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FAQ’s about Wills

Can I Modify/Amend My Will?
Yes, you can modify a will after it has been created. In fact, there is even a special term used to describe will amendments: codicil. A codicil can be used to add new provisions to a will, modify existing provisions, or substitute a new provision for one that is currently in place. Codicils must be executed in the same manner as the original will, meaning it requires witnesses and sometimes notarization (varies depending on your respective state of residence).

How Many People Actually Create Wills?
The short answer: more than you probably think. According to a document published by the Federal Reserve Bank of Chicago, “Will Writing and Bequest Motives: Early 20th Century Irish Evidence,” between 30-50% of US adults write wills before they die. There is a good reason for this trend. Having a will ensures your property is passed down and distributed according to your wishes. Without a will in place, the probate court will have the ultimate say over who receives your property.

What is the Difference Between a Living Will and Last Will and Testament?
A last will and testament is used to express how you would like your estate handled after you die and it does not take effect until your passing. For instance, the person creating the will (known as the testator), may specify his or her daughter as the beneficiary of their home. When the testator dies, the home will be passed to the testator’s daughter. A living will, on the other hand, provides instructions regarding your preferences for medical care if you are unable to make decisions for yourself such as whether or not you wish to remain on life support. Living wills take effect while the testator is still alive.

Do I Have to Hire a Lawyer to Create My Will?
Contrary to what some people may believe, there is no law stating that a will must be created by a lawyer. Many people choose to write their own wills to save money. Doing so, however, may cause some problems later down the road. The testator, for instance, may lack the necessary expertise in estate planning to correct technical deficiencies and execution errors; thus, making the will void. Allowing a lawyer to handle your will’s creation reduces the risk of error, ensuring your wishes are carried out the way you want them to.

Who can make a will?
Florida Statue 732.501 states that, “any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will”. In this statement, to execute a valid will, the testator (will maker) must be of “sound mind” which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will (natural objects of his or her bounty), and (3) a general understanding of the practical effect of the will as executed. Raimi v. Furlong, 702 So.2d 1286 (Fla. Dist.Ct.App. 1997). A person’s mental capacity to make a will is determined by their mental capacity at the time the will was executed. There must be sufficient evidence to show that the will was executed during a lucid interval.

Do Wills Go Through Probate Court?
Yes, wills go through the probate court. After the testator dies, the probate court may be initiated to determine the validity of the will. If the testator failed to create his or her will according to state law, it could be deemed invalid, at which point the court will have to decide how to distribute the estate in question. If you wish to bypass the probate court with your estate planning, it’s recommended that you use a trust instead of a will.

FAQ about Divorce

Frequently Asked Questions about Divorce in Florida

If you are considering or are going through the process of getting divorced, it can be a tumultuous and emotional time in your life. Dealing with an unfamiliar legal process can add to an already stressful situation; understanding more about what you can expect may help ease some of that stress. Here are answers to some of the most frequently-asked questions about getting a divorce in Florida:

Q: Who can file for divorce in Florida?

A: In order to be eligible to get divorced in Florida, either you or your spouse must have been a Florida-resident for at least six months before filing, with the intention of staying in the state.

Q: How long will the process take?

A: If you and your spouse can come to agreement on how to handle things like child custody/visitation, child support, alimony, and how your property and liabilities will be divided, your divorce may be relatively fast. If, however, you cannot agree on one or more of those issues, your divorce may take a year or more to be finalized.

Q: How does the court decide which parent gets custody of minor children?

A: Time sharing (custody) of minor children is determined based on the best interest of the children, with no pre-determined preference for giving primary custody to one parent or the other.

Q: Does my spouse have to agree to the divorce?

A: If your spouse doesn’t agree to get divorced, Florida law provides that the court can still find the marriage is irretrievably broken. The court could require 90 days of marriage counseling; however, this is not done very frequently.

Q: Do I have to prove fault to get a divorce in Florida?

