Jacksonville Divorce Lawyer Blog

In Florida, attorneys are not permitted to charge contingent fees in Family Law Cases involving a dissolution of marriage or seeking an award of alimony, child support, or equitable distribution. Family law cases are emotional by nature. This causes cases to often times take a long time to resolve. If attorney's were able to charge contingent fees it's possible these cases would take even longer to settle.

Most family law attorneys charge a retainer for their fees up front. This retainer can vary depending on the perceived complexity of the case and usually the experience of the attorney. Most Florida divorces will cost at least $5,000 in legal fees alone. There are a number of complex issues in the average divorce dealing with issues like child custody, support, and equitable distribution. The outcome of these issues will have a lifetime effect on everyone involved. It is important to fins a Family law attorney who understands the law and how it pertains to your particular situation.

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Many of my clients ask me to request an emergency hearing in their family law cases without really understanding what the term emergency means in Family law court. Clients have a different opinion of what constitutes an emergency than attorneys. In turn, judges have a different opinion of what an constitutes an emergency than attorneys. Although family law cases involve serious issues and extremely emotional situations, not every one is an emergency warranting immediate attention. This begs the question then what is an emergency in a family law case?

In the case of Shaw v. Shaw, 696 So 2d 391 (Fla 4th DCA 1997), the Court said an emergency is one in which there is imminent danger, a crisis or a situation requiring immediate and extraordinary action. Emergency hearings are generally held with little or no notice to the opposing party and therefore the Court has to be careful that it does not violate judicial procedure and common fairness. The District Court said in Hunter v. Hunter, said that "the trial court should only order relief in an ex-parte proceeding where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice." Thus a motion seeking ex-parte relief "must demonstrate (1) how and why the giving of notice would accelerate or precipitate the injury or (2) that the time to notice a hearing would actually permit the threatened irreparable injury to occur." Smith v. Knight, 679 So.2d 359, 361 (Fla. 4th DCA 1996)

Most emergency motions involve threatened domestic violence, minor children, or dissipation of marital assets. However, the Court looks at the facts of each case differently, and you will need to be prepared to show why there will be irreparable harm if an emergency hearing is not held.

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In recent news it has been reported that actor Kelsey Grammer is getting divorced from his wife of thirteen years, Camille. A recent development in the case is that the actor has requested a bifurcation of the trial proceedings so he can finalize the divorce as soon as possible and marry his current fiance' Kayte Walsh. It is reported that Kelsey Grammer did not have a prenuptial agreement with his current wife and will probably have to pay her at least $50 million as part of the settlement. The couple spent their marriage in California which is a community property state. This means that the money the couple earned while they were married is to be split evenly. Apparently they earned somewhere in the neighborhood of $100 million dollars during the marriage from his acting career, multiple property deals, and other unknown sources. That money is subject to division according to California's divorce laws.

I have had cases where clients will do the same thing in a Florida divorce. Often times it is for the same reason. I'm usually surprised that someone going through an expensive and litigious divorce would be willing to move so quickly into another marriage. The court, in these types of cases, will maintain jurisdiction to decide the property and support issues after the divorce is finalized. The purpose of the bifurcation is to separate the action into two separate cases so that one may be resolved quicker than the other. Often times there is no dispute that the couple wants the divorce. The more complex issue is who is entitled to what property.

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In Florida there is a residency requirement that must be met for a Florida court to have subject-matter jurisdiction. One of the parties must reside in Florida for at least six months before filing a petition for dissolution of marriage and have the intent to remain in the state at the time of filing. Generally this burden of roof is by clear and convincing evidence and is on the petitioner. However, either party may fulfill this requirement. This residency requirement requires an actual presence in Florida coupled with an intention to make the state your residence.

One party may fie for divorce against another party who is no longer living in the state so long as they reside in Florida. The residence requirement does not require that a person not leave the state for the entire six month period. For example there was a case where a woman spent her summers in a different state and filed for divorce in Florida. The court found that she had established a residence in Florida and simply vacationed elsewhere.

If a party moves from Florida after they have filed the petition, they may still satisfy the residency requirement under certain circumstances. However, this may affect the party's burden of proof to show a mandatory intent to remain a resident as of the date of filing. The judge will generally look at the totality of the circumstances if the issue of subject-matter jurisdiction is raised in a Florida Divorce.

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In a Florida divorce the term for dividing up the assets and liabilities of a marriage during a divorce is called "equitable distribution". The assets and liabilities of the marriage must first be identified, then classified as marital or nonmarital, and then a valuation of the marital assets must be completed. Only then can everything be equally distributed.

