Jacksonville Divorce Lawyer Blog

Effective January 1, 2011, any and all child support orders entered into on or after October 1, 2010 must provide:

1. The termination of the child support shall end on the child's eighteenth birthday, unless otherwise agreed to by the parties.
2. A child support schedule. This schedule shall state the amount of the monthly child support obligation for all the minor children at the time the order is entered. The schedule shall also provide the amount of child support that will be owed for any children remaining after one or more children in the order are no longer entitled to receive child support.
3. The month, day and year that the reduction or termination of child support becomes effective.

The recent changes also provide the Child Support Guidelines and Principles that will be follow by the Florida family courts.
1. Each parent has a legal obligation to support his or her minor or legally dependent child.
2. The guideline schedule is based upon the parents' combined net income that the child would be receiving if the parents were still living in the same household.
3. The goal of the guidelines is to encourage fair and efficient settlement of child support issues between parents, as well as minimize the need for litigation.

Continue reading " Recent Changes to Florida's Child Support Laws " »

Adoption is a legal procedure where a child becomes, through court action, part of a family that is other than that of his or her biological parents. Adoption is a very serious procedures - all ties are severed with the birth parents and any relatives of the birth parents. The adopted child is permanently transferred into the adopting family and the adopting family takes on the sole responsibility of care for the child.

Adoption will generally mean that the birth parents relinquish all their rights pertaining to the adopted child - this includes the right to see or otherwise be involved in the child's life. However, in an open adoption, birth parents retain the right to see and communicate with their child and the adopting parents take on the full responsibility of providing the child care and fulfilling the financial needs of the child. Basically, to the adopting parents, an adoption means that they have the same obligations of parents to the child as a child naturally born to them.

Who is eligible for a Florida adoption? Any minor (a person under 18-years of age) present within the state of Florida when the petition for adoption is filed. Sibling groups may also be adopted together in Florida. Adults may also be adopted with a similar procedure to that of minors.

Who may adopt a child in the state of Florida? Any adult who lives and works in the state, is of good character and has the ability to nurture and provide for the child. Single adults, married couples and step-parents may adopt.

Continue reading " Florida Adoptions - General Information " »

This is a question I get on a regular basis from potential clients. The Florida Statutes outline who can and cannot adopt in the state. Fla. Stat. 63.042 states that a husband and wife jointly may adopt, an unmarried adult may adopt, and a married person without the other person joining as a petitioner under certain conditions specified in the statute. Although there has been significant controversy surrounding the issue, the statute specifically denies anyone who is a homosexual the right to adopt in Florida.

Adoptions can be confusing and there are numerous requirements set out in the statute that must be adhered to in order to prevent your petition from being dismissed. For stepparent adoptions, close relative adoptions, and adult adoptions the requirements of the statute are slightly less convoluted. However, the process for adopting any child that does not fit in one of the above categories is complex and requires a knowledgeable attorney or adoption agency to guide you.

If an adoption is not handled correctly a birth parent can potentially challenge the termination of parental rights or adoption and get the child back. This result can have a traumatic effect on all of the parties involved. Foreign adoptions are even more complex and deserve their own article to touch on some of the major issues involved. We will cover some of the issues involved there in another article.

Continue reading " Who Can Adopt In Florida? " »

A former Naples elementary school teacher has been ordered to undergo a psychosexual examination after losing custody of her two children because she posted nude photos of herself and the children on the Internet.

Nicole Amanda Newland, who is currently undergoing a divorce in Collier County from her husband Eric Newland, lost custody after the nude photos were given to state law enforcment officials by her estranged husband. She was granted supervised visits once a week and is currently facing a state charge of Neglect of Child-Without Great Bodily Harm.

Nicole Newland has been accused of posting nude photos of herself in suggestive positions on the Internet as well as describing a “rape fantasy” online. Attorneys for her husband have argued that this endangers the children and she should not be granted unsupervised custody, which she is currently seeking.