A: Florida is a “no-fault” state for divorce. There are two grounds for divorce in Florida. First, if your spouse has been deemed mentally incapacitated for at least three years, you can get a divorce based on his or her mental incapacity. Otherwise, you can get a divorce based on “irreconcilable differences.”

Q: How is child support determined?

A: Child support is intended to pay for children’s basic support needs, including things such as health insurance, day care expenses, shelter, food, clothing, etc. Ultimately, financial support of a minor child is the responsibility of both parents. The court will determine based on specific calculations how much child support is to be paid from one parent to the other parent.

Q: Will I receive alimony from my spouse after the divorce?

A: Alimony, also called “spousal support”, may be ordered if the court determines you have a financial need for such support and that your ex-spouse has the ability to pay. Years of marriage is also a significant factor in determining alimony.

Q: How are assets and liabilities divided after a divorce in Florida? Is it a 50/50 split?

A: Florida uses an “equitable distribution” standard. Equitable does not mean equal, however. It’s intended to make distribution fair to both parties. This means the court will evaluate a variety of factors to determine how to best split your assets – and your debt – after a divorce.

Q: Can time sharing (custody), alimony or child support be modified in the future?

A: Yes. These amounts are not set in stone and can be changed if your situation or your ex-spouse’s situation changes, however the courts are unlikely to make changes unless there has been a substantial change in your/your ex-spouse’s circumstances.

Q: How much will it cost me to get divorced?

A: Because every divorce is different, it’s hard to estimate how much it will cost. Talk to your divorce attorney about the specifics of your case to learn how different issues might impact your out-of-pocket expense.

The Basics of a Jacksonville Divorce

Depending on the couple, a divorce can be easy or rough. Divorce is the permanent end to a marriage. It allows the couple to go their separate ways and be free to start their lives again and date other people.

Types of Divorces in Jacksonville

Although there is only one way to divorce a spouse, there are two ways to accomplish the goal: contested and uncontested divorce. A contested divorce is more complicated and takes longer to obtain. One spouse may not want the divorce or both spouses may want the divorce, but cannot agree on distributing property, child custody/timesharing, or debt division.

A contested divorce does require a final hearing on the unsettled issues. The hearing does not involve a jury. The judge listens to testimony from both sides and any witnesses and the final ruling is then made by the judge.

An uncontested divorce is the fastest and easiest divorce to obtain. Both spouses agree on all divorce-related issues and the judge signs off on the agreement. The spouses do not usually have to go to court to obtain the divorce, if there is a full agreement on all the issues.

Basics of Getting Divorced in Jacksonville

Every state has specific rules to follow before an individual can file a petition for a divorce. One rule is that at least one of the spouses must have lived in the state six months prior to filing for divorce. Another rule is that the marriage must be irretrievably broken. This means that the marriage cannot be repaired.

Florida is a no-fault divorce state, which means either party may seek a divorce simply because one spouse or both do not want to be married anymore. Neither spouse is required to assert or prove that the other spouse has done something wrong to be granted a divorce.

Understanding Divorce Terminology in a Jacksonville Divorce

Beginning the divorce process involves more than just filing the paper work. A divorce, called a dissolution of marriage, is filed at the local circuit court. Within the divorce, many issues must be settled by the couple. If they are not settled by the couple, a judge will settle them for the couple. These issues include:

  • Marital Assets: Any money made, property acquired, or assets obtained during the marriage are called marital assets. They are equitably distributed among the spouses. Any assets, property, or money acquired or made prior to marriage will not be distributed to the other spouse, unless comingling occurred.
  • Marital Liabilities: Debts acquired during the course marriage. Marital debts are equitably distributed. If there is a mortgage on property, the judge may order the couple to split the debt. Any debt that occurred prior to marriage is the sole responsibility of that spouse who acquired that debt.
  • Alimony: Alimony is the amount of money paid by one ex-spouse to another. It is determined by whether either party has an actual need for alimony and whether either party has the ability to pay alimony. The court shall consider factors such as the standard of living established during the marriage, physical condition, age, length of marriage, and others. Alimony is not guaranteed.

