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Matthew Z. Martell

Matthew Martell’s Answers

103 total


  • How do I get the court to grant shared custody arrangement while my divorce is pending?

    Matthew’s Answer

    You need to file a Motion to Establish Temporary Parental Responsibility, Temporary Timesharing, and Temporary Parenting Plan. It is a motion for temporary relief, but it is only requesting that temporary timesharing (a/k/a visitation) and temporary parental responsibility (a/k/a custody) be established for the remainder of the divorce. First, You should find out what temporary parenting plans forms your county uses and review them, Second, you should pick out the appropriate parenting plan for your situation and fill it out completely. Remember to complete a Certificate of Service and attached to it as the last page before you file it. Next, attach the proposed temporary parenting plan as Exhibit "A" to the new very last page of your Motion and then file it with the Clerk's Office. Make sure that you send a copy of it to your spouse's attorney preferably by e-mail. Next, see if it needs to be referred to the assigned Magistrate to be heard. If so, then submit an Order of Referral to General Magistrate to the Judge for your motion. After he or she signs it, wait 10 days and see if the other side objects to the Order of Referral to General Magistrate. If not, then schedule it for hearing in front of the assigned Magistrate. If so, then schedule it for hearing in front of the Judge. When you have the hearing summarize what you are seeking in the proposed Parenting Plan and why. Most Judges and Magistrates will give you up to 50/50 for temporary timesharing pretty quickly these days if you just explain in a reasonable, rationale fair, and intelligent way what you are seeking in your proposed temporary parenting plan. Make sure that you know your proposed Temporary Parenting Plan inside and out before you go to the hearing because you will be questioned extensively about it by opposing counsel and also the Judge or Magistrate. It you know it very well it will appear that you have given it a lot of thought, will follow it without problems, that you are a good parent, and that you truly care about seeing your kids as much as possible and their day-to-day upbringing. Good luck!

  • What date is used for settlement with brokerage accounts to split the accounts 50/50 in Florida?

    Matthew’s Answer

    Normally, the date of filing the divorce is the date used to value marital assets and liabilities. However, the date of separation or the current date can also be used. Typically, when dealing with a marital asset such as a bank account, there is usually less in that account at the time the divorce is finalized than when the divorce was filed. However, this is usually not the situation regarding brokerage accounts, 401Ks, and IRAs in today's red hot stock market. In your case, if it needs to be resolved by a Judge or a Magistrate, then I think he or she is going to use the current date to value this joint marital asset. It is the quickest and fairest way to resolve this somewhat unexpected windfall to a joint marital account during a divorce. Speculating, in my profession opinion that is probably the most likely outcome regarding distribution of this particular marital asset. Good luck!

  • I have a child and his mother and I were never married. He’s 8 and we’ve shared custody for 6 of those years.

    Matthew’s Answer

    The answer is probably "yes" it is required. In order to get a parenting plan approved in your situation, normally you or her need to file a Petition to Determine Paternity and Related Relief. The related relief is parenting responsibility, timesharing, child support, reimbursement for child-related expenses, etc. In order to figure out child support and reimbursement for child-related expenses, you both are required to file a Family Law Financial Affidavit. It has to be done within 45 days of you being served. Also, you are both required to file Certificates of Compliance with Mandatory Disclosure unless you both agree to waive it by filing a Stipulation for Waiver of Mandatory Disclosure. Good luck!

  • What am I obligated to tell husband about with regards to my medical care if I am pregnanat and I want a divorce?

    Matthew’s Answer

    Legally, I don't think you are required to notify him of anything at this point. Just like you are not allowed into the doctor's office examining room for his personal confidential doctor-patient privileged appointments, he is not allowed to force his way into the examining room for your personal confidential doctor-patient privileged appointments. Good luck!

  • Contempt of court?