Collier Circuit Judge Elizabeth Krier ordered Newland to undergo a psychosexual evaluation prior to ruling on further custody matters.

If you are involved in a Florida divorce or child custody case, be smart about what you post on the Internet. Your Florida divorce attorney can guide you so your case will not be compromised.

For the first time in U.S. history, women outnumber men in the workplace. This is bound to have some profound implications for what is already a growing trend in child custody cases: fathers being awarded primary physical custody of their children.

Earlier this year, a feature article in Working Mother Magazine noted that there are currently about 2.2 million American women who do not have primary custody of their children. Researchers credit the increase in fathers gaining custody with the growing number of fathers’ rights groups, which are educating more men on their parental rights as well as how to successfully petition the court for custody.

The article noted that it is not unusual today to see fathers succeed at least 50 percent of the time when seeking sole custody in a contested child custody case. The report said that in the past decade, the number of fathers who gain custody of their children has doubled as men become more involved in raising their children – not only because of their increased desire to do so, but also because more mothers are in the workplace today than ever before.

In fact, 25 percent of today’s married women earn more than their husbands, which has also led to the rise of another trend: more women are paying child support and, in some cases, even alimony.

Continue reading " Nationally and in Florida, More Fathers Are Getting Custody " »

I have clients and potential clients ask me all the time…”What is the cheapest way to get a divorce in Florida?” Before I answer them, I remind myself that this is a loaded question with no correct answer. The reason I hesitate is that there are an endless list of variables that effect divorce proceedings and the expenses involved. For starters, divorce proceedings are emotionally charged by the very nature of the underlying dispute. Married couples often have a hard time letting go of the grudges that exist between them which generally have no place in the court room. Overcoming these feelings of animosity is one of the biggest challenges Florida divorce attorneys face.

Some people ask me if filing a divorce in Florida on their own without the help of an attorney will save them money. This is another question with no right or wrong answer. What I tell them is that the divorce laws in Florida are complicated. It takes lawyers several years just to become adept at handling family law cases. In addition, the laws tend to change frequently as do the courts’ interpretations of the existing law. Different jurisdictions may handle certain issues in divorces in slightly different manners which can have long-term and far-reaching effects once the divorce is final. It is impossible for a couple going through a divorce for the first time to get a complete grasp on all of the pertinent laws and procedures for a particular jurisdiction with a specific judge without having done it before.

One judge I have appeared in front of many times before likens filing for divorce in a Florida court without using an attorney to going to a hospital and asking the surgeon to give you a scalpel and then telling her/him that you will handle the surgery from there. It may seem doable but the long-term effect can be devastating. Although attorneys’ fees seem expensive, they may ultimately save you from making an expensive mistake that costs you much more money in the long run.

Continue reading " Cheap Florida Divorce…What Are My Options? " »

According to a number of Internet news reports, TV star and producer Kelsey Grammer has broken the golden rule in Hollywood Marriage 101 by not having a prenuptial agreement in place when he married wife Camille 13 years ago.

The Grammers are divorcing and the former “Frasier” and “Cheers” actor could be looking a huge financial loss. The actor allegedly tried to declare his earnings from “Frasier” as separate property; however, this can only apply to his earnings prior to his 1997 marriage to the former Playboy model. Which means that the earnings from seven seasons of the show – at a reported $1.6 million per episode during the last season – as well as syndication earnings could be up for grabs.

The couple split due to “irreconcilable differences” in July. In her filing, Camille asked the court to award her with primary physical custody of their two children -- an 8-year-old daughter and a 5-year-old son – and grant visitation rights to Kelsey. She has also petitioned the court for spousal support.

Kelsey has requested joint physical custody of the children and is also asking the court not to award any spousal support to his estranged wife.

