What Do We Mean By “Fathers’ Rights?”

There are many ways to define “Father.” Father can be a helper, a coach, a friend. However, things are much more specific when it comes to the legal definition.

When we say father’s rights, we are really referring to “paternity.” Paternity gives certain rights and responsibilities to the father of a child, who in turn must financially support the child until they turn 18 or graduates high school,  so long as it is before age 19. With paternity, a father has the right to make important decisions for the child involving education, health care, religion, time-sharing, and safety, equal to that of the mother unless a court has ruled otherwise.

A father may want to establish paternity for many reasons, but most commonly, it is a biological father’s desire to be involved in his child’s life.

Why Is Establishing Paternity So Important? 

Establishing paternity is important because it ensures the father’s legal rights and privileges with respect to their children.

The benefits of establishing paternity include:

• The father’s name is on the birth certificate.
• The father has a legal right to a relationship with their children and can make future parenting agreements such as custody, timesharing, and child support arrangements.
• The right to travel with the child.
• The right to consent or restrict the child’s residence changes greater than 50 miles away. 
• Child’s access to paternal family health history.
• Health or life insurance coverage. 
• Financial support from both parents, including child support.
• Entitlement to Social Security or veteran affairs benefits, military allowances, and inheritance both from the parent to the child and the child to the parent.

How Is Paternity Established in Florida?

There are a number of ways paternity can be established in Florida. If a mother and father are legally married to each other when the child is born, the father’s paternity is presumed. If the husband and wife were married when the wife gave birth, the husband is considered the legal and biological father of the child under Florida law, even if factually untrue. 

However, if a child is born to unmarried parents, the rights of a natural guardian default to the mother. This means in the event an unmarried couple has a child, the mother would automatically have legal custody of the child – even if the father’s name is on the child’s birth certificate. If the parents were never in a relationship or have separated, the unmarried father is without any right to parent his child, even if both parents acknowledge he is the father. Further, the mother is the sole decision maker for the child and does not have to share parental responsibility until a court order is entered.

Under current state law, unwed parents who wish to establish paternity would have to sign the Acknowledgment of Paternity Form (Form DH-432) in the presence of a notary public or two witnesses, then obtain a court order from a family law circuit court to establish paternity and a parenting plan which includes time-sharing with the child.   

If paternity cannot be established voluntarily, for whatever reason, the mother must go through the legal system, and a court order may be necessary to obtain a genetic test. 

That is, until now.

Beginning July 1st, 2023, on the heels of Father’s Day, a new measure will go into effect granting unwed fathers the same parental rights mothers receive upon a child’s birth. The bipartisan proposal (HB 775) Gov. Ron DeSantis signed makes it so that going to court and establishing paternity is no longer required to earn the title “father” for those who are not married.

The new bill clarifies that, after the birth of a child, a parent may request a determination of parental responsibility and child support and create a parenting plan and timesharing schedule pursuant to Section 61 of the Florida Statutes.

While this will be seen as a win for some, there are others that could be negatively impacted as well.

Every Case Is Different  

Every family and every family law case is different. Legally speaking, the issues of establishing parental rights, parental responsibility, timesharing, and child support can be complicated.  

Contact McCart & Tesmer, P.A. using this form or 813-498-2757 to speak with our attorneys about your parental rights. 

No matter the case McCart and Tesmer empower clients to reach constructive long-term outcomes. They understand the value of allowing clients to decide how their families will be restructured. And their support does not end when the case does. They provide clients with valuable resources for surviving and thriving post-divorce.  

The Dos and Don’ts of Divorce

DO Hire an experienced attorney. 

There are many horror stories about how expensive a divorce can be, and you may feel inclined to represent yourself rather than hire an attorney, to save money. However, DIY divorces can actually cost you more in the long run. Take a look at our blog, Ways Your DIY Divorce Can Haunt You Later, for more details. 

DO Treat yourself.

Think about your health and your well-being, and remember to take time to be nice to yourself. Give yourself a day off and plan an activity that gives you joy. This is a difficult time, but it won’t last forever. Remind yourself of all the good times you have coming your way.

DO Research. The more you know, the better questions you can ask, and the fewer surprises you’ll encounter throughout the divorce process.

DO Meet deadlines. 

Every legal process requires you to follow certain rules and deadlines as instructed by the court. Because family law courts are busy and need to maintain an efficient and fair system, certain requirements for your dissolution of marriage must be completed within a specific amount of time. If you fail to adhere to the deadlines set by law, you could suffer negative consequences.

DO Document everything. 

