The Marks Law Firm Blog and New Updates
Is Sole Custody Possible in a Family Law Case?
Are you in the middle of a custody battle with your spouse or former spouse? Perhaps you are wondering if you can be awarded sole custody of your minor child or children. In recent years, the Florida statutes began referring to child custody as “timesharing” or contact. The legislature felt like the term custody or visitation was more applicable to hospital or jail visits.
Often times, Family Law Clients come to our firm and ask about sole custody. Florida utilizes the following terms: sole parental responsibility and shared parental responsibility. You may be wondering what each of these terms mean. Sole parental responsibility relates to decision making for the minor child or children. A Client who is awarded sole parental responsibility makes all the major decisions affecting the welfare of the minor children.
Cases with shared parental responsibility allow each parent equal decision making regarding all the major choices impacting the welfare of the minor children. Examples include, but are not limited to education, medical, religion, extracurricular activities, etc.
When Family Law Clients consider custody (timesharing), they are mostly concerned about where the minor child or children will live. Visitation (contact) relates to living arrangements. There are certain cases where a Client may be determined to have his or her children live with him or her exclusively, and not with the other parent. However, this outcome is highly unlikely. Special circumstances where the other parent has a criminal record, felony convictions, history of alcohol/drug abuse, etc. or is a registered sex offender that would show detriment to the minor children.
One possible solution that would allow both parents to be involved in the lives of the children is known as supervised timesharing. Family Ties is a facility in Orange County that allow deputies to oversee timesharing on weekends. Doing so, ensures that the parent who has a limited amount of supervised timesharing is observed and watched very carefully while he or she is interacting with the minor children. There are also less restrictive forms of supervised timesharing.
Ultimately, it is very difficult to be awarded sole custody in Florida. Keep in mind, there are other options, even in a situation where timesharing is awarded to the other parent. Many people believe that 50/50 timesharing is presumed in the Florida Statutes. However, Florida Statue 61.13 sub factors A through T cover 20 factors that the court must consider in every timesharing (custody) case. Thus, 50/50 timesharing is not automatically awarded.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
Do you have questions regarding timesharing in your Family Law case? Our experienced Family Law Attorneys are here for you. To set up a consultation, call our office at (407) 872-3161.
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How to Prepare for Deposition
What steps are necessary to prepare for a Deposition in a Family Law case? So you’re going to sit for a Deposition in front of opposing counsel and you are interested in knowing what to expect. Prior to your Deposition, you will want to meet with your Family Law Attorney. He or she will explain to you what the other side is going to attempt to prove during the Deposition.
In preparation, your attorney will go over what your case is about, theories associated with your case, the purpose of the Deposition, etc.
The scope of a Deposition is very broad. Under Rule 12.280, opposing counsel has the liberty to ask you anything related to the case that may lead to the discovery of admissible evidence as long as it’s not confidential, privileged, a trade secret or something similar. In other words, they cannot ask you anything that you and your attorney have discussed because that’s covered by attorney-client privilege. If you have shared details of your case with a clergy member or therapist, those conversations are typically protected as well.
Upon entering the Deposition, it is important to know in advance that it will be recorded. Your attorney will want you to be aware that a Court Reporter will be present, and a written Deposition transcript will be available at a later date. Or the Deposition may be videotaped.
For those of you who have not participated in a Deposition before, be sure to listen carefully to all of the questions asked by opposing counsel. Before they get started, you may be asked to confirm that you are not under the influence of alcohol or anything else that may impact your ability to answer questions honestly to the best of your ability. Since the Deposition is your sworn testimony, it is taken under oath. If you are untruthful, you may be subject to perjury.
Many times, I remind my Family Law Clients to pause before they answer a question. Doing so, allows your attorney an opportunity to interject an objection, if it is necessary and appropriate. But, if you just blurt out an answer, it’s already out the door, which removes the chance for an attorney to object. Communication with your attorney during a Deposition should only occur during a break. Whispering to your attorney during the Deposition may be recorded as part of the transcript.