Continue reading " No Prenup in Kelsey Grammer Divorce? " »

Under Florida Statute sec. 61.076, any benefits and rights accrued during a marriage from a retirement, pension, profit-sharing, annuity, insurance plans and programs or deferred compensation are considered martial assets and are, therefore, subject to equitable distribution under Florida Law. For military retirement or retainer pay the following criteria must be met: you and your spouse were married for at least 10 years, one spouse was a member of the federal uniform services and gave at least 10 years of credible service, and the division of the marital property includes a division of military retirement or retainer pay.

Equitable distribution divides martial property based on principles of equity. In states that employ equitable distribution (among them is Florida), the courts will consider a number of factors to determine how to divide the marital assets and liabilities upon divorce. Equitable distribution is not necessarily a 50/50 split of all the martial property and debt - equitable does not mean equal.

Continue reading " Divorce and Retirement Plans - How is your Retirement Plan Distributed in a Divorce Proceeding? " »

Fifteen years ago, Prince Sagala’s estranged husband disappeared with their two children. Four months ago, she found them again when she discovered her daughter’s Facebook page.

Their father – Faustino Fernandez Utrera -- had apparently fled to his native Mexico with them, after telling Sagala he was taking them to a park in 1995.

Sagala took the Facebook page to police, who were able to trace the children to Florida through her daughter’s friends on Facebook. Utrera was arrested in May and held at the Osceola County jail on kidnapping and child custody charges. He is currently awaiting extradition to California.

Sagala met her two children for a supervised visit recently at a Florida public library, but told the Associated Press that her children want nothing to do with her, having been told bad things about her by their father.

Utrera says that he took the children because his wife was having an affair with his brother and was mentally unstable. He alleges that she has always known where the children were living.

The California district attorney prosecuting the case says that while his office was aware of the allegations, the case has been investigated and they are proceeding.

Continue reading " Woman Who Found Missing Children on Facebook Discovers Other Troubles As Well " »

Divorce attorneys are finding that Facebook, the most popular social networking site on the Internet with over 400 million users worldwide, is yielding numerous nuggets of gold when mined for information that one spouse can use against another in court during a divorce.

In fact, the American Academy of Matrimonial Lawyers said earlier this year that 81 percent of its members have either used evidence, or been faced with it in court, that was gathered on Facebook. And they have many examples to share of clients in divorce and child custody battles who have either had their case helped or torpedoed because of Facebook posts.

In a recent Associated Press article, several divorce lawyers provided these cases in point:

A husband seeking primary custody of his children posted a profile on a dating website saying he was single and childless.

A husband accused of adultery in court denied it and the wife’s attorney didn’t find anything on his Facebook page to prove it. However, when the attorney visited the alleged girlfriend’s page – which was not protected with privacy settings – the evidence was there that the husband had lied about an affair.

A wife in a custody battle had her credibility tarnished when scantily clad photos of her with a variety of different men were downloaded by the husband’s attorney off of her Facebook page.

If you are involved in a Florida divorce or child custody case, be smart about what you post on the Internet. Your Jacksonville Divorce Attorney can guide you so your case will not be compromised.

When you enter into a relationship with a divorce attorney, or any attorney for that matter, there are rules that govern the behavior of both client and attorney. Knowing what to expect, and what not to, is important so you obtain the best possible outcome for your case.

Having an empathetic divorce attorney by your side during every step of your divorce is a basic expectation of most clients. But what specifically should you expect from your divorce lawyer? Here’s a list:

• Educate you about Florida divorce law and how it relates to your case
• Consult with you to devise the strategy for your divorce and/or child custody case
• Handle the investigation into the facts of the case, including the hiring of any necessary professionals like forensic accountants
• Prepare and file all the necessary court documents
• Work with opposing counsel in negotiating a settlement
• Help you and any other witnesses prepare testimony
• Prepare you for court appearances including hearings and trial
• Advise you on what you can expect throughout the process

There are also certain things you should not expect from your divorce attorney, including a guarantee as to the outcome of your case. Your lawyer is also bound by strict legal and ethical codes, so he or she will refuse to do anything illegal or unethical, such as allow you to lie under oath or hide assets.

