Step-Parent Adoption

Florida law provides an avenue for stepparents to adopt their stepchildren. After a divorce, it is common for a person to remarry. Sometimes, a spouse will remarry and the new spouse wishes to adopt his or her stepchild either right away or after some time has passed. There are certain legal procedures and requirements that must be followed for the adoption to go through, but, upon successful completion, the adoptive step-parent will have full parental legal rights with regard to the stepchild.

What is the Process for Step-Parent Adoption?

In order to be eligible for step-parent adoption, the person seeking to adopt must be the spouse of the child’s mother or father. Additionally, a person will be eligible to adopt so long as he or she does not have a disability or handicap that would prevent the ability to be an effective parent. The stepparent adoption process begins when the stepparent files the petition in the circuit court for the county in which he or she lives. Since the stepparent is the one petitioning the court, he or she is referred to as the “petitioner.”

In the petition, there are several required pieces of information that must be provided. This includes:

  • The date and birthplace of the stepchild
  • A description of how long the stepchild has been in the stepparent’s custody
  • A statement that the stepparent has the physical ability to care for the needs of the stepchild
  • A statement of the reasons why the stepparent wishes to adopt the stepchild

The petition must be sworn to before a notary or someone with similar authority. Also, supporting documentation must be filed along with the petition. This means that any copies of any judgments that have terminated parental rights must be attached. Any consents to the adoption must be attached. If the stepchild is 12 years of age or older, his or her consent to the adoption should be attached as well. More often than not, the parent presently married to the stepparent will consent to the adoption. 

If a parent does not consent to the adoption, the court may waive consent pursuant to reasons provided in Chapter 63, Florida Statutes. Reasons the court may waive consent include:

  • The parent has abandoned the child
  • The parent has had his or her parental rights terminated by court order
  • The parent has been declared judicially incompetent and restoration of competency is medically improbable
  • The legal guardian or lawful custodian, who is not a parent, failed to respond in writing to a request for consent for 60 days or who the court has deemed to be unreasonably withholding consent

Notice must be served on all interested parties once the petition and supporting documentation has been filed. After notice is served, the court will have a hearing to terminate parental rights and finalize the stepparent adoption. Upon finalization of the adoption, the stepparent will have all legal parental rights with regard to the child. Should the marriage of the stepparent later end in divorce, he or she would be responsible for any child support payments.

Dedicated Family Law Counsel

Stepparents often come to play huge roles in the lives of their stepchildren. It is only natural to think of making that parental relationship official through stepparent adoption. At Bernal-Mora & Nickolaou, our family is here to help yours. Let our team of dedicated family law attorneys guide your family through the stepparent adoption process to make sure it is done right and resolved as quickly as possible. Contact us today.

Military Divorce

Whatever the circumstances, divorce is a difficult time. It is a major restructuring of a family and the adjustment period can be tough, to say the least. On top of the emotional and logistics involved with going through a divorce and starting a new chapter of your life, there are the legalities of divorce to face. Every divorce is different and comes with its own nuances. Military divorces in particular, have some complicated legal elements that make them different from civilian divorces. Because of this, it is important to look at some of the special considerations to take into account during a military divorce.

What are Some Special Considerations to Account for in a Military Divorce?

Right from the beginning, you will likely realize that a military divorce is different from a civilian divorce. For instance, you may need to serve a spouse who is on active military duty. To serve a spouse on active duty, he or she must be personally served with a summons and a copy of the divorce action. This will allow a Florida court to have jurisdiction over them even though he or she is an active military member. If the divorce is uncontested, the active duty spouse may sign a waiver affidavit acknowledging the divorce action and, thus, he or she would not need to be served.

You may file the divorce action where you are stationed, where you are a legal resident, or where your spouse is a legal resident. If you file in Florida, Florida law will apply for things like child support. Florida has child support guidelines and schedules that are utilized in determining the amount of child support that will be paid. Florida state law mandates that both child support and spousal support are not to exceed 60% of a military member’s pay and allowances.

In addition to Florida law, there will be some federal laws that come into play when a divorce involves a member of the armed forces. For instance, the Uniformed Services Former Spouses Protection Act (USFPA) was enacted by the federal government and is used in the calculation and division of military pension benefits. Under USFSPA, up to 50% of a military member’s retirement pay can be awarded to a former spouse. Additionally, USFSPA makes a military spouse eligible for full medical benefits as well as exchange and commissary privileges in situations referred to as “20/20/20.” This is because a former military spouse will be eligible for these benefits if:

  • The marriage was at least 20 years long;
  • The military member has a minimum of 20 years of service creditable for retired pay; and
  • There was a minimum of a 20-year overlap with the marriage and the military services.

