Jacksonville Divorce Lawyer Blog

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

Mental and physical illnesses are often prevalent issues in divorces. A divorce, even for two healthy and fit individuals can be stressful, so the impact is even greater on those that are not.

In Florida, you are required to attend mediation where your case may be settled without the need for a trial. Since mediation is an opportunity for you to have some control over the outcome of your case you want to be able to enter it at your best. If you suffer from any illness, whether emotional or physical, and you have medication, be certain to take your proper medications the night before and day of mediation so that you can feel your best during the proceedings.

Prior to mediation, be sure to talk to your attorney about any questions or concerns you may have. In addition, if you have a therapist or mental health counselor, you may want to schedule an appointment before mediation and for the day following since your stress levels will most likely be higher than usual that week. If you suffer from physical health issues it may be helpful to schedule an appointment with your doctor that week to make certain you have the correct medications and therapies set up in case you experience any exacerbation due to stress.

A divorce can be challenging to get through and it is important to keep your health up. It is also helpful to speak with an experienced lawyer to help walk you through the process so that you are not surprised by any new things.

When divorcing, dividing personal property and assets can be the most challenging part of any case. When going through a divorce it is important to remember not to sweat the small stuff because it can ruin a good agreement.

When going through a divorce it is important to remember that emotional decisions are not always the best or the best use of your time and money. Mediation is required in Florida divorces and you will have ample notice of when mediation will be. Prior to that time, it is a good idea to take stock of your personal items and what is important for you to keep. Try to think in terms of items that are important and hold value to you versus just wanting something to fight over when trying to equally divide the property.

Mediation is an opportunity to work through the issues of your case and hopefully reach an agreement. You don't want to be at the end of your mediation having resolved the hard issues of visitation/Time-sharing and alimony only to start fitting over a set of plates.

If you are going through a divorce it is often times helpful to get advice from a Florida divorce lawyer so that you better understand the legal process, your rights, and the Florida States and Case Law applicable to these legal matters.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.
Divorce papers, in the initial reading, can be scary and frustrating because a petition is designed to ask for everything but the kitchen sink. However, you can also file a petition of your own, asking for similar things, in the form of a counter-petition. In addition to your option of filing a counter-petition you MUST file an answer to the petition either admitting or denying each allegation within 20 days from when you were served.

When should you file a counter-petition? If your spouse has requested time-sharing or visitation and you want to be the majority time-sharing parent (I.e. Custody issue); if you qualify for alimony; if you want the marital home or other assets; etc.

If you have been served with divorce papers, you should speak with an experienced lawyer regarding your rights and options so that you fully protect yourself. Also, the attorney can help you better understand the process and how to proceed.

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

Is there such thing as regular visitation in Florida and what does guideline visitation mean? Time-sharing has replaced term visitation in Florida and primary time-sharing parent has taken the place of custodial parent. So, with visitation having changed does that mean that visitation guidelines have disappeared? In some jurisdictions, such as Duval County, Florida, the guidelines exist for purposes of assisting with a time-sharing plan, but are no longer the standard used by the court.

Jacksonville is located in the 4th Judicial Circuit, which means that those guidelines still help lay a foundation for the standard, but are no longer court ordered guidelines when the parents cannot agree on a time-sharing plan. What the guidelines suggest is that the primary time-sharing parent have the child the majority of the time and the non-residential parent have the child once per week, typically on Wednesday, from the time school gets out until around 8 p.m. and every-other weekend from Friday when school gets out until 6 p.m. on Sunday evening. Holidays alternate by years, such as on parent will have time-sharing on Thanksgiving in even-numbered years and Christmas in odd-numbered years. Summers are generally split where each parent has one-half of summer and during that time the primary time-sharing parent goes on the same time schedule as the other parent has during the year.

If you are looking for a standard to apply to a time-sharing plan this is one that provides for flexibility because it was designed to be the "minimum" amount of time-sharing by the non-primary time-sharing parent. However, if you and the other parent can agree on a separate plan, then that can be incorporated into your time-sharing and parenting plan. If you have concerns about time-sharing and know that you and the other parent do not agree, then a parenting coordinator may be necessary. You should speak to an experienced lawyer in order to better understand your rights and options regarding time-sharing and other issues.