Consider this your mantra during the divorce process. It will save you stress and money in the long run. And it leads perfectly into our first “DON’T” on the list…

DO NOT Hide facts from your attorney.

No matter how acclaimed your attorney is, they can only be as helpful as you are honest. Be sure to share everything you can with your lawyer, so they can be best prepared to represent you and fight on your behalf. 

DO NOT Get pregnant.

Pregnancy and family planning are sensitive issues, regardless of your relationship status. It is incredibly complex when it comes to divorce proceedings. 

DO NOT bring your new boyfriend/girlfriend around the children prior to the divorce being final.

This decision varies from family to family, but in general, involving new partners in your children’s lives before a divorce is not advisable.  This can be very confusing for your children and may result in hurt feelings or make your case more contested than it needs to be.

DO NOT Post on social media.

Nothing is private anymore on the internet. The first place that attorneys go to find evidence in a divorce case is generally social media. Anything you post on social media can and will be used against you in a court of law. And we do not just mean the obvious things. It may be obvious that you should not post evidence of infidelity, destruction of a spouse’s property, or similar incriminating content. But posts that may not seem harmful can still come back to haunt you.

For example, if you post about a vacation, expensive gifts, or travel, this can be used in court to prove you have funds, which could, in turn, affect alimony, child support, and other terms of your divorce proceedings. If you post images with your children, the other party can observe who the children are spending time with and where you take them, and this information can be used to argue against you. When in doubt, do not post.

DO NOT Send nasty messages to your soon-to-be ex.

As tempting as it may be to leave voicemails, emails, or text messages to your former spouse, we can assure you that these will appear as evidence against you at the worse possible time in court. Even if you receive nasty communication from them, don’t respond. Instead, tell your attorney so that they can properly deal with this situation. If you must write a text, email, or post to your spouse, imagine it being read by a judge in the future. 

DO NOT Expose your kids to your animosity. 

The conflict between parents can be very damaging for kids. If you have children, avoid putting them in the middle of your relationship issues, and make their well-being your top priority. Your patience and reassurance will not only minimize their anxiety, but it could also help them learn to better navigate difficult circumstances in their own lives. If possible, it’s best to present a unified front with your ex and ensure the kids your love for them has not changed and is not related to your divorce. 

DO NOT Dispose of any assets you know your spouse wants.

We understand it can be tempting to “teach your ex a lesson” or withhold things from them during a divorce, especially an ugly one. However, this, too, can come back to bite you. This kind of behavior can look bad to the court and judge and may negatively impact your case. When it comes to divorce, live by the golden rule: Do unto others as you would have them do unto you. No matter how hard it seems at the time

No matter the case, attorneys McCart and Tesmer empower clients to reach constructive long-term outcomes. They understand the value of allowing clients to decide how their families will be restructured. And their support doesn’t end when the case does. Our offices provide clients with valuable resources for surviving and thriving post-divorce. Take a look at our Post-Divorce Checklist: 7 Steps for Success After Your Divorce & Name Change After Divorce to learn more.

If you are in need of a divorce attorney, contact McCart & Tesmer for a free consultation online using this form or by calling 813-498-2757.

Under Florida state law, domestic animals are considered property and are subject to equal distribution like any other joint assets. That means when a couple divorces, the court awards ownership of the pet to one of the parties in the same way courts address furniture, jewelry, and tools. Family pets are not treated the same as children. This means that despite how you may feel about your “fur baby,” the Court cannot create a custody or visitation agreement as it would a human child. 

Dividing property, including domestic animals, is determined through a process called equitable distribution. In the unique situation that your pet is a competing show animal or otherwise earns income, a Court could value the animal based on the revenue generated by the animal. In the event of this unique situation, Courts have awarded the animal to one spouse but divided the revenue between the parties (less any work the retaining spouse incurs as part of the competition process). This way, both parties continue to reap the benefits of pet ownership. However, if your family pet has no earning power, the Court can hear arguments from each owner to determine where the pet should go. 

A pet visitation schedule is not enforceable; therefore, a party seeking to keep a pet must make arguments in support of granting sole ownership to them. For example, suppose you owned your pet prior to marriage. In that case, you are more likely to be awarded them in the divorce, as they are considered pre-marital property or assets acquired before marriage. If another family member or friend gifted you the dog, you could argue again that the gifted pet is non-marital and should be awarded to you. If you primarily paid for the pet’s food, shelter, and grooming or attended the veterinarian appointments, you may be more likely to keep the pet to maintain its standard of care. 

For many of us, our pets provide a sense of home. A stable environment for your pet is important after a separation or divorce.

