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Divorce is often time filled with emotional turmoil.  Spouses are splitting up the property, the conversations can be heated, and at times children are thrown in the midst of this evolving chaotic environment. As an attorney I hear a variety of reasons attributed to the breakdown of a marriage. Often times finances, differing parental styles, general distain, and infidelity cause irreparable rifts in even the most stable marriages. Contentious spouses come into my office constantly waiting to bring up every flaw and every wrongdoing of the other party. While an attorney’s office may be the first place many clients feel they can unload the weight of the marriage dysfunction, the courtroom is also a common place clients want to unload this weight, even though it may be to their own detriment.

Although the goal for the angry spouse seems riddled with vengeful desires, a skilled attorney would utilize caution and tact before bringing up the allegations made between the spouses in open court. An attorney must exercise judgment and apply the statutory considerations to every situation that arises. Whereas, one spouse may find it important to mention to the court that since the separation the other spouse has begun dating or that one spouse is engaging in a same sex relationship. A skilled attorney knows that while both of these situations stir the emotions swirling around the divorce mentioning these facts to the court may not be of the utmost importance.

Florida is a no-fault divorce state. This means under Florida family law  if a party is seeking a divorce they do not have to prove specific grounds, other than that the marriage is “irretrievably broken”, for the court to grant the divorce. While the court may not care to hear of the other party’s indiscretions for the sake of deciding whether or not to grant the divorce, the court may be interested in these facts when considering other facets of the case. For example, the court may consider extramarital affairs and conduct of the other spouse when making a determination as to alimony and timesharing of the children. The court may consider a party’s extramarital relations if those relationships were conducted in a manner that caused harm to the child or marital funds were dissolved by the other spouse to maintain that extra-marital relationship.

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“I can’t take this anymore, we must get a divorce!” “Well, I’m not leaving.” This dialogue, to the extent there is any dialogue at all, is common prior to and during a Florida divorce case otherwise known as a Florida Dissolution of Marriage.  This conversation then leads to the following question:  Which spouse remains in the marital home during the pendency of a Florida divorce?

During a Florida divorce there are so many moving pieces and areas filled with uncertainty. Some divorcing couple move into separate residences prior to either party filing for divorce. Yet, there remains the other group of couples who are still living in the same home at the time of the initiation of the divorce proceedings. If one party does not voluntarily choose to move out of the shared residence, and the parties do not wish to continue to live together, who gets to remain in the home under the dissolution / divorce laws in the State of Florida? When real property or a leasehold is jointly titled to spouses both spouses have the right to the use of the owned or leased property, until a temporary order of exclusive use and possession or an ordered injunction placing restrictions on one spouse’s 1122707_divorceuse is entered by a judge. If both parties remain in the home upon the filing of divorce, and neither party wants to budge on moving out of the home, the courts can be brought into the equation to have a neutral party make a ruling regarding who is to remain in the home. The court does not automatically get involved regarding who remains in the residence unless the appropriate motion is made by one of the parties to the divorce. The obligation of the parties and a Florida family law judge’s involvement in making a determination as to who is to remain in the residence is contingent upon a wide variety of factors. There is no simple answer to the question of who will stay and who will leave. The burden of proving that the other party should vacate the premises will be on the party making the motion. The court will consider the numerous factors and make a ruling based on Florida law and equity.

If you are leasing property together and the name of both spouses is on the lease both parties have the legal right to remain in the home, but that’s not always the ideal situation in the midst of a divorce. The lease is a separate agreement with yourself and the owner of the property. More likely than not the contract does not include a clause allowing you to dissolve the lease agreement as a result of your pending divorce. The obligation due under the contract will still remain. Even though you do not own the property in question the court still may rule on who has exclusive use and possession of the leased premises. While the court has the authority to make this ruling this is still an arrangement that should be discussed with the owner of the property so the appropriate changes can be made to the lease agreement and access can be restricted to the non-possessing spouse.

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1391967_baby_hands.jpgAdoption laws in Florida sometimes change due to cases that make their way through the court system. Adoptions are often a pleasant legal experience when everyone cooperates from the beginning, but that is not always the case. What results is not just a long court battle when things do not go as planned, but changes to the law to help minimize the risk of difficulties in the future. That recently occurred in Florida and the changes not only impact the adopting parents, but the birth mother as well.

In a recent Florida adoption case, the court determined that a birth mother, giving up her rights to the child through the signing of a consent, should be represented by her own legal counsel. Often the way adoptions go, the birth mother is generally advised of her rights by counsel that may be representing the adopting parents or by someone from the adoption agency. The Florida courts recently held that a birth mother should actually have her own adoption lawyer present at the time of signing consent so that she is fully advised and aware of her rights and options in the proceeding.

As a lawyer, I agree with this change because I think that it better protects the birth mother throughout the process. Often emotions run high and you want to make sure that as a mother, one choosing to your child a home with an adopting family, that you understand the legal process from the beginning. I do not think that the birth mother should only be represented at the time of signing a consent, but as soon as possible when she has made the choice to place the child. This decision is a great decision to make and being armed with knowledge as to the process and feeling like you have support from the beginning can be crucial to a good outcome for you, the child and the adopting parents.