    Matthew’s Answer

    No, you need to file a Motion for Enforcement of Marital Settlement Agreement. It is highly doubtful that they would hold him in contempt of court now because you would have to show that his non-payment is willful and intentional. If he is in jail, then obviously he can't work so his non-payment currently would not be willful or intentional and therefore not contemptuous under Florida law. If you file a Motion for Enforcement of Marital Settlement Agreement, then they may order him to pay you want is owed and perhaps even give you a money judgment. if you got a judgment, then you could record it in Official Records as a lien against his home. That home would not be able to be sold or refinanced until that judgment lien was satisfied. Finally, sorry, but I doubt they would order him to give you his house back. Good luck!

  • Shared custody and Florida lockdown orders

    Matthew’s Answer

    You are supposed to continue timesharing as it was before the Florida 30 day "Stay at Home" order was issued. 12th Judicial Chief Judge Kim Bonner issued an Administrative Order today dealing with this issue. It is Administrative Order 2020-9.12 (RE: Parenting Procedures in the Family Division During COVID-19 Pandemic). Sarasota County is located in the 12th Judicial Circuit. This administrative order is available for review and downloading on the 12th Judicial Circuit of Florida website. Good luck!

  • How will the Fl 30 day stay-at-home policy effective midnight 4/3/2020 affect custody?

    Matthew’s Answer

    Yes. It is still allowed and actually required. 12th Judicial Circuit Chief Judge Kim Bonner entered Administrative Order No. 2020-9.12 (RE: PARENTING PROCEDURES IN THE FAMILY DIVISION DURING COVID-19 PANDEMIC) today. It mainly deals with timesharing and how it is affected by the Florida 30 Day Stay at Home mandate. Basically, it says that you need to continue your scheduled timesharing per your Parenting Plan, court order(s), Final Judgment, etc. and also provide more daily phone and video access between the minor child and the parent not exercising timesharing. It also essentially says that if you don't, that you will be punished harder than normal if you don't in the form of sanctions and/or contempt of court. Sarasota County is in the 12th Judicial Circuit. This Administrative Order is available at the 12th Judicial Circuit of Florida website for review. Good luck!

  • How do I protect my child??

    Matthew’s Answer

    You should contact Child Protective Services in Texas and file a report if your child is being physically abused. Then, you need to confirm that any modification of visitation and/or custody action needs to be filed in Texas. An attorney in Texas in the county in which your divorce was finalized should be able to confirm that this is the situation. After that, regardless of whether the CPS report is filed and/or ultimately comes back in your favor or not, you can file a post-divorce supplemental petition for modification or child custody and child visitation. However, before you do so, make sure that you have sufficient legal grounds to do so in Texas and also that your lawsuit will ultimately probably be successful. Finally, as a practical matter, I would contact your ex-Husband and make him understand that as far as your child is concerned that you will not tolerate him/her being abused physically, mentally, or verbally by his current wife. Thank you and good luck!

  • Does divorced husband have to leave home?

    Matthew’s Answer

    He does not have to leave unless and until you obtain an Order granting you temporary exclusive use and possession of the marital residence. So I would recommend filing a Motion for Temporary Exclusive Use and Possession of Marital Residence and set it for hearing as soon as you can. Your main argument would be that you have 3 minor children at home and you need to stay they to take care of them as well as the marital residence. If you ask the Court, and you can show that there has been arguments, fighting, tension, etc., the Court is probably going to order one of you to leave. If you are the Mother of 3 kids under 18, chances are that he will be the one who is told to move out. It helps if you can show that he can go somewhere for free (such as a relative or friend) or has funds to obtain a decent but cheap apartment or rental home. Good luck!

  • Going through a divorce and you have a girlfriend that gets pregnant can he be penalized?

    Matthew’s Answer

    Legally not really because Florida is basically a no-fault divorce state. So infidelity that lead to pregnancy with other women while he was still married can't really be held against him in the divorce case. Realistically, I think it does not help his case especially if he is in front of a female judge. As a practical matter, I would advise him to keep it quiet and try to speed up the case and get it settled before the baby is born. Once his wife finds out she is going to be very mad and will start looking for a big fight with him in the divorce. Good luck in the future!