A Spouse can Appeal a Divorce Ruling in Jacksonville

After the judge determines who gets what, the divorce is finalized. However, if a spouse does not like the outcome, he or she can appeal the ruling. The appeal goes to the District Court of Appeals. To this, the spouse must file the appeal by the deadline. The appeals court will determine if the trial court made an error or errors regarding its decision.

Contact Judy Ann Smith Law Firm About Your Jacksonville Divorce

Whether you are ready to file divorce or what to understand more about the process, contact us at 904-562-1369.

Mandatory Parenting Classes for Florida Divorces

Mandatory Parenting Classes for Florida Divorces

If you are considering filing for divorce in Florida, you may have heard about the four-hour mandatory parenting classes that are required of divorcing couples with children before a court will allow a divorce to be finalized. Some see this as an intrusion and an inconvenience, but it is simply one of the realities of the divorce process that must be met. An experienced Jacksonville divorce attorney can help you meet all obligations, including making sure that you are in compliance with the parenting course requirement.

Why Require a Class?

According to Florida law, children often suffer from painful negative impacts of divorce, including unintended financial, educational, and emotional outcomes. The law was written to assist parents in making better parenting choices in the context of divorce. The program is designed to provide support and guidance on key issues thought to be most likely to lead to problems for children.

How is the Program Governed?

The Florida Department of Children and Families (DCF) oversees the program, and each course is referred to as a “Parent Education and Family Stabilization Course.” DCF maintains a list of eligible and approved providers who are allowed to certify the attendance of individuals who are required to complete the course.

Providers are limited in what they can discuss in training. Program providers are strictly prohibited from soliciting divorcing parents to become their private clients. Courses can be as affordable as just $25. Providers cannot give medical, psychological, or legal advice.

What Issues are Covered by the Course?

  • Handling legal issues between divorced parents
  • The emotional and psychological impact of divorce on parents and children
  • Family and relationship goals and challenges
  • Financial issues of parenting
  • Child abuse, neglect, and general child welfare
  • Work-life balance and childcare responsibilities

How Long do I Have to Take the Course?

Petitioners filing a new divorce or paternity case in Florida have 45 days from the date of filing in order to complete a parenting course. The responding party has 45 days from the date served with the petition.

Can I be Excused From Taking the Course?

Yes, but given the tight deadline for completing the course, you should contact an attorney right away. The court can only excuse the course requirement for “good cause.” This is determined by the presiding judge in your case.

Can Things I Say in the Course be Used Against Me?

Generally, no.  Of course, specific questions should be addressed with your attorney well before attending a course. However, the law says specifically that “information obtained or statements made by the parties at any educational session required under this statute shall not be considered in the adjudication of a pending or subsequent action, nor shall any report resulting from such educational session become part of the record of the case unless the parties have stipulated in writing to the contrary.” See Fla. Stat. 61.21.(8).

What Happens if I Fail to Take the Course?

Unless excused by the court, the judge can levy serious penalties for refusing to take the course or failing to meet the requirement within the time period allowed. While you may be entitled to an exception, you can be held in contempt of court if you fail to comply with the requirement. In addition to contempt, a judge can restrict parenting access, deny joint parenting in the final order, or even apply financial sanctions, as he or she deems appropriate.

Do I Have to See My Spouse at the Classes?

No. The law is clear that divorcing spouses shall not be required to attend together. In fact, even if they want to attend together, the court can actually prohibit couples from attending together if there is a history of domestic violence. In short, the court has broad power to limit, excuse, or restrict the manner in which couples comply with the course requirement.

Talk to an Attorney

If you are considering filing for divorce or initiating a paternity case in Florida, you should contact an experienced family law attorney. The Judy-Ann Smith Law Firm is available to assist with divorces, custody, and support modification or enforcement throughout the Jacksonville area. Call (904) 562-1369 to get the guidance you need today.

  

How Are Prenuptial Agreements Enforced by Courts of Law?