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th.jpgFlorida marriages lasting longer than sixteen (16) years may result in an award of permanent alimony if the spouses decide to divorce. Over recent years the debate of alimony in Florida has been at the forefront of legislative session. The Florida legislature along with special interest groups and the Florida Bar have thrown their hats into the rings of discussion creating some reform with things like new parameters for determining the length of alimony. In the 2013 legislative session a new bill has been proposed that has thus far passed in the Civil Justice Committee and is making its way through the House of Representatives. Its companion, Senate Bill 718 is not ripe for voting yet.

Mainly special interest groups like “Florida Alimony Reform,” who has presented prior bills and led demonstrations at the Florida State Capitol, have headed the proposed changes to alimony. The House Bill 231 makes the following proposed changes to the present Alimony law §61.08, Florida Statutes(2012) are summarized as follows:

1. Revision of factors considered in determining alimony;

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alimony.jpgThe world of, “do it yourself,” has become far easier over the years with the invention of the internet. People now walk into doctors’ offices and tell the doctor what their diagnosis is and what medication to prescribe. The same is true for divorces, wills and the like. In a Florida divorce there can be many moving parts to figure out, for example, whether alimony should be paid; how long it should be paid; who will take what bank accounts and debts; etc. The reality is that dealing with a divorce is similar to a company dissolving and if each item is not accounted for, then the consequences to each party can be expensive and financially devastating.

In a Florida divorce, alimony is based on a number of factors, including but not limited to, length of the marriage, contribution of each spouse to the marriage, the standard of living of the parties, the needs of the requesting spouse (i.e. whether she/he has earning potential), and the ability for a spouse to pay alimony. Understanding these factors can be complicated because instead of looking at a need as a monthly amount we have a tendency to think through our bills and say, “You pay x, y and z bills.” In a divorce involving alimony, having a spouse pay such bills can be a challenge financially to the party receiving the benefit and the party paying. Alimony is income for tax purposes to the receiving party and a deduction for the party paying, not knowing the amount paid can be detrimental to filing taxes correctly.

Also, not knowing how long alimony should last can cause future complications if the parties reach an agreement, without legal help, and agree that the alimony is going to be non-modifiable over time. Non-modifiable alimony actually means that neither party can ask for more money or to pay less money each month. And often, when I see parties have reached their own agreement, this is a factor that they put into the agreement. The downfall, if the paying party wants to retire s/he must do so with a continued ability to provide alimony for whatever duration was agreed upon by the parties.

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1198667_dad_day.jpgIn recent years, the rules and laws regarding paternity actions in Florida have changed. Paternity cases generally establishes a father’s parental rights to a child in Florida; however, if the paternity case is brought by the Florida Department of Revenue those rights are limited to, basically, paying child support. In prior years, fathers were able to file a counter-petition in the Department of Revenue case and request time-sharing/visitation and even custody, and request to have parental rights shared by the mother and father to make decisions regarding the child’s life. Filing a counter-petition basically saved the father money because the filing fee is less and it consolidated the cases into one so as not to have to attend multiple hearings on the same issue. Recently, the ability to file a counter-petition in a Florida Department of Revenue case against a putative father was banned. So, how do you establish your parental rights when the State of Florida is only filing an action to establish your child support obligation?

To give some background, signing a birth certificate as the “father,” does not automatically give that person parental rights to the child, if the mother and father are not married when the child is born. Signing a birth certificate gives the presumption that the person that signed is, in fact, the father. However, the rights to the child have to be established by a court. If the father does not do that, and later the mother files for any type of government assistance, then the State of Florida may file an action to establish paternity and child support for the benefit of the child.

The State of Florida’s interest in filing an action to establish paternity is based on a financial need of the State and not public policy for children to have a father. If a mother is requesting government assistance, like Medicaid for the child, then the State has a right to look at whether another person has a financial obligation to the child and possibly has an ability to provide health insurance for the child. Therefore, the State will request that the mother give a list of all possible fathers of the child. After that application is completed, the State of Florida on behalf of itself and the mother, will file a paternity action against the possible fathers. A DNA test will then be requested to establish the biological father. The case will then move forward with regards to that one individual and the State will only request child support be established.

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282848_law_library-1.jpgIn a Florida divorce, post divorce or paternity case, there may be times the case is referred to a general magistrate instead of the judge. Often, a general magistrate’s calendar is more accessible than the judge’s calendar due to volume of cases. The magistrates have the power to listen to cases and make a ruling based on the evidence presented, which then must be provided to the judge before being entered as a court order. Therefore, the judge still has control over the case, but the magistrate is helping move the cases along.

A referral to a magistrate is generally done for temporary needs hearings, which is when a party is requesting a temporary order be entered with the court until the final hearing so that each party has what s/he may need to get to a final hearing, like child support, alimony, or use of the home. The reason is that the judge may not be able to get the parties in for a longer period of time and the magistrate can generally see them in a couple of months. It is also common for the case to be referred to the magistrate when a lawyer does not represent one or both parties.