Here are some things to consider with regard to your pet when going through a divorce:

• Will your financial abilities change after the divorce, and will you be able to financially afford to keep your pet? Consider the costs of annual vet appointments, medications, treats, and additional expenses.
• Who was responsible for taking the pet to those appointments? Will this continue after the separation? 
• Is the spouse requesting the pet in good health to take care of it? 
• Who is the primary caregiver for the children? If the children have an emotional attachment to the pet, they are more likely to be granted the pet. 
• Who spent the most time and effort taking care of the pet? 

So, what is a pet lover to do? Is there some way to control the outcome of these scenarios? Yes! Mediation is just one out-of-court option to settle distribution that you may be offered. In mediation, a third-party mediator helps each party and facilitates conversations about equitable distribution. They aim to help each spouse reach a mutual agreement and create a fair and just solution. Divorce is no one’s first option. But you don’t need to go through it alone. It is essential to speak with an experienced attorney. At McCart and Tesmer, you can trust us to fight for your precious pet. 

The attorneys at McCart and Tesmer enable their clients to reach constructive long-term outcomes. They understand the value of allowing clients to decide how their families will be restructured. If you are in need of guidance and protection for your dog from the court system, please contact the experienced attorneys at McCart & Tesmer at https://mccarttesmer.com/contact-us/ or call 813-498-2757 for a free consultation.

When parents know they will be away from their children for a brief time, they can designate someone to make decisions on their behalf. This is accomplished through a healthcare surrogate and power of attorney explicitly drafted to delegate parental authority to another individual on a temporary basis. Typically these documents are used when there is a defined period of time when the parents will be absent or unable to care for their children. This could be a situation where parents are taking a vacation and leaving their children in someone else’s care.

If parents cannot care for their children for more extended periods or their absence is unexpected, and the children are not residing with the parents, it may be necessary to obtain a court order to grant someone else the authority to care for their children. Often time, extended family members are preferred in these circumstances. 

In Florida, there are two ways for an extended family member to obtain custodial rights over children in the form of concurrent custody and temporary custody. 

Concurrent custody is when an eligible extended family member is awarded custodial rights to care for a child concurrently with the child’s parent or parents. Florida Statute §751.01(1). This means that parents can designate an extended family member to have the same custodial rights as they have without giving up their custodial rights. Think of this as designating an extra parent that can do everything a parent can do without restricting the parent’s own custodial rights. Concurrent custody is established by the agreement of the parents and the extended family member when a child resides with the extended family member. 

Concurrent custody can be terminated at any time by one or both parents. Concurrent custody is most useful in situations where parents need assistance caring for their children when one or both of the parents will be unavailable for an extended period of time. This may be due to a parent’s extended illness or military deployment. 

Temporary custody is where an eligible extended family member is awarded custodial rights for a child, but these rights are not concurrent with the child’s parent or parents. Parents can agree to an extended family member having temporary custody of their children, or an extended family member can petition the court to obtain temporary custody without the parent’s consent. 

There are two main differences between temporary child custody and concurrent custody. 

First, concurrent custody provides that the extended family member’s custodial rights are in addition to the parent’s custodial rights, and the parent’s custodial rights are not diminished. With temporary custody, the extended family member’s custodial rights are established, and the parent’s custodial rights are suspended. This is not a termination of the parent’s parental rights but rather an order that the extended family member is the one to have custodial rights superior to the parent’s on a temporary basis. The second difference is that concurrent custody can be terminated by either parent giving written notice to the court that they wish to end the concurrent custody. Temporary custody can be terminated, but it must be by agreement of all parties, meaning the parents and extended family members, or the court must enter an order that the temporary custody is terminated. 

So, who is considered an extended family member for the purposes of temporary or concurrent custody?

Florida Statute §751.011 defines “extended family member” as a relative of a minor child within the third degree by blood or marriage to the parent and a stepparent of a child if the stepparent is currently married to the parent of the child and is not involved in a pending case against the parent. A qualifying relative of a minor child within the third degree by blood or marriage would be an adult who is the child’s grandparent, brother, sister, great-grandparent, aunt, uncle, niece, or nephew. 

There are many reasons why an extended family member would seek temporary custody of a child. When an extended family member seeks temporary custody, both parents cannot care for the children. In some circumstances, one parent has passed away, and the surviving parent is unable to care for the children. Sometimes both parents have the same issue that prevents them from caring for the children. In other cases, one parent agrees to an extended family member having temporary custody, but the other parent does not agree. In these cases, the extended family member must demonstrate to the court why the non-consenting parent should no longer retain custodial rights over the child. 