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

Pet visitation is often a request I get as a Jacksonville divorce lawyer. Often, clients come in asking what will happen with their pet in the divorce and whether they can have visitation. While pets do feel like a child to many people and families, the law has not really caught-up. Florida law indicates that property is to be equally divided and that if there are children that there be a parenting and time-sharing plan; however, Florida does not provide a separate law for family pets.
How can I have visitation with my pet if Florida law does not provide it? In a divorce you are required to attend mediation where you may be able to reach agreements regarding the divorce. If you reach an agreement regarding the pets, then you will want that agreement put into a partial order with the following information: where they will live; how often the other party will get to visit; and where the visitation will take place. Once both parties sign the agreement, then the order can be signed by the court and it is enforceable if one party fails to comply.
However, without an agreement in mediation the court may simply divide the property and the judge can determine which party to place the pets with. If you have questions regarding this matter you should speak with an experienced family law attorney.

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

What do shared and sole parental responsibility mean when going through a divorce or family law action in Florida? Parental responsibility gives parents the right to make decisions they feel are in the best interest of their children, such as the following: public or private schooling; participating in sports; seeing grandparents; etc. When a family is divided through divorce or circumstance (i.e. a paternity action), then there becomes a question of whether one parent should get to make those decisions or if the responsibility should be shared equally by the parents (e.g. sole parental responsibility or shared parental responsibility).

In most cases, the Court will award shared parental responsibility to the parents involved in the litigation. The idea is that while the parents may not see eye-to-eye on all things, they should be able to come together for determining the decisions that go to raising their children since they chose to have children together. A parenting plan can establish certain guidelines that will be enforceable by the Court if the parents are unable to agree on certain things and there can a provision in the final order for the parents to attend mediation if they cannot reach a decision together.

In some cases, one party may continuously make decisions that have been harmful to the children (i.e. excessive drinking). If there has been a pattern of behavior of the parent not caring for the children or a parent not making decisions in the best interest of the children, then the other parent may request or petition to the court that the other parent not get to exercise parental responsibility on the bigger decisions regarding the children (i.e. private or public schooling).

If you are seeking to get sole parental responsibility, then you should speak with a lawyer that works in family law matters of this magnitude. Understanding your rights and options is best when moving forward with your divorce or paternity action.

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

When should I fight for custody of my kids in Florida? Florida no longer recognizes custody as an issue in divorces, but has established the term, "time-sharing." However, the same principals apply as previously, which include determining the parent that should have the majority time-sharing with the children. Often, parents can agree that one parent has been with the children the primary amount of time during the marriage and that things should remain as they have been with other parent receiving alternating weekends and some weeknight visitation (i.e. time-sharing). However, other situations exist where both parents have been around the children an equal amount of time, both feel they participate equally with the children and both feel they should have the children the majority of the time, that is when a custody or time-sharing battle may ensue.

In determining the time-sharing plan for the children, the first question is, "What is in the best interest of the children?" Courts, judges and lawyers all have differing views of this question since it is one of opinion more than law. However, the Florida legislature has established certain provisions that need to be met for a parent to qualify as the primary time-sharing parent. The Florida law on these matters includes looking at which parent is likely to promote a healthy relationship with the children and other parent; which parent is likely to foster a nurturing home for the children; etc.

These questions can be answered by the Judge, but often in cases involving a dispute, the judge may require the parents meet with a qualified individual to perform a parenting plan. A social investigation will include a trained and qualified professional to interview both parties and the children and to assess the situation and present a report to the parties and to the Court regarding the investigation.

Fighting for custody (i.e. time-sharing) does involve additional litigation and often additional evidence to be gathered. The process can become very expensive for both parties and you should speak with a lawyer about your divorce before proceeding so that you have a good idea of what to expect and to get a third party perspective of the situation before taking on such a fight.

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

Owning your own business when going through divorce in Florida can be challenging. If the business started during the marriage, then it is considered a marital asset and is subject to equal division to both parties. However, some businesses are dependent of a product while others are set-up on a service provided. A business valuation should be obtained by both the husband and wife, or if you can agree then one valuation may be acceptable.
A business valuation should be done to determine the actual value of the business from office furniture to actual profit or loss generated. If the business is built on product, then the value of the business should be manageable to determine because the product has value it produces. If the business is dependent on service, especially the service or talents of one spouse, then the value of the business is more challenging to assess because its product is a person and their productivity.
When fighting over a business it is important to understand how money is generated from the company an how it is spent by the company. You may find out that the business makes "x" and has to spend "y" in overhead, marketing and other expenses, which in turn leaves very little of actual income or "z" to the parties. Also, if the business has debt, you are also asking the court to divide that debt equally. If you and your spouse are divorcing and you own a business, then it is recommended that you speak with a lawyer for both the divorce and business issues that are involved.