Prior to marriage, couples might want to have a prenuptial agreement in place to handle the various financial details that can arise in a divorce. Merely understanding what prenuptial agreements are, however, is not enough. Couples who are about to be married must also understand the importance of the agreement and how it can be enforced so that in the event the agreement is tested in a court of law, it will stand up. It is critical to understand that prenuptial agreements cannot be presented at the last minute and must be reviewed by attorneys who decide whether the agreements are agreeable to all involved parties.

 

Requirements of a Prenuptial Agreement

 

There are certain elements that must exist in prenuptial agreements for these documents to be considered lawful. The various terms in a prenuptial agreement must be based on fact and cannot attempt to distorted or fail to omit information to make the prenuptial agreement appear like a better arrangement for the other spouse.

 

All of the elements in the prenuptial agreement must also be legal, which some important elements related to marriage including child support cannot be included in these agreements. Because even one valid clause in a prenuptial agreement has the potential to render the entire agreement invalid, it is essential that the entirety of the agreement be reviewed by Florida law. It is also important to understand that prenuptial agreements cannot be signed under duress, which can also result in the agreements being declared invalid.

 

Some of the most common elements of prenuptial agreements include the following:

 

  • Designation of each spouse’s property and the decision whether that property will be viewed as marital or nonmarital.
  • The division of property and assets during a marriage.
  • Estate planning elements.
  • Responsibility for liabilities associated with a marriage.
  • Selections about what law will apply to decisions regarding a marriage.

 

Signs that a Prenuptial Agreement Is Not Enforceable

 

Because prenuptial agreements have the potential to be declared, not enforceable in the event that any unfair terms are contained in the agreement, it is important to be alert to any signs that a prenuptial agreement contains unfair terms. Some of these signs include the following:

 

  • Too few provisions for a spouse in a prenuptial agreement, this likely means that the other spouse is attempting to conceal or not fully disclose all important elements about the divorce.
  • A potential spouse’s parents might attempt to control the terms of a prenup. Cases where a parent dictates the terms of a prenuptial agreement suggest that a parent might be controlling the terms of a prenuptial agreement.
  • If the prenuptial agreement creates friction between spouses or fails to establish an adequate foundation for marriage, it might be a wise idea to avoid entering a prenuptial agreement.
  • Prenuptial agreements should be avoided if there are not too many terms in the agreement for the other spouse, this is likely a sign that there is a lack of consideration in the agreement.

 

Situations in Which a Prenuptial Agreement Is Not Enforceable

 

Florida courts are reluctant to set aside efforts by individuals to invalidate prenuptial agreements. There are certain situations in which prenuptial agreements are likely to be declared invalid. Courts consistently refuse to acknowledge that regret or remorse is not a strong enough reason to make a prenuptial agreement invalid. Some of the most common reasons why courts declare prenuptial agreements invalid include the following:

 

  • If spouses disagree about the terms of an agreement at the time of signing.
  • In the event that the ex-spouse failed to sign the prenuptial agreement voluntarily, the agreement is likely to be declared invalid.
  • The other spouse lied about their assets, attempted to conceal their earnings, or made any type of statement about their assets that turned out to be false.
  • A person signed a prenuptial agreement as the result of threats or acts of violence.
  • A person takes advantage of a prenuptial agreement through fraud or any other act of unconscionable conduct.
  • The court finds a prenuptial agreement unfair or unreasonable in nature.
  • Parties failed to disclose all of the important details about a prenuptial agreement which most often extends to issues about assets and debt.

 

Consult with a Knowledgeable Family Law Attorney

 

The legal counsel at the Judy Ann Smith Law Firm strives to assist clients in obtaining customized strategies and achieving their goals. Do not hesitate to contact our law office today by calling (904) 562 – 1369 or emailing our office at info@jasmithlawfirm.com. Our legal counsel understands the importance of your case and will begin taking steps today to make sure that your case resolves in a positive manner.

