Revenge Porn: Are you an unknowing victim?

It has happened before countless times; a person leaves their cell phone unattended, it is found by someone else and pictures or sensitive information ends up online similarly to what happened recently with Kate Upton and Jennifer Lawrence
This time it happened again, only to a Middle school teacher in Georgia. She allegedly gave her cell phone to the students to use for emergencies and they instead posted online naked selfies of the teacher which they found in her phone. The teacher is claiming her cell phone was stolen by the students.  After being fired from her position, she plans on bringing forth a lawsuit against the school board likely for wrongful termination and against the students for their actions.
According to the law, the teacher has a right to privacy over her cell phone and its contents.  Furthermore, she has a right to privacy against the public disclosure of private facts (i.e. the naked selfies) which do not comprise a newsworthy event. While she may have been negligent in giving her cell phone to her students when she knew she had naked pictures within, the students violated her rights when they published the pictures. 
The students may face additional criminal charges stemming from a new bill, H.B. 838, which was recently signed into law in Georgia by the Governor making it a criminal offense for a person to post online a naked photograph of another adult without their consent. This “Revenge Porn” bill as it is colloquially referred to is being proposed in many states, including Florida, where it was approved by the Florida Senate unanimously but failed to make it to a vote in the House of Representatives. The inspiration for this bill is the revenge posing online of naked pictures of a previous significant other by their partner or lover after the relationship is over.  
While it may be too late for this teacher, this new law hopefully will serve to dissuade people from posting nude selfies of another person online without their consent. Notwithstanding, it is best to be extremely careful about where one leaves their phones containing private information and pictures.

For more information, please contact David Vega, Esq. at

Breastfeeding in Public: Menace to Society?

The area of law surrounding breastfeeding is an interesting one.  A few weeks ago while at a Brad Paisley Concert in California, a breastfeeding mother was asked to relocate by security at the concert.  The reasons cited were that the music was too loud and would hurt the child’s eardrums and the child was in danger of being trampled. The mother countered that she was being singled out due to her breastfeeding her child in public.
The law in Florida is quite clear, Florida Statute 383.015(1) states that:

A mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breastfeeding.
However, there is no enforcement mechanism for breastfeeding mothers who are singled out to bring civil charges against their persecutors. There is also no guidance in Florida for employers and restaurants as to whether they can have special seating or areas so mother can breastfeed their children in comfort and privacy if they so choose.  

Florida voters need to bring these issues to the attention of their elected representatives so they may introduce an appropriate bill to amend this statute and provide guidance to employers and restaurants.  Perhaps lawmakers can look to California’s Civil Code Section 1030-1033 which requires employers to provide mothers with break times so they may breastfeed so long as it does not seriously disrupt business operations and employ reasonable efforts to provide mothers with a location so they may express milk in private.

Much work needs to be done to not only amend the law but also to improve the population’s awareness of the necessity and benefits breastfeeding provides to children.  So the next time you see a mother breastfeeding her child; do not ogle or ridicule her, but instead think about how you feel when you are starving and desperately need to eat something but for whatever reason cannot… now imagine you are just an infant…
For more information, please contact David Vega, Esq. at 305-461-4880.

Private Online Adoption Ads: In the Best Interest of the Children?

Adoption is a vital process which aids children in finding caring foster parents and caring homes.  Unfortunately, some people cannot be counted on to look after the best interests of the children.
In Alaska, individual private persons were placing ads on Craigslist advertising descriptions of available children and their corresponding costs. At first glance this seems like a heinous and an obvious avenue for the exploitation of children by sexual predators or people seeking to throw them into child prostitution.
Proper precautions must be taken so that this does not happen.  While Alaska and several other states are silent as to who may place adoption ads online; Florida provides guidance on this issue.  Only licensed adoption agencies or attorneys working for said agencies may place these ads. This provides a greater degree of control as to who is advertising the availability of these children. 
Perhaps a happy medium may be reached where private individuals may still advertise but only with government oversight and/or the approval of an advertising agency. Needless to say, the actual adoption process would still need to go through the appropriate agency.  Much work is still needed from the Legislature to ensure this happens.   However, it is up to the public to vote for politicians who will be willing to listen and pass the appropriate legislation.  

Thinking About Divorce!!!

If you have been thinking about divorce because your marriage is failing, someone cheated, your having economic problems, or you just want to get out of a bad relationship, there are a few thing to consider before untying the knot.

First, if you have kids who are under the age of 18, they should be your priority.  Plan ahead and figure out how to break the news to your kids and how best to soften the stress of seeing there parents split up.  I don’t know of a good way to break the news but I think reassuring them that both parents love and cherish them and nothing will change that is a first step.   Kids are the true victims of divorce and it is difficult for me not to get angry with the parents when they try to use them to get to the other person, they need to be left out of the situation, period.

Second, if you have a prenuptial agreement or postnuptial agreement make sure to read thoroughly before moving out, it may say you get nothing and now your homeless.