If the spouse were to remarry, the eligibility for these benefits would come to an end. However, if that subsequent marriage was to end in divorce, the benefits would be reinstated. 

Additionally, no matter how a military spouse’s retirement benefits are divided according to USFSPA, the court will treat the award amount like it is property or benefits in a civilian divorce for purposes of property division calculations.

Legal Support for Military Divorces

Going into a divorce is daunting for so many reasons. It is an emotional time and the thought of going through the legalities of divorce can be too much. At Bernal-Mora & Nickolaou, we help families, military or otherwise, through some of life’s most challenging times. Contact us today

Child Support Modification

To calculate the amount of child support payments a parent will be responsible for paying, the court will look at several factors such as the income of each parent as well as things like the costs associated with childcare. These things, however, can change. Either parent may later make more or less money. The child may no longer need daycare and, thus, child care costs would significantly decrease. For whatever reason, factors used in the original child support calculation can change. Because of this, you may be able to seek a child support modification.

When Can You Request a Child Support Modification?

Florida courts use the state child support guidelines to determine child support. Usually, the court must order the amount of child support that is calculated according to the guidelines. A child support order, however, may be modified later on when one of the parents can demonstrate that there has been a “substantial change in circumstance.” The parent requesting the modification carries the burden of proving that there has been a substantial change. The requested change may be for an increase or decrease in the amount of child support.

For a decrease in child support payments to be granted, the substantial change in circumstances may be something such as:

  • The payer spouse lost a job or experienced a substantial decrease in income;
  • The receiving spouse had an increase in income; or
  • There was a decrease in the expenses relating to the child.

For an increase in child support payments to be granted, the substantial change in circumstances may be something such as:

  • The receiving spouse lost a job or experienced a substantial decrease in income;
  • The payer spouse had an increase in income; or
  • There was an increase in the expenses relating to the child.

Whatever the substantial change in circumstances may be, the revised income must result in the child support amount increasing or decreasing by a minimum of 15% or $50, whichever is greater.

In addition to the above, there may also have been a substantial shift in parenting time that would merit modification of child support. If there has been a deviation between parenting time as it was outlined in the parenting plan and the actual parenting plan in practice, then the court may decide to recalculate child support based on the actual parenting plan in practice. 

Orlando Family Law Attorneys

You cannot designate a child support award as something that cannot be modified. If the basic requirements for modification exist, the child support award will always be modifiable under Florida law. If you are seeking an increase or decrease in a child support amount, contact the team of dedicated family law attorneys at Bernal-Mora & Nickolaou. Do not wait until you are unable to make child support payments to seek a modification. The consequences for failure to pay court ordered child support are severe. Contact us today.

Property Distribution in Divorce

During your divorce, you and your spouse or the court will need to decide what to do regarding the division of the marital estate. The marital estate will include both assets and liabilities. How property division occurs is dependent on state law and there is some variation between states. While some states follow the “community property” approach, where marital property is assumed to be equally owned and is most often divided in half, Florida follows the “equitable distribution” approach (as do the majority of other states).

How is Property Distributed in a Florida Divorce?

Before property can be distributed, it must first be decided what property is actually marital property. Marital property is considered to be the assets that have been acquired or the liabilities that have been incurred during the course of the marriage. The asset or liability may have been assumed by a spouse individual or jointly. Additionally, the increase in value of a non-marital asset that is the result of efforts of either spouse during the marriage is considered to be marital property as well. Gifts from one spouse to the other, interspousal gifts, given during the marriage would be considered marital property. Additionally, retirement benefits and insurance plans acquired during the marriage, whether vested or not, are considered marital property as well.

Nonmarital assets would include things like assets that were acquired or liabilities incurred by either spouse prior to the marriage. Assets that either spouse acquired separately by something such as a bequest or an inheritance would also be considered non-marital property. There may also be a valid agreement between the spouses to exclude an asset or liability from the marital estate.

Once it is decided what is part of the marital estate, the equitable distribution model will be used to divide everything up. The equitable distribution model is far more nuanced than the community property approach. Pursuant to Florida law, the distribution begins with the premise that the distribution should be equal absent relevant factors that would merit an unequal distribution. This means that the division may not be equal, but will be equitable, or fair. Factors that will be considered in the property division will include:

  • Each spouse’s contribution to the marriage
  • The income level of each spouse
  • Length of the marriage
  • Deferred personal careers or educational opportunities of either spouse for things such as raising children
  • Contribution of either spouse in acquiring marital assets or incurring marital debt
  • Whether keeping the marital home as a residence would be desirable for any children resulting from the marriage
  • Whether it would be best to retain an asset intact and free from a claim or interference by the other spouse (such as a business interest)
  • Any other factors deemed necessary to do equity and justice.