Anyone who has ever seen a legal program on TV knows that what a client says to their attorney is privileged – meaning that the attorney cannot divulge what he or she has discussed with a client, either of their own free will or by a court order. It is one of the fundamental principles of our justice system.

However, there are some scenarios where the attorney-client privilege is not protected. For example, if a client tells an attorney that they plan to commit a crime (including perjury), that attorney could be compelled to testify in court about that disclosure.

In addition, the attorney-client privilege can sometimes be lost if someone else (other than you or your lawyer) either hears, sees or reads confidential communication between you and your attorney. If, for example, you bring your sister along to your meeting with a divorce lawyer, your privilege could be compromised. This is why a divorce lawyer may ask to meet with you alone.

Also, if you share letters or disclose any confidential information to friends or family, this may jeopardize your attorney-client privilege.

You should also be aware that medical, financial and psychological records may be subpoenaed by opposing counsel, especially if there are questions of domestic violence or child abuse. Medical and psychological professionals who have treated you may be called upon to testify as well.

Your divorce attorney can inform you about confidentiality and privacy rights as they pertain to your case.

According to a recent article in the Detroit Free Press, law enforcement agencies across the U.S. are turning to cell phone forensics for help in criminal investigations and the data they rely on to catch crooks could easily be applied in divorce cases to nabbing cheating spouses or getting your soon-to-be ex on the hook for perjury.

A former hacker named Jonathan Zdziarski has written a how-to manual on retrieving data from iPhones, and has been hired by several law enforcement agencies to teach their officers how to gather data for evidence in criminal cases.

Zdziarski says he focused on the iPhone because of its popularity and because it is more like a computer than a phone. The iPhone automatically stores reams of information about its owners use history, including keystroke data for texts and emails and screenshots of emails the user thinks have been deleted.

Photos taken by an iPhone and posted online can tell investigators exactly what time and where the photo was taken as well as the exact phone that took the photo. Since many iPhone owners use apps that are integrated with the iPhone’s GPS, just about every move an iPhone user makes can be retrieved from the database.

The courts have yet to fully weigh in on the privacy issue with cell phones, although there is an Ohio case on appeal to the U.S. Supreme Court seeking to bar a warrantless search of cell phone data.

Using social media sites like Facebook as evidence in divorce cases has exploded in just the past year; can the use of iPhone data be far behind?

The relationship you have with your divorce lawyer is in many ways the same as you would have with a co-worker or customer and good communication practices help ensure a positive outcome for your case.

Here are some tips to help you communicate effectively with your divorce attorney:

Keep and Provide Good Records – you will need to furnish your divorce lawyer with all your financial information, including assets, debts, income and liabilities. It will be necessary to maintain good financial records – income tax returns, investment account statements, paycheck stubs, bank account statements, retirement account statements, etc. – and provide these in a timely fashion.

Record Your Marital History – your divorce attorney will probably ask you for detailed information on the marriage and may also request that you keep a diary of events during the divorce process. If children are involved and child custody is an issue, it will also be important to provide a parenting history for both you and your spouse. Strive to keep it as objective as possible.

Be Responsive and Available – most of the communication from your divorce lawyer will be in written form. Be sure you respond as quickly as possible for requests for more information, records or whatever is needed to help your case. Let your attorney know what is the best way to reach you, and if you go on vacation or leave for any other reason, let your attorney know that as well.

Participate in Your Case – by being an active participant in your own case and following your attorney’s advice, you better the chances that you will get the outcome you desire.