When it comes time to provide answers, I encourage my Clients to refrain from speculation or guessing. Phrasing like “to the best of my recollection,” or “I believe…,” is permitted. These phrases are not definite answers, which will make it more difficult for opposing counsel to impeach you for dishonesty. If there is a situation where you need a document to confirm an answer, you are not provided the document unless opposing counsel presents the document related to the question that is being asked.
While opposing counsel is allowed to bring documentation to support testimony and evidence, Clients should not bring their own notes into a Deposition, as opposing counsel will then ask to see the notes. Testimony is to be given through personal recollection, rather than written documentation.
Something important to note is that once your answers are recorded, you cannot change your testimony when you go to Trial or the subsequent Hearing without a good explanation.
Consequently, if your answer(s) are changed at a later Hearing or Trial, then the opposing counsel will attempt to impeach you and that means to show you were being untruthful in front of the Court. To avoid inconsistency, your attorney should get a transcript of the Deposition prior to the Hearing or Trial. At that point, you should have an opportunity to review it, so you know exactly what you said. By reviewing the transcript, you can make sure that no errors are recorded in terms of spelling or grammar.
Don’t be afraid to turn to your attorney for support. He or she can help you relax throughout the Deposition process and make sure you understand what is going on every step of the way. Should you experience any stress or anxiety related to your Deposition or case, a qualified attorney will be by your side through the process.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
To speak with one of our experienced Family Law Attorneys regarding the Deposition process, call our office at 407-872-3161.
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How Do Christian Wives and Husbands Navigate Divorce?
As Christians, we are taught that marriage is forever. Living in a fallen world, sometimes Divorce is the best option for everyone involved. Of course, when we make vows to our spouse in front of God and our loved ones, we aren’t anticipating the end of our marriage. Relationships are hard work. Our Orlando Divorce Attorneys are here to help you navigate the Family Law process in a healthy way.
Perhaps you are a Christian wife or husband who doesn’t want to even consider the possibility of Divorce. After all, The Bible says Divorce is not God’s best. So, you want to reconcile the marriage and have faith that it can be restored.
However, it takes commitment from both spouses to maintain a successful marriage. Is your husband or wife willing to make an intentional effort to improve your relationship? Where is your husband or wife spiritually? If both of you are people of faith and open to exploring reconciliation, this can be brought up in the beginning stages of your case and during the Mediation process.
Part of Florida law requires that all Dissolution of Marriage cases be brought to Mediation prior to going to Court. This means that before you sit in front of a Judge, you can try to resolve specific issues in a neutral setting with your attorney and your spouse’s attorney present, as well as the mediator. Being a believer myself, I am comfortable expressing support of repairing the marriage in circumstances where it is appropriate and safe for all parties and any children involved.
Here at The Marks Law Firm, P.A., we believe in marriage and forgiveness. However, in some cases, Divorce is inescapable.
If you have done everything in your power to save your relationship, even when the Divorce proceeds, there is no condemnation. Your spouse may not be open to counseling or other potential solutions. Remember, we can only control our own responses and decisions. It is not up to us how our spouse behaves in regard to the marriage or Family Law process.
We encourage you to have hope for the future. There is life after Divorce. God does not want us to live in seasons of suffering. He wants us to prosper, offer grace to one another, and treat each day as a gift.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
To speak with one of our experienced Family Law Attorneys, please call our office at 407-872-3161.
Is There Something Called Legal Separation in Florida?
As a prospective Family Law Client, you may not be ready or want to file for Divorce, but you do want to receive Alimony or Child Support payments from your spouse. In these circumstances, you could enter into a Legal Separation agreement or file an Action for Support and Maintenance without Dissolution of Marriage. A common myth in Family Law is that Legal Separation does not exist in Florida. However, under Florida Statutes 61.09 and 61.10, support and maintenance are mentioned. In other words, you can be awarded Alimony or Child Support without filing for Dissolution of Marriage. According to Statute 61.10, your spouse can ask for Timesharing without filing for Divorce. Of course, every case is unique and so your case depends on your specific circumstances and the facts involved.