Family law judges have a lot of discretion to divide the marital assets and liabilities. This includes interpreting the intentions of the parties by analyzing their actions leading up to a divorce or over the course of the marriage. If it seems that one party was attempting to hide an asset or accrued liabilities in both parties' names without one of the parties knowing, that will usually have a detrimental effect on the party engaging in such activity. The Court is also free to select the valuation method for assets to make its determination. A judge n a family law case must use competent substantial evidence when making its determination for equitable distribution.

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Every time the subject of mediation comes up in one of my family law cases clients always ask me the same thing, "do I have to go to mediation"? The answer is almost always yes in Florida. The judiciary has found in Florida that the majority of family law cases settle at mediation. Even if all of the issues are not settled, usually you can get some of the major concerns resolved and save a trial for the issues you couldn't resolve at mediation. This helps free up the court dockets and allows for shorter trials or no trial at all in most family law cases.

Mediation is a form of alternative dispute resolution where two represented or un-respresented parties meet with a disinterested third party mediator, usually an attorney that is certified as a mediator, who helps them come to an agreement on the outstanding issues in their family law case. The decision of the mediator is not binding unless the parties agree to the terms and sign a consent final judgment or marital settlement agreement at the end of the mediation.

The key advantage of mediation is that you negotiate for terms you are willing to accept as opposed to submitting the facts of your case to a judge to make a decision. You have to remember though that negotiations involve give and take. You may have to compromise your position somewhat to get what you want from the other party and vice versa. Although you may not get everything you want, you can usually end up with more than you may have gotten at trial with less risk. Judges do their best to come to a fair decision n family law cases. However, the judges only get a small picture of the issues involved and have to make a decision that will affect you for the rest of your life based on this limited disclosure. At mediation you and your spouse know the entire history of your case and can usually resolve the issues better with a little bit of compromise.

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In Florida there is a difference between a Simplified Dissolution Proceeding and an Uncontested Final Hearing. In an uncontested divorce one party has filed a petition and the other party has filed an answer. A simplified dissolution is where the parties file a joint sworn petition that there are no minor children and the wife is not now pregnant; the parties have agreed on the equitable distribution of property and debts; and any other facts set forth in the petition are true.

Several important factors in a simplified dissolution of marriage are as follows:

1) Both parties must appear at the final hearing;
2) Financial affidavits do no have to be filed if the parties wish to waive the requirement;
3) The parties do not have to make the waiver in writing;
4) Mandatory disclosure does not apply; and
5) The marital settlement agreement must be filed.

Simplified dissolutions are designed for married couples to handle themselves. However, there are a lot of important rights and responsibilities involved in getting divorced. It is always a good idea, even in a simplified dissolution, to consult an attorney prior to signing a settlement agreement. These agreements are binding and not easily altered once a judge enters a final order.

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In a Florida divorce the trial court may order the payor spouse to get a life insurance policy as security for his or her alimony obligation with the payee spouse as the beneficiary. The burden in this type of case is on the payee spouse to show several things:

1) necessity for the insurance;
2) insurability of the payor;
3) cost and availability of insurance;
4) reasonable premium;
5) affordable to the payor spouse; and
6) in some districts you will have to show special circumstances which would require the security.

The requirement, while provided for in the statute, is subject to the discretion of the trial court when the parties cannot agree on the issue. The purpose behind the insurance is to provide for the needs of the spouse who is entitled to an alimony award should the payor spouse die unexpectedly while the obligation still exists. A payee spouse left in this position could face dire consequences without this type of security.

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In a Florida divorce the court can award alimony to either party which may be rehabilitative or permanent in nature. Generally after the court has determined which party is entitled to what assets and is responsible for which debts, it will address the issue of alimony. Alimony in a Florida Divorce is not automatic and not guaranteed. The primary factors that determine an entitlement for alimony are the needs of the payee spouse, the ability of the payor spouse to pay, and the lifestyle established during the marriage. The court must make a finding of fact regarding these factors before it can award one party alimony.

There are several types of alimony in Florida:

1) Rehabilitative Alimony- this type is intended for a spouse while he or she regains the ability to support his or herself after the divorce. Generally the party seeking rehabilitative alimony has the burden of proof as to the rehabilitative plan (ie. job training, school), the approximate cost, duration, and how it will make the party self-supporting.

2) Bridge-The-Gap-Alimony- this is short-term alimony for a designated period of time to help the spouse seeking the award transition from married life to single life. This award can be awarded in a lump sum or periodic payments.

3) Permanent Periodic Alimony- this is support paid to the payee until they remarry or pass away.

4) Lump-Sum Alimony- is only awarded if permanent periodic alimony is justified, there is a good reason for a lump sum award, there are specific findings of fact regarding the issue, and there is money available to pay it. This can also be used to effectuate an equitable distribution.