The Florida Family Courts are courts of equity. The goal of equity courts is to make the parties equal. What exactly does this mean? Generally, this means that family courts are supposed to deal fairly and equally with all the concerned parties. Florida is an equitable distribution state. Equitable distribution falls under Fl. Stat. sec. 61.075. Under this statute, Florida courts will set apart each of the spouse's non-martial assets and liabilities. These non-marital assets and liabilities will be kept separate from the marital assets and liabilities and go to the individual spouse. Non-marital assets include those assets and liabilities incurred prior to the marriage and martial assets and liabilities include those that were acquired or incurred by either or both spouses during the marriage. Marital assets and liabilities are usually divided equally among the couple. However, unequal distribution is possible. To read more on unequal distribution see Is Unequitable Distribution in Florida Possible? Being in a court of equity also means that you are unlikely to get monetary damages because damages are considered a legal, not an equitable, remedy. The goal of equitable remedies is to place the injured party in the position they were in before the injury occurred.

The type of court you appear in can affect your pleadings and causes of action. Contact a Florida Family Law Attorney for legal representation in your family law action. Having legal representation provides better protection for you interests and goals throughout your dissolution, child support, dependency or other family law action

Premarital agreements fall under Fl. Stat. sec. 61.079. Pursuant to this statute, a premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself. The agreement becomes effective upon the marriage of the parties. The parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each party regarding any property.
2. The right to buy, sell, transfer, abandon, exchange, mortgage, encumber, dispose of, or otherwise manage and control property.
3. The disposition of property upon separation, divorce or death.
4. Establish, modify, waive or eliminate spousal support.
5. Make a will or trust.
6. The choice of law concerning the construction of the agreement; and
7. Any other matter including the parties' personal rights and obligations, not in violation with Florida Law or public policy of the state.

Contact a Florida Family Law Attorney for legal representation in drafting your premarital agreement.

This is a question I get asked every time I handle a divorce in Florida. One of the biggest concerns of divorcing couples in a Florida Divorce is who gets what in the equitable distribution process. One of the questions that needs to be answered is what are the marital assets? Part of this determination depends on when the assets were acquired. Some married couples go through a separation period prior to meeting with a Jacksonville Divorce Attorney to file for divorce.

During this separation period it is not uncommon for individuals to make new purchases or liquidate assets. Sometimes the spouse who moves out of the marital home will need to access marital funds to pay for their new living accommodations and purchase new furniture. So what are the marital assets subject to equitable distribution and when is the cut-off date for that determination?

Florida Statute 61.075 states that the cut-off date for determining marital assets in a Florida Divorce is the earliest of the date that the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date the divorce is filed. This means that if the couple enters into a separation agreement and subsequently acquires property, the property can be considered individual property which is not subject to equitable distribution. However, couples in a Florida divorce may have to account for how they paid for the property if they used marital assets or funds to do so.

If you are considering a Divorce in Florida contact a Jacksonville Family Law Attorney to help you understand your rights. Divorce settlements in Florida can have long term effects on your family and should not be taken lightly.

Under Fl. Stat. § 61.075: Equitable Distribution of Marital Assets and Liabilities, Florida courts shall set apart to each spouse that spouse's non-marital assets and liabilities. Generally, courts will distribute a couple's martial assets and liabilities equally among both parties to the divorce proceedings. Equitable distribution in Florida is the norm, meaning this is the starting point for Florida divorce courts. If a party claims that unequal distribution of marital assets or liabilities should be used, Florida courts look to the following factors to determine whether an unequal distribution is justified:

1. The contribution of each spouse to the marriage. This includes the contribution to the care and education of the children and services as homemaker.
2. The economic circumstances of the parties.
3. The duration of the marriage.
4. Whether either party's personal career or education opportunities were interrupted.
5. Whether one spouse contributed to the personal career or education opportunity of the other spouse. For example, if one spouse took one two jobs to pay for a legal or medical education for the other spouse.
6. Whether one spouse wants to keep assets in the same form without any interference.
7. Whether one spouse wants to keep the marital home as a residence for dependent children. This must be in the best interest of the child and financially possible.
8. The contribution of each spouse to the acquisition, enhancement, and production of income of the improvement of, or the incurring liabilities to, both the marital and non-marital assets.

