Jacksonville Divorce Lawyer Blog

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Florida divorces are decided as a no-fault matter. Florida no-fault law that rules divorces basically means that the reason for the divorce is not important in determining issues surrounding the divorce. In Florida, divorces separate assets and liability (debts) equally between the parties; alimony is based on a number of factors including the lifestyle of the parties during the marriage, the length of the marriage, etc.; and the time-sharing plan for the children is based on the best interest of the children. None of these factors are decided based on who did what during the marriage.
In situations of adultery; gambling; drug use; etc. the court can consider whether marital funds were used in furtherance of those actions. If it can be shown that marital funds were dissipated by one of the parties for such actions, then the court may order an unequal distribution of marital assets and debts in order to payback the other party.
When determining the best interest of the child[ren], the court may consider whether one of the parties participates in activities that may be detrimental to the child[ren]. If there are extreme accusations, then the court may require a time-sharing coordinator and/or a social investigation in order to assist in determining the best situation for the kids.
Understand your rights and options before filing for divorce and contact a family law attorney to assist you with these issues.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Seeking an annulment in Florida requires your facts to match those prongs necessary in Florida annulment law, based on cases and not Statute. Annulments are difficult to get due to the fact that they dissolve the marriage as if it never occurred. Florida annulments require proving that the marriage was void due to certain circumstances such as bigamy or is voidable, for example that the marriage was entered into based on the fraud of another.

A marriage that is void can occur if one of the parties was married before and the divorce of those parties was never finalized. If the spouse then marries another, then that the new marriage is void and the parties were never legally married. No matter if the parties agree that the marriage is valid, in the eyes of the law there was never a marriage because bigamy is not a legal action. If this occurs, then the first marriage must be ended by a legal divorce and once finalized the new marriage can be conducted legally, but must be done again with a new marriage license.

A voidable marriage can occur under issues of fraud that were present prior to the marriage. For example, if one party tells the other that she or he has never been in prison for a violent crime and marries under that presumption, then later is exposed as a violent criminal. Once married, if the non-offending party learns the other spouse’s true identity, then she or he could file for annulment if and only if the marriage was not consummated after learning of that spouse’s true identity. Consummating the marriage after learning of the fraud reestablishes the marriage under the new facts and an annulment is not possible.

If you think you qualify for an annulment, you should get the assistance of a family law attorney to assist you since so much of the annulment law is based on cases and not statute. The process is different than filing for divorce so understanding your rights and options is important.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

As a Jacksonville, Florida family law attorney one of the more joyous occasions I get to handle are stepparent adoptions.
When a parent marries a someone that is willing to take the place of a missing parent, whether by choice, incarceration, death, etc., Florida allows the process to be completed relatively smoothly. The idea of the court is to make the transition easy for the stepparent as long as the other parent does not contest or object to parental rights being terminated. Often, if the other parent has not been involved with the child’s life, that parent is typically willing to have his/her rights terminated and will consent to the termination of parental rights.
An unmarried father that has not registered with the Putative Father Registry and who has not been married to the mother or in communication with the mother may give up his rights by failure to comply with the establishment of his legal paternity. However, if the mother knows how to find that individual, then there is a presumption that he should be given the opportunity to object to his rights being terminated and notice is given to him of the Petition.
If you are seeking to adopt your stepchild, then you should speak with a family law attorney to make certain that you go through the correct process to make certain the adoption is done correctly.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Relocating with your child in Florida does require action on your part if you are not married to the other parent. When moving more than 50 miles away, you are required to file an action with the court giving notice that you intend on moving. This document must be provided to the other parent as well. The only way around this rule is if you have previously reached an agreement with the other parent and put that agreement in writing, then you must file that plan with the court that maintains jurisdiction on the case (most likely where time-sharing was ordered).

Florid Statute 61.13001 lays out a map for all required language needed in the document. Once it is filed and the other party is given notice, then the other party may file an Objection with the court within 20 days. If an Objection is not filed with the court, then there is a presumption that the move is in the best interest of the child. If there is an objection, then the court will require a hearing to make a ruling on whether the move is in the best interest of the child and to determine the best time-sharing [visitation] plan for the situation. Often these plans include the cost for transportation to be covered by one or both parents.