5) Nominal Alimony- this is awarded when there is an entitlement to alimony but there is not enough money to pay the award. This allows the court to reserve jurisdiction to award a different amount in the future should the circumstances of the parties change.

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In an op-ed piece in the New York Times, economic researcher Justin Wolfers says that recent media accounts of how the economy has reduced both marriage and divorce rates is misleading, and that both are pretty much on the same track they have been on the past 30 years.

Noting that marriage and divorce rates have remained “remarkably immune” to the ebb and flow of business cycles, Wolfers said it is misleading to count marriages among people in their 20s and early 30s because the average age of marriage has been increasing since 1970 – it is now 28 for men and 26 for women.

Instead, he says, we need to look at the number of marriage certificates issued to gauge whether or not marriage and divorce rates are decreasing during the recession. For 2009, there were about 2.1 million of them issued in the U.S. – a slight decline since the recession began, but the same rate of decline that has existed for the last three decades.

What has changed most about marriage, says Wolfers, is that it is now based on shared passions instead of economic benefits. Because of easy access to all the perks of modern living – prepared foods, labor-saving technologies and even inexpensive clothing – men and women rely on each other less for the traditional roles of man in the marketplace and woman in the home.

In the wake of New York’s passage of a no-fault divorce law, Woman’s Day Magazine has made a list of 10 of the more obscure marriage laws that in some cases still remain on the books in some states:

Military Marriage by Proxy. Four states – California, Colorado, Montana and Texas – allow someone to stand in for a bride or groom if they are serving in the military and cannot be present. Montana allows stand-ins for both parties.

Baby Marriage. A few years ago, it was legal for anyone under the age of 18 to be married in Arkansas with parental consent – even babies. Lawmakers forgot to add a minimum age to a law that was enacted to allow pregnant teenagers to marry with parental consent. This was fixed in 2008.

So Not Funny. In Delaware, a marriage can be annulled if it was entered into because of a jest or a dare.

4th Time Not the Charm. In Kentucky, it is illegal to marry the same man four times.

Man-Up. A law on the books in Truro, Massachusetts says that a groom must prove himself manly before he marries by killing either six blackbirds or three crows.

No Nude Sleeping in Salem. A married couple may not sleep nude in a rented room in Salem, Massachusetts.

Don’t Ask and Tell in SC: It is illegal for a man over the age of 16 to propose marriage and not mean it in South Carolina.

Mother-in-Law Disparagement OK in KS: In Wichita, Kansas, a man’s mistreatment of his mother-in-law cannot be used as grounds for divorce.

Never on a Sunday. In Hartford, Connecticut, it is illegal for married couples to kiss in public on a Sunday.

Not in the Cards. In New Orleans, it is illegal for fortune tellers or palm readers to officiate at a wedding.

The U.S. Department of Justice has filed appeals on two rulings by a Massachusetts judge who called the federal Defense of Marriage Act (DOMA) unconstitutional because it denies federal benefits to gay couples that marry.

In July, U.S. District Judge Joseph Tauro ruled in two separate cases that DOMA is unconstitutional because it restricts a state’s right to define marriage and denies married gays a number of federal benefits given to heterosexual couples, which violates the equal protection clause of the U.S. Constitution.

Passed in 1996, DOMA restricts marriage to the union of one man and one woman, bars the federal government from recognizing gay marriage and gives states the right to not recognize same-sex unions performed in other states. Currently, five states – Connecticut, Iowa, Massachusetts, Vermont and New Hampshire -- and the District of Columbia have legalized gay marriage. Three states recognize but do not perform gay marriages: New York, Rhode Island and Maryland.

In his ruling for a suit brought by Gay & Lesbian Advocates & Defenders (GLAD), Tauro wrote that, “Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification the Constitution clearly will not permit,"

The appeals will be heard by the 1st U.S. Circuit Court of Appeals in Boston at a later date.

A Nevada woman applying for a marriage license discovered that she had been abducted by her mother during a bitter child custody dispute and had been living under an assumed name since she was six.

Melissa Reed, whose real name is Eva Marie Fiedler, found out that her mother, Nancy Dunsavage, had taken her from New Jersey to Nevada following her 1983 divorce. Dunsavage said she left and changed their names to save them from her allegedly abusive ex-husband.

Dunsavage is now in a Reno jail on a 1985 fugitive warrant from New Jersey. Prosecutors have said they want her returned to face charges in what they say was a parental abduction.

According to court documents, Melissa Reed said that her mother revealed her past to her because of her inability to obtain a marriage license, which requires a photo ID. Reed has never been able to obtain a drivers license, passport or other official documents because of her assumed name.