Third, determine your assets (money in the bank or under your pillow, homes, cars (not the leased BMW or Mercedes) and anything else of value that can be sold) and liabilities or debts (credit card debt, loans, mortgages).  Remember, in a divorce the court wants to equitably divide all your stuff, the good and the bad.  Now, if you had assets or debts before the marriage, this should remain yours, this may be good or bad depending.

Fourth, are your the bread winner or is it your spouse, or do you both bring home the bacon.  Well, the income of the parties comes into play when your dealing with child support or alimony.

Lastly, depending on the length of your marriage you may be eligible to receive alimony or be obligated to pay alimony.  Alimony is a way to place one spouse in equal financial footing when the other spouse makes more money or is the only moneymaker.  The classic example of a spouse being eligible for alimony is where the couple has been married for 30 years and one spouse is the sole breadwinner,  the non-income producing spouse is eligible for alimony to put him or her on equal financial footing.  This was designed for the homemaker who gave up their career to raise the children.  

My name is Javier L Gonzalez, Esq. and I am a divorce attorney in the Magic City of Miami, Florida.

Unbundling: “Do it Yourself” or Not?

Many of you are undoubtedly aware of online legal companies which provide general ready made documents; however, little support or guidance as to their proper usage.  Moreover, if the divorce you initially believed would be friendly and amicable isn’t quite so friendly, you are left with documents not specifically tailored to your individualized needs in the midst of a contested divorce litigation, during which your future ex-spouse may have legal counsel of their own.
A rising trend in the legal field is the concept of “unbundling.”  This is essentially a la carte legal services, where you the client can engage an attorney in a limited capacity for a specific task, such as providing consultation services for an upcoming mediation between you and your spouse or to draft a particular document, such as a petition for dissolution of marriage or a timesharing schedule.  Additional services may include ghostwriting documents, legal research, limited court appearances, legal strategizing and coaching or preparing exhibits and documents for court usage.
This is a good way of keeping legal fees low and obtaining legal services while on a budget. Furthermore, if you need additional documents prepared or services rendered, you can always contact the attorney; enter into a separate agreement for the preparation of these documents and “pay as you go.”  
Understandably, this is not for everyone.  Many people feel more comfortable knowing that an attorney is handling their case and they have someone with whom to confide and strategize.  Please remember, sometimes clients by deciding to represent themselves may unknowingly give up rights they are entitled to or end up costing themselves more money in legal fees by having to fully retain an attorney later on in the process to remedy previous mistakes.
Sometimes it is better to not be a “do it yourselfer” and seek professional help, but in case you are feeling adventurous, unbundling may be for you.

What can I Expect if I Divorce In Florida?

Often times, new clients come to see me at Gonzalez & Rodriguez, PL in Coral Gables on an exploratory mission, they have no idea about divorce nor what it means and are scared about the implications.  Divorce is probably one of the most dramatic and emotionally destabilizing moments for anyone to have to go through.  The emotions run high and often times people are not saying or doing what is in their best interests because they are so confused and emotionally drained.  Often times I feel more like a psychiatrist or psychologist than an attorney because the client wants to confide in someone who is objective and a third party to tell their part of the story as to what led them to divorce and usually want to take some of the blame.  I explain to them that they may seek professional help to deal with their emotions and to help them get through this tough time, my job is to sort and separate their lives in a manner that is fair to all parties involved.  
When their are children involved in a Divorce, I think the focus should be on them and how they will deal with this most traumatic experience.  Parents need to make every effort to insure that children make the most comfortable transition from living together as one unit to living apart with one parent at a time. Children need to understand that they are not the cause of the Divorce.  The parents should be responsible enough to not drag their children into the arguments or use them as pawns to hurt one another.  I see this all of the time and it really upsets me that people stoop so low and as a result hurt their own children’s well being.   
Divorce has a few basic components which I will describe as follows:
1.  Alimony – is defined as a legal obligation to provide financial support to one’s spouse from the ex-spouse upon divorce.  Alimony basically has three types: rehabilitative, lump sum, or permanent.  Depending on the amount of time one has been married, the disparity of income, and the ability of the ex-spouse to make alimony payments will determine the type and/or whether alimony is appropriate.  In Florida, the length of time of the marriage is a factor in the eligibility for alimony. 
2. Equitable Distribution of Assets and Liabilities – Basically, anything of value that was purchased during the marriage should be divided equally and any debt incurred during the marriage should be divided equally as well.  Assets include the marital home, other property, bank accounts, automobiles, boats, furniture, appliances, jewelry, 401k, pension plans, investments, etc.  Liabilities will include mortgages, loans, credit card debt, student loans, pending law suits, etc.  The idea is to equitably divide both assets and liabilities so that each party keeps half of each.  
 3. Child Support – the amount for child support is determined by the number of kids and the combined income of the parents as stated on a scale promulgated by the state of Florida.  The percentage of income for each parent determines their percentage of the promulgated amount they will be obligated to pay.  For example, if you have two children and your combined income is $1,500.00, the child support obligation would be $529.00.  If your income accounted for 80% of the combined income, then your personal obligation would be $423.20 of the total child support amount of $529.00.  Other factors are involved in determining child support including the amount of time the child or children are with any one parent. 
4.  Custody and Visitation – Several years ago Florida removed language in the statute which designated one parent as the primary custodial parent and the other with merely visitation.  The idea being that parents should share custody equally without a designation and stigma that one parent was primary and the other secondary.  The court is taxed with insuring and looking after the best interests of the children when determining custody, visitation, school location, living arrangements, or anything related to the well being of children.  The parties should come to an agreement as to custody and visitation which works for them.  No situation is the same for anyone case and as such the schedule and flexibility of visitation and living arrangement should be determined by the parties and not left to the court which can result in an outcome contrary to the party’s wishes.  Sometimes the parties cannot come to an agreement and the court is forced to make the ultimate determination. 
These are some of the issues which usually come up in any divorce, my advice to all new clients is to stay level headed, try to talk to your spouse about making the divorce a smooth transition and only fight the big fights and forget the rest.  Remember, the only one who will win if you fight like cats and dogs about every little issue is the divorce attorney. 

