If you are uncertain as to the legal status of your property ownership, have been notified of a partition action on your property, or are considering a partition action, the first place to start is with expert legal counsel. Staack, Simms & Reighard PLLC, specialists in real estate law, has a group of attorneys dedicated to this practice. We know each case is unique with varying circumstances and remedies, but read on as we will give you a general overview of the process. Then contact us directly so we can discuss your particular situation and your rights as the co-owner of a property.
The Homestead protections found in the Florida constitution were enacted to help protect the family home from a forced sale for the debts of the owner. However, Homestead laws cannot protect an owner from a forced sale when it is at the expense of others who also own an interest in that property. Partition action is used when a co-owner no longer wants to own the real property and there isn’t an agreement among the owners regarding how to dispose of the property or end the co-ownership.
If one of the co-owners is unwilling or unable to buy out the other owner(s) and the Court is not able to declare an equitable division by physically dividing the property, the Court has three options for ordering a partition sale:
As you can imagine, a public auction may not turn out to be in the best financial interests of all parties, as a court ordered auction rarely results in a fair market value sale. The more favorable outcome is usually when after negotiation, the ownership parties can reach some kind of agreement. Financial results are much better when parties to a partition action market and sell the property in a private sale rather than have the property sold at auction.
To illustrate why a partition action may be filed, assume that a parent (with no surviving spouse) passes away owning a home in Florida. By will, deed, or otherwise, the home passes to the parent’s children equally. One of the children moves into the home after the death, or has been living there before the death, and has decided to stay and live there permanently. The other children live elsewhere- either in or out of state. One or more of the other siblings may want the house sold for their share of the inheritance, but the sibling who wants to live in the house does not have the resources to buy out the others. Either sibling may decide to file a partition action against the one living in the home and force the sale of the house.
Another example that commonly occurs is when a property is inhabited by two people, titled in two individual names, as tenants in common. This means that they each own an undivided 50% interest in the property. The owners decide to split up, and one wants to move out, to be free of any of the home’s future financial responsibilities, and be paid their share of the equity or value in the home. If the other owner does not want to leave, doesn’t have the resources to pay the leaving party the value that is owed them, or can’t maintain the house without them, the owner who is leaving may opt to file a partition action. Or, in another situation, instead of the couple splitting up, an even more complicated issue arises, if one were to die. The deceased owner’s 50% interest would pass to their heirs rather than the surviving co-owner, and the heirs may well file a partition action to collect their inheritance.
There are many different situations where a partition action may be deemed necessary. As you can imagine, not only are these situations complicated legally, but they often involve complex personal relationships and can become emotionally charged. As real estate attorneys, we have a lot of experience with these types of cases and do our best to guide our clients to the best outcome.
Since the partition process involves many intricate steps, such actions should only be handled by an estate attorney. Often these matters can be resolved to a successful conclusion by skilled negotiation. In addition, legal counsel is able to help identify other issues that may come into play that would alter the financial outcome, such as if one of the owners has assumed more of the financial burden of the payments, taxes, insurance, and improvements. These expenses should be thoroughly vetted and taken into consideration before the share is divided and can impact the final settlement.
Do not leave the partition action process to chance, or hope that it all just works out. Be represented by knowledgeable, experienced attorneys, and have it done correctly. Call Staack, Simms & Reighard, PLLC so we can help you understand and achieve what you are entitled to under the law.
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Staack, Simms & Reighard, PLLC
Some couples agree to a separation in order to find ways for reconciliation. Others use a trial separation as a way to buy time because it’s too hard either emotionally or financially to begin the divorce process immediately. Usually, it turns out to be the first step towards dissolution. Be honest with yourself. Don’t make the mistake of threatening divorce just because you are angry. Do you want a separation in order to eventually reconcile, or is the separation really a stepping stone to divorce? You may still be uncertain as to the answer at this point. After much soul searching, only you can determine the best path forward for your goals.
How the conversation begins will depend on the past and present issues in your relationship, if there have been questions of infidelity, if there are addiction issues, or if it is because there is a general discontent with the relationship. The outcome of the conversation depends on how well both parties are able to have an open and agreeable dialogue. Only you can evaluate this, but it is a good idea to do comprehensive planning and talk with a professional divorce lawyer to get some input before approaching your partner. While there is never an ideal time or place, those details should also be given careful consideration, too. If you have already made the decision to divorce, your choice of words will dictate the degree of finality to your spouse.
It is important to be honest, as long as it is safe to do so. You should already have a pretty good idea of how your spouse may react, and if you have concerns, do not put yourself in a situation of volatility. If you are fearful for your safety, please consult with a professional about your circumstances. While it is a good idea to be non-threatening and less hurtful, trying to sound less final and giving a false sense of hope isn’t always the best approach, especially if you know the outcome you want is a final dissolution of the marriage. If you are certain divorce is what you need to do, you don’t have to agree to explore all options and leave the door “cracked open a bit” to try to soften things with your spouse. Although painful, directness and clarity are always best.