Protecting Your Best Interest During Divorce Proceedings

Divorce can have a substantial impact on your financial well-being far into the future. Decisions made regarding the distribution of marital property and debt will have a significant impact on your finances. That is why Bernal-Mora & Nickolaou is here to protect your best interests during divorce proceedings. We will be your steadfast advocates throughout the process. Contact us today.

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Man Fights for Paternity Rights for Young Son

A father in St. Lucie County is in the midst of a paternity battle in the hopes of gaining parental rights to his biological three year old son. In this unusual circumstance, a Florida law declaring that children born into a marriage belong to that marriage has given the mother’s husband all paternal rights to the child.

After the mother and biological father’s 5 year relationship ended, the mother gave birth to their child during her marriage to her current husband.

The mother hopes that her current husband, the child’s stepfather, will retain his full paternal rights, adhering to the current law. The biological father, who has been fighting for over a year to be acknowledged as the child’s father legally, wishes to be a part of the child’s life, but not to bring him away from his current family.

A guardian ad litem has been appointed by the court to represent the child’s best interests to the judge. She has stated that the boy is very close with his stepfather, and current legal father. As such, she recommended upholding the current legal paternity, as to not disturb the boy’s current family lifestyle. The judge is set to hear testimony from a series of other witnesses before a decision is made.

If you are struggling with a paternity case in the Orlando area, reach out to our team of experienced attorneys today. Call to schedule a consultation, and let us advise you on the best legal steps for your unique situation.

New Parenting Laws Go Into Effect in Florida

In 2017, more than 20 states discussed legislation that promoted sharing custody for children of divorce. This year, Florida is enacting a new law with the goal of efficiently constructing co-parenting plans for divorced or unmarried parents. Under the law, the Department of Revenue will have the right to give parents a “Standard Parenting Time Plan” that would include living arrangements for the child and the division of parental responsibility.

Circuit court judges will establish parenting plans in the event that the parents are unable to compromise on one. It is important to note that this law is only applicable in situations where both parents are fit to be involved in the child’s life.

The hope is that this law and laws like it will heighten the amount of contact between parents lacking custody and their children. An overwhelming amount of custodial parents are mothers, and laws like this one will boost father’s rights. There is a large amount of data to support the fact that co-parenting and the involvement of the father in a child’s life has vast benefits, which include better academic performance and higher self-esteem. This new Florida law will not force parental involvement, but rather will allow parents who are interested in raising their children to have more leeway to do so.

If you are in need of assistance with child custody agreements in Orlando, reach out to our team of attorneys today. We can review your case and advise you on the assistance we can offer you. Call today to schedule a consultation, and let us help make this stressful time a bit easier for you.

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Ruling Handed Down in Cabrera Child Support Case

We have brought you news of Miguel Cabrera’s legal woes since they hit the press, and now a ruling has been handed down by a judge. Instead of receiving the $100,000 per month his ex-mistress wanted, Cabrera will be paying just $12,000 in child support every 30 days.

Cabrera was ordered by a judge to pay $12,247 per month in child support to Belkis Rodriguez for the care of their two children. This amount was exactly what he was paying before the woman took him to court. As part of the order, the children will also be receiving annual passes to Sea World, Universal Studios and Walt Disney World. Cabrera will also be paying tuition for private school, costs associated with daycare, health insurance and for any extracurricular activities.

The award is a temporary one, meaning the woman can fight for more money if she desires to do so. It looks as if this will be the case, as Rodriguez has asked for more information with regards to what Cabrera spends on the three children he has in common with his wife. A judge recently ordered that Cabrera disclose this information despite the baseball star’s stance that it is private information.

For the average person, $12,000 in child support every month seems like an extraordinary amount. However, this amount is not too steep for Cabrera, who brings home what equates to approximately $2.5 million monthly.

If you need assistance with child support in Orlando, please reach out to our team. We can help your children get the monetary compensation they deserve.

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Can Your Spouse Demand Social Media Etiquette?

Rapper Rick Ross has asked a court to order his child’s mother to delete all of her social media posts about him. He also wants the court to order her to suspend all of her social media accounts.