It is important to protect your assets and other interests.Contact a Florida Divorce Attorney for representation in your divorce proceeding.

Being separated does not mean that marital funds that have been accumulated over the marriage cannot be used for mortgage payments, even if only one spouse occupies the home.

When post separation payments are made from income that has been accumulated following the separation, it is usually necessary to determine the date of classification to know if the equity from those payments is considered nonmarital or marital property once the divorce process begins.

The date of classification is the point in time when state law considers that you and your spouse are no longer acquiring marital property. It varies by state and can be:

The date of separation – states that classify by date of separation consider the equity earned by post separation mortgage payments to be classified as nonmarital property;

The date of filing – states that use the date of filing a divorce petition as the guideline consider the equity created by post separation mortgage payments to be marital property if it was earned before the date the petition was filed and nonmarital property if the income earned was after the date of filing.

The date of divorce – states that use the date of the divorce as the guideline consider the equity earned by post separation mortgage payments to be marital property.

Florida uses the Date of Petition for Dissolution as its guideline, so any equity earned by post separation mortgage payments will be considered marital property up to the date of filing, and nonmarital property after the date of filing. A Florida divorce attorney can provide you with more information about marital and nonmarital property status.

Using the childhood reason that “everyone is doing it” as a justification for mimicking that behavior seems to be true for divorce, according to a recent study by a University of California-San Diego professor using data from a portion of the Framingham Heart Study of the 1970s.

Professor James H. Fowler says his research shows that the feelings and actions of one couple’s divorce can transfer like a virus, causing others in their social network to be at a greater risk for divorce.

Fowler and fellow researchers from Harvard and Brown University analyzed the effect of divorce on siblings and found that people with a divorced sibling are 22 percent more likely to get divorced themselves.

In addition, they found that friends have an even greater influence than siblings. The new study found that people with divorced friends were 147 percent more likely to be divorced than people whose friends were still married.

Fowler said that there are several reasons divorce causes a ripple effect in social networks, but the major reason seems to be that when a sibling or friend is observed getting benefits from a divorce, those observing the benefits tend to want to emulate the behavior.

Fowler’s study analyzed data from 5,000 people, and he cautions that this is a small sample. More than one Jacksonville divorce attorney would agree that the findings make perfect sense, because we live in a culture that supports individual happiness and if someone is in an unhappy marriage, the solution is a divorce.

In some divorces, visitation rights and other custody issues can be highly charged points of contention. If divorcing spouses cannot agree on these issues, a court will decide the matter for them.

However, as a Jacksonville child custody lawyer, I always advise couples to try to work out an equitable visitation schedule themselves rather than having a judge decide it for them. But in some cases where there is domestic violence or substance abuse, this may not be possible.

Florida courts give great weight to the notion that both parents should be involved in the lives of their children. However, the following behaviors can impact whether or not visitation is allowed only in a supervised situation or at all:

• A history of alcohol or drug abuse
• A history of domestic violence
• Conviction of a sexual offense
• A DUI or drug conviction

All of these will be considered by the court in determining if a parent will be disqualified for visitation rights. In determining visitation rights, a parenting plan that includes the time allocated for visitation, how vacations and holidays are to be treated and the method of communication will be approved by the court. If either spouse violates the terms of the visitation agreement, your Florida divorce lawyer can file a contempt order.

In Florida divorce, some marital assets can present a bigger challenge when it comes to determining how they are divided. For example, traditional pension plans cannot usually be divided immediately, and divorcing spouses who have executive pay packages that may involve contingency benefits like deferred stock options can complicate the asset division process.

A Florida divorce attorney with access to the right financial resources can assist you when it comes to complex asset division. Using professionals like forensic accountants and business valuators can help identify the true value of marital assets and debts.