Once you decide you want to divorce or separate from your partner, develop a plan for how to break the news to him or her. The discussion will be hard, there is really no way around that. Think about what you want to say and how to deliver the message gently, but firmly, and with conviction. Now is not the time to be vague, hesitant, or wishy-washy.
Be clear about your message. You can begin with a short summary of your unhappiness, make certain he or she understands the seriousness of the situation, and then clearly state that you don’t want to be married anymore. Give your spouse a chance to respond and be a respectful listener, but do not give false hope.
Here are a few ideas of how you might start the conversation for discussing divorce:
“We’ve been working hard on our relationship, but I don’t see any improvement in our marriage.”
“I’ve been thinking a great deal about our relationship and I don’t think either of us is very happy. I know I am not. I think it is time for us to talk seriously about divorce.”
“I don’t feel good about our relationship and marriage. I think the best thing is to separate and start to prepare for divorce. “
“Our marriage is just not working. It has been a difficult decision for me and difficult to admit, but I believe our marriage is finished and I would like to start the process of divorce.”
While this announcement is going to start off the discussion, remember to stick to your goal and not be led off track. You don’t want to be abrupt and cold, but a prolonged conversation that goes nowhere accomplishes nothing. Know when it is time to conclude your talk and when enough has been said.
Let your spouse know that you would like to set a time to talk with them about something important. Even if you have already broached the subject, or have let your partner know you are not happy, that doesn’t mean that he or she won’t be caught off guard. If your spouse has no idea at all, it will probably come as a complete shock to them. Keep in mind, once you propose a conversation, you should already have a plan as to what you want to say, as he or she may insist that you reveal what you want to discuss right then and there.
Choose a place and a time free of distractions. It is a good idea not to have the conversation right before an important family event or a holiday, but it is understandable that sometimes can’t be avoided. A private place is usually best, unless you have any concerns about your safety. If you need support, bring in a counselor, a good friend, or talk in a public place.
This will be a stressful discussion, no matter what. Expect there will be strong emotions and arguments. Be prepared for crying, antagonism, denial, blame, harsh words, and arguments. He or she may become angry, or may even threaten you. Don’t let yourself get angry and don’t argue. Stay calm and be reasonable. Always stick with the script you prepared. Don’t get pulled off topic and be put in a situation where you revisit either your or your spouse’s transgressions. Try to limit the amount of explaining or convincing that may occur and don’t be drawn into a long accusatory discussion. Many times, the less you say the better.
Don’t criticize your spouse or argue about the past, because that will accomplish nothing. Focus on neutral, non-accusatory language. You can be sympathetic about your partner’s feelings, but be firm. You should be a good listener to them, but let them know how you feel and that you don’t believe there is any way to change the current situation or make the marriage work.
Once you have had the discussion about divorce you may have some guilt and feel you have to comfort your spouse by being affectionate. That will only turn out to be a big mistake. Without being completely cold, maintain your personal boundaries and keep your distance. You don’t want to send mixed signals. Make certain he or she knows you are serious.
Yes, preparing for a divorce is a very difficult time. Whether you have already had the conversation with your spouse, or are preparing to have that discussion, it’s time to retain a divorce attorney who makes you feel comfortable and gives you confidence to face the process ahead. Contact the attorneys of Staack, Simms & Reighard, PLLC. We are the Tampa, FL lawyers with the experience and compassion to guide you through a successful divorce. We know it is not an easy time, but we also know how important it is to safeguard your future and that is what we will focus on for you.
Get experienced divorce representation. Reach out today.
Staack, Simms & Reighard, PLLC
There is no cure-all or one-size-fits-all approach to managing feelings associated with the end of a marriage. Smooth divorces are not the norm, so it is likely you have been in a state of flux and uncertainty for some time. However, there are ways to make the transition smoother. It just takes commitment to your new goals, as well as the motivation and compassion to ensure the transition works for you.
As attorneys, Staack, Reighard & Simms PLLC has years of practical experience working with our clients to help them navigate the stages of divorce. We understand divorce can be difficult and are happy to share a few ideas regarding coparenting and new relationships. These recommendations which can help make the transition more effective for you and everyone involved.
If you have children, remember that while you are now “single,” you are not alone. You may feel a new sense of freedom but you still have strings! As a parent, your decisions can’t just be about you, regardless of whether you have custody or not. Your children will be central to most of your life decisions until they are adults. As they become increasingly independent, prioritizing your decisions based on the children does get less over time. However, always be cognizant of how your personal decisions and social life activities might impact your child custody, visitation, or financial support arrangements.
Divorce affects children just as much as it does adults. Depending upon the age of the children and the circumstances, they may act out or express their feelings in a way that is inappropriate or difficult to understand. Always let your children know that although living arrangements have changed, both parents still love them very much.