If you are seeking to relocate, or object to the other parent’s location, then you should speak with an experienced family law attorney to make certain that you fully comply with the Relocation statute.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Florida divorce/family law courts recognize discrepancies in the incomes of both parties and have developed access to courts early in the process through a Motion for Temporary Needs. Once filed, there is a hearing to establish the needs of the parties until the divorce can be finalized. The motion for temporary needs can include the following issues:

1. Who will live in the marital home while the divorce is pending.
2. When children are involved, a temporary time-sharing plan (visitation).
3. Child support to be paid based on that [time-sharing plan] schedule.
4. Spousal support (determined based on the same provisions as general alimony, but sometimes it is more generous on the temporary basis since the separation is fresh and expenses are unknown).
5. Attorney fess and costs that were necessary for filing the divorce and getting representation. The idea is that if one party can afford an attorney, then the other party should have the same ability.
6. Any other items that need to be determined early so that the parties can make it from the filing to the final hearing.
7. Florida courts recognize that some spouses do not have the income of the other and may have a need for assistance while they go through a divorce.

The idea of providing for the parties during the divorce proceedings is to keep the parties on an even playing field. To better understand your rights and options regarding the issues above you should speak with an experienced divorce/family law attorney.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Florid child support payments are required by law and an order is established either through an action for divorce or paternity. If child support is not paid, the responsible party’s driver's license can be suspended through the Division of Driver's License (Department of Highways and Motor Vehicles). According to Florida Statutes, §322.058 suspension of a driver's license can be done when the Division of Driver's Licenses has notice that the responsible party failed to comply with the law.

Often, the suspension of a driver’s license will put pressure on the party responsible for paying child support and they will make efforts, to have their license reinstated.

If you are dealing with a family law matter involving child support, it is wise to get the advice of your rights and options from a qualified family law attorney.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Teenage pregnancies or unwanted pregnancies seem to be a common topic in American culture. From Sarah Palin's daughter to Jamie Lynn Spears who was 16 and pregnant, and to your own child possibly knowing someone in school that is pregnant. There are options available, but knowing them is half the battle.

While we would like to say that marriage is an answer, for many it is not the right option at the right time. Florida recognizes the right to child support, so the father is not off the hook for support simply for not wanting to be part of the child or mother’s life.
In order for a father to be determined responsible, at least financially for the child, a paternity test will be required if the father does not admit paternity upon the filing of a Petition to Establish Paternity. Since child support is based on the income of the parents, and sometimes these parents are in school, the court can impute income to one or both parties.

Adoption is also a wonderful alternative because it provides a home for the child with a family that wants to and can take care of the child. The movie "Juno" shed light on the topic of adoption for teen moms and showed how families are often desperate to adopt a child because they can provide for the child emotionally and financially in ways that the birth mother and father may not be able to. If both the mother and father are willing, they can voluntarily terminate parental rights for the benefit of the child being adopted free and clear by the proper family.

In looking into your options, it is good to get all of the facts from an experienced family law attorney.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

As a Jacksonville attorney handling time-sharing issues with a client comes second nature since I grew up in such an environment. For family law clients, dividing holidays, birthdays, and vacations are a concern as they go through a divorce or paternity action. Florida requires parents to file a parenting plan that defines the time-sharing (visitation) plan they will follow. In Jacksonville, Florida, we have the 4th Judicial Circuit Visitation Guidelines, which were designed by the court to make division of time easier on parents when they cannot reach an agreement. Since the parenting plan became a necessity, the guidelines lay out an idea for parents, but are no longer simply followed by the Court, however, they are generally going to be the minimum time-sharing imposed on the parties.

The Florida Parenting and Time-Sharing Plan allows parents to design their visitation plan, but also provides guidelines for handling the needs of the children as they get older. According to the guideline times-haring in Jacksonville and surrounding areas, holidays are divided by even and odd numbered years. However, the parents can develop a different plan if they prefer and can agree otherwise.

