Author: WB Admin

When a Child Refuses Visitation: How Florida Courts Look Beyond the Child’s Stated Preference

Posted on by WB Admin

A child refuses a scheduled exchange, and the other parent assumes that settles it. Florida law does not work that way. A judge treats a child’s stated wishes as one factor among many, weighed only after asking why the child is resisting. 

Here is how Florida courts weigh that preference, what happens when an exchange falls apart, and what a parent should do while the current order remains in effect.

A Preference Is a Factor, Not a Veto

Florida Statutes section 61.13 makes the child’s best interests the controlling standard. A court may weigh a reasonable preference, but only if the child has sufficient intelligence, understanding, and experience to form one. Florida sets no fixed age at which a minor can cancel court-ordered time-sharing.

The weight a preference receives varies. A mature teenager’s longstanding, reasoned concern is treated differently than a younger child’s reluctance after one bad afternoon, and neither is automatically controlling. Courts also weigh whether the child reports anything unsafe and whether either parent has discouraged compliance.

A Failed Exchange Is Not Automatically Contempt

Florida appellate decisions separate a child’s own resistance from a parent’s willful interference. In Pearson v. Pearson, the child was brought to the exchange location but refused to leave the car. The court reversed the resulting contempt finding because no evidence tied the child’s conduct to the mother.

Wolf v. Wolf reached a similar result involving a comparable refusal, although the court upheld contempt over the mother’s separate failure to participate in court-ordered family therapy. A contempt finding generally requires a clear order, present ability to comply, willful noncompliance, and competent evidence, so one difficult exchange rarely settles the matter alone.

Respond to Refusal Without Taking Matters Into Your Own Hands

The existing plan stays enforceable until a court says otherwise, and section 61.13(4) gives judges remedies for an unjustified denial of time-sharing, including make-up time, attorney fees, and contempt. Parents are generally better served by continuing to follow the plan, documenting each exchange neutrally, and avoiding pressure directed at the child.

At Wickersham & Bowers, we work with Florida parents facing this kind of standoff. We can help evaluate whether enforcement or modification fits your situation. Call us at 386-252-3000 or reach out to talk it through.

Florida Timeshares in an Estate Plan: How to Avoid Passing an Unwanted Obligation to Heirs

Posted on by WB Admin

A timeshare can seem like a minor detail in an estate plan, but its assessments do not stop when the owner dies. Heirs who never wanted the property can end up owing fees or facing a lien. This article covers why a timeshare needs planning, what Florida law says about the assessments, and steps that help keep the obligation off the wrong person.

Why a Timeshare Does Not Disappear at Death

The right to a devise generally vests at death, so a timeshare passes through the estate like any other asset. The personal representative must manage and protect it until it is sold, distributed, or resolved.

A will that leaves “all real estate,” or the residue, to the children can quietly place a timeshare in the same stream as far more desirable property. Naming a beneficiary does not make the assessments disappear, and an owner cannot avoid them simply by not using the property.

What the Law Says About Assessments and Disclaimers

Florida’s timesharing statute requires disclosures explaining that assessment obligations continue while an interest is owned and that an heir who inherits it becomes responsible for the payments. A successor is also jointly and severally liable with the predecessor for assessments unpaid as of the transfer date. 

A beneficiary who does not want the timeshare may consider a disclaimer, but this redirects the interest rather than erasing it. Unless the will or trust says otherwise, the disclaimed interest passes as though that beneficiary died first, which can send the timeshare to that person’s own children instead.

Address the Timeshare Before It Becomes a Problem

Bring the deed, purchase contract, current assessment statement, and loan documents to the planning conversation, and ask beneficiaries whether anyone wants the timeshare. Resolving it during the owner’s lifetime is often more manageable, since a developer is typically more willing to process a surrender while the owner can sign directly. If the timeshare stays in the plan, a specific, conditional gift, paired with authority for the personal representative to sell or negotiate an exit, works better than a silent fall into the residuary estate. At Wickersham & Bowers, we help Florida families think through these choices before an unwanted obligation becomes the next generation’s problem. Call us at 386-252-3000 or contact us to talk through your options

When One Parent Controls School, Medical, and Activity Decisions After Separation

Posted on by WB Admin

After a separation, disagreements often surface over who gets the final word on school choices, medical care, or extracurricular activities. Florida law generally favors shared decision-making between parents, so when one parent starts making these calls alone, it can raise real legal questions.

