Jacksonville Divorce Lawyer Blog

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

Divorce impacts families from the parents to children and often children want to have a say in where they live. Florida recognizes that children need to be considered in a divorce and has established that a time-sharing and parenting plan should be established for the benefit of the children by taking into consideration the school and extracurricular activities of the kids. In addition, the time-sharing plan should provide time for each parent to develop a parent-child relationship though they may not live in the same home on a daily basis.

However, often I have clients ask if their child can tell the judge where the child prefers to live the majority of the time. In Florida, child testimony is allowed if proper leave of court is requested and the Judge finds that the child is an age (generally over 11), maturity and understanding of the proceedings to provide proper testimony. The court must also determine if the child's testimony will be detrimental to the child's mental health and whether the child can testify in front of all parties or only in front of the judge. In Jacksonville, Florida typically if there is a dispute as to which parent will have majority time-sharing, the court will require a social investigation and during that investigation, generally conducted by a psychologist, the children will be interviewed.

If you have a divorce where child time-sharing is an issue, you should speak with an lawyer to find out your rights and options.

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

Florida Department of Children and Families is the state entity responsible for protecting children from abuse, neglect, and other actions that are detrimental to the child's well-being. When DCF gets involved with a family, they typically start an investigation to determine the truth of the allegations. If the State feels that there are issues, but they do not warrant the child being removed from the home, they may request the family to participate in programs or a case plan under DCF supervision. If a family refuses their services, then DCF may find that without the offered services, the child is in harm and needs to removed from the home. Once that determination is made, DCF may file a Petition for Shelter with the court.
At a shelter hearing, the court may find that the child needs to be placed with foster care or another relative and DCF will then file an action with the court for dependency. Often, the goal is to reunify the family and child, but if the family is unwilling to cooperate with DCF programs or the allegations are too severe, then permanent placement within foster care or another family member may be necessary.
You are entitled to have a court appoint an attorney for you at the shelter hearing, or you can hire your own attorney. However, it is important to speak with an attorney as soon as possible to best understand your rights and options.

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

Florida divorce law allows for a spouse to be awarded spousal support/alimony, if the court finds that the requesting party has a need for support and if the other party has the ability to pay alimony. Both tests are important in determining spousal support because the goal of the court is to make the parties whole, not to make one party whole while the other lives a destitute life. In addition to determining the need and ability to pay, the court must determine how long spousal support is necessary or allowed under the Florida alimony statute.
The Florida alimony statute allows for alimony in different forms: lump sum, periodic, bridge-the gap, permanent and rehabilitative. The spousal support awarded is based on the evidence presented, including the length of the marriage, the contribution of each party to the household, the health of the parties, and other factors. In order to have alimony awarded, the need for support must be shown to the court and that need should be quantified, especially with recent changes to permanent alimony, which require that the court the spousal support is needed permanently.
If you have questions regarding your Florida divorce, speak with a family law attorney about your rights and options.

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

Florida had a long standing adoption ban for homosexuals until an appellate court ruled that there was no merit for the ban and found it unconstitutional. However, the issue was not over with that court ruling because there was a push for the Florida Supreme Court to hear the case and brief filed by the State and the Department of Children and Families. However, in October 2010, the State of Florida and DCF announced that they would not appeal the court's ruling to the Florida Supreme Court. Since they were the original parties, their lack of further appeal meant the end to the ban on homosexuals adopting children in Florida.
While the ban has been lifted, for some in certain parts of the state, the true test will be finding the right organization to assist in an adoption. For many years, DCF and other organizations have allowed homosexuals to foster children, but not adopt them. So, working with these agencies may prove not as challenging as one may suspect, but only time will tell.
If you are interested in adoption you should speak with a family law attorney about your rights and options.

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

In a divorce or other child support case, I am often asked which parent can claim the child as a tax exemption. According to Florida State 61.30(11)(a)(8), the parent with the majority timesharing is required to file the IRS waiver of claiming the tax exemption if the other parent is current in child support payments. This is enforceable when the parents have agreed, or it has been ordered that they alternate tax years claiming the child.