When dealing with visitation issues, it is important to keep the needs of the children in the forefront of the conversation. As children get older they will be involved in more activities so being flexible, even to the plan created, is always a good starting point to avoid conflicts over the years. Decide early on that make-up timesharing may be necessary because life will happen and weekends, holidays, etc. may have to be alternated.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

While Jacksonville, Florida has an influx of bankruptcy filings over the last few years, child support continues to be ordered in divorce and paternity actions. If a parent files bankruptcy after child support is ordered, then Bankruptcy does not discharge that support obligation.

Florida law makes it clear that child support is for the benefit of the child and the parent receiving the money acts as the trustee of said funds for the child; therefore, the money is not considered income to the receiving parent for purposes of bankruptcy filed by that parent.

Since the money is considered support for the child, it is not a debt that can be discharged through the filing of bankruptcy. However, if the paying parent has a reduction in income by no voluntary action (i.e. laid off from job), then s/he can file for a modification of child support.

If you are dealing with bankruptcy and family law matters, it is a good idea to find out your rights and options from an experienced attorney.

Bankruptcy filings in Jacksonville, Florida have increased since the recession began. For many people going through a divorce or having been divorced where alimony is a factor often wonder if the alimony obligation can be discharged in bankruptcy.

According to the bankruptcy laws, only certain items are dischargeable in an action for bankruptcy as outlined inUnited States Code, Title 11, Chapter 13. According to bankruptcy and Florida law, the outcome from a discharge of an alimony obligation may be detrimental to the receiving party, therefore the alimony cannot be discharged in the bankruptcy court.
In addition, the debt incurred by a spouse, ex-spouse or child through a divorce action cannot be discharged by the bankruptcy, according toSection 523(a)(15) of 11 U.S.C. Sec. 23 .

If you are unable to pay the alimony previously ordered by the Court, for reasons outside of your control, then you may file an action for Modification of Alimony with the Court. However, if your money has been depleted by your own, voluntary actions (i.e. gambling), then the alimony may not be modified to a reduced obligation.

These issues can be extremely complicated and obtaining a family law attorney would be beneficial.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Florida law requires equitable distribution of marital property in divorce cases. Furniture and items purchased or received during the marriage or anticipation of the marriage (wedding gifts: Greenberg v. Greenberg, 698 S.2d 938 (Fla. App. 1997)) are considered marital property and subject to distribution. Equitable distribution is based on the value of the property and furniture. The idea is to give each party the same monetary value of property.

The difficulty with equitable distribution is determining the actual value of the furniture is questionable and often requires parties to get a valuation of the property. Valuations can be one by appraisers that specialize in valuing furnishings. If the parties do not agree on the furniture and personal property appraiser, then they may each hire their own and have that individual testify at the divorce hearing for the judge to determine the actual value of the property.

It is a good to speak with a divorce lawyer regarding your rights and options when going through a divorce. In addition, the divorce attorney can help walk you through the process and help to ascertain the best outcome for you in the proceedings.

The Florida Statutes 61.08 (4) define marriage durations for alimony as follows:

For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.

In order for the court to make a determination of an alimony award, it must have evidence before it that establishes a factual basis for alimony. The court must determine both entitlement and amount to make an alimony award. The primary factors for entitlement are need of the payee spouse, ability of the payor spouse and the standard of living established during the marriage.

Generally, in a short term marriage, alimony is not awarded or is a negligible amount. However, that is usually because the party seeking it did not present evidence to establish a basis for the award. A spouse can always argue for an award of alimony but must be prepared to support a finding of fact for the award.

Continue reading " Alimony In A Short Term Florida Marriage " »

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

If you are divorcing in Florida with assets purchased before marriage, Florida law recognizes them as premarital assets and those items typically remain with the person that brought them into the marriage. In Florida family law cases, clients often wonder which party will get the engagement ring.

The ring is considered a premarital gift and it remains with the wife upon the dissolution of the marriage as in Greenberg v. Greenberg, 698 S.2d 938 (Fla. App. 1997)). The value of the ring, given that it is premarital, does not go into the pot of the value of the couple's assets. The ring is not considered part of the assets that are equitably divided per Florida law regarding marital assets.

For those with an engagement ring that was a family heirloom, the same ruling applies because the ring is considered a premarital gift regardless of its origin. However, if you intend otherwise, then that premarital agreement should be put in writing to assure the return of the ring if that is the desire of both parties at the time the ring is given.