You and your ex should create healthy and respectful ways of communicating with each other right from the start for the sake of the children. Plan ahead so you can minimize disagreements over who gets the children on holiday weekends, summer vacation, and special family events. Always be proactive about what is in your children’s best interests.
Develop and stick to an effective coparenting plan, as this will play an important role in healthy child development and the overall well-being of the family. Focus on what is best for your children, not on which parent “wins” or gets a “better deal.” Keep any conflict with your ex away from your children. Effective coparenting shows the children that both parents are in sync. Some tips for sticking to a healthy coparenting plan should include agreement with your ex on the following:
Coparenting carves out the opportunity for designating quality time with your children. Make this time precious. Establish new rituals or traditions and introduce them to a hobby or sport you can enjoy together. This transition period gives you time to focus on your children’s emotional development and instill values. It will also help all of you develop a stronger sense of self-esteem and closeness during this post-divorce process.
You are probably not planning to stay single forever! However, it makes sense to take things slowly, despite the easy access to dating sites or social activities aimed at finding a new partner. Give yourself time to adjust to the finality of divorce and to all of the changes happening in your life. Doing this usually pays off in the end.
While romance might seem like a great way to fill lonely hours and soothe any wounds, if you jump in too soon and before you have had time to really know yourself and be on your own, starting a new relationship can just complicate things. You don’t want to end up comparing a new partner to your ex or finding it difficult to give the new relationship the emotional commitment it deserves. Now is not the time to set aside your own physical and mental health needs in favor of your new partner’s needs and that sometimes happens in a new relationship. Remember, you are still healing.
Without a doubt, time alone can feel terrifying, but this is really when you should be focusing on finding contentment and happiness within yourself. Of course, every divorce is different and you may feel you have a unique situation, but just be confident that the right person does come along at the right time.
As you start that new chapter, consider seeing a counselor as divorce can have a lasting impact on your emotional and mental well-being. Even if it is just for one or two visits, it is very helpful to talk through your feelings with an objective, professional who is trained in helping people with compassionate guidance and support post-divorce. A therapist can help you balance your perspectives and strengthen your confidence. Family counseling is a great option and will allow children to discuss and process their feelings about their parents’ divorce. A therapist can help you and your children find strategies to cope with any painful or difficult thoughts.
Look into a divorce support group as another way to gain insight and cope with this life change. You will find you are not alone, gain a new outlook, and possibly make friends in the process.
Taking time to grieve, heal, and focus on yourself will help you make the most of what the future holds. Time eventually heals or at least puts things into a better perspective. If you have children, be a role model for a brighter future by actively enjoying every day you spend with them.
Time can also present the need for modifications in your divorce agreement as it relates to custody and parenting time. Even child support amounts can be addressed based on change in circumstance. If that is the case, please reach out to us at Staack, Simms & Reighard, PLLC. We will be happy to discuss any divorce issues that you feel need to be revisited. Above all, best of luck and make the most of this new, post-divorce life. Consider it an adventure!
Get experienced legal representation. Reach out today.
Staack, Simms & Reighard, PLLC
If you are considering this option in your estate planning, work with an attorney from Staack, Simms & Reighard, PLLC to see how we can help protect your family and your financial legacy. With so many different options for giving assets to your grandchildren, you want to be able to make informed choices. Read on as we will give you an overview of some of the most common estate planning strategies, then call us to schedule a consultation so that our attorneys can help you make the best decisions for your unique situation.
The tools we will suggest for you will depend on a number of factors. The age of your grandchildren, the status of your children and your relationship with them, the size of your estate, how you want your inheritance spent, and possible tax consequences will all factor into determining which strategy is best for you.
We urge you to consider the effect on all parties involved and carefully consider just how you want your final wishes for your estate to be carried out. Consider speaking with your grandchildren’s parents beforehand about how you can best support the development of your grandchildren and provide for them. This will ensure that your financial assistance will be appreciated and truly beneficial.
Regardless of your current situation, here are some of the options for providing for grandchildren in your estate plan and/or leaving an inheritance directly to them. You will need more details about each strategy, so be sure to give Staack, Simms & Reighard, PLLC a call for counsel.
Grandparents have the option of providing the grandchild with a fixed amount or a percentage share of the estate. Keep in mind, this method has no tax advantages and offers no control over how your grandchildren will use the inheritance.
An incentive trust is designed to encourage or discourage certain behaviors by placing restrictions on the trust property. For example, you could require that the trust funds only be used for education, buying a first home, or starting a business. You could also stipulate that trust funds are held back if your grandchild develops a substance abuse problem, refuses to get a job, or is in trouble with creditors. Through a trust, you can also control at what age your grandchildren receive the inheritance. Another option to consider is to have the trust funds doled out in set amounts over a long period of time, such as every five years.