However, according to Wamsley v. Wamsley, 954 So.2d 89 (Fla. 2nd DCA 2007), it is error for the court to order the tax exemption be given to a parent that is not current in child support payments. What this means is that even though the order may alternate tax years for the exemption, the parent with the majority timesharing does not have to file the waiver of exemption if the other parent is behind in child support.

You should speak with a family law attorney if you have a problem with the tax exemption or an issue involving child support.

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

In Florida, divorces require the equal distribution of marital assets. What this means is that anything purchased or co-mingled during the marriage is considered marital and those assets have to be divided equally to the spouses. However, if one spouse uses those funds inappropriately (drugs, affairs, etc.), then the court may order an unequal distribution of the marital assets.

In a recent Florida case, Fuentes v. Fuentes, 35 FLW D878 (Fla.2nd DCA April 27, 2011), the court ruled that if an unequal distribution of assets is awarded to a spouse, then it is that spouse’s responsibility to prove to the court the assets were inappropriately used or depleted by the other. While the parties are waiting for the divorce to be final, one spouse may be required to pay the other spousal support (alimony), living expenses, attorney fees, etc. Normally, these funds are to be paid from current income, but sometimes it requires the spouse to go into marital funds to pay the other with. When that occurs, it is not considered an inappropriate use of marital funds and an unequal distribution of assets is not appropriate.

If divorce is on the horizon, you should speak with a family law attorney to better understand your rights and options.

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

In Florida divorce cases involving children, the parents are required to attend a DCF approved parenting class to help them learn ways of talking with their children and each other about divorce, timesharing and other issues. In North Florida courts, like Jacksonville, the family law judges require the same course be completed in paternity cases as well.

Recently, Jacksonville’s First Coast News reported that the online course, approved in areas like St. Johns County, can actually be completed by a dog. The fact is that the DCF online course does not require individuals taking the course to continuously stay engaged in the program. The class takes four hours and as long as someone is logged into the site, having paid, then once the four hours are done they get a certificate of completion. The idea from the article is that in-person classes like those provided at Hope Haven are more beneficial to the parents and children because it guarantees that the parents are listening and engaging since they have to participate in roll-play.

The class is designed to assist parents in understanding different parenting techniques and, in the process, to help avoid issues of child abuse. If you are going through a divorce or paternity case, think about the benefit to your child in attending the class, whether you do online or the in-person class. You have a course for four hours, but it helps to teach techniques that will be beneficial to you and your child for the next 18 years.

If you are going through a divorce or paternity case in Duval, Clay or St. Johns County, you should speak to an attorney about the court’s requirements on you during your case and understand your rights and options.

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

In Florida, child support is determined based on the child support guidelines. In addition, if the payee requests an income deduction order, then the child support will be garnished from the payor's wages with a fee established by the State. The fee is minimal and is assessed to the payor for the service of having the garnishment done.
If child support is not paid, then the payee (receiving party) may file a motion for contempt. If the child support was to be garnished an the employer failed o do so, the. Both the payor and the employer can be held in contempt. Often, if the parties are found to be in contempt (not obeying court order) then the attorney fees an costs established to bring the action may be paid by the offending parties.
If you have an issue with child support, including your wages not being garnished, then you should speak with a lawyer about your rights and options.

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

Holiday Visitation can be challenging when going through a divorce and sometimes even after the divorce is over. Emotions are often heightened during a holiday so rational negotiations can be a challenge. If necessary, you may seek help from a third party such as a mediator or lawyer to reach an amicable resolution.

When establishing a timesharing plan, it is important to first think in terms of the needs of the children such as their school schedule, sports schedule and the like. Once you know those perimeters be fair to the other parent by truly thinking about what holidays and events are most important to you and your extended family. That may help you to establish a Timesharing plan that is workable now and in the future.

When establishing a parenting a d timeshare plan it is good to speak with a family law attorney to help explain your rights and options.

