Jacksonville Divorce Lawyer Blog

Florida divorce and child support laws dictate what may be paid in alimony and child support based on the facts of each case and incomes of the parties. Often, the paying party does not like the idea of writing a monthly check and the receiving party does not like worrying about whether the check is actually in the mail. Florida divorce and child support clients often ask their lawyer if there is another option and thankfully for both sides, the answer is, “Yes.” Florida Statute61.1301

An income deduction order basically garnishes the wages of the paying party per the payment agreement or order that was entered with the court. For example if you are ordered to pay child support at $300 per month and alimony at $100 per month, then the order will reflect when those payments will be made and to whom. If there is an income deduction order, then wages are garnished before you actually receive your paycheck and the money is automatically sent to the State Disbursement Unit.
Just as the paying party has an account, the receiving party has an account with the State Disbursement Unit and that account has to be set-up by the receiving party. The payments will then be made by check or they can go into an account, which the receiving party will receive a debit card for and that money can then be accessed like it’s own bank account.

If a the paying party is paid once per month, twice per month, or weekly, the order will actually reflect how the payments will be divided at each pay period. There is a nominal fee associated with an income deduction order and the party responsible for paying the support pays that fee. The ease of the service is that the parties do not have to speak each month or worry that they are not receiving credit for their payments because the state keeps an accounting of everything for them. This is helpful if an issue ever arises where one party claims that payments have not been made because you can actually get a print out of the accounting and provide that to the court if a Motion for Contempt is ever filed. Also, it gives some ease to budgeting because the money is automatically removed or given, so there is no question as to when the money may or may not hit your account each month.

The other nicety is that there is peace-of-mind for having the money going through a third party accounting system because there are assurances that your money is being received. Having an income deduction order also lessens the possibility of returning to court for nonpayment because the case is harder to prove for the receiving party when the State is keeping track of each penny in and out. Also, if you ever remarry, then there are not issues of that money having been there and then each month your new spouse watching it deplete from your account, which often does bring new stresses to a relationship, especially when it comes to alimony payments.

If you are going through a divorce or child support case, then it is a good idea to speak with a family lawyer about your rights and options regarding payment of child support or alimony.

Often parents going through a custody battle think about whether they would like to stay in the same place where they are fighting the battle. Working as a divorce attorney in Jacksonville, Florida, I have noticed that many individuals feel that once they have gone through their divorce or custody issues, they really would like to relocate to a different city. When this issue comes up, whether it be for a job change or a life change, the answer is always the same in a Florida case involving children: If you have the child the majority of the time, then you must put the other parent on notice of your intent to relocate. Florida Statute 61.13001 is the Relocation Statute that dictates how a parent can move with a minor child in Florida.

As is the case with most statutes, understanding the terms is the key to actually following the provisions laid out by the legislature so that you are in compliance with Florida law. If you do not follow the statutory requirements, then you may move to your new place only to be forced back to Florida by the court and your ex.
To summarize the Statute, a relocation is based on a parent moving away from the primary residential address for more than 60 consecutive days and that move is more than 50 miles away from the residence. Basically, if you live in Jacksonville and move to Orlando, then you have to file for relocation under the statute.
In order to relocate, the moving parent must comply with the statutory requirements and notification process.

How does one follow the requirements of relocation in Florida? First, you may reach an agreement on relocating with the other parent. If you do, then it is important to have that agreement formalized into writing that dictates information regarding the consent, any changes to the time-sharing plan, and any necessary changes in transportation or other factors of the final judgment impacted by the change.

If there is not an agreement, then you should file a Petition to Relocate and have it served like a normal petition on the other parent or party. Everything in the petition must follow the guidelines provided in Florida Statute 61.13001(3). It is important to note that everything that is required in the statute will be required in your petition in order to be in compliance with the laws regarding this action. If you do not follow it, then there may be consequences such as unwanted delays in your move.

Once the petition is filed, the other party has 20 days to file an objection with the Court. If an objection is filed, then it must also meet all statutory requirements of 61.130001(5). The Court can then hear the matter and make a ruling as to whether the move is in the best interest of the child.

While moving to a new place can be a good change, not following the statute before you do it can lead to more difficulties down the road. The court has the right to be the ultimate decision-maker and determine whether a move is in the best interest of the child. Both parents have a say in where the child lives and trying to avoid that is only going to cause more difficulties for you and your child. Speak with a family law attorney that understands the relocation provisions and can guide you through them accurately.