How does a case get referred to a general magistrate? When certain documents or motions are filed with the court, the court may tag them to be referred to the magistrate instead. For example, when a party files a Motion for Temporary Needs, the judge may sign an order referring the case to the magistrate’s office. When that happens, both parties receive a copy of the order and have ten (10) days to object to the transfer. In Florida, use of a magistrate has to be by consent, so if one party objects, then it will not go to the magistrate but must be heard by the judge instead. This may mean that the hearing is postponed for a time to correspond with the judge’s calendar.

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As a Jacksonville, Florida family law attorney, I often get questions from clients as to where their case should be handled if two parents and/or spouses live in two different cities. The question is one that does not always have an easy answer, as there are Florida family law rules governing, Florida statutes establishing the correct place to file a case, and there is also Florida case law that is down from the courts on the subject. Therefore, like many things in family law matters, it depends on the circumstances. To best answer this question, examples can be quite useful.

Example 1: Marie and Hank are married and spend the bulk of their marriage in Jacksonville, Florida where they purchase a home. After eight years of marriage, Marie and Hank decide to separate and Hank takes a job in Atlanta, Georgia. After a year of separation they would like to get a divorce realizing that reconciling is not an option.

Even though Hank is now a resident of Georgia and could technically file for divorce in Georgia, there is an issue of Georgia having control over the property of the marital home. Therefore, in order to make the divorce as clean as possible, Marie and Hank would most likely need to file for divorce in Jacksonville, Florida where the marital home is located. If they decide to file in Georgia, then Marie and/or Hank may have to take extra steps to enforce any court orders regarding the marital home.

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589668_suspended_2.jpgCustody of a child has changed significantly over the last few years in Florida. Custody implies that one person has more control over a child than another, and the Florida legislature, along with members of the Florida family law division of the Florida Bar worked to make changes that no longer implied one parent being greater than another. While the changes started a few years back, the general public is still in need of education on the topic so that, hopefully over time, the the correct terminology will be used on a day-to-day basis and the animosity that generally follows with a divorce involving children or a paternity action will slowly wind down. While not an easy feat, we can at least make strides to make that happen with continuing to change laws and hopefully open up more communication between parents.

What are these changes? Historically, in Florida family law there was a presumption that one parent, typically the woman in many respects, was going to have “custody” of the children when there is a divorce or paternity case. Any case involving children had a certain spin to it in society where it was believed that women were more nurturing than men and therefore should have the kids. Laws, over time, have changed and the Florida judicial system started to recognize that life is not normally cut and dry in most family dynamics and there may be a need to change from the earlier presumptions of women over men. It is not to imply that the laws changed in order for men to be given preference over women, but that laws evolved to recognize that the court needs to look at the mother and father, their individual relationships with the children, and ultimately decide what is in the best interest of the child.

What took time to reach and is slowly becoming more recognized is that the alternating weekends and one evening per week may not always be the best situation for children of a broken home. The term custody was completely thrown out by the legislature in hopes of getting the parents on the same page and to help determine what type of visitation or time-sharing schedule is best for the children. The legislature’s hope in making this change was to get parents to communicate more openly and hopefully, over time, take away some of the animosity that is created through a divorce or paternity case and ultimately can lead to long, tiresome and often hurtful litigation between parents and the children suffering through the fight.

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Divorce laws change from state to state regarding such things as alimony. Couples that have divorced and have either moved to Florida or were divorced in Florida and have changes in their lifestyle and circumstance that warrant a modification of alimony may need to know whether a change to alimony is possible. Florida does allow for a party to file for an increase, decrease or termination of alimony in certain circumstances. Understanding your rights and options in an alimony modification case can be beneficial to you in protecting your rights and interests.

In order to have access to the court for a modification there must be a substantial change in circumstance. For example, if you were awarded alimony based on the fact that you can hold a job, but that your income is less than your ex-spouse, then you may need to seek an increase in alimony if you become disabled and unable to work. Alimony in Florida is typically awarded to a party if she/he is in need of financial assistance from the other party and the other spouse has a financial ability to pay alimony. However, the amount is based on the need of the individual as well. So, if that person’s needs change, not due to voluntary action of that party (i.e. quitting his/her job), then alimony may need to be modified accordingly.

The same is true of a downward modification of alimony, meaning a decrease in the amount of alimony to be paid. For example, Hank has an annual income of $350,0000 and Mildred has an annual income of $30,000. In this case, Hank most likely would be ordered to pay Mildred alimony. However, Hank suffers an eye injury and can no longer work in his job and is placed on disability. Hank’s income decreased due to an involuntary occurrence, meaning he most likely did not intentionally go on disability; therefore, his ability to pay alimony at the same amount is limited. Hank may be given a decrease in the alimony he is to pay Mildred or it may deemed that he can no longer pay.

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