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

Florida alimony laws have been scrutinized over the years because we do not have an alimony calculation, but simply calculate alimony based on factors of marriage duration; contribution to the marriage; marital lifestyle; etc. In addition, the type of alimony to be awarded has not been constant and there can reasons for providing permanent alimony to a short-term marriage and short-term alimony to a long-term marriage. These factors combined with a theoretical number based on marital assets; debts; and other lifestyle contributors has made alimony payors afraid of the term alimony.

Florida alimony laws started changing a year ago to give definitions to long-term and short-term marriages, which were not available before. Now, the Florida alimony statute has changed again and now includes a provision to make the payor and payee have equal amounts available to them each month. The new provision regarding alimony will be in Florida Statute 61.08(9) and basically states that the award of alimony cannot leave the payor with significantly less net income than the payee. This additional language will hopefully make alimony payments more fair in determining the amount to be paid and received. The idea is that one party really should not benefit financially while the other suffers financially from said support.

When going through a divorce, you should speak with a divorce lawyer/family law attorney to better understand the law and your rights and options under said law.

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

Alimony in Florida can be defined as a spousal support established to help keep both parties in the same lifestyle to which they were accustomed during the marriage. Alimony has been established for individuals that are divorcing that have a lack of ability to earn income based on their contributions to the marriage. The idea is that the spouse that has put his/her career on hold will be financially harmed by the divorce due to lack of income, job experience and the like. Permanent alimony is designed to help keep the status quo the marriage for the parties.

However, Florida law has changed in 2011 and will take effect on July 1, 2011 making permanent alimony more challenging to be awarded, even in a long-term marriage (over 17 years). Now, the court must determine that permanent alimony is necessary for the requesting spouse and make a finding that there are no other forms of alimony that are fair and reasonable under the circumstances. If the requesting spouse could work towards achieving a lifestyle similar to that established during the marriage, then the court may find that another form of alimony (bridge-the-gap, lump sum, rehabilitative, durational) may be just as fair in achieving the goal of having finances equal to the marital lifestyle.

When going through a divorce, you should speak with a divorce lawyer/family law attorney to better understand the law and your rights and options under said law.

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

In Florida, divorces involving alimony have gone through significant changes in the last couple of years. In 2010 the Florida law changed to include definitions of short-term marriages as anything less than seven years; moderate-term marriages are those that last 7 – 17 years and long-term marriages are those lasing over 17 years.

Permanent alimony used to be available in long-term marriages as an automatic with showing necessity of such, in moderate-term marriages if it can be shown to be within a reasonable necessity and in short-term marriages if there were, “exceptional circumstances.” The 2011 laws have now significantly impacted the ability to get permanent alimony in moderate-term marriages (7 -17 years). Florida Statute 61.08(8) , in order to get permanent alimony in a moderate-term marriage, the party requesting said alimony must present clear and convincing evidence as to why she/he should be awarded permanent alimony.

Now the threshold for getting permanent alimony for marriages less than 17 years will require more evidence then the typical issues of work history or contribution to the marriage. These allegations will now have to be proven by the requesting party and not merely addressed through testimony of the requesting party.

When going through a divorce, you should speak with a divorce lawyer/family law attorney to better understand the law and your rights and options under said law.

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

Alimony in Florida has changed in the last couple of years. In 2011, the alimony law has been changed and will take effect on July 1, 2011 regarding all pending divorce cases and any new modifications of old divorce cases. However, the alimony changes to the law cannot be used to modify an old order.

Florida Statute 61.08(7) now states that there is no reason that durational alimony cannot be awarded in a long-term marriage (over 17 years) if there is no ongoing need for permanent support. What this means for you is that if the spouse requesting permanent alimony has an ability to care for him/herself and provide a lifestyle close to that of the marriage, then that spouse may be entitled to alimony for a set period of time, but not permanent alimony since there is no need for the same.

Alimony is designed to keep both parties in the lifestyle to which they have been accustomed during the marriage. Over time, if both parties have the capability of maintaining that lifestyle without assistance, then Florida law is now saying the other spouse should not be required to continue paying support.

You should speak with a divorce lawyer to better understand how alimony works and is calculated if you are going through a Florida divorce.