Child support in Florida is based on numerous factors, including the income of the parents, the time-sharing/visitation schedule, etc. In a child support case, such as divorce or paternity actions, the Court may enter an order requiring one party to pay child support to the other, or sometimes, for both parents to pay support to a third party (i.e. when an extended family member is taking care of the child). When entering the child support obligation, the court determines which party will be responsible for paying child support based on multiple factors in the child support calculation outlined in Florida Statute 61.30. As a divorce lawyer in Jacksonville, Florida I often receive questions about how to stop child support once a child reaches 18 years of age. Thankfully, the Florida legislature recently modified how child support will be stopped instead of having to go back to court. Of course, like all new laws, it only impacts the orders that have been entered since it was entered, so there are still some hoops to jump through if your child support obligation is older than October of 2010, Florida Statute 61.13.

Florida Statute 61.13 provides some guidelines for determining the nuances of child support, such as the length of time support will be paid, how it will be paid and the like. The Statute provides that child support can be paid through an income deduction order, which means that the wages of the paying party may be garnished. When an income deduction order is entered, there are provisions that must be in the order so that the payroll department and the Florida Department of Revenue are all speaking the same language from the beginning until the end of the obligation.

Since October, 1, 2010, the order must have language not just specifying the date for the child support to begin, such as January 1, 2012, but also when it will end (e.g. the child’s 18th birthday or date of graduation if it falls within 743.07(2)). Also, the order must specify how much support will be owed each month initially, and if there is more than one child, then what the child support will be when the oldest child no longer qualifies for child support. The order will also say whether the money will be deducted monthly, bimonthly or at the payroll schedule of the responsible party.

The change in these orders is helpful because previously, when a child reached the age of 18 and graduated from high school, the income deduction order remained in effect until the Court terminated the obligation. This forced the paying party to file a Supplemental Petition to Modify or Terminate Child Support and go through the hassle of hiring an attorney and paying a new filing fee. The change is a good one, but is one that the court must be careful in its language to make certain that the children have support until they meet one of the many nuances for which they qualify for child support, including an expected graduation date after their 18th birthday.

Paternity cases and divorces involving children revolve around the best interest of the child standard in Florida. Over the years, the Florida legislature has attempted to make the process less adversarial as it relates to child issues like custody, visitation and parental responsibility. In its attempt at doing so, the legislature changed a number of things including the terms used, so instead of visitation we now say, “time-sharing plan,” and instead of custody we say, “primary time-sharing parent.” As a Jacksonville divorce and family law attorney, this change in terminology helps, but it does not resolve the issues that surround such legal actions because parents do not want typically want to go days without seeing their children when it comes down to development of a time-sharing plan, so the Court can appoint a parenting plan coordinator to evaluate the parents, the children, the environments and then make a recommendation to the court based on that evaluation.

A parenting plan coordinator is available through Florida Statutes, and can be appointed by the Court upon a party’s motion. Often, the coordinator is a psychologist trained to deal with family matters, such as those related to a divorce or paternity case. Also, the coordinator’s background in psychology lends way to his/her understanding for an in depth analysis of the parties as they relate to the children. Ultimately, the parenting coordinator is tasked with the job of evaluating both parties and the children to determine what is in the best interest of the children as it relates to a parenting and time-sharing plan.

A parenting coordinator is a nice tool to use during a divorce or paternity case when the parties do not agree upon visitation. The parenting coordinator is able to do a more detailed analysis of the parents and their relationship with the children and help the Court and the parties see what may truly be best for the children. Since the coordinator typically meets with the children outside of the presence of the parties, the coordinator has an opportunity to hear the children’s concerns and interests for their own futures, thus giving them a voice. Since children do not get to testify in Court unless they are deemed an age and maturity to handle the situation, often the coordinator is the kid’s only line to the judge. Determining the best interest for children is not an easy task, so arming yourself with a coordinator that can look at all sides of the situation and provide an objective perspective can be a very useful tool when dealing with such matters.

Based on Florida Statute 61.122, the parenting coordinator is believed to be operating in good faith on behalf of the Court and not on behalf of a party. If one party does not believe that the parenting coordinator acted or operated in good faith, then Florida Statute 61.122 allows for that party to file an administrative complaint with the judge. If good cause is shown to the Court that the psychologist was not operating in good faith, then the Court may appoint another coordinator to complete the evaluation.