Some circumstances that we have most frequently dealt with at McCart & Tesmer, P.A. have involved the following:

• One or both parents have suffered from substance abuse issues; 
• One or both parents have suffered from severe mental health issues that prevent their ability to parent their children; 
• One or both parents have a severe illness where they are unable to care for their children; 
• One or both parents are incarcerated;
• One or both parents have left the children with an extended family member for 30 days or longer without proper plans for the family member to act on behalf of the children. 

There are many circumstances where an extended family member may need to seek temporary custody of a child that we may not have listed. Regardless of the situation, meeting with an attorney with experience with temporary custody matters is essential to discuss the facts unique to your family. 

The attorneys at McCart & Tesmer, P.A. have experience assisting clients with temporary and concurrent custody cases and are able to discuss your unique legal issues with you. 

To obtain temporary custody in situations where both parents are living, but one or both have not signed consent, the extended family member will have to have a hearing.

In order to obtain temporary custody, children must be living with the extended family member full time, with the extended family member caring for the children in the role of a substitute parent. Additionally, the extended family member will need to establish that the parent or parents have abused, abandoned, or neglected the children and that granting the extended family member temporary custody is in the children’s best interest. 

While temporary custody implies the custody granted to an extended family member will only be for a temporary period of time, there are circumstances where this type of custody extends until a child becomes an adult. The length of custody is determined by the child’s age and the reasons for granting temporary custody. The court also will likely want a provision where the parents have visitation or time-sharing with their children. This may be to maintain the parent/child relationship or plan to eventually transition custody back to the parents. 

Child support is also a factor to consider in temporary custody. If either parent is ordered to pay child support, the court may redirect this support to the extended family member in a temporary custody case. 

If you have questions regarding temporary or concurrent custody issues or are an extended family member seeking custody of a child you are caring for, please contact the experienced attorneys at McCart & Tesmer at https://mccarttesmer.com/contact-us/ or call 813-398-2757 for a free consultation. 

1. Filing a Petition (Opening the case)

A family law case, whether a divorce, paternity action, or temporary custody, is initiated by filing a Petition. A Petition notifies the Court that the case has been started and the issues which the Petitioner, the individual filing the case, is requesting the Court to resolve. Those requests typically include timesharing schedules, parental responsibility and decision-making authority for any children, child support, alimony, marital home possession, and property division.

Note: In 2008, Florida replaced the terms “custody” and “visitation” with “parental responsibility” and “timesharing/parenting time” (respectively). Parents must use the new terms in paperwork, hearings, and trials.

Once the Petition is filed and processed by the Clerk of Court, the Petitioner must serve the Petition on the other parties, known as the Respondent. Service does not mean hand-delivery or sending the Petition through the U.S. Mail; instead, service means delivery of the Petition by a Sheriff or private process server who will provide proof of the service to the Court. 

2. Responding to the Case

After the Petition is properly served on the Respondent, the Respondent is given 20 calendar days to file a Response to the Petition. A Response typically includes answering each statement in the Petition with an admit or denial and may consist of the Respondent’s own Counter Petition asking the court to resolve issues in the Respondent’s favor. Just as above, the Counter Petition is served on the Petitioner, who will have 20 days to submit a response to said Counter Petition. 

If a party to a case fails to answer a Petition within 20 days of service, a Default Judgment may be entered against the non-responding party. A default judgment results in the court generally granting the responsive party whatever they asked for in their Petition. Temporary Relief

3. Discovery

Discovery is the process by which the two sides exchange information. Forms of discovery include requests to produce documents, interrogatories, requests of admissions, subpoenas, and depositions. In family law cases, in particular, discovery begins almost immediately in the form of Mandatory Disclosure. In Florida, Mandatory Disclosure is a required and mandatory exchange of financial documents between the parties, including tax returns, bank statements, proof of income, debts, health insurance, and cryptocurrencies. The purpose of Mandatory Disclosure is to provide each party with a fair and frank picture of the other party’s financial situation to assist with dividing assets and liabilities and calculate child support and alimony. 

One of the highest contributions to attorney fees and costs in family law cases concern discovery. Clients can reduce attorney fees and assist their attorney by immediately gathering the requested discovery and complying with deadlines. Missing documents and responses and past-due deadlines result in your attorney, opposing counsel, and potentially the judge admonishing you for failing to comply. 

In addition to discovery, your attorney may request that you start gathering information that may be discoverable in the future or assist in preparation for trial, such as: 

1. Names and contact information of witnesses with personal and direct knowledge of pending issues or events that will be brought before the Judge;
2. Reports and records for health, education, and property registrations.
3. Personal log of events and interactions with the other party you can refer to when memory fails 
4. Trial

Parties in a family law case may settle the issues between them at any point along the course of the case. However, any issues that have not been resolved between the parties will be presented to the Judge at a trial. The Judge will hear the facts presented by each party, judge the credibility of testimony and evidence, and apply the law to the evidence presented. 

