quit claim deed whatever interest he or she has in the property. The quit claim deed should then be properly recorded with the County Recorder. It is important to realize that a quit claim deed does not absolve a party from liability on the promissory note and mortgage.
    Third, the parties can agree to remain joint owners of the property until some specific date or time frame (for example, when the youngest child completes high school). Upon the happening of that date or time frame, it can be dictated as to what will happen with the property. It is possible that one party will receive one-half of the equity that was present at the time of dissolution. It is possible that one party will receive one-half of the equity at the time of sale or re-finance.
    As you can see, the possibilities are endless and are only limited by the imagination of the parties and their attorneys.
    Regardless of what is ultimately decided, make sure that your Judgment and/or Settlement Agreement is highly detailed. There should be no confusion as to who shall pay the mortgage, taxes, insurance and utilities until the property is effectively divided.
    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for past 18 years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact his office at 407-629-1886 or visit Attorney Michael Fender’s main website.

     

  • Michael Fender 10:38 am on March 22, 2010 Permalink | Reply
    Tags: , child contact, , , ,   

    Court-Ordered Electronic Communication Between a Parent and a Child in Divorce in Orlando, Florida 

    Florida has entered the 21st century with regard to contact between a divorced parent and child. Beginning in 2007, a trial judge in a divorce proceeding how has the legislative authority to order electronic communication between a parent and child in addition to regular time sharing. The guidelines for the ordering of electronic communication are as folllows:
    In connection with proceedings of dissolution of marriage or divorce or modification of a divorce, a court may order electronic communication between a parent and a child. Before ordering electronic communication, a court must consider:

    1. Whether electronic communication is in a child’s best interests;

    2. Whether communication equipment and technology to provide electronic communication is reasonably available, accessible, and affordable;

    3. Each parent’s history of substance abuse or domestic violence; and

    4. Any other factor that the court considers material.

    Notwithstanding the above, a rebuttable presumption is created providing that it is in the best interests of a child for a parent and child to have reasonable telephone communication. Unless this presumption is rebutted, the court shall order telephone communication. The court may set safeguards or guidelines for electronic communication.

    If the court finds that one or both parents will incur additional costs in order to implement electronic communication with the child, the court shall allocate such expenses arising solely from the electronic communication between the parents after considering the respective parent’s financial circumstances.

    If the court enters an order granting electronic communication, each parent shall furnish the other parent with the access information necessary to facilitate electronic communication. Each parent shall notify the other parent of any change in the access information within 7 days after the change.

    Electronic communication may be used only to supplement a parent’s face-to-face contact with his or her minor child. Electronic communication may not be used to replace or as a substitute for face-to-face contact.

    A party to a child custody order that does not prohibit electronic communication may move a court to order electronic communication. Such a party need not prove a substantial change in circumstances.

    The court may not consider the availability of electronic communication as the sole determinative factor when considering relocation.

    The extent or amount of time that electronic communication with the child is ordered may not be used as a factor when the court calculates child support.

    ___________________________________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact his office at 407-629-1886 or visit Attorney Michael Fender’s main website.

     

  • Michael Fender 9:30 am on March 12, 2010 Permalink | Reply
    Tags: , , , , , step parent adoption   

    Step Parent Adoptions in Orlando, Florida 

    A step parent may adopt his or her step child in Orlando and the entire state of Florida if the biological parent consents in writing to the adoption, if the consent if excused by the court or adjudged not to be necessary.

    The consent of the biological father of the step child is required under Florida law the following circumstances:

    1) The minor was conceived or born while the father was married to the mother;

    2) The minor is his child by adoption;

    3) The minor has been adjudicated by a court to be his child by the date a petition is filed for adoption and termination of parental rights; or

    4) The biological father has filed an affidavit of paternity pursuant to section 382.013(2)(c), Florida Statutes, by the date a petition is filed for termination of parental rights and adoption; or

    5) In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with all other requirements.

    If the biological parent’s consent is required, a court or judge may waive if the following facts are proven:

    1) A biological father or mother has deserted a child without means of identification or has abandoned a child. “Abandoned” means a situation in which the parent of a child, while being able, makes no provision for the child’s support and makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities. If, in the opinion of the court, the efforts of such parent of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father towards the child’s mother during her pregnancy.