So, if you are living in the state of Florida, and are solely focused on support, Statue 61.09 doesn’t mention Timesharing, instead it focuses exclusively on getting Alimony and Child Support. A spouse who is interested in securing Timesharing with minor children may want to file under Statute 61.10.
Potential reasoning for someone to file an Action for Support and Maintenance unconnected with a Divorce could be their religious beliefs or faith or the hope of reconciliation. Many people of faith don’t believe in Divorce. Or perhaps they don’t want to be the spouse that files paperwork to end their Marriage. Legal Separation will allow a spouse in such circumstances the opportunity to receive Alimony and/or Child Support without filing for Divorce.
Couples who are not ready to file for Dissolution of Marriage but are interested in spending time apart from each other may also consider a Legal Separation. During this period, they can attempt to work on the Marriage and remain hopeful that time away from one another will improve their relationship. Seeing a Marriage Counselor together or individually during a Legal Separation may enhance communication skills in a Marriage. If you or your spouse are interested in connecting with a Therapist in Central Florida, our office can provide a trusted referral for you. Our Team at The Marks Law Firm, P.A. – Family Law & Divorce Attorneys understands the positive impact of Mental Health Professionals throughout the process.
For someone who needs time to heal after infidelity in the Marriage, he or she may want to explore a Legal Separation as the couple works toward a possible reconciliation. Terms that may appear in a Legal Separation agreement include Alimony, Child Support, Timesharing (as previously mentioned) and the Parenting Plan.
If you have questions regarding moving forward with a Legal Separation or would like to speak with one of our Orlando Family Law Attorneys about the process to legally separate, please call our office at (407) 872-3161.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
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Christian Legal Society Honors Attorney A. Jay Fowinkle at Annual National Conference 2022
Last month, Attorney A Jay Fowinkle received the Attorney Ministries Award at the 2022 Christian Legal Society National Conference in Newport Beach, California. This prestigious award is given to a recipient who embodies the mission of the Christian Legal Society through the demonstration of leadership and servanthood as well as a commitment to loving and serving Jesus Christ in all they say and do in the practice of law, as well as one who exemplifies Jesus Christ by providing encouragement, fellowship, and spiritual growth to attorneys and law students alike.
Such an award was bestowed to A. Jay Fowinkle by Former Christian Legal Society President, Charles M. Oellermann, Executive Director & CEO, David Nammo, Director of Attorney Ministries, Lakuita Bittle and Chair of Attorney Ministries Committee, Herbert Grey.
Attorney Fowinkle became a member of CLS in 2018 and has served as President of the Central Florida Chapter since 2019. In addition to Chapter meetings held on the third Wednesday of every other month, Board of Directors meet throughout the calendar year and come together virtually for prayer meetings via Zoom twice a month.
During Chapter meetings, guest speakers are invited to facilitate discussions related to intersections of faith and the legal industry. Recent topics include Roe v. Wade, Human Trafficking, etc.
All members are given several opportunities to volunteer and serve local communities. In an effort to support the unhoused, members frequently serve meals at Daily Bread in Orlando. Central Florida CLS members have also volunteered at Ronald McDonald House Charities, which are known for assisting families around the world and helping them access the medical care and resources they need.
Last spring, the CLS Chapter at Barry University, Dwayne O. Andreas School of Law hosted a Judges Panel in Orlando, Florida which was sponsored by the Central Florida Chapter. Attorney A Jay Fowinkle served as the Moderator for this event where panelists spoke about their experiences in the industry as Christian legal professionals.