In accordance with the latest Census and ABC News, men and women are waiting longer to get married and the thought is that it decreases the chances for divorce. While studies seem to support the concept, as a Jacksonville, Florida divorce and family lawyer, looking at a marriage later in life also gives rise to new difficulties. As we wait to marry, our value also increases with home buying, retirement assets, career opportunities, business development and the like. So, once you are ready to take the plunge into marriage is there still a way to protect yourself from having to divide up what you have worked so hard to achieve? In Florida, there is an option of a prenuptial agreement, which must be completed, in good faith prior to the marriage.

Prenuptial agreements are outlined in the Florida statutes. However, understanding the provisions before entering the agreement is vital because you do not want to sign away things that you may otherwise be entitled to in case the worse were to occur. When looking to have a prenuptial agreement many people thing there is a stigma attached. However, it is not about planning for your marriage to fail, but insuring that you are protected if the unexpected were to occur. Since marriage can be a tricky relationship for those who have done it for even 30 years, the idea is to simply think about your finances before saying, “I do,” so that you are both protected in the years to come.

Florida Statute 61.079 defines a prenuptial agreement as, “…an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” To put it simply, it is a contract between fiancés before the contract of marriage is completed. The idea of the agreement is to simply separate out what assets belong to what parties before the marriage, during the marriage and at the end of the marriage, if a divorce were to occur. The idea is to also leave as much out of litigation if divorce were to occur, so that way neither party is tied up in an unnecessary legal battle. The most popular example of this type of agreement working is the Tiger Woods divorce. Since there was a prenuptial agreement, the Woods’ were not in divorce battle for years, which could have easily occurred without the prior contract.

A prenuptial agreement simply divides property of the parties, establishes how the asset may grow over time and if the asset were to grow, which party or parties would have rights to the asset. For example, a home purchased by one prospective spouse before the marriage is actually a nonmarital asset at the time of the marriage. The value of the home should grow in value over time and that value increase may be considered marital. The prenuptial agreement can actually outline that so it is not a point of argument down the road for the parties if they were to divorce.

Speaking with a family law attorney can be helpful to better understand your rights and options as they relate to your situation and to help guide you to knowing whether a prenuptial agreement is right for you.

Retirement benefits are often a combination of employee and employer contributions during ones job. The retirement benefits are normally grown through the length of employment, and if an employee is married during his/her employment, then the contribution he/she is making is actually a marital contribution for purposes of a Florida divorce. As a divorce lawyer in Jacksonville, Florida, I have clients that are uncertain if they actually will get any type of retirement benefits if they were to divorce, and sometimes they even postpone divorce due to their fear of their financial futures. To best understand your rights and options as they relate to a divorce, property division and retirement separation, you should speak with a divorce attorney in your area.

In a Florida divorce, the property, including retirement funds, are to be equitably distributed between the parties. However, nonmarital assets are not divided in the divorce because they are considered the property of the spouse that brought them into the marriage. How that plays out with retirement is that if you are married for 10 years and you work for 10 years at the same company before the marriage, then only 10 years of your retirement may actually be divided during the divorce proceedings.

In Florida law, there are mandatory disclosure requirements, which require both parties to provide copies of documents related to bank accounts, IRA, 401(k)s, etc. The reason for this disclosure is so that the proper funds can be disbursed between the parties. A true accounting of your 401(k) can make it easier to guarantee that the correct amounts of funds are actually divided in the final divorce order. The rules governing this division of retirement funds can be found in Florida Statute 61.076.

When dividing civilian retirement, the employer will need a Qualified Domestic Relations Order, which will actually dictate the division of the retirement funds. The fund are typically going to be rolled into a separate 401(k) or like account as presently exists for the nonemployee spouse. In order to preserve the funds, it is important for the Qualified Domestic Relations Order to be done as soon as possible after the divorce. Things such as 401(k)s can fluctuate with the market, so it is vital to preserve the funds and the nonemployee spouse’s right to said funds.

Florida Statute 61.076 also gives rules for dividing such things as military retirement, due to their 10/10 rule, which is for 10 years of marriage during 10 years of service. In order for retirement to be properly divided, the military requires orders that specifically reflect information necessary to divide the marital portion of the military retirement. In civil occupations, the employer often requires a Qualified Domestic Relations Order, but the military actually will go off the final judgment of divorce in order to separate the funds accordingly. Having the correct language is mandatory for the military to properly divide the funds between the spouses.