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

Florida divorce laws regarding alimony have changed in the last two years. Alimony, as late as 2009, basically held that there were short-term, the gray area and long-term marriages for purposes of determining the amount of alimony and how long it would be paid. In 2010, the Florida legislature provided a new standard for determining what these terms of art actually mean. For instance, Florida Statute 61.08(4) defines marriages as short-term (0-7 years, moderate-term (7-17 years) and long-term (over 17 years).

Florida alimony now has even more restrictions that will take effect on July 1, 2011 and will apply to all pending Florida divorce cases and any new modifications of old orders regarding alimony. The changes basically make it harder to secure permanent alimony by placing more restrictions and hurdles regarding proof on the party requesting permanent alimony.

While Florida seems interested in changing alimony requirements and availability, hopefully the legislature will at some point give guideline calculations for alimony to make the process easier to understand by both parties.

If you are going through a divorce in Florida, you should speak with a divorce lawyer to better understand your rights and options.

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

Text messaging has replaced phone calls for many people, especially those going through a bitter divorce. When text messaging shows communications that may help a court better understand a situation or issue surrounding the divorce, a Florida court may allow such communication. As a family law attorney in Jacksonville, Florida, I have had to use text messaging to prove that my client has been harassed or that the other party has threatened harm on the children. The text messages must be proven to the court to have come from the parties. What typically is shown are the phone messages, in the phone and a hard copy produced as almost a screen shot. It is important to establish certain criteria to have the text message entered as evidence to the court for proof of origin and content. Simply writing the text messages will most likely not be allowed in court since there is a higher chance of error in copying.

If you are going through a Florida divorce, you should contact your cell phone provider to see if there is a way to get the text messages from them. A number of smart phones also allow the messages to be sent via email, which may be used if you can also provide the phone for proof of the messages.

If you are divorcing and have communication with the other party you should speak with a lawyer about your case and get help in presenting your case to the court.

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

Florida requires parents going through a divorce or paternity case to keep their children in the front of the issues. North Florida courts require that parents complete a course sponsored by the Department of Children and Families that teaches parents about issues regarding a split home and the effects it may have on the children. The course in Jacksonville Florida is called, "Children First in Divorce."

In Jacksonville, Florida the course is a requirement in every divorce and paternity case to help parents understand issues that may arise with the children as parents split or establish a time-sharing plan. Like it or not, separate households can cause the children difficulties and understanding how to address those issues can be helpful.
Speak to a family law attorney If you are going through a divorce or paternity action so that you follow all court rules.

If you are going through a divorce or paternity action, know your rights, options and the responsibilities the court may impose on you, speak with a family law attorney.

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

Using emails in your divorce or paternity case can be challenging. As a family law attorney in Jacksonville, Florida, I often have clients come in with emails that they want me to introduce to the court. However, simply because it exists does not mean that the email can be provided to the court to establish your case. Divorce and paternity cases often lead to the parties communicating through email so the emails often have information that is emotionally charged for both parties.

To use the emails, the court has to be able to verify that the emails are authentic to the parties and having that established takes understanding for rules of evidence. Authenticating an email may be through instant reply, nicknames, information unique to the parties, etc.

If you are going through a divorce or paternity case and have email communication that may be beneficial to your case, you should speak with a family law attorney.

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

In your Florida divorce or paternity case, the court allows the use of instant messaging (IM). Often, couples couples communicate through the internet using instant messaging (IM) and then wonder if their conversation can be used against the the other party in a divorce or paternity case. The court does allow the use of this communication, but it is difficult to get it admitted to court unless it can be shown to be a true copy of the conversation.

The best way to save the communication is with a screen shot versus cutting and pasting the document. A screen shot can be saved and used to show the individuals had communication, the communication was by using known screen names that are attached to email addresses associated with the parties. If you are communicating through instant message, take screen shots and also copy the profile of the other party.

If you are going through a Florida paternity or divorce case, then you should speak with a lawyer that is familiar with these issues so that the proper evidence may be shown to the court.