To learn more about Christian Legal Society, please visit: https://www.christianlegalsociety.org/
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Communicating with the Neutrals in a Collaborative Case
Florida’s Collaborative Process is a neutral process where both parties agree on an alternative to litigation. Potential candidates for Collaborative Law include spouses and unmarried parents who have at least some common goals, a genuine desire to protect their minor children from the Divorce process, as well as those who are intentional about being solution-focused.
Who are the Collaborative Neutrals? In a Collaborative setting, two neutrals are present throughout Team meetings with both parties and their Family Law Collaborative Attorneys. The Mental Health Neutral serves as the Facilitator, meaning he or she will in essence run each Collaborative Team Meeting. Both parties will work with the Mental Health Neutral to complete the Parenting Plan. As a Neutral, the Mental Health Professional will consider goals that are in the best interest of the minor children, rather than just the wishes of the Family Law Clients.
Known as a more private approach to Family Law, sensitive financial documents in a Collaborative case do not need to be filed publicly with the Court. Instead, the Financial Neutral will assist both parties in preparing the financial affidavit, mandatory disclosure, equitable distribution worksheet, etc. Examples of qualified and Collaboratively trained Financial Neutrals are Certified Public Accountants, Forensic Accountants, or Business Valuation Experts.
What separates Collaborative Neutrals from the Collaboratively trained Family Law Attorneys?
While Orlando Family Law Attorneys in a Collaborative case are not considered opposing counsel, they are still ethically obligated to advocate for their respective Client and not for the other party. Confidentiality between Clients and their attorneys is still a priority. However, in circumstances where Clients meet with their Mental Health Neutral or Financial Neutral, confidentiality is not required.
According to the Florida Supreme Court, all Family Law Attorneys must provide Collaborative Law as an option to all prospective Family Law Clients as an alternative to the traditional litigation model. However, not all Family Law Attorneys in Florida are Collaboratively trained. Our Team at The Marks Law Firm, P.A. – Family Law & Divorce Attorneys is dedicated to navigating the Divorce process in a way that honors everyone involved and we believe that Collaborative Law offers our Clients an opportunity to resolve their case in a way that is peaceful and amicable. All of our Family Law Attorneys are Collaboratively trained and are here to help you.
If you have questions regarding communicating with the neutrals in a Collaborative case, or would like to speak with one of our Orlando Family Law Attorneys about the Collaborative Process, please call our office at (407) 872-3161.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
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What to Expect in the First Collaborative Team Meeting
As a Family Law Client who chooses to proceed with your case by utilizing the Collaborative Process in Florida, you may be curious about what will happen in the first meeting. Remember, Collaborative Law is a voluntary process. Both you and your spouse will work with Collaboratively trained Family Law Attorneys who will prepare you for this meeting.
At the first meeting, you and your spouse will come together with your respective attorneys, a Financial Neutral and a Mental Health Neutral. You can anticipate that the Mental Health Neutral on your Collaborative Team will facilitate each meeting. Right away, he or she will explain the Collaborative Process and its purpose. Once an overview of Collaborative Law has been presented, the Mental Health Neutral will go over the necessary documents needed for your case to be resolved. Examples of such documents include a Collaborative Participation Agreement.
Our Collaboratively trained Orlando Family Law Attorneys at The Marks Law Firm, P.A. – Family Law & Divorce Attorneys believe the most important part of the meeting follows, which is goal setting. At this point, you and your spouse will each share what your goals are and what you would like to see come out of the Collaborative Process for your Family Law case. Each professional on your Collaborative Team wants to see the process succeed and will support you along the way.
Prior to the first Collaborative Team meeting, you should meet with your Family Law Attorney to discuss your specific goals and gain his or her insight. You are an important part of the Team and your trusted Collaboratively trained Family Law Attorney should have sound legal advice for you in order to make sure the Collaborative Process runs smoothly.
During the goal setting stage of the first Collaborative Team Meeting, it is imperative that both parties present their goals in a way that can be easily understood and agreed upon. Of course, the most common goals in many Collaborative cases involve protecting the minor children and ensuring their security and stability. By choosing the Collaborative Process, you are remaining focused on solutions and prioritizing peace and transparency throughout your case.
