Consequences of abandonment

“I told my spouse I’m going to take the children to stay with my (nearby) mother for a while. My spouse then threatened to divorce me and charge me with abandonment, and warned I’ll lose my kids and get nothing in the divorce. Is that true?”

No, not in Florida. Abandonment of a spouse may serve as a ground for divorce in a fault-based divorce state, but not here.

So-called abandonment of a spouse is irrelevant to child custody.

Could it affect the financial outcome of a divorce case? In certain cases, circumstances of an “abandonment” may be taken into account, along with other factors. An example of such a case might be where one spouse bails out on a recently physically-disabled, dependent spouse, taking most of the marital assets acquired over many years, without providing any financial support at all – even though well able to do so.

But most people who ask the question at the beginning of this message just want to take a little time and get a little distance from their relatively ordinary spouse and marriage, to think things over and figure out what they want to do. Florida’s no-fault divorce law doesn’t penalize a person for that.

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But the statute says …

“But the statute says…”

Sometimes a client will do some “research” of their own before consulting a lawyer. Typically, that might mean reading some articles in print or on the internet. Occasionally, they will actually take a stab at reading the applicable statutes (laws) themselves.

I think that’s great. I like working with clients who take a strong interest in the law, and the nuts and bolts of their case. And, personally, I always try to educate my clients about both.

Having said that, my last post unintentionally illustrates an important point: a little knowledge can sometimes be a dangerous thing. How so?

When a non-lawyer reads a statute and that statute states something pretty clearly, the non-lawyer tends to accept at face value that that statute accurately states what the law is. Sounds perfectly reasonable, doesn’t it?

But that non-lawyer could turn out to be dead wrong. Needless to say, making that discovery at a hearing in court can hurt your case.

How can a statute be “wrong”? Sometimes statutes are unconstitutional and simply not applied. More often, unchanging statutes evolve by means of interpretation in the courts.

My post about how a soldier, stationed outside of Florida on an extended basis, can nonetheless satisfy the statutory requirement that he “reside” in Florida for six months immediately before filing for divorce here.

The moral is that you really can’t take any statute at face value, especially not if you are relying heavily on a particular statute in support of your case. If you want to be sure of the law, you must research the legal cases covering the issues in your case.

Otherwise, after you state the quotation at the beginning of this post, your opponent may cite and show both you and the judge all the cases that say differently from the statute.

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Where does a serviceperson far from home file?

“I’ve been stationed outside Florida for several years now. The state where I’m stationed takes forever to give a divorce. Can I get it in Florida?”

This question comes up more and more due to current world events.

By statute, Florida will not grant a divorce unless one of the spouses has “resided” in Florida for at least six months. Florida courts have consistently held that residing means exactly what it sounds like, that is, actually living in Florida.

That would seem to leave the serviceperson stationed outside Florida out of luck.

But the Florida courts have consistently put a gloss on the term “reside” for established, genuine Florida residents called out of state by military service. In other words, as long as they actually resided in Florida immediately prior to being called to duty out of state, they will still be considered as Florida residents.

So the serviceperson stationed outside Florida may file for divorce in Florida. And if the divorce is fairly amicable, it may even be workable to get a divorce that way.

But if the divorce is hotly contested and the other spouse actually lives in Florida, the serviceperson spouse really may want to re-think the advisability of filing in Florida while stationed elsewhere. It may put the serviceperson at a strategic disadvantage unnecessarily .

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The two sides of the custody coin

“Will I be able to get custody of my children?”

That’s how most parents still phrase the question to their lawyers. It’s a throwback to the era when one parent “got custody” and the other parent didn’t. End of discussion.

But times have changed, and involved and informed parents should consider asking different questions today.

Today, Florida and most states allow for (or, like Florida, favor) “joint custody” of children. In Florida, joint custody generally refers to joint legal custody, not physical custody.

What’s the difference? In the interests of brevity, the parent with physical custody actually has the child physically present with him or her.

In Florida, the child generally resides more of the time (if not most of the time) with the primary residential parent. The child may reside (or visit) the rest of the time with the secondary residential parent.

What most parents mean when they ask the question at the beginning of this message is

“Will I be able to get primary physical custody of my children and be their primary residential parent?”