A 2503-C trust is created to benefit a child under the age of 21. It is a unique option because it allows grandparents to take advantage of the gift tax exclusion while maintaining control over the property until the child reaches the age of majority. The minor must receive the property at age 21. If the child dies before age 21, the trust property is paid to the child’s estate.
A dynasty trust is a long-term trust designed to pass wealth from generation to generation, without incurring gift tax, estate tax, or generation-skipping transfer tax. You must pay income tax on income generated by trust assets, so many individuals fund the trust with non-income producing assets, such as life insurance policies or tax-free municipal bonds.
A grandparent can gift up to $15,000 a year without triggering the federal gift tax. Lifetime giving removes the property from your estate, lowering your estate’s tax liability after your death. Lifetime gifts for education expenses and medical care are exempt from gift tax regardless of the amount, as long as the payment is made directly to the educational institution or medical provider. In addition to the tax benefits, giving while you are alive allows you to see your grandchildren receiving your gift. When deciding whether to make a lifetime gift, it is critical to make sure that your own current and future needs are taken care of first.
Contributing to a 529 plan allows a grandparent to provide for their grandchildren’s future educational needs such as tuition, fees, books, supplies, room, and board. Funds in a 529 plan are not considered part of your estate and can reduce estate tax exposure. Beneficiaries of a 529 plan can be changed at any time, allowing a grandparent the flexibility to meet the unique educational needs of all their current and future grandchildren.
A uniform transfer to minors account (UTMA), sometimes referred to as a custodial account, is another way for grandparents to pass money down to their grandchildren. Transfers into UTMA accounts qualify for the gift tax exclusion, and money is put into the account on an after-tax basis. The assets in the account must be paid to the child once they reach the age of majority and the grandparent cannot restrict how these funds are spent.
Each of these options have specific benefits and restrictions, that we, as qualified lawyers and financial experts, will be happy to discuss with you. For peace of mind and informed financial and legal decision making with regard to providing for your grandchildren, contact Staack, Simms & Reighard, PLLC today. We will be there to make sure your estate planning needs are met today, and we will be there for you for years to come as your needs change and goals evolve.
Get experienced representation for your estate planning. Reach out today.
Staack, Simms & Reighard, PLLC
Now is the time to reflect on where you’ve been, and how and why you’ve arrived at this particular place in your life. That includes taking a good hard look at your past relationship, how that lead to your marriage, and why your marriage ended. You will need to be totally honest with yourself. It is natural to have some regrets and maybe even wish things had turned out differently. You may even wonder if you could have done anything to prevent it. Your regrets may evolve to feelings of great liberation at times as your “intellectual self” takes over to remind you why your relationship did not work and why divorce was the right solution for you.
Depending on who initiated the divorce and why, you might feel plenty of anger, resentment, and grief. It could be that you even still love your ex. If you left a toxic, unhealthy, or abusive marriage, you might feel overwhelming relief, but don’t be surprised if you experience sadness along with that welcome sense of calm.
As you adjust to the transformation of your life, you will periodically experience these complex and conflicting thoughts and feelings ranging from loneliness to elation. This is all normal and part of the moving on process. No matter what, be sure to recognize that your feelings are valid. It might feel overwhelming at first, but these do ease as time passes.
For now, let your feelings surface. Acknowledge them, accept them, and grow from them. Even if you thought you knew yourself pretty well, you might find marriage and divorce has changed your “sense of self.” There’s no question that relationships can change people, and you could very well realize you are not quite the same person as you were when you first got married.
Focus on what is most important to you in the present. Don’t hold tightly to the past or to the idea of the future you envisioned for you and your spouse. This will only get in the way of your healing process and make it difficult for you to move forward. The healing process generally doesn’t happen overnight. Understand that it does take time. Treat yourself kindly as you come to terms with the ending of a marriage and look ahead with optimism.
To make the divorce transition more effective, start by planning what you want your new future to look like and what you need to do to make that happen. This helps keep you from ruminating on the past. Be sure not to forget your current hobbies and interests. Some of these might have evolved naturally in response to your own likes, dislikes, and preferred routines. If these were good hobbies, habits, and preferences, continue to pursue them. Other habits and interests you have might only be a reflection of your ex’s needs and preferences. If that is the case, evaluate whether these are still right for you or if you are ready to discard them. After all, the way you used to spend your free time during your marriage might not align with your own interests and personal goals as you look toward the future.
Singlehood can bring plenty of changes, from quieter meals to an empty house, or even a new residence. If you have children, your co-parenting schedule could mean spending days without them for the first time. Turning to your support system of friends and family can make a big difference in your overall well-being, along with your ability to weather the changes brought about by the divorce. Your support system should be made up of empathetic listeners who offer emotional support and guidance, as well as those who provide logistical solutions such as a place to stay or help with childcare. Make sure your support system is made up of those who don’t pass judgement, push you too hard, or make you feel uncomfortable about your divorce.