One specific goal might involve where the children will reside once your divorce has been finalized. Some Clients decide it’s best for the minor children to remain in the marital home where they can maintain familiarity (friendships, neighborhood activities, schooling, etc.) however, it is a common goal that the children spend as much time as possible with both parents. Another common goal could revolve around the children’s financial future.
Looking ahead to building a foundation of ongoing and positive communication amongst the co-parents may be a common goal as well. While your marriage may be ending, your commitment to the wellbeing of your children and the preservation of your family as you and your spouse move forward should not change.
While the goals mentioned above may be envisioned by both parties, in some Collaborative cases, Timesharing (also known as Child Custody) agreements may require more conversation and compromise from the co-parents. Ultimately, Timesharing schedules should reflect what is in the true best interest of the minor children, above the desires of either co-parent.
Another goal that may be brought up in the first Collaborative Team Meeting relates to spousal support. If you or your spouse has a financial need to receive alimony, and the other spouse has a financial ability to pay it, this should be expressed openly to the entire Collaborative Team. The Financial Neutral will help you navigate this part of the Collaborative Process.
Goal setting is considered the framework of the Collaborative Process and will allow both parties to move forward while collectively working towards what they would like to accomplish. However, if new goals arise, they may be shared at subsequent Collaborative Team Meetings.
Perhaps you can think of other goals that would come up during a Collaborative Team Meeting. If you are interested in learning more about this healthier approach to Family Law in Florida, please contact our office at (407) 872-3161 to speak with one of our experienced Orlando Family Law Attorneys today.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
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Collaborative Law: A Brief History and Overview
Florida’s Collaborative Law Process Act came to be in 2016, but the original concept for Collaborative Law came from Minnesota by an Attorney named Stuart Webb in 1990. He realized the importance of personal relationships in the legal process. Attorney Webb believed the litigation process could be harmful to spouses and families.
Did you know, our very own Attorney Matt Capstraw contributed to the Collaborative Law Process Act in Florida? For more on his involvement, check out Attorney Capstraw’s profile HERE.
According to Florida Statute 61, the purpose of Collaborative Law in Florida is “to preserve the integrity of marriage and to safeguard meaningful family relationships, promote the amicable settlement of disputes that arise between parties to a marriage, and mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.”
While traditional litigation and mediation involve two Family Law Attorneys who act as opposing counsel in a Divorce, the Collaborative Process utilizes a Team to help resolve the case in a peaceful and productive manner. Benefits of the Collaborative Law Process include but are not limited to: Goal centered and solution-oriented meetings as well as the opportunity to protect minor children from the Divorce process.
Who makes up a Collaborative Team?
Family Law Attorneys: Unlike the litigation or mediation processes, in a Collaborative divorce, the Orlando Family Law Attorneys work together in order to assist both spouses reach an amicable and peaceful resolution.
Mental Health Counselor: In a Collaborative setting, the Mental Health Neutral serves as the facilitator. He or she will facilitate the Collaborative meetings and make sure common goals of both spouses remain top of mind among the Team during the case.
Financial Professional: To preserve the privacy of the spouses and their family, the Financial Neutral maintains the financial affidavits of both parties, rather than the parties filing the document as part of public records. Any amounts relating to Alimony are also kept private in a Collaborative case.
In some cases, especially in situations where the parties are in need of additional assistance, the Collaborative Team is able to bring in Allied Professionals as well.
Potential Allied Professionals
Realtors: Collaboratively trained Real Estate professionals are able to assist in the valuation of the marital home, determine potential rental costs, etc.
Florida Ethics Rules require all Divorce Attorneys to present Collaborative Law as an option to potential Family Law Clients during the initial consultation. However, not all Family Law Attorneys have Collaborative experience or training.
