Jacksonville Divorce Lawyer Blog

In determining an award for alimony, Florida family courts may consider a considerable amount of factors. Among these factors is a rebuttable presumption regarding the duration of marriage. The length of marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage. Marriages fall into different categories: short-term, moderate-term and long-term. Pursuant to Fla. St. § 61.08, a moderate-term marriage is a marriage lasting greater than 7 years but less than 17 years. A long-term marriage is a marriage with a duration of 17 years or greater. And, a short-term marriage is marriage lasting less than 7 years.

There are four different types of alimony awards available in the state of Florida: bridge-the-gap, rehabilitative, durational and permanent. All of these awards have different durations and modification and termination requirements. Being in a short-term marriage may or may not affect your ability to recover alimony. Although short-term marriage may present extra hurdles in obtaining certain types of alimony awards, these hurdles are not insurmountable. There are always exceptions to the general alimony rules. Contact a Florida Divorce Attorney for legal representation in the dissolution of your short-term marriage to get you the type of alimony best suited for your situation.

Pursuant to Title VI, Civil Practice and Procedure, Chapter 61, Dissolution of Marriage; Support; Time-Sharing, Section 61.08, Alimony, Florida courts may grant alimony to either party, which may be bridge-the-gap, rehabilitative, durational, or permanent in nature or award any combination of these types of alimony.

Bridge-the-gap alimony is an unmodifiable alimony award that provides a party financial assistance to aid that party in transitioning from being marriage to being single. It is designed to assist the party with any legitimate and identifiable short-term needs. The length of any bridge-the-gap alimony award cannot exceed 2 years and will terminate upon the death of either party or if the receiving spouse remarries.

Rehabilitative alimony is awarded to assist a party in "establishing the capacity for self-support through either: (1) the redevelopment of previous skills or credentials; or (2) the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials." Fl. St. § 61.08(6). A specific an defined rehabilitative plan must exist in order to receive this type of award. This type of alimony may be modifiable and terminated in accordance with Florida Law based upon a substantial change in circumstances or upon noncompliance or completion with the rehabilitative plan.

Durational alimony provides a party with financial assistance for a set period time and should be awarded in circumstances where permanent periodic alimony is inappropriate. This type of alimony is the most appropriate award regarding short- or moderate-term marriages. Durational alimony may also be modified or terminated based upon substantial changes in circumstances, in accordance with Florida Law. However, the length of a durational award may not be modified except under exception circumstances and may never exceed the length of the marriage.

Permanent alimony provides the needs and necessities of life as they were established during the marriage to a party who lacks the financial ability to meet his or her needs and necessities following a divorce. Permanent alimony is most appropriate regarding long-term marriages, but may also be awarded to a party in a moderate- or short-marriage if the circumstances are proper. This award is terminated upon death of either party or upon remarriage of the receiving spouse. An award can be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship.

The Florida Legislature recently made amendments to the Florida Alimony Statute to include bridge-the-gap and durational forms of alimony. Contact a Florida Divorce Attorney to discuss your financial needs and the type of alimony that is most appropriate for you.

If you are serving in the military and become active, deployed, or are temporarily assigned military service and your ability to comply with a time-sharing agreement is materially affected as a result, under Fl. Stat. 61.13002, you should file a supplemental petition or a motion for modification of time-sharing or parental responsibility. Doing so will prevent the court from making any amendments or modifications to the time-sharing agreement in effect before the parent became active, deployed, or temporarily assigned military service. The only exception is if it can be shown by clear and convincing evidence that an amendment or modification should be made because doing so is in the best interest of the child.

If the court decides to issue a temporary order, the court shall consider and provide for contact between the servicemember and his or her child by feasible means of electronic communication such as webcam, telephone, or other available means. Because it is in the best interest of the child to maintain a bond with the parent serving the military, Florida courts will also permit liberal time-sharing during the periods of leave from military service. This temporary order will terminate and the previous time-sharing agreement in effect before the parent was called to military service shall be reinstated upon the servicemember's return from active duty, deployment, etc.

It is important to maintain a bond with your child while serving in the military. Being deployed or temporarily assigned military service may also affect any active child support obligations. Contact a Florida Family Law Attorney to discuss how military deployment may affect your time-sharing or child support obligations. An attorney can also file a petition with the court to make amendments or modifications to a time-sharing agreement or child-support obligation that will account for your active service.

It may seem strange for a Florida divorce lawyer to say, but a big part of our job is to keep you out of court. Because once you go to court for your divorce, your post-divorce life is in the hands of a stranger. Of course, this stranger – a judge – is supposed to rule fairly. But judges are human. They can have a bad day just like the rest of us. The best-case scenario is not to have a divorce case in court at all.