Most parents facing divorce focus almost single-mindedly on who their children will live with after the divorce . They don’t give a thought to the currently abstract issue of legal custody.

Legal custody refers to decision-making for and about the child. Not usually the routine day-to-day decisions (like, which cereal to eat for breakfast) but the significant decisions (like, whether to take medication for hyperactivity or whether to have an elective orthopedic surgery now or later).

Legal custody or decision-making authority is important. In some cases, depending on the personalities involved, the time may come when joint legal decision-making may seem as concrete as a wall or a brick.

In certain cases, a divorced parent may end up regretting not considering their legal position on legal custody at the time of divorce as carefully as they considered their legal position on physical custody.

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What should I do if he hits me?

“My spouse hits me. What should I do?”

Sadly, that’s another common question.

There are a lot of things you can do. They may include, among other things:

  • enroll the violent spouse in an anger management (and/or substance abuse and/or mental health treatment program as appropriate)
  • encourage the violent spouse to leave the home temporarily
  • go to a domestic violence shelter (800-500-1119 throughout Florida and 800-799-SAFE nationwide) for safety planning and counseling for yourself (and your children, if appropriate under the circumstances)
  • remove yourself (and, if feasible, your children) to a safe haven temporarily
  • permanently relocate
  • file for divorce of your spouse and custody of your children
  • seek an injunction for protection against domestic violence (also called an order of protection)
  • contact the Department of Children & Families (if the violent spouse has abused you in the presence of your children and / or has abused your children)
  • call the police
  • sue your spouse for damages for your injuries
  • consult a divorce lawyer (also called family, matrimonial, marital or domestic relations lawyer) to learn more about your children’s and your rights

That’s what you can do. What you should do, however, is a very difficult and complex question that depends enormously on all the circumstances of your family.

In some cases, not doing anything can have extremely dire, even fatal consequences. Your first and foremost concern should always be your children’s and your safety.

In other cases, however, rash, impulsive, overblown responses may end up doing permanent emotional and financial damage to all the members of a viable family passing through a terrible but temporary crisis situation. Certain responses can’t be taken back – any more than the violence can be undone.

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How to Separate

“I’d like to get legally separated.”

Floridians transplanted from certain other states often ask about this.

Florida doesn’t have a procedure to become “legally separated”. Florida spouses who are in fact living separately and apart remain legally married, without a change in legal status.

Therefore, in Florida, if a separated spouse dies, the surviving legal spouse still has full inheritance rights if there is no will. The surviving legal spouse also has certain inheritance rights even if the deceased spouse disinherited the surviving legal spouse in his or her will. Living separately and apart has no impact on the surviving legal spouse’s legal rights.

Physically separated spouses in Florida can, however, in effect, get the benefits of “legal separation” by, among other things, legally “opting out” of Florida’s laws regarding property distribution to spouses. They can do that by making what is called a post-nuptial agreement. (Of course, the agreement must comply with all applicable legal requirements in Florida.)

A “separation agreement” is nothing more than a post-nuptial agreement. If the parties later decide to divorce, the post-nup can serve as a settlement agreement. If one spouse should die before a divorce, the post-nup can also limit the surviving spouse’s rights to the deceased spouse’s estate.

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Lawyer for Two?

“My spouse hired a lawyer for us“.

I often get on-the-sly calls from a suspicious spouse with that one too. On some level, the suspicious spouse knows he or she has good reason to be suspicious.

You see, one lawyer cannot represent both of the spouses in a divorce.

That would be a clear conflict of interest. Why? Because one lawyer can’t do his or her very best for the wife and also do his or her very best for the husband, at the same time, in the same case. Like it or not, sometimes what’s best for the husband just isn’t very good for the wife (and vice versa).

So what the spouse who hired a lawyer “for us” is really saying is:

“I hired a lawyer to represent me. But I don’t think you should have a lawyer to represent you.

Only the hiring spouse will never admit the truth. And the hiring spouse will never let the suspicious spouse near “their” lawyer.

Because “their lawyer” would be dutybound to explain to the suspicious spouse that the lawyer doesn’t represent the suspicious spouse at all, only the hiring spouse. The lawyer would probably even recommend that the suspicious spouse engage an attorney of his or her own too.

Of course, the hiring spouse doesn’t want that. The hiring spouse wants to maintain control over the divorce – and the suspicious spouse.

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