For example, if a spouse has a traditional pension plan that cannot be divided until they reach retirement age, your Florida divorce lawyer will likely recommend a qualified domestic relations order (QDRO) that will outline how this asset will be divided once it becomes available.

If a spouse owns a business or professional partnership, a business valuator can help determine the true value of the business, which includes not only the assets on hand but also goodwill.

In addition, if an asset one spouse owned prior to the marriage has appreciated in value during the marriage, the value may also be considered a marital asset. And if a separate asset was used by both spouses during the marriage, it may be considered a marital asset as well.

If your ex is considering moving to another state with your child – or if you have custody and are considering a move – a Florida family law attorney can help you understand the legal aspects of child relocation and your rights as a parent.

First, you cannot move out of state with your child without notifying the court. If you do, you risk a number of legal sanctions. Because child relocation is usually a highly emotional issue, it is important to follow the law and consider what is in the best interests of the child.

The best interests of children are what the court considers in any child relocation, custody or visitation situation. In the case of relocation, the court will likely place great weight on the impact such a move will have on each child. The court will also take into consideration the following:

• The circumstances that are causing the relocation, such as a job loss, reassignment or new employment
• Whether or not the move is motivated by a desire on the part of the custodial parent to separate the child from the other parent
• How the non-custodial parent’s visitation rights will be affected
• If the move will positively affect the child

Be sure you consult with a Florida child custody lawyer before making any move out of state with your child.

Under Florida Statute § 61.052(1)(b) a dissolution of marriage will not be granted from a party who is mentally incapacitated, unless the party alleged to be incapacitated has been deemed incapacitated for a preceding period of 3 years. The provisions to adjudge a person incapacitated falls under Fla. Stat. § 744.331.

If a spouse has been proper adjudged incapacitated in accordance with the provisions of § 744.331, the party filing for divorce must fulfill the following requirements:

1. Notice of the dissolution must be served to one of the nearest blood relatives of guardian of the incapacitated party. The relative of the incapacitated party shall be entitled to be appear and be heard on the dissolution issues.
2. If the incapacitated party has a general guardian, who is not the person bringing the proceeding, the incapacitated party and the general guardian shall be served with the petition and the summons; the guardian shall defend and protect the interests of the incapacitated party.
3. In the event the incapacitated party has no guardian other than the party bringing the divorce proceeding, a guardian ad litem shall be appointed by the court to defend and protect the interests of the incapacitated party.

It is important to note that in all divorce proceedings granted on the basis of incapacity, the court may require the petitioner – the party who filed the divorce petition – to pay alimony. If you want to file for divorce from a spouse who is mentally incapacitated, contact a Florida Divorce Attorney for legal representation.

Florida is an equitable distribution state. In essence, what this means is that the marital property should be divided fairly or equitably - not necessarily equally. The division of property is based upon all the facts of the case and also takes into account the contribution of each spouse to the marriage. The division of marital property, any asset acquired during the marriage whether by one or both parties, is considered in conjunction with all other awards of both spouses to the marriage.

It is important to know that Florida is a "No-Fault" state, meaning that the infidelity of one spouse during a marriage will not affect how the property is divided. The reason marital fault is not listed under the equitable distribution statute, Fl. Stat. 61.075, is because if the division of property was divided based on fault it would have the effect of rewarding the innocent spouse and punishing the other - this is not the goal of equitable distribution. The Florida Supreme Court has ruled that the purpose of equitable distribution is not to punish an unfaithful spouse.

However, infidelity is relevant if it can be demonstrated that that the adulterer has depleted marital resources because of the affair. For example, one spouse who uses marital funds to purchase items that furthered the unfaithful spouse's adulterous behavior can be used against the unfaithful in a trial court's determination of equitable distribution. The spouse alleging the misconduct must show a casual connection between the other spouses infidelity and the couple's finances.

Consult a Florida Divorce Attorney for any questions you may have regarding equitable distribution.

Florida guardianship attorney.