    2) A parent whose parental rights have been terminated by order of a court of competent jurisdiction.

    3) A parent who has been judicially declared incompetent and for whom restoration of competency is medically improbable.

    A judgment of step parent adoption, whether entered by a Florida court, another state, or of any other place, has the following effect:

    1) The judgment of stepparent adoption relieves the birth parent of the adopted person, except a birth parent who is a petitioner or who is married to a petitioner, of all parental rights and responsibilities.

    2) The judgment of stepparent adoption terminates all legal relationships between the adopted person and the adopted person’s relatives, except a birth parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his or her former relatives for all purposes, including the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship, except that rights of inheritance shall be as provided in the Florida Probate Code.

    3) Except for rights of inheritance, the judgment of stepparent adoption creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock. This relationship shall be created for all purposes, including applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect.

    4) However, if one or both parents of a child die without the relationship of parent and child having been previously terminated and a spouse of the living parent or a close relative of the child thereafter adopts the child, the child’s right of inheritance from or through the deceased parent is unaffected by the adoption and, unless the court orders otherwise, the adoption will not terminate any grandparental rights delineated under chapter 752, Florida Statutes. A close relative of a child is the child’s brother, sister, grandparent, aunt, or uncle.

    Please be aware that if a step parent adoption is entered and the step parent and biological parent subsequently separate or divorce, the step parent will have an ongoing duty to provide support for the adopted child after a separation or divorce.

    If you desire to adopt your step child and can obtain the written consent of the biological parent, or can make a strong case of abandonment, or believe that the biological father’s consent may not be necessary, please contact Attorney Michael Fender’s office to schedule an appointment to discuss your case. It is critical that a lawyer be involved when adopting a child.
    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact attorney Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

     

  • Michael Fender 11:30 am on March 3, 2010 Permalink | Reply
    Tags: , , , , , , , , retroactive   

    Retroactive Child Support in Orlando, Florida 

    Can a parent receive retroactive child support after filing a divorce case? Or a paternity or child support case? Retroactive child support is child support that is ordered to be paid prior to the entry of a child support order. Child support arrearage is unpaid child support that has been previously ordered. A court in Florida can order child support retroactive to the date of the parties’ separation with a maximum period of 24 months.

    Section 61.30, Florida Statutes provides that in an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:

    (a) The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor’s demonstration of his or her actual income during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period.

    (b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.

    (c) The court should consider an installment payment plan for the payment of retroactive child support.

    In a child support action being pursued by the Florida Department of Revenue (“DOR“), the DOR has previously filed child support cases between the same parties which have been dismissed for lack of service. In that case, a court may consider a prior filing date to be the effective date for determining retroactive child support. For example, a father has been served with a 2009 child support case and the DOR has previously filed child support cases against the same father for the same mother in 2004 and 2000, which have been dismissed for lack of service. In that case, the DOR may be able to convince a judge that the retroactive period for the 2009 case would extend back to 1998. This, of course, would result in a rather large retroactive child support amount.

    There is also a provision now in Florida law that instructs a court to assess retroactive child support in a child support modification action. If a parent receives a child support reduction in a prior child support order based upon a substantial time sharing arrangement and the parent subsequently fails to fulfill his or her obligations under the time sharing agreement order order, then a court can assess retroactive child support back to the date that the parent stopped exercising his or her substantial contact.

    The relevant statute provides that a parent’s failure to regularly exercise the court-ordered or agreed time-sharing schedule not caused by the other parent which resulted in the adjustment of the amount of child support shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph shall be retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.

    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer for representation or advice, please contact Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

     

  • Michael Fender 10:55 am on March 2, 2010 Permalink | Reply
    Tags: , , , , , ,   

    Defense of Laches to Enforcement of Old Child Support or Alimony in Orlando, Florida Area 

    Occasionally a case presents itself in the Orlando, Florida area where a seemingly dormant claim arises with regard to an old child support or alimony order from a divorce that occurred many years ago. The child or children may be well past the age of majority and the payor, usually the former husband, receives a motion to enforce or for contempt in the mail or delivery by the sheriff regarding an old child support matter that he or she assumed was long over. One may think initially that the debt is so old it must be past the statute of limitations for enforcement purposes.