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

time-sharing plans (visitation plans) are applied differently throughout Florida. Some courts have taken the time-sharing law that replaced visitation in 2007, to mean that children should spend equal times with each parent. In Jacksonville and the northeast Florida region, the courts often try to steer away from a 50/50 time-sharing plan because it is not felt to be in the best interest of the children. However, many central and south Florida courts have interpreted the language to mean that the parents should have equal time. The Florida Supreme court rendered an opinion on the statute saying that the measure is still best interest of the children and the starting point is not intended to be a 50/50 visitation split. So, what if you have 50/50 time-sharing and as the kids grow older you realize that they are nor doing as well on such a schedule?

Time-sharing plans can be modified using the beat interest of the child as a measuring tool for a substantial change. If the children are not functioning well in school, feel stressed or emotional due to the division, or are simply not adapting well, then the court may establish a different time-sharing plan. The parties may also agree on a division they think is better for the kids and that plan can be entered with the court.
When thinking of a time-sharing plan, it is important to think of the child's school and extra curricular activities. If the kids have friends in one parent's neighborhood and not the other, then their social life is changed with each house switch. Keep these things in mind when deciding on a visitation/time-sharing schedule because ultimately the kids need to be happy and able to function at school and in their family time.

If you are going through a divorce or paternity case it is important to speak with a lawyer that can explain your rights and options in developing a time-sharing plan.

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

Florida divorces require that assets, including all accounts (IRAs, Mutual Funds, etc.) be divided equally by the parties. Once the assets are divided equally, the income available to the parties may be construed differently and impute certain monthly allowances to a party when determining if alimony will be awarded. In a recent Florida case, Neiderman v. Neiderman, 36 FLW D927 (Fla. 4th DCA May 4, 2011), the court found that the Wife could be imputed income from the division of an IRA. While IRAs do have a penalty for withdrawals made before age 59 and 1/2, there is a provision under IRS Regulation 72(t) that allows equal periodic payments from an IRA without penalty. This is done only if the payments will be for more than five years; the life expectancy of the party; and if there is a reasonable rate of return. Under this provision, the wife in Neiderman could withdrawal $9,000 per month without invading the principal. Therefore, the wife was imputed $9,000 per month income only from the IRA as imputed income for determining her alimony award since her husband made $500,000 per year and she made $35,000 per year.
Given market changes, she may be able to apply for a modification of alimony if there is a deviation of at least 15% in her available income.

Continue reading " In Determining Alimony in My Florida Divorce, Can Income Be Imputed Through Marital Assets? " »

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

divorces and the pensions of the parties are controlled by Florida Statute 61.076, which gives equitable distribution for any vested or nonvested monies, benefits and rights received during the marriage. For example, if the wife has worked for a company for 20 years and has a pension for those 20 years of work, then husband is entitled to receive one-half of the portion of the pension created during the marriage. If they were married for 10 years, then he receives one-half of the 10 years worth of pension. Often, this is a calculation that has to be completed. Even though the final judgment or order of the divorce will state what the division is and how it is to be divided, the receiving party must also have a Qualified Domestic Relations Order (QDRO) entered by the court for the bank or 3rd party to divide the pension properly.
If you questions regarding your pension or the pension that you have been awarded in your divorce, then you should speak with a family law attorney about having the QDRO completed or you cannot get your funds.

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

As a Florida family law attorney, I often have calls from men that have been served with paternity papers who have just discovered they have a teenage child. Often, these men have already started their own family by the time they are told about the child and now they are looking to pay child support for the benefit of a kid they do not know. Florida law understands this can be an issue, so it only allows back child support only be calculated two years from the date of filing the petition for paternity. In addition, Florida case law has established that if the father did not know of the child and has children prior to finding out about the child, then child support may be calculated giving him credit for the children he presently has. The Florida child support guidelines gives credit for having a prior child support obligation, so the Florida courts have said that the father should get the same credit for kids he has in his life prior to the discovery of an unknown child.
To calculate child support for the children presently living with the father, the court may use a couple of calculations. The one that is easiest is taking the incomes of the father's present household, as if the parents were getting divorced, and establishing what the child support obligation would be. Once that is established, then that number is put into the Florida child support calculation as a credit to the father.
It is important to present the right argument to the judge for the calculation to be done, so speak with a family law attorney if you have a paternity case.