That brings us to another important part of planning a new future. Consider expanding your circle of friends. Friends shared with your ex while you were married tend to gravitate toward one partner or the other after divorce. You might have “inherited” your spouse’s friends when getting married, so don’t be surprised if they drift away, whether it is by your choice or theirs. These are some ways you might meet new people and expand your social network:
Venturing into the unknown can be intimidating, but it also offers you the opportunity to experience new things that you hadn’t even considered you might be interested in. Change up your routine and normal schedule a bit. Perhaps you will decide you want to spend more time in nature or more time playing a sport you love. Maybe you would like to try new eating habits or a new exercise regime. Being productive and motivated will keep you focused and help counter loneliness, aimlessness, or unwanted emotions. Make self-care a daily habit, not an afterthought.
This may sound a little crazy, but try to enjoy the “after divorce journey.” This is a time for renewal and discovery. Divorce marks the conclusion of one chapter in your life, but it also allows you to move into another chapter. The end of your marriage might actually illuminate an exciting new path forward.
Circumstances change in life. If there are any issues in your divorce agreement that you feel need to be revisited reach out to a divorce lawyer at Staack, Simms & Reighard, PLLC. Above all, best of luck and make the most of this new, post-divorce life. Consider it an adventure!
Get experienced legal representation. Reach out today.
Staack, Simms & Reighard, PLLC
One of the main actions during probate is to change the title of assets that were owned by the deceased person so they can be properly distributed to the heirs or beneficiaries. Assets cannot be transferred without the names on the titles being changed. In general, the probate court is the only institution authorized to change the title of assets that were owned by a deceased person. Jointly owned property, life insurance with beneficiaries, or assets owned through a properly established revocable living trust, are usually not subject to probate.
Some estates, including those with a high value or with complex assets, are more complicated and time consuming to probate. The processes of both probate and estate administration can be very overwhelming for those who are appointed as an estate’s administrator, and often require an in-depth analysis of the decedent’s estate, especially when property, a business, or retirement accounts are involved. Estate administration also requires extensive paperwork and a thorough analysis of every aspect of the decedent’s estate. It is always advisable to consult with a lawyer to properly probate a will.
Probate and Estate Administration Processes
The following is a list of the various processes that need to be addressed during the probate process:
Staack, Simms & Reighard, PLLC, the probate and estate administration attorneys in Clearwater, Florida, knows that many times due to complex assets, out of state properties, or any number of extenuating circumstances, the probate process can be time-consuming, paperwork intensive, and extremely complicated. In addition, there are also numerous reasons why an estate might be contested. We understand how to effectively resolve contested issues, and work diligently to protect the wishes of the decedent through comprehensive research and the assistance of experts in the applicable fields.
Dealing with the court system and legal documentation is confusing and difficult, especially after the loss of a loved one, and we are here to make the process as smooth as possible. The firm of Staack, Simms & Reighard, PLLC is skilled at streamlining the probate and estate administration procedure in a timely, efficient manner and providing cost-effective representation for our clients.
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Staack, Simms & Reighard, PLLC 727-441-2635
The post What do the Terms Probate and Estate Planning Mean? first appeared on Staack, Simms & Reighard, PLLC.]]>Divorce is difficult, and it is normal to seek companionship, but it makes much more sense to go slow. Take your time to figure out whether this relationship is casual and may be fleeting, or if it may turn out to be permanent after all. Too many new people moving in and out of your life during or after divorce is not healthy for the children. However, if it does turn out that you have met your next “soul mate,” you don’t want to jeopardize his or her chance to be accepted by rushing in “to meet my kids” too soon or without a plan. Your children need time to grieve divorce before they adjust to their new reality and are able to move on to meeting and eventually accepting a new adult figure in their family life.
As eager and enthusiastic as you may be, try not to be in too big a hurry as you want to be sure that both you and your new love interest are equally committed. if you bring someone who you are casually dating into your family life too quickly, this may disrupt your children’s adjustment to your divorce and complicate their feelings of loyalty to their other parent.
Stability, plenty of reassurance, and regaining trust are vital to your children’s well-being. During divorce most kids have had their world rocked a bit in these areas, so let them heal and live in a “new normal” before you throw someone new into the mix. Consider too, that it is common for children to believe that their parents will eventually get back together. It is a good idea to make sure that they are not still holding on to this hope and that they realize that both their parents will be moving on in life without each other.
Keep in mind too, that your new interest can be viewed as a rival for your love and attention. Your children may worry that your partner will change your relationship with them. Reassure your children that you have plenty of love to go around and this person is not going to replace their other parent.
Another important consideration when introducing your children to someone new in your life, is the child’s age and maturity level. Younger children under the age of 4 may be more accepting, but after that and up to about age 10, children are still very immature emotionally, tend to be possessive of their parents, and can be confused, angry, or sad by this new development. While adolescents may outwardly appear more accepting or even indifferent with regard to a parent’s new partner, it is not unusual for this age group to perceive that person as a threat.