Dunsavage reportedly told Reed that she could not bear to keep the secret any longer if it meant depriving her daughter of the chance to be married. She reportedly said she fled because she could not afford an attorney to help her in her child custody battle, and that he ex-husband had threatened to “end it all” if she ever left him.

In a nearly unanimous vote of 416-1, the U.S. House of Representatives passed a resolution that urges Japan to address a growing problem of American children taken from parents in violation of child custody orders.

The resolution was introduced by New Jersey Rep. Chris Smith who said that Japanese courts do not currently recognize American child custody orders and have never ordered the return of an American child. One of Smith’s constituents, Michael Elias of Rutherford, has a son and daughter who were abducted by his Japanese wife during their divorce proceedings. The judge had confiscated the children’s passports in an attempt to prevent the abduction, but the wife was able to enter Japan with her children anyway. All of the father’s attempts to visit the children have been thwarted by Japanese officials.

The House resolution urges Japan to resolve all cases involving abducted American children immediately, and directs the U.S. to treat child abduction as a central foreign policy issue. Smith, who is a Republican, had criticized President Obama for not addressing the issue when he met with the prime minister of Japan recently.

The resolution is non-binding, but Elias said it was important to focus international attention on the issue.

Three Connecticut children ages 10-13 think children should have a bigger voice in child custody disputes, and are circulating a petition to allow children over the age of 12 to forego the assignment of a guardian ad litem and speak to a judge directly about what they want when it comes to child custody issues.

Trianna Gutzman, 13, her sister Marika, 12 and brother Cyril, 10, are the children of divorced parents who share joint custody. Trianna said she was inspired to circulate the petition after seeing the movie “Gandhi.”

“He said, ‘Be the change you want to see in the world’ and that gave me the inspiration to make the change,” said Trianna.

Like most states, Connecticut appoints an attorney to serve as a guardian ad litem for minor children. The guardian ad litem’s duties are to advocate for the best interests of the children, but the Gutzman children say they think they could make their own cases with a judge just fine.

"It's not like we speak a different language," Marika said. "I would go to see a judge myself and tell the judge what I want. I know what's best for me. I'm sure if a judge talked to me, I would get what I want."

If you are about to get a divorce or care about someone who is, there are some ways to make it less expensive that should be greatly appreciated in these trying economic times. Here are some tips on how to save money in a divorce:

Try to work out as much as possible in advance. The more you can agree on prior to involving attorneys, the cheaper it will be for both of you. Try to work out the division of assets and child custody issues so you only need to use your divorce lawyers for the legal stuff. Using your attorneys to argue with each other over who gets what piece of furniture and how you’ll handle holidays is a sure way to run up your legal bills in a hurry.

Get smart on your assets and liabilities. Engage a financial planner to help you make smart economic decisions for your future. Know exactly what and where your assets are, as well as the liabilities that each of you will be responsible for. Use the planner to help you figure out a fair approach to retirement account splits, alimony, etc.

Remember the “law” in “lawyer”. Feeling really upset and want to have a long talk with someone about divorce emotions? Talk to your therapist. Have a financial question? Talk to your planner. Use the lawyers for your legal needs and you’ll save yourself money.

Also, if you are contacting your attorney to find out minor details, like if paperwork has been received or filed, ask your lawyer’s assistant instead of asking to speak with your attorney. Those minutes add up to billable hours. You can also save by making copies of all your paperwork yourself instead of handing it all over to your attorney for copying.

Bitter Twitters and Facebook fits are becoming increasingly more common during bitter divorce and child custody disputes, and the idea of social media non-disclosure agreements between warring spouses is beginning to gain traction among divorce attorneys, according to a recent article in Canada’s National Post.

The Post interviewed celebrity divorce attorney Gloria Allred, who noted that the fact cyber-based non-disclosure is being discussed at all is a “2010 phenomenon” and a sign of the times. While most celebrity divorces include non-disclosure agreements, that trend has not yet filtered its way down to the mass divorcing public. However, that may soon change.

Recently, a judge in Canada told a father to “unfriend” his daughter on Facebook so she could not see the unflattering remarks about her mother on his wall page, and to change his password so she would not have access to his Facebook account.

A divorce mediator quoted in the article says it is becoming increasingly common for her clients to discuss their social media habits and make new rules for what they will and will not share with the online world.

Some divorce attorneys have said that while these agreements are not yet legally binding, this may soon change. Those interviewed for the article said that while most couples realize it is in their own best interest not to have their divorce settlements made public, in this age of instantaneous access to social media, it may be time to make explicit agreements ruling online conduct.