Prenup’s or Postnup’s, “What’s Fair”

Normally, when a couple is thinking about marriage, they are thinking about the wedding preparations, the ceremony, place of reception, table cloths, food, etc., but as couples are getting married later in life, more and more couples are thinking as well about prenuptials and sometimes postnuptials.  To start, a prenuptial is a marital agreement that is made prior to the marriage; a postnuptial is a marital agreement that is made after the marriage.  Both agreements basically layout the framework for the worst possible event in a marriage, “Divorce.”  They are basically used as a way to make sure that the assets that you have going into the marriage are the assets you have leaving the marriage.
Florida, like many other states has a theory of equitable distribution when it comes to divorce; the couple’s assets and liabilities (debts) are distributed equally between the parties.  This may or may not seem fair depending on each couple’s situation coming into the marriage.  When one party’s assets are significantly more than the other party, it may be wise to have a prenuptial agreement to protect the asset from equitable distribution if the relationship fizzles out. 
Recently, actors Katie Holmes and Tom Cruise were in the news regarding their divorce and it is alleged that they had a prenuptial agreement that contained monetary payouts at the 5 and 10 year mark.  Although both actors had plenty of money when they were married, we can assume that Tom Cruise had much more money that he wanted to protect and as such a prenuptial agreement was made and was most likely the reason their divorce proceeded so smoothly.  Whether you’re big shots like Tom Cruise and Katie Holmes or just regular folk with some assets to protect, it may be a good idea to invest some of your hard earned money in a prenuptial agreement because if not you will be exposed to losing a big chunk if your marriage goes sour.
The most difficult part of the prenuptial or postnuptial agreement is bringing up the subject to your significant other without the response that says “you are already thinking about divorce when we are about to get married and think I’m a gold digger.” The response should be fairness, it is fair to go into the marriage with each party keeping what they already had going into the marriage and should not lose it just because they were married for a time.  I have worked on prenuptial agreements which are so one sided that it doesn’t matter how long the couple is married, financially it will look like they were never married.  Depending on what side your one, this will not seem fair, normally when one side is significantly better off than the other, you can input milestones where the other party will be entitled to certain benefits as time goes on as in the rumored payouts to Katie Holmes. 
The most important part of any prenuptial agreement is the transparency of the assets and liabilities of each party and that each has full and complete knowledge of what the other is giving up by entering into the agreement.   Any asset left out of the statement could invalidate the entire agreement so be careful not to exclude something unknowingly or knowingly. 
You can include the right to alimony, who leave or stay in the event of the filing of a divorce petition and other things people fight about in a divorce can be taken care of civilly when presumably the relationship is in or leading up to the honeymoon stage.  Recently, I worked on a prenuptial agreement wherein one party wanted language that if there was any suspicion of infidelity, the other would be in agreement to take a lie detector examination and if the outcome was that the person cheated, the prenuptial agreement would no longer be valid.  Although Florida is a no fault state and infidelity generally does not matter for purposes of divorce, the parties wanted this language put in which was perfectly ok.
Whatever you do, try to have the documents prepared with sufficient time prior to the marriage date so that you are not discussing these issues within weeks or days of your marriage which could cause more stress than you need or want at this supposedly glorious time in your life.    

Nebraska court can’t order joint tax return in divorce
updated 6/15/2012
The Nebraska Supreme Court says judges can’t order divorcing couples to file joint federal tax returns.
But the high court said in a ruling released Friday that if one spouse is unreasonably refusing to file a joint tax return, the judge can adjust the way the couple’s assets are divided.
Filing a joint tax return usually results in lower tax liability, but the high court said ordering a couple to file jointly is problematic because one spouse would be exposed to some unknown additional tax liability.
And federal law allows married couples to choose to file separately if they want to.
The Supreme Court ruling overturned a previous order in the divorce of Jennifer Lynn Dalbey and Matthew John Bock. Dalbey had objected to the joint tax returns.