What is a Prenuptial Agreement

Prenuptial Agreement

When couples decide to marry, it is easy to become overwhelmed with romantic feelings and forget the important details about the terms of marriage. Marriage planning, however, should also fully encompass details regarding how property will be shared between a couple. It is a wise idea to take all potential and emotional elements into considerations during marriages. Prenuptial agreements are one type of legal document that are useful to fully protect each spouse’s financial interests. Although a common myth exists associating prenuptial agreements with divorce, In reality, prenuptial agreements can apply to situations other than divorce including cases where one spouse is anticipated to die from an illness. Some parties also refer to prenuptial agreements as antenuptial agreements or pre-marital agreements.

People Who Might Benefit from a prenuptial Agreement

Originally, prenuptial agreements were designed to protect wives and make sure that they received a fair amount of assets in the event of divorce or when a husband died. Instead of being focused on just the wealthy, prenuptial agreements are for many more types of couples than just the rich. Statistics reveal that an increasing number of couples are using prenuptial agreements to achieve various reasons. Some of the types of people who find prenuptial agreements particularly beneficial include the following:

 

  • Avoid arguments that might arise if a divorce occurs by specifying exactly how property will be divided and whether spouses will receive alimony.
  • Clarify Financial Rights. Couples frequently use prenuptial agreements to articulate the various financial rights involved in a marriage.
  • Individuals who want to use prenuptial agreements to pass property to children from previous marriages. Without a prenuptial agreement in these cases, a surviving spouse might have the option to claim a large portion of the other spouse’s property which can result in any involved children receiving significantly less.
  • Sometimes, prenuptial agreements are used to protect one spouse’s debts from the other spouse and can also address various other issues related to financial protection.

Common Elements of a Prenuptial Agreement

One of the most advantageous elements of prenuptial agreements is that the terms contained in a particular prenuptial agreement change based on the wishes of the couple. Some of the terms that can be included in prenuptial agreements include:

  • Assign spouses the responsibilities of various debts involved in the marriage.
  • Decide which spouses will manage banking and business details.
  • Indicate that funds from a certain source belong to one or both spouse as well as what amount.
  • Protection of assets that accumulated in the course of a marriage prior to a new marriage so that children have the opportunity to inherit these assets.
  • Sometimes, couples include non-financial related issues including issues like which spouse is assigned the responsibility of taking out the garbage.
  • Waiver of a new spouse’s rights as a beneficiary of a retirement plan in the event previous spouses or children from earlier marriages are named as beneficiaries instead.

Additional Considerations for prenuptial Agreements in Florida

There are many other important elements of prenuptial agreements that parties who are creating or signing a prenuptial agreement must understand. Without a full understanding of these laws, a person is at risk of discovering that they have signed away important rights in a marriage without meaning to do so. As a result, it is important to retain the services of a skilled attorney if you are interested in creating a prenuptial agreement. One issue that is not affected by prenuptial agreements are arrangements concerning children.  It is also important to understand that in the event a couple separates or a marriage ends, a prenuptial agreement can be abandoned, changed, or revoked. In cases where a marriage is voided, prenuptial agreements are only enforceable to the degree necessary to avoid an inequitable or unfair result.

Speak with an Experienced Jacksonville Family Law Attorney

Even though it is possible to download a prenup from the internet, it is often a good idea to avoid doing so because these prenups will be less likely to successfully stand if challenged and will also likely not state the intentions of the parties clearly resulting in results different than those desired by the parties. At the Judy Ann Smith Law Firm, our goal is to help clients resolve various complicated legal issues that can arise in their lives by creating unique strategies. Call our law firm today by contacting (904) 562 – 1369 or emailing our law office at info@jasmithlawfirm.com for a free consultation. Our legal counsel is ready and willing to help you today.

 

Developing a Parenting Plan

Florida law states that in matters related to child custody, a Parenting Plan must be created to and approved by the court to meet the needs of the individual child. A Parenting Plan is a document that governs the custodial agreement between the parents. In basic terms, a Parenting Plan sets forth how the parties will proceed in all decisions and situations related to the child. The Parenting Plan must at a minimum:



  • Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
  • Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
  • Designate who will be responsible for any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
  • Designate who will be responsible for school-related matters, including the address to be used for school-boundary determination and registration.
  • Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.