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

Am I on the hook for an accident if my soon to be ex was driving our car? Florida law recognizes that assets such as cars and houses are jointly owned if purchased during the marriage and must be equitably divided. Though you do not have to be joint title holders of vehicles purchased during marriage, if you are both on the title then you are both on the hook for any accidents that occur in that vehicle. In Florida, an owner or owners of a vehicle are responsible for accidents that may occur while they or another, who has permission, is driving the car.
If you are divorcing and own jointly titled cars, then you may both agree to turn title over to the other on each commonly used vehicle. This should be done as you would normally shift or transfer title to a new owner. Also, you have to inform your insurance company of the transfer of title so that insurance is established separately, though you may remain on the same policy until the divorce is finalized.
If you are fighting over the vehicles, as they are considered marital property, then you will want to make certain that the final divorce papers give a provision for how long you both have to transfer title.
Florida divorces include all marital property (property purchased during the marriage) not only jointly titled property. By speaking with a ">lawyer who handles family law you may protect your rights and options.

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

Which parent should claim the children as dependents on their taxes when separated or divorced? Working as a lawyer in family law matters in Jacksonville, Florida, I get this question often. If there are children involved in a divorce, then typically one parent will be responsible for paying child support and one parent will have the children the majority of the time. In essence, both parents are responsible for the expenses created for the children, so determining which parent gets to claim the children on his/her taxes comes down to the facts surrounding the case.
If the divorce is finalized without a clause in the final order establishing which parent claims the children as a dependent on annual taxes, then typically the parent with the majority of time with the children will claim the children as dependents on the annual taxes. However, the parties can agree that they will alternate years of claiming the children as dependents on their annual taxes.
If the parents have equal time-sharing with the children, there may be a presumption created that they will alternate tax years. However, the presumption is not one that is legally binding if one parent chooses to claim the on taxes and files before the other. This may create an issue with the IRS and without the final order from the divorce specifically establishing the plan, then it may be the first filed will be honored.
If you are divorcing and have children, then make certain to address this issue with your ">attorney and the court. In a divorce order, you want to verify that there is a clause regarding the dependents being claimed so that there is no confusion or issues that arise with your ex-spouse or the IRS.

In Orloff v. Orloff, 36 Fla. L. Weekly D643a (Fla. 2d. DCA Mar. 30, 2011), th Second District Court of Appeal addressed the decision making process a court must complete when determining whether a spouse is entitled to received a share of a family business started before the marriage upon divorce.

Under Florida law, a non-marital business that is started prior to marriage will not become a marital asset subject to equitable distribution solely because of the fact that the business was later reincorporated during the marriage. However, any enhancement in value of the non-marital business since the date the parties married may be considered a marital asset, subject to equitable distribution if such enhancement was due to either party’s contribution of marital labor or marital funds.

In Orloff, the husband formed a sole proprietorship before the parties were married in the late 1980s. The business was incorporated in Massachusetts and the husband was the sole stockholder. Following the marriage and relocation to Florida, the husband reincorporated his business in Florida and continued to be the company’s only stockholder.

The trial court held that the business was a marital asset subject to equitable distribution because the business was reincorporated during the marriage. However, the Second District Court of Appeal reversed this decision and determined that the business was a non-marital asset because the husband used solely non-marital assets to form the company. The court explained that, pursuant to Section 61.075(6)(b)(1), Florida statutes, non-marital assets are “[a]ssets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.” According to the Orloff court, the mere fact that the business “was reincorporated under Florida law upon the parties’ relocation to Florida” was “not material” to the determination of whether the husband’s business was a marital asset subject to equitable distribution.

Continue reading " Can a Spouse Receive a Share of the Family Business? Important Florida Case Law and Analysis " »

In Florida you may be required to pay child support even if you are unemployed. You might ask, "how do they calculate my income for child support guidelines if I do not have an income?" The answer is that income may be imputed or attributed to you in certain circumstances. For instance, if you became unemployed voluntarily, the court may impute income to you at the level you were last earning. That means if you quit your job, decided to change fields and became unemployed as a result, or moved to a different market where you can't find a job, the court may attribute income to you at the level you were earning or are currently capable of earning.