    However, the law is well settled that a proceeding for the enforcement of periodic alimony or child support orders is equitable in nature and is not barred by the running of the statute of limitations. The question then is whether laches, the equitable counterpart to the statute of limitations applies to bar the old child support or alimony debt. The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber upon their rights.

    The true test in determining whether to apply laches is whether or not the delay in enforcing the claim has resulted in injury, embarrassment, or disadvantage to any person and particularly to the person against whom relief is sought. The delay required to render the defense of laches available must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, as through loss or obscuration of evidence of the transaction in issue; or there must have occurred in the meantime a change in conditions that would render it inequitable to enforce the right asserted.

    Bottom line, it is the rare or unusual case or set of facts in which the doctrine of laches will be a defense to the enforcement of an old child support or alimony order, but Michael Fender has come across a case or two in which the doctrine of laches has been applicable over the past 18 years of practice.

    ______________________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to divorce, custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact attorney Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

     

  • Michael Fender 11:14 am on March 1, 2010 Permalink | Reply
    Tags: , , file, ,   

    Where Should the Divorce be Filed? 

    The issue of where to file for divorce often arises. Two determinations must be made prior to filing a divorce or dissolution of marriage lawsuit.

    The first issue is whether the court has jurisdiction. The jurisdiction of the court means its inherent power to hear and adjudicate the case. Original jurisdiction to hear and determine proceedings for dissolution of marriage or divorce is in the circuit court. The court cannot grant a valid judgment of dissolution of marriage unless one of the parties has resided in Florida for the six (6) months before the filing of the petition for dissolution of marriage or divorce. Proof of residency must be corroborated, which is usually by producing a valid Florida driver’s license or identification which was issued at least six months prior to the filing of the divorce. Proof of residency may also be corroborated by the affidavit of a third party. The party’s residence or domicile must exist at the time the divorce is filed. A later change of domicile before the final hearing does not divest the court of jurisdiction.

    A person who was a Florida resident before entering the military and has never established a permanent residence elsewhere continue to be a Florida resident for purposes of a dissolution of marriage or divorce proceeding. Owning a home, being registered to vote, and having a vehicle registered in Florida provide evidence of Florida residence for military personnel.

    Jurisdiction in a child custody dispute under the Uniform Child Custody Jurisdiction Act arises through the subject matter, the children, and does not require personal jurisdiction over the parties.

    The second issue is what county in Florida should the divorce be filed. Venue designates the particular county in Florida in which a court with jurisdiction may hear and determine the case. For purposes of dissolution of marriage or divorce actions, venue is determined by the county in which the breach occurred or by the county where the marriage last existed. The existence of property in a county unrelated to the marriage does not create alternative venue for a dissolution of marriage or divorce action in that county.

    If the husband and wife last resided together in Orlando, Orange County, Florida and the husband leaves the wife and moves to another county, the proper county to file the divorce is in Orlando, Orange County, Florida. If the husband files in a county other than Orlando, Orange County, Florida, the wife or her lawyer should move to dismiss or transfer the divorce to the proper county.

    The defense of improper venue must be raised in a motion to dismiss or by answer, or the venue privilege is deemed waived. The privilege to object to lack of venue cannot be revived after waiver.

    Election of venue initial is with the plaintiff or petitioner, who need not prove that the selection of venue is proper. The burden of pleading and proving improper venue is on the respondent.

    Venue in an action for separate maintenance unconnected with dissolution of marriage or divorce is proper in the county where the petitioner or the petitioner’s minor children are physically present and are denied support.

    ______________________________________________________________________

    　

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact attorney Michael Fender at 407-629-1886 or visit Attorney Michael Fender’s main website.

     

  • Michael Fender 11:08 am on February 25, 2010 Permalink | Reply
    Tags: , , , ,   

    Initial Child Custody Jurisdiction in Orlando, Florida 

    Except as otherwise provided in Florida law, a Florida court has jurisdiction to make an initial child custody determination in a divorce or paternity case only if:

    (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

    “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

    (b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that Florida is the more appropriate forum, and:

    1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Florida other than mere physical presence; and

    2. Substantial evidence is available in Florida concerning the child’s care, protection, training, and personal relationships;

    (c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of Florida is the more appropriate forum to determine the custody of the child; or

    (d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).

    Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

    ————————————————————————————————————————————-

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to child custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact the office at 407-629-1886 or visit Attorney Michael Fender’s main website.

     

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