At trial, the parties present witness testimony and evidence to the court to articulate their view of their case. The judge may ask some questions of both parties. In the end, both attorneys will give closing statements to the judge explaining the facts as presented, applying them to the law, and arguing for their party’s particular outcome. Assist your attorney in trial preparation by reviewing the judge’s policies for their courtroom, the Family Law Rules of Procedure, and expectations for courtroom behavior. Failure to follow the foregoing could negatively impact your credibility and case. 

There is an inherent risk of taking your case to trial; judges are human beings, and each judge may interpret the evidence differently, which would affect the application of the law. The rule of thumb is this: if the parties can make an agreement that neither loves but can live with, do it because, at trial, the judge may likely make an agreement that nobody likes. 

Imagine you and your family are a unique puzzle with 100 pieces making up your family’s picture. Now imagine a judge deciding the fate of your family on only 10 pieces of that puzzle; the other 90 pieces cannot come into court because they may not be relevant, admissible by the court, or forgotten. The risk of going to family court is akin to asking the Judge to decide in your favor based on 10 of 100 pieces of the puzzle. That is a risk that you should not take lightly. 

Suppose you are faced with a decision to proceed to trial. In that case, a trial takes away a party’s ability to control the case’s outcome, particularly for those parties who are attending trial without an experienced attorney who is fluent in the law, relevant cases, judge’s preference, and court decorum. 

The litigation process can be confusing to anyone with professional experience with the court system, which is why we stress the importance of working with experienced attorneys. If you are considering representing yourself, please read our blog about the pitfalls of pro se (self-representation) and how having a lawyer can save you money in the long run: https://mccarttesmer.com/ways-your-diy-divorce-can-haunt-you-later.

If you are considering a family law case such as divorce, child support, or another case of domestic nature, please contact the experienced attorneys at McCart & Tesmer at https://mccarttesmer.com/contact-us/ or call 813-498-2757 for a free consultation.

I was looking for an attorney to divorce my husband due to infidelity. I chose McCart & Tesmer because I felt comfortable when meeting with Laurel (Tesmer) to discuss her assisting me, so I never spoke to another firm. I am so glad I chose McCart & Tesmer, they’re the best!

What I liked and valued most, about my interaction, with your firm is that everyone always made me feel like family.

I had been concerned about receiving a listening ear, being understood, having quick return calls and emails, getting a fair settlement, and having the divorce finalized, as soon as possible. I felt very comfortable speaking with Laurel (Tesmer). She always listened to me, no matter the issue, never made me uncomfortable, and was very compassionate. 

My calls and emails were always returned in a timely manner. I wish the divorce would have been finalized sooner, but legally, we had to wait it out. I could not have been in finer hands!

What is estate planning, you ask?

Estate planning is the process of writing down instructions and nominating trusted individuals who will manage your affairs if you cannot. It plans for two main life events: (1) you are alive but unable to make your own business, legal, financial, or health care decisions; and (2) you pass away.

For a thorough overview of estate planning documents, review these two blogs:

Estate Planning Part 1

Estate Planning Part 2

You may be thinking, “Okay, sounds like a great goal. For someone else. But I do not need one.” 

Wrong! 

Everyone needs an estate plan.

No matter how young and fit you are, health is, unfortunately, unpredictable. As many people learned during the COVID-19 pandemic, in the event of unexpected hospitalization, external factors may prevent you or a loved one from access to each other. Without an estate plan in place, no one can step in and help the hospitalized party with their care.

Neither children nor relatives have permission to make decisions about healthcare, medical equipment, or even daily expenses for another person without power of attorney and/or a healthcare surrogate. Having someone to step in, manage affairs, and plan care for you can help you financially and remove emotional and psychological pressures when you’re focused on getting well.

This is just one of many examples of why you need plans in case of temporary long-term incapacitation. If you do not have a healthcare surrogate and POA yet, we can help.

We’ve put together a list of scenarios below to show how everyone benefits from estate planning, regardless of age, marital status, or income.

Single (Unmarried) Individuals

Many people assume that an estate plan is just for people married with children and grandchildren. This is a mistake. It is especially important for “single” people of any age to designate someone to be their representative in the event of an emergency. 

In the eyes of the law, being “single” means having no legal partner. No matter how serious or long your relationship is, a “boyfriend” or “girlfriend” is not legally recognized and has no rights involving your medical care. 