Shared Responsibility, Specific Authority, and Records

Florida no longer uses the word “custody” in its statutes. Instead, parents share parental responsibility, meaning both retain rights and must confer on major decisions affecting the child, unless a court finds that the arrangement would be detrimental. Even within shared responsibility, a judge can still give one parent ultimate say over a defined area, such as education or nonemergency health care. 

Florida appellate courts distinguish between narrow, evidence-supported final decision-making authority and broad, catch-all control. Courts have reversed orders that effectively gave one parent sweeping authority inconsistent with shared parental responsibility. 

Recent Florida case law also stresses due process: Before a parent loses decision-making power over an issue such as schooling, that parent must receive clear notice and a fair opportunity to be heard. Separately, access to a child’s medical, dental, and school records generally cannot be denied to either parent unless a court order says otherwise, even when one parent has less say over the underlying decisions.

Document the Pattern and Ask for the Right Remedy

A parent who feels shut out should start by rereading the parenting plan, since it may already spell out who decides what. From there, it helps to keep a simple, dated record of ignored messages, missed appointments, unilateral school or medical choices, and any denied access to records or providers. 

Retaliating by withholding time-sharing or records tends to backfire and can expose a parent to sanctions. Depending on the situation, the right path forward may be enforcement of the existing order or a modification request, which requires showing a substantial and material change in circumstances along with the child’s best interests.

If school, medical, or activity decisions have become a one-sided fight, we at Wickersham & Bowers can help you understand your options under Florida law. Call us at 386-252-3000 or contact us to talk through your parenting plan and next steps.

When a Beneficiary Is Also a Caregiver: How to Build Safeguards Into a Florida Estate Plan

Posted on by WB Admin

It is common for a family caregiver, whether an adult child, a friend, or a hired aide, to also be named in a will or trust. Florida law does not forbid this. But when a caregiver is closely involved in preparing or storing an estate plan, other beneficiaries may later question whether the gift reflects the client’s true wishes. Understanding how these disputes arise and what steps can reduce the risk of a challenge helps protect both the client’s intentions and the caregiver.

Why Caregiver Gifts Draw Extra Scrutiny

A confidential relationship, one where a person trusts and relies on another, can exist between a client and caregiver, whether the arrangement is formal or informal. Florida courts examine whether the caregiver was actively involved in procuring the document.

Relevant facts include whether: 

  • Caregiver was present when the will was signed
  • Recommended the attorney
  • Knew the plan’s contents beforehand
  • Kept the original after execution

Florida appellate courts have recognized that a close parent-child relationship, routine assistance, and transportation are not enough by themselves to prove undue influence when the conduct is consistent with a dutiful adult child helping an aging parent.

What Florida Law Requires and Allows

A valid will requires a testator of sound mind who signs in front of two witnesses. A will or trust provision can be voided if procured through fraud, duress, mistake, or undue influence, and in a contest, the burden can shift once a presumption of undue influence applies. 

Florida also gives little weight to no-contest clauses; a provision meant to penalize someone for challenging a will or trust is generally unenforceable. Where a caregiver also controls an elderly or disabled client’s funds or documents, the concern can extend into Florida’s elder exploitation statute.

Build Safeguards Into the Plan

Clients who want to leave assets to a caregiver can take practical steps to help the plan withstand later questions. These may include: 

  • Meeting privately with an attorney
  • Documenting the reasons for the gift
  • Using neutral witnesses
  • Keeping caregiving compensation separate from inheritance
  • Considering a neutral trustee or personal representative when appropriate

At Wickersham & Bowers, we help Florida clients think through these details, so their estate plan reflects their actual intentions and holds up to later scrutiny. If you are weighing how to include a caregiver in your estate plan, call us at 386-252-3000 or contact us to schedule a conversation.

