LAW OFFICE OF DAVID B. SMITHERMAN, P.A.

AREAS OF PRACTICE

My law practice is a general practice although I focus on several distinct areas of law including family law/divorce and wills, estates and probate litigation.

With regard to family law/divorce, my office handles the following matters:

In the area of wills, estates and probate litigation, my office provides the following services:

Review, creation and implementation of estate plans, including preparation and execution of wills, trusts, durable powers of attorney, general powers of attorney, living wills, health care surrogate designations, estate administration including both formal and summary administrations, and litigation of issues concerning wills, probate and trust. I also advise clients regarding incidental matters including asset titling, joint and separate property, and avoiding or resolving disputes in estate planning and administration.

I also handle other legal matters, including construction litigation, business and commercial litigation, landlord/tenant litigation and debtor/creditor litigation.

 

 

Divorce (Contested and Uncontested)

The legal relationship of marriage in Florida is terminated through the process of divorce in a dissolution of marriage proceeding filed in the Circuit Court. To obtain a divorce in Florida, one of the parties must establish that he/she has been a permanent and continuous resident of Florida for at least 6 months before filing the divorce action and that the marriage of the parties is irretrievably broken. Florida is a “no fault” divorce state. Fault concepts are generally not relevant and the court will grant a divorce in Florida provided residency and irretrievable break of the marriage is established. Divorce proceedings can be both contested and uncontested. Typically contested divorce proceedings involve issues to be decided by the trial judge. An uncontested divorce generally means the parties have resolved all issues through negotiation, preparation and execution of a marital settlement agreement which can occur either before filing of the divorce action or during pendency of the same.


Alimony/Spousal Support

The trial judge has the authority to award alimony or spousal support in the context of a divorce proceeding. Types of alimony include:

Fundamentally, alimony is awarded based on the need of the receiving spouse and the ability of the paying spouse to pay alimony. The court considers other factors including the standard of living established during the marriage, the duration of the marriage, the age and physical and emotional condition of each party, the financial resources of each party, the non-marital and marital assets and liabilities distributed to each, the contributions of each party to the marriage, including homemaking, child care, education and career building of the other party, and all sources of income available to either party.


Child Custody/Visitation (Parental responsibility, Parenting plans and time share arrangements)

As a result of recent changes to Florida law, trial court judges no longer award primary and secondary custody of children and visitation to the non-custodial parent. The new law requires parents to develop a parenting plan concerning their child/children. The parenting plan must address such things as time sharing (including weekly, holiday and vacation schedules), decision making (both day to day and more significant things such as healthcare, schooling and religion) and the methods and technologies the parents will use to communicate with the child. The underlying standard for the trial court still remains “the best interest of the child”. If the parties are unable to formulate a parenting plan amongst themselves or through the assistance of counsel, the court ultimately will be required to do so. Relevant factors include such things as division of parental responsibilities, mental health, physical health and moral fitness of the parents, length of time the child has lived in the stable environment, reasonable preference of the child (if he/she is old enough), existence of past or current domestic, sexual or substance abuse, prior child endangerment or child abuse allegations and financial ability of the parents.


Child Support

Child support in Florida is calculated pursuant to statutory guidelines and is based on the combined net income of the parties. The child support statute defines gross income, allowable deductions from gross income and further provides that certain matters can impact the guideline child support amount including health insurance for the children, daycare expenses and significant time sharing with the children by the parent paying child support. Child support cannot be waived by either parent as it is the right of the child.


Division of Marital Assets and Liabilities

Under Florida law, property settlement and division is governed by the concept of equitable distribution. The trial court is required to start with the premise that marital assets and liabilities will be distributed equally between the parties unless there is a basis for making an unequal equitable distribution of marital assets and liabilities. Marital assets and liabilities consist of assets acquired or liabilities incurred during the marriage by both or either of the parties. Non-marital assets and liabilities consist of assets or liabilities existing at or before the time of the parties marriage and assets acquired and liabilities incurred in exchange for such assets and liabilities. In some circumstances, the enhancement in value and appreciation of a non-marital asset may include a component which is considered marital subject to equitable distribution. The date for determining marital assets and liabilities is the earliest of the date the parties entered into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of the petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates the judge determines as just and equitable under the circumstances. Different assets may be valued as of different dates, as in the judge’s discretion, the circumstances require.


Establishment of Paternity

Until paternity is actually established by court order, a father cannot enjoy the legal rights and responsibilities of parenthood. Paternity can be established by bringing a paternity action in the Circuit Court. DNA testing of the parties and the child is commonly used in cases of contested paternity to determine who is the biological father of the child. “Paternity” means the status of being the natural or biological father of a child” “Legitimacy” means the status of the child born or conceived during a lawful marriage- whether or not the child received half of his/her genes from the husband. The term “legal father” on the other hand, is the man the law identifies as the father- whether or not he is the biological father.


Enforcement and Modification Proceeding

Court orders, whether temporary or final in family law matters are subject to enforcement by the court in the event one party or the other chooses to ignore or disregard the order. Enforcement of support obligations whether, alimony or child support, is generally accomplished through the contempt powers of the court although other means are available as well. Modification of final orders can also be had in family law matters when a party is able to establish that there has been a substantial change of circumstances since entry of the original order. Property settlement aspects of final orders are generally not modifiable unlike support obligations and matters concerning custody or visitation which are inherently modifiable.


Injunctive Protection against Domestic Violence

A party who has been subject to abuse in the form of domestic violence or is in eminent danger of becoming the victim of any act of domestic violence by family or household member is entitled to injunctive relief or a restraining order upon showing of sufficient grounds for such relief. Florida allows the victim to obtain temporary relief on affidavit proof alone without notice to the abusive family or household member. The party charged with abuse has the ability to present evidence and be heard regarding the claims at a subsequent evidentiary hearing. The court, after taking evidence from both parties, will determine whether the temporary restraining order should remain in place, be extended or made permanent, or whether the same should be dissolved or vacated. Incidental relief can also be entered including exclusive possession of the home, child custody and support, court ordered counseling for anger management and substance abuse.


Residency Relocation

In Florida, permanent relocation of a divorced spouse with one or more minor children is no longer something that can be simply accomplished at will. If a parent intends to relocate his/her residence with a child for more than 60 days and more than 50 miles from their current resident, Florida law provides that certain statutory requirements must be met in order to have the relocation considered proper under Florida law. If the other parent is agreeable, the matter can be resolved without much difficulty. Otherwise, a hearing before the judge may be necessary before relocation is sanctioned by the court. Whether the parties agree or not, there are certain notice provisions that must be complied with in writing before relocation will be allowed.


Marital Settlement Agreements

Divorce proceedings are not always resolved by way of trial and court judgment based upon a trial. To the contrary, many cases are resolved through negotiation and preparation of a marital settlement agreement between the parties resolving matters of property division, spousal support, child support, child custody and visitation, allocation of debts and liabilities and other incidental matters. Divorce cases can be filed on both uncontested or contested basis. Typically an uncontested case will be one that has been resolved between the parties before filing whereas a contested case will involve issues that are adversarial in nature. Even in a contested case, the parties may ultimately resolve some or all of their issues before the matter proceeds to trial with a judge.