These items are not exhaustive, but are the minimum issues that must be addressed by the Parenting Plan. Other items the parties will want to include should address any unique requirements for raising the child as well as specific needs of the parents.

Due to the issues that must be decided in the Parenting Plan, it is important that both parents cooperate to create a parenting plan concerning how the child will be raised and how each parent will participate in doing so. However, if the parents cannot work together to create a mutually agreed upon Parenting Plan or present a Parenting Plan that the court will not approve, then the court will decide the Parenting Plan to be enforced. Therefore, it is imperative for the parties to work together to have a Parenting Plan that is decided upon by the people it will directly involve and affect. When reviewing a Parenting Plan, the court will consider the following factors:

  • Each parent’s ability to maintain a close emotional relationship with the child;
  • Each parent’s ability to ascertain the specific needs of the child and take the appropriate actions to address those needs;
  • The geographic location of each of the parents in relation to the child;
  • Each parent’s ability to provide a stable residence and home life for the child;
  • The emotional, mental, and physical health of each of the parents;
  • Any evidence of abuse, neglect, or abandonment of the child;
  • The educational and development needs of the child; and
  • Any other facts or circumstances that impact the wellbeing of the child.

The team at the Judy-Ann Smith Law Firm will work with you and if possible, the other parent, in order to develop a Parenting Plan that meets the needs of all parties and children involved in your case. We will work diligently to ensure that this parenting plan is then agreed upon and ordered into effect by the judge.

What is a prenuptial agreement?

Prenuptial agreements, also known as prenups, are becoming more common for parties interested in protecting their assets before marriage. A prenup was once thought to only be an option for the exceptionally wealthy, but now many people utilize them regardless of financial situation. In fact, anyone with assets and/or debts may agree to a prenuptial agreement.

The most obvious benefit of a prenuptial agreement is that it can help protect your assets and shield you against taking on your spouse’s debts upon divorce. A prenuptial agreement can also help parties identify what assets or debts each party is bringing to the marriage. Before you enter a prenuptial agreement, it is important that you understand its basic legal components.

 

What is a Prenup and What can be Included in One?

 

Under Florida law, a prenuptial agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”  The law further outlines the items that parties can agree to within a prenuptial agreement. They include the following:

 

  • The rights and obligations of each party in regard to any of the property of either or both of them;
  • The right to buy, sell, use, transfer, exchange, lease, mortgage, or otherwise manage and control property;
  • The disposition of property upon separation, divorce, death, or the occurrence or nonoccurrence of any other event stated;
  • The establishment, modification, waiver, or elimination of spousal support;
  • The making of a will, trust, or other arrangement in order to carry out the provisions of the agreement;
  • The ownership rights and disposition of the death benefit from a life insurance policy;
  • The choice of law governing the construction of the prenuptial agreement; and
  • Any other matter that is not in violation of either the public policy of Florida or a law imposing a criminal penalty.

 

However, an agreement cannot determine child custody or child support arrangements upon a divorce. These decisions must be determined either by the parties during the divorce proceedings or by a judge.

 

Is the Agreement Valid?

 

Even if a prenuptial agreement includes the items allowable, a court will not enforce it if a party proves the following:

 

  • The party did not execute the agreement voluntarily;
  • The agreement was a product of fraud, duress, coercion, or overreaching; or
  • The agreement was unconscionable when it was executed and, before execution, that party:
    • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    • Did not voluntarily or expressly waive, in writing, any right to disclosure of the property or financial obligation of the other party; and
    • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Get Help From an Expert

 

The team at the Judy-Ann Smith Law Firm can help you in the area of prenuptial agreements. We understand the complexities and emotional considerations involved during this time. If you or your fiancé are considering a prenuptial agreement, please contact the Judy-Ann Smith Law Firm.