In the event that you or your partner pass away and you have no plan in place, the state will decide who gets your assets. An estate plan is essential for protecting those who share a life – a home and more, with their partner but lack a marriage certificate.

Unmarried, With Children

Again, it is essential for “single” people of any age to have estate planning measures in place, especially for individuals with children. 

If you are not married, your relationship is not recognized in the eyes of the law, and you are considered “single, regardless of whether you share a child. In fact, your partner is a legal stranger, and medical information cannot be shared with someone unless they are a designated healthcare surrogate, nor financial information without power of attorney.

If something unexpected happens, it could be detrimental to the family if the other parent cannot access the injured party’s information and assets or make decisions on their behalf.

When minors are involved, it is important to allocate assets carefully. It is crucial to make sure your children are provided for. Not having a plan in place could put your child at risk of not having assets easily accessible for their care or requiring a guardianship over property you indeed to be theirs.

It is equally important to plan for guardians. The court can appoint a guardian if parents pass away without a will. They may decide to give guardianship to grandparents or other relatives, which could be against your wishes or cause unnecessary family conflict.

While no one is a better parent for your children than you are, you will feel better knowing you helped choose who will care for your children in the event you are unable to.  

Married With or Without Children

A healthcare surrogate or power of attorney is important if you are married, with or without a child, for a number of reasons:

1. If you do have children, it is important to ensure they are provided for, for all of the reasons stated in the previous section (See Unmarried, With Children).
   
2. Suppose you have a blended family that includes children from other relationships. In that case, an estate plan will ensure your children receive the proper amount of assets you wish and that the assets are not comingled with step-siblings, half-siblings, etc. In short, a plan ensures your assets go where you want them to.
   
3. Even if you do not have children, married couples must have an estate plan to access assets that are not jointly titled, such as retirement funds, IRA, etc., in the event one partner loses competency.
   
   Without an estate plan in place ahead of time, your only option is to be appointed Guardian over your spouse rather than Power of Attorney. Establishing a Power of Attorney costs a few hundred dollars. At the same time, a Guardianship can cost thousands and requires regular accounting, updates, and extended court involvement for many years to come, possibly an entire lifetime.

4. In the event both partners are involved in an accident, having a Power of Attorney or Health Surrogate(s) in place is an extra layer of protection if neither partner can perform these duties for the other.  

In conclusion, if you have kids, you need an estate plan. If you do not have kids, you need an estate plan. If you are married, single, or in a “complicated” relationship, you need an estate plan.

As family law and estate planning attorneys, we have seen every scenario listed above and then some. Estate planning is more than drafting a will. If you are ready to plan for your family’s future, contact us to schedule a free consultation by calling 813-498-2757 or visiting https://mccarttesmer.com/contact-us/. 

Divorces can be emotional and difficult. Often when I meet with a client for the first time, they are overwhelmed, hurt, and possibly angry about the end of their marriage. It can be difficult for someone to narrow down the important issues in their case and determine what they are entitled to under the law. Think of this as leaving money on the table; you will never ask for it if you don’t know what you are entitled to. I have often seen pro se litigants make well-thought-out presentations on something the judge cannot order under the law and not mention something they are entitled to. This results in the pro se litigant walking out of the courtroom without receiving their entitled relief. It is essential to know your goals for your case and what you are and are not entitled to under the law. Providing this perspective of what can and cannot be achieved in your case is extremely valuable and can ensure that you are not walking away from something that you may be entitled to or arguing for a result you have no possibility of achieving. 

The devil is in the details, and you may not know what detail is missed until it is too late. We frequently consult with clients who represented themselves in their divorce and now have significant issues because a detail was left out of an agreement, final judgment, or court order. Often the person we are meeting with has no idea that a specific detail or provision should be included and only realize the importance of this detail when it is too late. If not addressed properly the first time, these details can cost you thousands of dollars later to correct, if a correction is even possible. You may have missed a detail dealing with a financial issue, a parenting issue, or both. 

It truly is a scary situation when you realize that you have unknowingly agreed to give away more of your retirement plan than you intended because you did not properly provide all the details regarding the plan’s valuation and the date of valuation. You may also be terrified to learn that you are paying more in child support or not receiving enough in child support because the child support guidelines did not factor in a minor detail like health insurance costs or adequately account for taxes. You may find yourself in a situation where you cannot obtain a new mortgage because there was no requirement for the other party to take your name off a joint debt. You can avoid these problems by adequately considering and addressing these situations in your divorce. Some financial issues, like those dealing with child support and possibly alimony, can be fixed, and other financial issues, like those dealing with equitable distribution, cannot. Even if you are able to modify a provision of your divorce related to a financial issue, you will likely spend substantially more getting this resolution than you would have to hire an attorney to assist you in the first place. 