However, if your Florida divorce case does end up in court, here is how you should prepare yourself:

Confer with your attorney and take his or her advice on how you should dress and act in the courtroom. They know this judge a lot better than you do.

Always be respectful and address the judge as “Your Honor” if you are asked to speak. Which means you DO NOT speak unless you are asked.

It goes without saying, but we’ll say it: don’t make snide remarks or get into a spat with your spouse in front of the judge.

Take careful notes throughout the proceedings but do not interrupt your attorney at any time.
Be patient. You sometimes will have to wait for your case to be called – many times, cases before you run over and you may even be asked to reschedule.

Don’t expect the judge to believe everything you say or always rule in your favor. Make sure all your arguments are backed up with as much documentation as possible.

Don’t expect the judge to “get back” at your spouse for you; that is not the purpose of a divorce trial.

You should expend every effort to settle your divorce outside the court, but if you do have to go to court, you better your chances of getting what you want by playing by the rules.

In a Florida divorce proceeding, the family courts set aside all non-marital assets and liabilities and equitably distribute all marital assets and liabilities between the parities. Therefore, it is helpful to know what constitutes a martial asset in order to determine what property you are entitled.

Martial property includes any property acquired during the marriage by the efforts of either spouse. Also, a spouses retirement account, IRAs and 401k plans may be subject to equitable distribution if that plan or account was acquired by one spouse during the marriage. Marriage is defined as the date of marriage to the date of filing the divorce.

Some concrete examples of "marital property" include but are not limited to:
1. A home, if the home was purchased during the marriage with the earnings of one or both parties.
2. A pension plan, to the extent the plan accrued during the marriage.
3. The value of bank accounts, mutual funds, etc., to the extent the funds deposited were earned by either party during the marriage.
4. Gifts between spouses during the marriage.

See Florida Statute sec. 61.075: Equitable Distribution of Marital Assets and Liabilities for the exact language of the Florida Statute.

Continue reading "What Constitutes as a Martial Asset in Florida?" »

A Michigan appeals court has reversed the ruling by a lower court that allowed a lesbian couple to have joint custody of their three children after their relationship ended.

Together almost 20 years, Renee Harmon and Tammie Davis, who carried each of the three children, raised their children together. Their relationship ended bitterly, with Davis obtaining a court order to prohibit Harmon from having any further contact and Harmon responding with a lawsuit.

Because Davis was the legal biological mother, Harmon needed the court to grant joint custody. The appellate court said no, stating that parental rights in Michigan can only be bestowed through procreation, adoption or the assumption of parenthood in a legal marriage.

In 2004, Michigan passed Proposal 2, outlawing same sex marriage. Since that time, courts have determined that the law also applies to same sex civil unions.

In a Michigan adoption, the biological parents must place the child into the adoption process; in addition, only married couples or single parents may adopt.

If you are currently considering a divorce where child custody is likely to be an issue, you should consult with a Florida divorce and child custody attorney to learn what your rights are under Florida law.

One of the areas of confusion for clients who are getting a divorce in Florida is what constitutes marital and non-marital assets and liabilities for purposes of equitable distribution. The following is a list delineating each:

Marital Assets and Liabilities:

Assets (and liabilities) that have been obtained/incurred during the marriage, by one or both spouses;

The increased value of non-marital assets due to the actions of either spouse or because marital funds were used to add that value;

Gifts from one spouse to the other

Vested and non-vested benefits and funds (retirement accounts, pension plans, profit-sharing, annuities, insurance plans, deferred compensation, bonuses) that came during the marriage

Real and personal property held jointly, whether purchased before or after the marriage.

Non-Marital Assets and Liabilities:

Assets (and liabilities) that were obtained/incurred before the marriage;

Assets acquired individually via bequest, inheritance, non-spousal gift;

All income received from non-marital assets unless that income was used by both parties during the marriage;

Assets precluded per a written agreement (i.e., pre- or post-nuptial agreement);

Liabilities incurred by one spouse via fraud or forgery.

If you are considering divorce in Florida and need more information about property division and what constitutes marital assets, consult with a Florida divorce attorney.

Whenever a celebrity divorce is in the news, people always want to know two things: was there a prenup? And will it hold up in court?

Prenuptial agreements are challenged in court all the time and there are numerous cases where the courts have ruled against a prenup. There are even cases where egregious marital misdeeds have enabled aggrieved spouses to successfully negotiate larger payouts (hello, Tiger Woods) than their prenups specify.