No matter what the age of the child, initially they may find open affection between you and a new partner troubling and strange, so go easy on that in front of your children, especially in the beginning. Your children will be watching your every move when you interact with your new partner to try to understand what this new relationship is all about. Show respect, go easy on physical contact, be thoughtful, sensitive, and always be aware of how you role model to your children. They will definitely be keeping an eye on how you handle things, as that is how they get their values and form their responses to new situations.
Planning the place and length of the first introduction is important. If you have been dating someone for a while and are confident that you are heading toward commitment, talk to your children about that and explain that you’d like to introduce him/her to them. Ask your children what they are thinking or if they have any questions about meeting your new partner. You can even ask for your children’s input on when, where, and how they would like to meet this person for the first time.
It’s best not to bring this new person into your home for the initial meeting. Instead, choose a neutral place or outdoor venue. Keeping that meeting brief and casual in an informal setting will help everyone feel more relaxed. If your new partner has children, depending on the ages of all the children, it might be best to keep them out of the initial meeting. Every situation is different, so discuss it with your new partner and form a strategy you both agree on.
It is important to understand that your children probably won’t share your enthusiasm about the first meeting. Again, give them all time to get to know each other, preferably in small doses, and don’t force a situation. Don’t over plan too many activities, or suddenly include your new interest in every family event.
This part is tricky. Be very careful about sleepovers with your partner when you have children living with you. Bringing someone else into your “family space” is a very delicate process. Don’t plan an overnight with your new relationship in your home right away because it can increase the rivalry and create initial privacy invasion concerns for your children. If you co-parent, spend overnights with your new person when the children are with the ex. Careful planning and making sure everyone understands and agrees on the boundaries with regard to respect, expectations, and privacy right from the beginning will help make it a successful transition for all.
Don’t be surprised if your children reject your new partner at first. Some kids express anger or defiance. Depending on the coparenting living situation and the age of the child, they may even threaten to move out and go to live with their other parent full-time. Be realistic about your expectations regarding how your children react, and move at a slower pace, if necessary. While you don’t want to put yourself in the position of having your children take control of your life, assess your child’s mood and emotional health and proceed with caution. Slow and steady usually wins the race here, too!
Wait Until Your Kids Have Healed
Staack, Simms & Reighard, PLLC understands that divorce is so much more than a legal transaction. We know the key to successful post-divorce parenting is to help your children adjust and accept their new normal. Experience has shown us that when our clients bring in a new relationship too soon, it can complicate, delay, or damage this process. Moving on with your life is an important part of your own adjustment to divorce, and we realize this. Being cautious, thoughtful, and strategic when introducing a new partner to your children, will pay off for everyone in the long run.
Get experienced and compassionate divorce representation. Reach out today.
Staack, Simms & Reighard, PLLC
The post Introducing a New Partner After Divorce first appeared on Staack, Simms & Reighard, PLLC.]]>Guardianship is a legal proceeding in which a guardian is appointed to exercise and protect the legal rights of an incapacitated person. A guardian can be an individual or an institution and is the surrogate decision-maker appointed by the court to make decisions for a minor or for an adult with mental or physical disabilities. Those decisions can include personal decisions, financial decisions, or both, depending on the type of guardianship. The subject of the guardianship is called “a ward.”
Whether you are dealing with a minor whose assets must be managed by another, or an adult with a disability who is not able to make decisions for himself/herself, when the court removes an individual’s rights to manage his or her own affairs there is a duty to protect the individual. All guardianships are subject to court oversight and one of the court’s duties is to appoint a guardian.
There are many aspects to guardianships, as well as a variety of reasons for establishing them. You will need an attorney to help guide you through the process. Here, we will give you a general overview, but it is always best to seek counsel in person to discuss your particular situation and needs.
A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person, who is called a “ward” and/or for the ward’s assets.
The guardian of the ward’s person may exercise the rights that have been removed from the ward and delegated to the guardian. These rights include providing medical, mental, and personal care services. The guardian may also determine the residential setting best suited for the ward. The guardian is required to present a detailed plan for the ward’s care, as well as a physician’s report to the court every year.
A guardian who is given authority over the ward’s property is required to inventory the property, invest it sensibly and use it for the ward’s support. The guardian is held accountable for the property, must obtain court approval for certain financial transactions, and is required to file detailed annual financial reports with the court.
An incapacitated person is an adult who the court has determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person. Adult guardianship is the process by which the court finds an individual’s ability to make decisions so impaired that the court gives the right to make decisions to another person.
Any adult may file a petition with the court to determine another person’s incapacity. They must have factual information to support their claim that the person is incapacitated. Florida law will only grant guardianship when a less restrictive alternative is not appropriate and available.
In the case of a child, the child’s parents are the natural guardians and in general may act for the child. However, in the situation where the parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the court must appoint a guardian.