The mother of Ross’s child sued him back in 2007 for paternity. A custody agreement was reached and remains confidential. The case was settled in 2010. Kemp has recently returned to court asking that child support be increased because Ross is making more money.

In February of this year, Ross filed a motion asking the court to stop the woman from discussing child-related issues on social media. He also wants the court to block the woman from having discussions with reporters. Ross claims the woman has made a series of posts across various social media outlets that either “insult or threaten” the rapper.

Additionally, the rapper says that his child’s mother went so far as to encourage the public to disparage him on social media. Ross claims that the woman has made some of her posts, particularly live posts, in the presence of their child. Ross calls this “parental alienation in its most deplorable form.”

Whether or not Ross’s motion will be approved remains to be seen. Because of the popularity of social media, it will be interesting to see if the motion gets approved. In the future, if you blast your ex, soon-to-be ex or the parent of your child on your social media account, you could see it get suspended.

If you need assistance with a paternity issue in Orlando, reach out to our team. We will discuss your needs during a free case evaluation.

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Interfering Grandmother Arrested in Missing Child Case

An Amber alert was issued on August 25, 2017 for a missing four-year-old boy. The child disappeared overnight in Orange County, prompting his family to call law enforcement officials. The child was located safe just before 6 in the morning.

According to the Amber alert, the child had last been seen in Orlando in the 7400 block of Beacon Hill Loop. He was last observed to be wearing a Ninja Turtles T-shirt and light up sneakers. It was presumed that he was in the custody of his grandmother, traveling in a Kia Soul. That proved to be the case, and the boy’s grandmother was taken into custody. She was arrested on a charge of interfering with custody and held on a $2,500 bond.

It is unclear who has legal custody of the child in this case or why the grandmother felt the need to remove the child from his home and leave the area. One thing is for certain: Interfering with custody is a crime, even in emergency situations. When a person who does not have custody of a child removes them from their home or anywhere else, they can be charged with a crime.

Issues of child custody are often complex and require the knowledge and experience of a qualified attorney. If you need assistance with custody or any other family law matter in Orlando, reach out to our team of attorneys. We will review your case with your at no cost and advise you of your legal options.

How the 2017 Tax Cuts and Jobs Act Affects Your Divorce

Couples considering a divorce in the year 2019 may suddenly find themselves facing unexpected financial repercussions that did not come into effect until the New Year. Namely: alimony payments can no longer be deducted from the payer’s taxable income, and the alimony recipient will most likely not be required to add the payments to their taxable income.

A second change to tax law in 2019 is that no one may file for a personal tax exemption, even if they have dependent children. However, the available Child Tax Credit has doubled for children under the age of 17, making matters of official legal custody still just as important when filing taxes.

In response to these developments, spouses who plan on divorcing will want to consider the financial effects any court-ordered alimony or child custody arrangements will have on their tax returns. They can choose to work with Orlando family law attorneys who will be able to help them strategize in light of these changes — and potentially even use them to request modifications to any pending divorce agreements they have.

Overall, the changes to the tax laws that involve divorce are relatively simple, but how they affect divorce can be quite complex. You can use the following information in conjunction with legal advice from an Orlando family law attorney to ensure you get the optimal outcome for your divorce.

Tax Cuts and Jobs Act

What Is the 2017 Tax Cuts and Jobs Act (TCJA), And Why Would It Affect Divorce Proceedings?

Signed into law on December 22, 2017, the 2017 Tax Cuts and Jobs Act (TCJA) had far-reaching consequences that will take years before they are fully felt. While the law was a windfall for corporations and many tax brackets, others will feel the sting when long-standing tax deductions are no longer available to them.

None of this is meant as a slight towards the law nor a politically aligned statement one way or the other. Even still, the simple fact remains that the TCJA made major changes to tax law that disrupt standard divorce outcomes as they have stood for 75 years. Individuals getting a divorce this year may get caught by surprise if they were not made aware of how the changes the TCJA introduced to tax law will affect them.

The most significant effect of the TCJA is that it reduced tax rates for corporations from 35% to 21%. Individual income tax brackets were also adjusted slightly downward, with the biggest reduction going to households that make $84,200 a year for individuals ($168,400 for couples), reducing their taxable income rate from 28% to 24%. Most of these provisions were written as a temporary measure, and they are set to expire after December 31, 2025 unless new laws make them permanent.

Tax reductions created by the TCJA meant more money left over for many companies and individuals, but the law needed a method to curb the huge corresponding reduction in the government’s tax income. Otherwise, yearly deficit spending would surpass its current record levels, creating a massive budget imbalance.