Of all the divorce horror stories, the worst involve one parent realizing that by not putting in exact times and dates for holiday time-sharing exchanges, the other parent will have all major holidays with the children until they become adults. Imagine missing all the holiday fun with your children because you did not properly document a holiday time-sharing schedule. You may think hammering out all these details is useless and will cause additional conflict during your divorce. While addressing parenting plan details during your divorce may bring up difficult conversation points, these conversations do not get easier the longer you are divorced. It is always better to address these issues and resolve these conflicts up front. This allows each parent to understand the schedule and what to expect in the coming years. While things may seem peaceful during your divorce, and you and your partner do not need a detailed parenting plan to co-parent, this rarely works out in the long term. Parents that operated in a friendly manner for years may suddenly change their tune when new significant others are introduced into the relationship and families are blended. In the best cases, we can assist in modifying parenting plans and ensuring important details regarding time-sharing are put in place. In other cases, nothing can be done, and you may be stuck dealing with a parenting plan that does not provide you with the time you anticipated spending with your children. You can never put a price on the memories you create with your children. Having an attorney assist you in your initial divorce will ensure you are getting to spend time with your children that you are entitled to. 

Mistakes can be made even when your divorce does not seem scary and everything is going smoothly. They can range from something simple like not properly documenting child support figures or even misunderstanding the language in an agreement or order. Sometimes people misunderstand how time-sharing is calculated for child support under the Florida Child Support Guidelines. This can lead to a substantial increase in what someone may be paying in child support. I have seen parents believe that their time-sharing schedule provided for a certain amount of time-sharing with their children, only to realize when it is too late that their final judgment didn’t provide them with the amount of time they thought. This mistake can cost parents substantial time with their children. Parties have misunderstood expenses the other party is responsible for and incurred additional fees and costs for things they did not know they would be responsible for paying. Parties also have had to pay additional obligations or debts because their agreements and orders related to the equitable distribution of assets and liabilities were not correctly calculated or recorded. Mistakes and misunderstandings can often cost you a lot more to resolve than making sure a qualified attorney handled your divorce properly the first time. 

So how do you avoid becoming a DIY divorce horror story? You first need to realize that very few cases could not benefit from the assistance of a qualified licensed attorney who practices in the area of family law. If you own property with your spouse, have children, or have a retirement account, you must have an attorney involved in your divorce. Attorney involvement can range from reviewing and drafting agreements to make sure all the details are covered to aggressively advocating for your goals and position.

Selecting the right attorney can save you thousands in the long run and a lot of heartache and stress. You want to pick an attorney that fully understands your goals and what is important to you. Remember that an aggressive approach is not always the best approach. If you are focusing on reducing legal fees, you will want to find an attorney who will give you honest advice and options to settle your case outside the courtroom. This is not always possible; sometimes, a more aggressive approach is necessary. Hiring an attorney will not make your case more contested. You will benefit from experience and advice to advocate for a fair resolution and address all essential details. At McCart & Tesmer, P.A., we focus our practice on family law and provide our clients with sound legal advice regarding their family law cases. We believe every case is unique and encourage parties to make a peaceful resolution to their family law matters when appropriate. Avoid the pitfalls of a pro se divorce. Schedule a consultation to discuss your case by calling (813) 498-2757 or emailing info@mccarttesmer.com. 

A proper estate plan will include multiple documents, which we break into two parts. This blog will dive deeper into Part 2.

• Part I Planning for Incapacitation

Documents to designate individuals who will make decisions for you while you are alive but unable to make your own decisions.

• Durable Power of Attorney
• Healthcare Surrogate
• Living Will 
• Learn about these in detail in our previous blog, Your Guide to a Comprehensive Estate Plan Part 1- Planning for Incapacitation.

• Part II  Planning for Death

Documents that provide instructions on how to distribute your property upon your death.  

• Last Will and Testament
• Trust
• Deeds, beneficiary designations, and other documents that permit you to distribute property upon your death. 

Every legal process is different, and seeking the services of competent estate planning attorneys can simplify the process and save you time and money. The attorneys at McCart & Tesmer practice in the areas of probate, estate planning, and family law. Contact us if you have questions or are ready to have our attorneys work on your legal matter.

Phase 2 Documents

1. Will

In Florida, a Last Will and Testament is a written document that directs who will receive property and assets upon your death. It also allows you to choose the guardian of a minor child should both parents die while the child is under age 18.