Disability benefits are not subject to equitable distribution. Generally future lump sum disability benefits are not considered a marital asset. However, they may be used to calculate income for purposes of alimony.

There is also some case law which states that there may be a marital component to a disability pension. To the extent that a disability pension does not represent actual compensation for a disability, it may be considered a marital asset. [Gaffney v. Gaffney, 965 So 2d 1217 (Fla 4th DCA 2007) (where the trial court made findings that the husband’s disability was not a factor in the amount of the monthly benefit he receives and the only effect of husband’s disability was that he was able to receive his retirement benefits two years early, despite its “disability pension” designation, the marital portion of husband’s pension was a marital asset subject to equitable distribution to the extent it does not represent actual compensation for disability).]

Continue reading " Are Disability Benefits a Marital Asset? " »

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

In Florida, if you are going separate ways in your marriage, divorce is not a requirement to receive alimony and/or child support in Florida. If you and your spouse are separated, then the party in need of spousal or child support may petition the court without filing for divorce (Florida Statute 61.09). This allows for parties to separate without the pressure of divorce if that is not their ultimate goal.
The Court establishes alimony based on the same factors that are considered in a divorce proceeding, per Florida Statute 61.08, such as length of the marriage, contribution of the parties during the marriage, lifestyle of the marriage, etc.

Child Support is determined based on the child support guidelines in Florida Statute 61.30, as it would be under any other proceeding in family law matters ( divorce, paternity, etc.).

Child Support is based on the income of the parties, so if alimony is awarded, it will be factored in as income to the receiving party for purposes of child support.

Continue reading " Florida Allows Alimony and Child Support Without Divorce " »

In Florida there are several ways an unwed father can establish paternity to preserve their rights as a biological parent. Generally in Florida the biological mother's rights are superior to an unwed biological father until he has taken steps to establish his paternity under the law. Florida Statute 742.10 governs the establishment of paternity for children born out of wedlock.

The statute provides that "if an adjudicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), creates a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier."

The statute also provides that "both parties must provide their social security numbers on any acknowledgement of paternity, consent affidavit, or stipulation of paternity." The father should also file a Claim of Paternity form with the Florida Putative Father Registry which charges a minor fee. If the father is not on the birth certificate he must get the mother's permission to be added or seek an order from a court of competent jurisdiction.

Continue reading " Unwed Fathers Must Establish Paternity In Florida To Preserve Important Rights " »

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Florida requires that a parent file a Petition for Relocation if that parent has the child the majority of the time and is moving more than 50 miles from the child's principal residence. This petition is required if both parents, or another with rights to the child, do not agree on the relocation of the child.
If the parties are in agreement with the relocation, then they must put the agreement in writing, stating the following:

1. State the consent to the relocation;
2. Definition of the new time-sharing schedule for the parties; and
3. Describe transportation for time-sharing.

The agreement must be filed with the court, but a hearing is not required unless requested by one of the parties within 10 days after filing the agreement with the Court.
If the relocation is not agreed upon, then the petition must provide certain information per Florida Statute 61.13001 and the other party has 20 days from the date of service to file an objection with the Court. If no objection filed with the Court within that time, then it is presumed that the relocation is in the best interest of the child(ren).

Several years ago the statute that deals with parenting in Florida, F.S. Chapter 61, made some significant changes. These changes affect the way that parents and professionals should tailor parenting plans in family law proceedings and how the courts should deal with them. Below is a quick comparison of some of the more significant changes with the previous laws:

Old: A primary residential parent and a non-residential parent were designated.
New: No designation like this.

Old:Parents referred to as "primary" and "secondary".
New: Referred to as "mother" and "father".

Old: Primary parent had "custody" of the child or children.
New: The term "custody" is no longer used.

Old:General visitation guidelines were okay.
New:Specific timesharing agreement is required.

Old:Secondary parent visited with the child.
New: "Visitation" is no longer used. The new term is "timesharing".

These are just a few of the important changes in the parent child relationship that took place.

Continue reading " Changes To Florida's Parenting Statute " »