Both parents or a surviving parent may make a written declaration and file with the court naming a guardian of the child’s person or property to serve if both parents die or become incapacitated. A guardian also may be designated in a will.
There are alternatives to guardianship, but they require action before incapacity begins. In some cases, a durable power of attorney, trust, health care directive, or other form of pre-need directive is much more suitable than a guardianship. For minors, there are special types of accounts that may be created to avoid a guardianship. No matter what your situation, the services of the family law and estate planning attorneys of Staack, Simms & Reighard, PLLC can help you determine the best course of action for your needs.
Guardianship is overseen by the Florida Circuit Court. Depending upon the circumstances of your case the following may occur:
The guardianship does not have to be permanent. A guardian may be held accountable and removed as guardian if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court. Or, in the case of a minor, the guardianship may end at a certain age.
If a ward recovers in whole or part from the condition that caused that person to be incapacitated, a petition can be filed with the court to restore the ward’s rights. If so, the court will have the ward re-examined and can restore some or all of the ward’s rights.
The process of establishing guardianship requires a great deal of interaction with the local court. There is no “automatic guardianship” for an individual. Instead, the court must enter appropriate orders to grant guardianship authority. Seek the legal counsel of Staack, Simms, & Reighard, PLLC to talk about your concerns with regard to guardianship. We are experienced in this complex and very personal area of law and will see to it that you understand all the processes, rights, and obligations.
Get experienced, professional, savvy representation for your guardianship needs. Reach out today. Staack, Simms & Reighard, PLLC
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The simple answer is “no.” Your spouse’s refusal to sign papers may complicate things, but it will not prevent you from obtaining a divorce. In Florida, you do not need your spouse’s consent to end your marriage. Since Florida is a no-fault divorce state, you do not even need to prove your spouse’s fault to file for divorce. All you need to do is to state that your marriage is irretrievably broken. The court will grant a default divorce if your spouse refuses to sign divorce papers. All that said, even though each situation has its own set of unique circumstances including whether or not children are involved, an uncooperative or seemingly detached spouse can definitely “muddy the waters.”
When up against a spouse who is refusing to sign divorce papers, it’s important to try to recognize the reasons. By understanding your spouse’s motivations, this will help you decide the best way to respond. You might need to sit down and have an honest discussion with your spouse. Maybe you just need to wait it out a bit. Or, it may be that it is time to draw a hard line and proceed with tough negotiations. Some of the common reasons a spouse may ignore a divorce action or refuse to sign include:
Knowing what your spouse is hoping to achieve by refusing to sign the paperwork for divorce will help you determine your next action.
The process of getting a default divorce includes the following steps:
Now that you know it is possible to get a divorce without your spouse’s signature, you may be wondering why you should even bother trying to get your spouse to sign documents at all? One reason is you never know when in the divorce process your spouse may just suddenly show up and try to derail things. It is always easier to proceed with a divorce when both parties are fully engaged in the process and are able to cooperate with one another. Odds are that a spouse who refuses to acknowledge or sign divorce documents will be very uncooperative about division of assets, spousal support, and parenting plans, too. And after the divorce, it is likely that he or she will continue to be difficult as well.
Work with the Florida divorce lawyers of Staack, Simms, & Reighard, PLLC when you’re going through a divorce, especially when you are dealing with a difficult spouse who is making your situation that much more complicated. You should not try to navigate the complex legal and emotional aspects of divorce by yourself. Meet with us and we will help you move forward with your case, always seeing to it that your welfare and interests are protected.
Get experienced, professional, savvy representation for your divorce. Reach out today.
Staack, Simms & Reighard, PLLC
The post What If Your Spouse Won’t Sign the Divorce Papers? first appeared on Staack, Simms & Reighard, PLLC.]]>It is very possible you prepared your will ages ago and have not looked at it since. Maybe you aren’t even sure where you put it, or have left it with an attorney who you no longer associate with and are uncomfortable contacting. It is also likely that the relationships and people in your life have changed, as well as your financial status, and what made sense at the time is no longer applicable. Let’s talk about some of these issues and the many reasons you should update your will.
Is your name still the same as when you drafted your will? This seems like an obvious question, but you would be surprised how this is often overlooked because of marriage or divorce. It can cause problems or at least additional paperwork when it comes to probating a will. In addition, if you have moved or own a different home or properties other than the ones that are specified, this also results in complications.
Keep in mind your will is administered in your state of residence when you die and that state’s laws apply, not the laws of the state where the will was written. Some states differ in what is considered a valid will, especially if it is handwritten or completed on an outdated template. If you wrote your will in a state that only requires one witness and then move to a state that requires two, this can also be problematic. Relocating to a new state is definitely a good time to review your will and see that it is up to date, properly witnessed, and still a valid document. Your new will should include language to the effect that you “hereby revoke all prior wills signed by me.” You want to do your best to avoid leaving behind any unresolved issues.