Divorce and Closely Held Business Interests: What Happens When Personal and Business Finances Overlap

Posted on by WB Admin

When a marriage ends, a closely held business can become one of the hardest assets to divide. A closely held business is a company owned by a small number of people, often spouses, relatives, or a single owner. In Florida divorces, problems often arise when business income, household expenses, company accounts, and personal assets overlap.

Florida Courts First Classify the Business Interest

Florida uses equitable distribution in divorce. That means the court starts with the idea that marital assets and debts should be divided equally, unless specific facts support a different result. The court must also separate marital property from nonmarital property before dividing anything.

A business may raise questions in both categories. One spouse may have started it before marriage, but the business may have grown during the marriage. A spouse may own the shares, while both spouses helped build the company. The court may also look at whether marital money paid business debts, covered payroll gaps, bought equipment, or supported expansion.

That does not mean one spouse automatically receives half the company itself. Often, the real issue is the value of the marital interest and how that value fits into the larger property division.

Mixed Finances Can Make Valuation Harder

Business valuation becomes more difficult when personal and company finances blur. For example, a spouse may pay personal expenses through the business, use company vehicles for family needs, delay income, or run personal purchases through business accounts.

Florida law now addresses closely held business interests more directly. For marital interests in closely held businesses, Florida Statute § 61.075 uses fair market value as the standard. Fair market value generally means the price a willing buyer and willing seller would agree to when both understand the relevant facts and neither faces pressure to act.

Goodwill can also matter. Goodwill is the value of a business beyond its equipment, cash, and physical property. Florida’s updated statute distinguishes between business value and value tied to one person’s continued involvement, skill, or reputation.

Protect Your Business and Your Financial Future

At Wickersham & Bowers, we help clients address divorce, property division, and related family law issues with careful attention to the facts. When a closely held business is involved, we can help you understand what questions need answers before you make long-term decisions.

Call 386-252-3000 or reach out through our contact form to discuss your situation.

When Real Estate, Retirement Accounts, and Trusts Do Not Line Up in a Florida Estate Plan

Posted on by WB Admin

A Florida estate plan works best when every major asset points in the same direction. However, real estate, retirement accounts, and trusts often follow different rules. A will or trust may say one thing, while a deed or beneficiary form says another.

Your Trust Does Not Control Everything Automatically

A revocable trust is a legal arrangement that lets you place assets under trust management while you remain able to change or cancel it. Many people create one to help organize property and reduce probate concerns. Still, the trust only works as intended when asset ownership lines up with the plan.

A revocable trust should work as part of a larger estate plan. The owner must decide which assets belong in the trust, complete the transfers, and review the plan over time.

Signing the trust does not automatically move every asset into it. Real estate may still sit in an individual’s name, a bank account may have a payable-on-death designation, or a retirement account may name a person directly. If those choices conflict, the trust may not control the final result.

Florida Real Estate Can Create Its Own Issues

Under Florida law, homestead property generally cannot be devised away from a surviving spouse or minor child, except in limited circumstances.

A trust might say the home should pass to adult children, but Florida homestead protections may limit that plan if the owner leaves a spouse or minor child. Deeds also matter. Joint ownership, life estates, and trust ownership can each affect what happens after death.

This is why real estate should not sit in a separate mental box from the rest of the estate plan. The home, rental property, land, and trust documents need to work together.

Retirement Accounts Follow Beneficiary Forms

Retirement accounts usually pass by beneficiary designation, not by the terms of a will. A common problem appears after marriage, divorce, a death in the family, or a trust update. Someone changes the trust but forgets the IRA or 401(k) beneficiary form.

The old form may still control the account. That can leave money to the wrong person or create avoidable family conflict.

Review Your Florida Estate Plan Before the Documents Conflict

At Wickersham & Bowers, we help Florida families review estate plans with real-life assets in mind, including wills, trusts, probate concerns, and family law issues that may affect planning.

If your real estate, retirement accounts, and trust documents no longer match your wishes, call us at 386-252-3000 or reach out through our contact form.

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