Thursday, May 4, 2017

Think Before You Post

Documenting our lives on social media has become second nature.  When an event occurs, we immediately take a picture and post it to some sort of social media account.  Most people do not consider the legal consequences of what they put on their social media accounts.

I recently put a meme on Instagram that read, “Dance like no one is watching; email like it may one day be read aloud in a deposition.”  I would apply this quote to all social media outlets.  If you would not want what you are about to post to be read aloud in a deposition or shown to a jury one day in open court, it is probably best not to post it.

The courts have had to rule on privacy issues when it comes to Facebook and other social media outlets.  The trend has been, in federal courts and in Florida, that if you choose to post something on social media, you are waiving your privacy, even if you have your privacy settings set to the most private.  The courts have rationalized that you are putting it out there for the world to see; and therefore, you are waiving your constitutional privacy rights.

For example, if you have been injured in a car accident and are involved in personal injury litigation, defense counsel will more than likely request that you produce all social media pictures from the date of injury to present.  The courts have ruled this request is relevant as it can show whether in fact you are injured.

Courts have issued similar rulings in all types of litigation from family cases to criminal cases.  There must be a finding of relevance, which is not hard to do.

One final piece of advice, if you know you are preparing for litigation, it is a very bad idea, to think, “I need to clean up my social media accounts.”  If you start deleting posts and pictures, you are destroying potential evidence.  This could get you into more trouble, and is potentially illegal.  Keep your accounts to the most secure settings, and just think before you post.

Heather Bryan is an experienced criminal and family lawyer.  Contact us online or call us at 863-825-5309 for your consultation.

Thursday, April 20, 2017

Be Careful What You Sign: Protecting Yourself and Your Assets

Sometimes people just sign documents without even reading them.  This practice is a dangerous one, especially when it comes to a power of attorney.

Be wary of general power of attorney documents that give broad power and have no expiration date.  I have seen two situations with horrific outcomes: 1), where a person did not even realize he or she was signing a power of attorney document, as it was done by trickery, and 2), where a person just did not thoughtfully choose the proper person to which to give the power of attorney.  In both situations, the people were stripped of their assets by others they thought they could trust. Both situations could have been prevented.

First and foremost, read everything you sign.  Do not trust anyone, even loved ones and family members when they put something in front of you and tell you they just need your signature. When money is involved, unfortunately people can become selfish.  People can become quite nasty and unrecognizable when it comes to something they think they are owed.

Second, when you need to assign a power of attorney for a specific purpose, limit the document both in scope and time. Some examples may include for the purpose of taking care of certain finances while away on an extended trip or to make health care decisions during a hospital stay.  Consult an experienced attorney to draft this power of attorney document for you and your best interests.  It is ill advised to have the person in which you are giving the power of attorney draft the document.  Finally, sign the document in the presence of witnesses and have it notarized.

If you are in need of a power of attorney, contact us online or call Heather Bryan Law at 863-825-5309 for your consultation.

Thursday, April 6, 2017

Premarital Agreements

I have recently been asked a lot about premarital agreements.  I personally have mixed feelings about them.  My optimistic side, that wants to believe in the happy ending, sees them as setting your marriage up for failure.  But then my lawyer side kicks that version of myself right back to reality.

Depending on how you look at the statistics, approximately half of all marriages will end in divorce.  No matter what your hopes and dreams are, you cannot control the marriage or your partner.  It is important to protect yourself and your rights.  I can't help but think of the song by Kanye West, "Gold Digger" as I type.  The lyrics say, "If you ain't no punk holla we want prenup, we want prenup!"  This song happens to be about women, but it is equally applicable to men as well.

As a general rule, premarital agreements are enforceable in Florida.  A well drafted agreement can protect your assets, reduce the potential for litigation, and clearly define your obligations.

Unfortunately, some people find themselves in a situation where they have signed an extremely unconscionable premarital agreement based on the empty promise of forever.  In addition, the spouse did not provide full disclosure of their finances prior to signing the agreement, and the premarital agreement left the other spouse with nothing.  This situation is one where the premarital agreement can be challenged.

If you have questions about premarital agreements, would like to draft a premarital agreement, or need to challenge an unfair premarital agreement, contact Heather Bryan Law online or call us at 863-825-5309 for a consultation.

Friday, March 31, 2017

Time Sharing and Suitcases

Let me preface by saying I am not a child psychologist--I am just a lawyer.

I came across this article in the Huffington Post yesterday and I paused.  In my job, I work with parents who underneath it all, want what is best for their children. But sometimes, because of their own hurt and anger, they get sidetracked and lose sight of that.  This article demonstrates what happens to children when parents lose sight of putting their children first and start nitpicking about material things, such as items of clothing.  Children end up living out of suitcases.    

In Florida, the best interest of the child is always the primary standard used when it comes to determining time-sharing.  Judges will also look to other factors such as:

1. The moral fitness of the parents.

2. The mental and physical health of the parents.

3. The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

4. The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

5. The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

6. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

7. The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

8. The home, school, and community record of the child.

9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

10. The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.

11. The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

12. The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

If parents are telling the child, "that's Daddy's shirt; make sure that shirt comes back to Daddy's house," or "where are Mommy's shoes? I paid $50.00 for those shoes?," the child will feel like he or she does not have a home.  These statements are definitely not in the child's best interest and do not provide a stable environment.

If you are in the middle of a custody battle and time-sharing is yet to be determined, take a moment to reflect upon the statements you are making when you are sending your child to his or her other home or when it is time for him or her to come back.  Be mindful of calling it Dad's house or Mom's house. Your child will begin to feel like he or she doesn't have a home.

If you are in need of a family lawyer, you need the help of an experienced family law attorney. Contact Heather Bryan Law today at 863-825-5309 for your consultation.

Wednesday, March 22, 2017

Shared Parental Responsibility

You may have heard the term "shared parental responsibility" when it comes to child custody. This doctrine means that each parent keeps full parental rights and responsibilities with respect to the child and both parents must communicate with each other so that major decisions affecting the welfare of the child will be determined jointly. Examples of decisions that are typically subject to shared parental responsibility include decisions concerning the child's daycare, healthcare, school, education, summer camps, and activities.  A Florida family law attorney would explain that many courts take the view that day-to-day decisions, such as bedtimes, diet, exercise, clothing, and choice of friends, are not subject to shared parental responsibility in normal cases. 

Extreme circumstances regarding certain day-to-day decisions may justify a court getting involved.  Courts frequently take differing views regarding religion, allowing each parent to expose a child to the parent's own religion during that parent's time-sharing.  If a particular type of decision is important to a parent, be sure to include that decision in the parenting plan as one that must be shared by the parents, or conversely be certain that either parent can make the decision during his or her time-sharing.

 In Florida, it is public policy that parents have shared parental responsibility.  A court, when determining parental responsibility for the child, will not have a certain presumption for the mother or father.  The days of courts granting primary decision-making to mothers simply because they are mothers are long-gone.  The court will take many factors into consideration.  The primary factor is always the best interest of the child. 

It is relatively rare for a court to grant sole parental responsibility to either parent.  The court must find that shared parental responsibility would be detrimental to the child.  Frequently, conduct that one parent may consider immoral, harmful, or inappropriate, does not meet the objective standard of being a detriment to the child.  The courts consider the child's relationship with both parents of great importance.

If you a Lakeland divorce lawyer or Polk County family law attorney, get someone with experience by your side. Contact Heather Bryan Law at 863-825-5309 for your consultation.