Dependent Children- The birth of a first child is a time when many people create their first will. The focus on this will is usually naming the choice of guardian for your child, and who will serve as trustee for any trust created for that child. Keep your will flexible enough to accommodate future children.
Divorce– Your spouse, until they are an ex, will have rights to your estate. However, executing a will before you commence the divorce ensures that your spouse will not receive all of your money if you die before the divorce is complete. Once you file for divorce you often can’t change your will until the divorce is finalized. When you are divorced, your former spouse no longer has any rights to your estate, unless they do as one of the terms of the divorce. Even if you don’t change your will, most states have laws that invalidate any distributive provisions to your ex-spouse in that will. After divorce make sure to update your will as soon as permissible so your new beneficiaries are clearly identified.
Married Children-Your current will likely addresses issues that applied before your child was married. If something happens to your child’s marriage and their inheritance has been co-mingled, or already spent, your intent for your child’s financial future could be lost. If you have concerns about a daughter-in-law or son-in law, you may be able to preserve the assets you intended for your married child by creating trusts to protect him or her.
Unstable Beneficiaries- Unfortunately, you may have a beneficiary who has become disabled, is addicted to opioids or prescription drugs, or has substantial credit problems. While it is impossible to control everything “from beyond the grave,” consider updating your will to include trusts that allow a third party to only distribute funds to that beneficiary under the correct circumstances. If you suspect there is a problem, do this as soon as possible for the protection of your beneficiary. A trustee will be able to assess these challenges with more clarity at a later date, should the need arise.
Charities- Perhaps since the time of initially writing your will you are now involved with a charity or nonprofit that is very important to you and you want to leave money for them. Or, you may have listed a charity in your will that you no longer have an affinity for. Either way, it’s time to do an update to your will to reflect your new interests.
Deceased Beneficiary- If your will listed leaving specific items to someone who has since died, you’ll need to provide new instructions on how to distribute those items. If your estate plan named any individuals to receive funds and those people are no longer alive, you may have to update your will. Even if your old will names alternative recipients or leaves the undistributed funds to the deceased person’s children (or your grandchildren) you may want to re-evaluate this decision and how assets are appropriated.
Primary Caregiver- If one son, daughter, or caregiver has devoted a great deal of their time and financial resources to taking care of you since you wrote your will, you may want to update your document to reflect your gratitude monetarily. If you do, be sure to explain this to your children and leave details about your intentions in the will.
Family Strife– Parties who can’t get along can certainly derail even your most careful and thorough planning. Only your nearest family members can fight (contest) your will, even if you fully disinherit them, while your friends and non-relatives have no default rights. If you think your family will try to fight a bequest in your will, speak to your attorney about adding a No Contest Clause or other ways to protect your intended beneficiaries.
Depending on when you prepared your will, you may have named your spouse or parent as your first executor, then perhaps your sibling or a friend. Now that everyone is much older, deceased, or your relationships have changed, you may decide another family member, friend or associate is better suited to the task of handling your estate affairs. Update your will accordingly.
Financial Assets- Perhaps your will spells out exactly how much money you will give to each of your children or a beneficiary, but in the meantime the size of your estate has grown or shrunk. If you specified dollar amounts, this could create challenges for your executor. Amend your will to reflect your current net worth, or use designated percentages. In addition, if you have gifted stock in your will, re-examine the stock’s current worth and if necessary, update your will to ensure that your gift will be what you had in mind.
Possessions- If your will lists items that you no longer own, that might be confusing for your executor, but will eventually just be skipped over. However, did you leave that item to a recipient for a reason, and did you want to replace it with something else? If so, you may want to reconfigure how your current personal property will be distributed. Or, if you already gave an item listed to one child, but the will says it will go to another child, it makes things a little bit awkward between the children when your will is administered. It’s best to stay on top of any addendum items to add or subtract from your list as appropriate.
Quite often, legislation changes that can affect your estate plan. Stay in touch with your estate planning attorney to see if there have been any new laws that are now advantageous or may detract from your strategy. You may want to start gifting money to younger family members’ college saving plans, or create a donor advised fund to leave a legacy to a cause you believe in and shield some money from taxes. There are a number of strategies that may make more sense for you now than they did when you first prepared your will. In addition, it’s a good time to also review your Durable Power of Attorney and Combination Living Will/Designation of Health Care Surrogate.
Our lives change in so many ways. As the years pass, loved ones leave us and new family members join us. We relocate, our finances change, and our interests and life goals change. These milestones and others are good reasons for updating a will. You know the importance of a clear and concise will , so don’t make the mistake of leaving others behind to figure out what your most current intentions would have been. Our attorneys will help you update your will and discuss today’s appropriate estate planning strategies so that you are knowledgeable and confident about the choices you make.
Get experienced, professional, savvy representation for updating your will and estate planning strategies. Reach out today.
Staack, Simms & Reighard, PLLC
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