There are a number of other reasons why a court may disregard a prenup, including:

• If the prenup was signed under duress. Prenups should be negotiated well in advance of the wedding, not sprung on the bride or groom the day before the ceremony.
• If one spouse did not have legal representation. Both spouses should have their own attorneys participate in drawing up a prenuptial agreement.
• If one spouse misrepresents assets or liabilities.
• If one spouse was incompetent or incapacitated at the time the prenup was signed, either by being under the influence of alcohol or drugs, or mentally incompetent.
• If the prenup limits future child support or custody rights.
• If the prenup does not provide for any spousal support.

Most challenges to prenups involve spousal support, generally because the couple accumulated many more assets during the marriage and the prenup no longer takes that into account.

A visit to your family law attorney to update your prenup via a postnuptial agreement may help your agreement survive a challenge in case of a divorce down the road.

In a first for the state of Maryland – but what may be an indication of things to come in family court – a judge has awarded joint custody of a dog to its owners in a divorce case.

Craig and Gayle Myers will now spend six months each with Lucky, a Shih Tzu mix they adopted during their eight-year marriage. The couple has no children, but considers Lucky to be the closest thing to it; apparently they found a judge -- retired Maryland Circuit Judge Graydon S. McKee II -- who agrees.

In a CNN story about the case, Judge McKee said that even though dogs are considered property in Maryland, like every other state in the U.S., “I really don’t think a dog is like a couch.”

According to the American Academy of Matrimonial Lawyers, pet custody disputes are steadily increasing. AAML president Marlene Eskind Moses says this trend could add to the congestion in the country’s family law courts, but she understands how important pets are to people, especially when they are experiencing so many other feelings of loss during a divorce.

A California-based animal rights group, the Animal Legal Defense Fund, is petitioning Congress for federal legislation to protect animal rights, including the right to have their interests represented in court and protected by law.

A new study by researchers at the University of Wisconsin-Madison’s Waisman Center has found that parents of grown children with autism have a higher rate of divorce.

Published in the August issue of the Journal of Family Psychology, the study is the first of its kind to track the marital history of parents who have adult children with autism. Its findings contradict earlier assumptions that parents of autistic children face a bigger risk of divorce during the child’s younger years.

Researchers studied 391 couples that are parents of adolescent and adult children with autism, comparing their rate of divorce with a sample drawn from another large study, the National Survey of Midlife in the United States. They found that the divorce rate for both sets of parents were relatively the same until the child reaches the age of eight; at that time, the incidence of divorce for couples with autistic children remains high while it goes down for parents of children without disabilities.

The lead author of the report, UW-Madison assistant professor of human development and family studies Sigan Hartley, Ph.D., said that the study clearly showed a “prolonged vulnerability” for divorce in parents of autistic children, primarily because there is a “lifelong profile of challenging behaviors and symptoms associated with autism.”

While money issues continue to be a leading reason couples divorce, in these tough economic times, divorce rates are actually declining.

Simply put, many people say they just can’t afford to get divorced.

Like any legal proceeding, divorce takes planning. While it may be hard emotionally to delay a divorce action, it may actually provide you with the necessary time you need to fully prepare yourself and your family for divorce, both financially and emotionally.

Here are some tips for divorce planning:

Get your financial paperwork in order. Organize bills, bank statements, mortgage statements, investment portfolios, IRAs and other financial documents to get a true picture of your financial condition.

Budget for your divorce. Determine what you are currently spending and break it out into “essentials” and “nonessentials”. Then cut that it half to see what you are likely to need for living expenses once a divorce is finalized. You will then be able to see how much you need to save or make plans for increasing income or decreasing spending.

Reduce your debt. By reducing your credit card debt now, you’ll be in a better financial position once your divorce is final.

Save. Financial experts are currently recommending at least a nine-month “cushion” of savings to see you through any emergencies or reversals like job loss, etc.

Going through a divorce is one of the most traumatic events in anyone’s life, but foresight and planning – and consulting with a Jacksonville divorce attorney -- can ease the pain for all involved.

Journalist and author Anneli Rufus recently blogged about 15 Ways to Predict Divorce at thedailybeast.com after crunching numbers from a variety of studies on divorce. Here are some of her findings:

Just by being an American, you have a 40-50 percent chance of divorcing.

If you live in a “red state”, you are 27 percent more likely to divorce. This is because red-staters get married at a younger age.

If you squabble with your spouse over money at least one a week, you are 30 percent more likely to divorce than if you argue about finances less often.

Did your parents divorce? The chances that the same fate awaits you are 40 percent higher than for those whose parents stayed married.

Does just one of you smoke? If so, you are 75 to 91 percent more likely to divorce than couples that both smoke.

Couples with a daughter are 5 percent more likely to divorce than those that have a son.
If both of you have been married before, you are 90 percent more likely to get divorced than those who are on their first marriage.

If you are a woman who has lived with more than one partner before marriage, you are 40 percent more likely to divorce.