To achieve their goal of tightening up the budget deficit created by the TCJA, lawmakers went after common tax deductions individuals use to reduce their quantity of taxable income. In fact, most forms of spending no longer qualify individuals for a tax deduction — even individual charitable donations.

Since alimony payments and dependent children similarly no longer qualify an individual for a tax deduction or exemption, the TCJA has had additional consequences for Americans seeking a divorce past December 31, 2018.

Tax Cuts and Jobs Act Affects Alimony

How the 2017 Tax Cuts and Jobs Act Affects Alimony

One of the biggest effects of the TCJA for divorcing couples is that alimony payments no longer reduce the payer’s income and no longer increase the recipient’s. Instead, the payer pays taxes on nearly all of their income earned, regardless of whether some of it went straight from their pocket to their ex-spouse’s by way of alimony payments.

To explain why this is such a big change, let’s back up a bit to the creation of the personal income tax code in the 1940s. At the time, lawmakers were trying to determine ways to determine taxable income in a way that felt fair to their constituents. One such way was to allow individuals who made court ordered alimony payments to simply pretend that income never existed. Instead, the individual who received the alimony payments would report it as their own income.

For example, Person A made $50,000 last year but had to give $1,000 monthly to their ex-spouse, Person B, who started making $18,000 per year after their divorce (not counting alimony).

That total yearly amount of $12,000 reduces Person A’s taxable income to $38,000, lowering the volume of taxes they pay overall and potentially bumping them down to a lower tax bracket. Meanwhile, Person B’s taxable income increases to $30,000 a year.

Since Person A’s taxable income would likely be in a higher tax bracket than Person B’s, such an arrangement typically results in a slightly lower net tax income for the government compared to if Person A reported their alimony payments on their income. Seeking to close any gaps in revenues they can, lawmakers drafting the TCJA decided to eliminate the tax deduction alimony payments once granted.

TCJA Affects Child Support and Child Dependents

How the 2017 Tax Cuts and Jobs Act Affects Child Support and Child Dependents

As mentioned above, the TCJA eliminated all individual tax exemptions. Instead, individuals get a higher standard deduction that applies to their total taxable income.

For divorcing couples, this elimination of the child dependent tax deduction means that receiving full-time legal custody status no longer affects available tax exemptions.

However, individuals can still file for a child tax credit. In fact, this credit has doubled from $1,000 to $2,000. Accordingly, the final agreement on child custody may still have tax consequences for divorcing couples.

TCJA Affects Florida State Income Tax Laws

How the 2017 TCJA Affects Florida State Income Tax Laws

It is important to note that the elimination of the federal child tax exemption does not apply to Florida’s state income tax. However, changes to Florida tax law intended to reflect the TCJA do eliminate the alimony tax deduction.

Accordingly, individuals should calculate both their projected federal and state income tax debt when filing taxes for 2019 next year.

TCJA Changes in Your Divorce Agreement

Why You Should Consider the TCJA Changes in Your Divorce Agreement

Divorce law has remained relatively stable over the past few decades, so major changes like the ones the TCJA act introduced may not be reflected in the legal precedents established.

For example, the alimony calculation guidelines may not take into account the fact that an individual receiving alimony will not pay taxes on that income. An individual undergoing a divorce will want the final decision on alimony and child support to reflect these changes. Accordingly, they may request to a judge or put forth a proposed divorce arrangement that reduces the expected amount of alimony by an amount appropriate to the adjusted tax situation.

Similarly, an individual receiving custody of a child will not necessarily reduce their tax burden just by claiming custody. In turn, they may want to work with Orlando family law attorneys who can make a reasonable request to increase the proposed child support arrangement to reflect their increased tax burden.

How Orlando Family Law Attorneys Can Help You Adjust Your Strategy During Your Divorce

Most of the issues presented above seem like something a divorcing couple will want to discuss with an accountant rather than a lawyer. However, the changes do have a profound effect on the optimal legal strategy they may take during their divorce. They may also want to make changes to their final divorce alimony and child support arrangements as the financial consequences of the 2017 TCJA come fully into view.

So while it is always a great idea to speak with an accountant while assessing your overall financial situation during a divorce, they can only provide part of the picture as far as a complete strategy for accomplishing your overall goals. Working with an experienced Orlando family attorney adds those missing pieces, especially since they will be able to predict how the final tax law will be put into effect and apply to specific circumstances after a divorce.

Consider speaking with a divorce lawyer with knowledge of upcoming law changes if you intend to file for divorce in 2019 and beyond. You can reach out to us via our phone number or contact us online to schedule an appointment.