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Rocket Lawyer Family law

Ask a Lawyer: Divorce, Custody, Gun Rights, and the First Amendment

Thanks to everyone who participated in our “Ask a Lawyer” Q&A on Facebook this past week. Here are our guest attorney’s responses to a handful of divorce, custody, free speech, and second amendment questions. We’ll be having another Q&A next week on Wednesday, 10:30 Pacific time, so if you have anything you’d like to ask, feel free to stop by our Facebook page. And if you can’t make that time, you can send in your questions a little early. We’ll do our best to get to all of them.


My husband has lived in another state with his girlfriend for the last 5 yrs won’t sign my divorce papers. Can I get a divorce without him signing papers?

The laws regarding divorce differ from state to state. In most states, you can file a petition seeking dissolution of marriage and serve it on your spouse even if he has not agreed to the divorce. If the divorce proceedings are contested (meaning your husband has not agreed to all the terms of the divorce), you should find an attorney in your state to represent you.


Hi. I would like to know if you could tell me where to start to try and get rights to my grandkids in florida.

Thanks for your question.  Are you seeking custody or visitation rights? Grandparents in Florida do have rights but under limited circumstances. The best place to start is with advice from a Florida family law or guardianship attorney. To properly analyze your situation, the attorney will need to know details of the children’s current circumstances, including whether the kids are living with a parent and whether the Florida Department of Children and Families has been involved in the situation.

You can also take a look at a Florida statute called “Grandparents Visitation Rights” which addresses when grandparents are entitled to reasonable visitation. Link:  http://www.flsenate.gov/Laws/Statutes/2012/Chapter752/All

This statute gives grandparents the right to file a petition with the court seeking visitation and includes factors the court will consider in ruling on that petition.  It’s important to know that the Florida Supreme Court has ruled that some of the provisions of this statute are unconstitutional because the statute allows the state to interfere with parents’ right of privacy (i.e., to raise their children without government intervention).

Again, since this is a complicated area of law with a great deal of controversy surrounding it, it’s best to consult with a Florida attorney.


Can a class C felon in the state of Wash own a shotgun?

Generally, no. Individuals lose their right to possess a firearm in Washington after being convicted of a felony.  However, a felon may be eligible to petition the court to get their rights back in certain circumstances.  A criminal law attorney can evaluate the details of the situation and give advice based on the particular facts.


I’m writing a novel and it has some risque content. What kind of speech is protected and what isn’t?

The Supreme Court uses something called, “the Miller test” to determine whether a work of expression (like a novel) is obscene. Works that are found to be obscene are not protected by the first amendment. That means they may be prohibited.

For a work to be found obscene, it has to meet all of these three conditions of the Miller Test:

  • Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest (meaning a morbid, degrading and unhealthy interest in sex).
  • Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Speak to an attorney in your area to get more specific advice about your situation.

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