All of our Orlando Lawyers at The Marks Law Firm, P.A. – Family Law & Divorce Attorneys are Collaboratively trained and are active members of The Collaborative Family Law Group of Central Florida. Our Team recognizes the true value of this process.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
To learn more about the Collaborative Process, call our office at (407) 872-3161.
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What Happens When a Christian Husband Wants a Divorce?
In marriage, sometimes we go through difficult seasons. Life as Christians does not mean that we won’t experience trials or endure challenges. Perhaps you have been trying to work on your relationship for months or even years. Even still, you have reached a breaking point and feel like you don’t love your wife anymore. Divorce is on your mind. Our Team at The Marks Law Firm, P.A. – Family Law & Divorce Attorneys Orlando can help you through the process.
Being a Christian husband, you take what the bible says seriously. Feelings of guilt, loss, and regret may arise as you are a believer. As a Family Law Attorney who believes in marriage, I often ask my Clients if there is anything they can do to save their relationship with their spouse. Our Central Florida Divorce Attorneys encourage reconciliation in situations where it is possible, appropriate, and safe for both parties.
To get to place where the marriage can be restored, you may want to consider counseling with a Christian therapist, who has a biblical worldview. Ephesians 5:25 says “Husbands, love your wives, just as Christ loved the church and gave himself up for her.” Being willing to sacrifice and compromise will help you make your wife and children a priority.
If you have done everything in your power to move forward as a couple and divorce still seems like the best option, think about how you want to proceed with your case. There are other options than traditional litigation. Florida requires all Family Law Clients be informed of the mediation process as well as Collaborative Law.
When two spouses would like navigate divorce in a way that is amicable, voluntary, confidential, and outside of Court, Collaborative Law is encouraged. During Collaborative Team Meetings, you sit in the same room with your wife and your Collaborative Team–which includes the attorneys, mental health neutral, financial neutral, and in some cases, allied professionals (such as realtors.) Everyone works together toward a resolution through goal setting. The process is peaceful, and often protects the wellbeing of the minor children.
It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”
For more information on the collaborative process, call our office at (407) 872-3161. Our Collaboratively trained attorneys would be happy to assist you.
The Importance of Communication Among Co-parents Today
The Court expects you to talk with your co-parent…and you really should! Far too many times in dissolution of marriage (divorce) or paternity actions, rather than working together for their children, former spouses choose to parallel parent. Parallel parenting can be defined as an arrangement where each parent makes decisions regarding health, routines, overall well-being of the child exclusively, when the minor child(ren) is under his or her care, respectively. Such a dynamic requires less interaction, which may result in less conflict.
Unfortunately, the difficulties begin when parallel parenting is the only effort being made. There will be circumstances where both parents are going to need to talk and provide a united front for the benefit of their child or children.
As a father myself, I will always remember the start of one Little League season where I overheard a parent having a conversation with a coach that their child would be missing games every other week while said child is with the other parent. With empathy, I couldn’t help but feel terrible for the child and the entire situation.
The need to communicate and make joint decisions has truly come to a head during the pandemic, especially when dealing with making choices regarding schooling for minor children. The determination of whether to attend school virtually or in person can be a very difficult decision for an intact couple. But for divorced parents, the logistics are harder and in turn, so is making that decision. Unless you have agreed to a decision about attending school, timely communication is imperative, before classes begin. In situations parents cannot agree, our experienced family law attorneys are available to help. If necessary, the Court may need to get involved.
Daily communication isn’t always needed between co-parents, but consistent communication such as updates about school events or progress is important and required. We encourage our Clients to set aside any personal anger toward their former spouse, as he or she will always be your child’s other parent. Many times, when you complain or criticize the other parent, you are upsetting or making your child feel badly. When parents actively portray their former spouse in a positive manner, it creates a peaceful environment for the child or children involved.
To speak to a family law attorney regarding co-parenting issues or if you are having trouble navigating COVID issues, Virtual School vs. Face to Face Learning, please contact us today.
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