In order for the court to impute income, there must be competent substantial evidence supporting the imputation. Quinones v. Quinones, 870 So 2d 108 (Fla 2d DCA 2003) The imputation of income must be supported by specific findings of fact indicating the amount and the source of the income. Burkhardt v. Bass, 711 So 2d 158 (Fla 4th DCA 1998) The court may also find that a person is underemployed if they have taken a job that is below their skill set with no reasonable explanation. Lascaibar v. Lascaibar, 658 So 2d 170 (Fla 3d DCA 1995)

The burden of proof in a proceeding that calls this issue into question is on the spouse claiming that the other spouse is voluntarily unemployed or underemployed. If the unemployment is not voluntary and you do not have the ability to pay child support, the court will not require you to pay. However, there are few instances where a party has absolutely no source of income and does not have the ability to work.

Continue reading " How Do I Pay Child Support If I Am Unemployed? " »

Rehabilitative alimony is a type of alimony allocated to a spouse to provide assistance while her or she regains the ability to become self supporting. There must be a finding by the court that the dissolution of marriage will affect the requesting spouse's ability to be self supporting for a period of time. If the marriage will not affect the spouse's ability to obtain employment then rehabilitative alimony is unwarranted. The party seeking rehabilitative alimony has the burden of proof as to how they will gain training, what the object of the training will be, the length of the plan, and the cost. In addition it must be examined how this plan will make the spouse self supporting.

If a spouse is seeking rehabilitative alimony it may be necessary to call an expert witness to testify as to what the rehabilitative plan will be. The court will need to make a finding that the evidence presented is sufficient to make a factual finding that rehabilitative alimony is warranted. It may be a good idea to write the plan out and present it to the opposing spouse's attorney prior to mediation.

Continue reading " What Is Rehabilitative Alimony? " »

This is the number one question I get from new clients. The answer is not easy to give. There a a number of factors that can increase the cost of a divorce. Divorces are very emotional and often times the reason they cost more is that couples can't come to terms with the reality of their situation. An uncontested divorce where both parties are represented will easily cost about $2,500 per person just to iron out the terms of the marital settlement agreement. This is because it takes time to draft all of the documents, schedule the final hearing, and correspond back and forth to make sure the parties agree on everything and are all informed as to their rights in Florida and all matters are addressed in the agreement.

If the divorce is contested then all bets are off. Starting legal fees for each party will typically be around $4,000 to $5,000. In addition, Jacksonville judges typically require the parties to go to mediation. If the case doesn't settle at mediation then the parties will have to have a trial or final hearing.

Continue reading " How Much Does A Florida Divorce Cost? " »

Judges in Florida family law cases are big proponents of family law mediation. It is estimated that 90% of family law cases are actually settled at mediation. If that is accurate it means that a majority of family law cases are taken off of the court's docket before they go to a final hearing. This has the effect of freeing up the judges' dockets for other cases that cannot be resolved through mediation. It's no mystery then that judges in Florida family law cases promote mediation for family law clients. Most judges in Duval, Clay, Nassau, and St. Johns counties require mediation before you can even attend a final hearing.

Mediation is a form of alternative dispute resolution that uses negotiating through a disinterested third party to forge a resolution among the parties. Generally the mediator is a lawyer themselves and has practiced family law in the past or may still practice family law. This is helpful because they have a good understanding of what the laws are and how judges in your jurisdiction interpret those laws. A good mediator can help you understand what a judge might do in your particular situation if you go to trial.

At mediation the parties are usually in the same room for the mediator's introduction and then split into different conference rooms with their respective attorneys for the negotiation process. The mediator has a discussion with each party and their attorney and goes back and forth between the parties with settlement offers on the issues involved. If the parties reach an agreement the mediator types up a settlement agreement and consent final judgment for the judge to sign and the case is concluded with a non-adversarial final hearing with the judge. The terms of the mediated agreement become effective as soon as it is signed.

A settlement reached at mediation is often preferred to one at trial because the parties are able to set their own terms. This is not to say that you get everything you want at mediation but you know exactly what you are getting and can make a conscious decision to either reach an agreement or an impasse. If there is no agreement then the case simply goes to trial and the judge decides your fate.

Continue reading " What Can I Expect In Family Law Mediation? " »