A Last Will and Testament is an essential document for all individuals, even if you have no children and do not own real estate. Without a Last Will and Testament (or another plan, such as a living trust), your estate would be considered “intestate,” which means that the State of Florida dictates how the property will be distributed. Don’t confuse this with the notion that the State of Florida will take all of your property; instead, the State of Florida law dictates the order and hierarchy of how your property is distributed to your relatives, such as spouse, children, parents, which may include relatives you would instead not inherit from you.  

One of the most important decisions you will make for your estate plan is who you choose as the administrator or personal representative of your will. The personal representative, also known as an executor in other states, is the individual or corporation who will carry out the provisions of your Will. This administrator should be someone you trust, who is financially responsible, and willing to serve. We always advise speaking with this individual or corporation before nominating them as Personal Representative or executing your will.

Some questions to answer before you begin drafting your Last Will and Testament:

• Which trusted adult can and will take care of your minor children?
• Who do you want to get your property to? 
• Will your beneficiaries be treated equally?
• Are there any beneficiaries (or potential beneficiaries) that will be minor or need their money to be managed for some time?
• Are there charitable organizations you want to support?
• Are your pets provided for?
• Do you have everyone’s legal names? 
• Do you have specific instructions regarding your remains, such as buried or cremated?

Thanks to Florida lawmakers, anyone can write a will on a piece of scratch paper or create one online and have it considered legal and valid in the state. However, these DIY Last Will and Testaments rarely protect the decedent and the beneficiaries in the way the drafter intended. Even if this is your chosen route, we still say It’s best to have an estate planning attorney help you. Call us at 813-498-2757 for a free consultation. 

2. Trusts

The four main types of trusts are living, testamentary, revocable, and irrevocable. However, there are further subcategories with various terms and potential benefits.

• Testamentary Trust: This type of trust is set up after death according to your Last Will and Testament. Since the terms of a testamentary trust are established in your Will, and you can change the terms at any time up until your death, this trust can be simpler and more flexible than a living trust, but it will require court intervention (i.e., probate) after your death.

• Revocable or Living Trust: Created while you are still alive to efficiently transfer assets to beneficiaries. A revocable or living trust accomplishes by avoiding probate, the court proceedings for distributing assets after death. Avoiding probate can save time and court fees and potentially reduce estate taxes for beneficiaries. 

• Irrevocable Trust: Unlike the revocable trust, no one can alter the terms of an irrevocable trust after it is created. The primary purpose of an irrevocable trust is so you can transfer assets out of your taxable estate. Income from the assets transferred into the trust is no longer taxable to the benefactor during their lifetime. The assets are not taxable to the estate upon the benefactor’s death.  

Florida trust laws state that a trust is created only if:

• The settlor has the capacity to create trust.
• The settlor indicates an intent to create the trust.
• The trust has a definite beneficiary or is a charitable trust, a trust for the care of an animal, or a trust for a noncharitable purpose.

One of the main benefits of having a trust is that property contained within the trust does not have to go through probate, instead passing directly to beneficiaries. This c n mean savings of both time and money for your loved ones. 

Our attorneys can help you find the best plan to suit your needs. Give us a call at 813-498-2757 for a free consultation. 

3. Deeds Other Documents That Permit Distribution of Property Upon Death  

One of the main objectives of any comprehensive estate plan is efficiency and allowing your loved ones to start benefiting from your assets with minimal delay or added expense. There are several ways one can achieve this, such as:

• Joint Ownership of Tangible Property – Joint owners on bank accounts, vehicles, or vehicles using the term “or” between owners. This allows the surviving owner to keep the property after a co-owner passes away.

• Joint Ownership of Real Property and Deeds – By adding particular language to your deed, you can add a co-owner or beneficiary to your property. To acc plish this, we frequently use the following deed designations:
  • Joint Tenants with Right of Survivorship
  • Tenancy by the Entirety (for spouses only)
  • Life Estate Deeds (also known as Lady Bird Deeds) 

• Beneficiary Designations, Payable on Death, or Transfer on Death  – You can leave property to loved ones if there are beneficiaries. If there is no beneficiary, you may be able to convert the account to a Payable on Death or Transfer of Death account, allowing you to add a beneficiary to the account. This is often utilized at banks and credit unions. 

No two people are alike, and no two estate plans should be either. With the proper documents in place, property ownership will automatically pass to your beneficiaries when you pass. Are your assets secure? Is your family protected? 

If you are considering creating or amending your will, trust, or any of the estate planning documents we’ve covered, McCart & Tesmer can help. Our expert attorneys will ensure you choose the proper documents for your family. Contact us at 813-498-2757 or info@McCartTesmer.com for a free consultation.