Written By: Lenorae Atter, Attorney

When going through a divorce in Florida, it is often difficult to think about separating the things that have been accumulated during the marriage. As a Jacksonville divorce lawyer, I am often asked how items such as the house, cars, debts, retirements and alike will be divided. Also, divorce attorneys are challenged with the ever-popular issue of the smaller, more emotionally meaningful items like furnishings, gifts, awards, collectibles, etc. The division of assets and debts is not always easy, but Florida Statute 61.075 provides that the division should be equitable, meaning that each party has equal division of all assets and liabilities (e.g. debts). It is best to speak with a divorce or family law attorney to find out your rights and options when going through a divorce in Florida.

Equitable distribution in Florida is designed to make it where the parties are able to fairly take from the marriage since they collected the items together over the course of marriage. The Statute provides specifics for the division of nonmarital assets/debts (e.g. those purchased or accumulated prior to the date of the marriage) and marital assets/debts (e.g. collected during the marriage). The court should first establish what is nonmarital and separate those items from the marital property. The parties can do this individually before going to court and can reach an agreement on what is actually marital property before entering the court for a final hearing or trial. When going through a divorce, it is a good idea to make a list of all of your property and make a list of what is marital and what is nonmarital, share that list with your attorney and your attorney can then share that with your spouse’s lawyer.

Once a list of marital items has been developed, the Court is responsible for dividing the marital property equally. The equal distribution of marital assets is based on value of the property. Since the debts are also equally distributed, there are often give-and-take of assets value versus the debts in order to reach an equal resolution, especially since debts will be based on ability to pay as well as equal distribution. Given that parties often have a disparity in their incomes, and other circumstances may arise to give the Court reason to unequally distribute property, the Court may consider the following factors when distributing marital property and debts in accordance with Florida Statute 61.075(1):

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, free from any claim or interference by the other party.

Continue reading " In a Florida Divorce, How Do I Divide or Split My Property? " »

In a Florida divorce, the Court looks at a number of factors when equitably dividing the marital assets, including the house. The concept of equitable distribution is to equal the assets and debts of the parties and to equalize said debts in accordance with the ability of the parties to pay. The Court will look at factors such as the rate of the mortgage, whether a party is receiving or paying alimony, whether the marital home is underwater like so many houses in Florida, whether either party can afford to maintain the house, when the house may be sold as an asset for the parties versus a growing liability, and many other factors. The parties may also agree, before going in front of the judge, what to do with the marital home. However, whether determined by agreement of the parties or by the judge, there should be a determination made about whether the party receiving the home will receive any set-offs or credits for the marital home at the time of the sale.

When deciding whether the receiving party of the martial home will also receive credits or set-offs for the mortgage and related expenses, Florida Statute 61.077 provides factors to consider, as follows:  
“(1) Whether exclusive use and possession of the marital home is being awarded, and the basis for the award;
(2) Whether alimony is being awarded to the party in possession and whether the alimony is being awarded to cover, in part or otherwise, the mortgage and taxes and other expenses of and in connection with the marital home;
(3) Whether child support is being awarded to the party in possession and whether the child support is being awarded to cover, in part or otherwise, the mortgage and taxes and other expenses of and in connection with the marital home;
(4) The value to the party in possession of the use and occupancy of the marital home;
(5) The value of the loss of use and occupancy of the marital home to the party out of possession;
(6) Which party will be entitled to claim the mortgage interest payments, real property tax payments, and related payments in connection with the marital home as tax deductions for federal income tax purposes;
(7) Whether one or both parties will experience a capital gains taxable event as a result of the sale of the marital home; and
(8) Any other factor necessary to bring about equity and justice between the parties.”

Each divorce is different and understanding what to expect in yours can be vital to your emotional well-being and to knowing when to fight and what to fight for, so it is helpful to speak with a divorce lawyer.

A Florida divorce requires that property, including the marital home, be equitably divided. To determine which spouse will get the marital home or whether the house will be sold; the court looks to a number of factors including the age of the children, if any; the income of the parties after alimony is determined; and the actual value of the home at the time of separation. When the court determines that one party may have exclusive use and possession of the home, which means that the individual with the home will be responsible for the payments on said home either through his/her income or the income established as alimony.

The Court may deem the sale of the home necessary after the oldest child reaches the age of 18; or to sell the home immediately, if there are no children. The party that is paying the mortgage and repairs to the home may be entitled to credit set-off at the time of the sale in accordance with Florida Statute 61.077. The Florida legislature has given ground rules for how to determine the credit to be used as a set-off at the time of the sale, including how to apply said credit when money is actually earned from the sale or when the house is underwater like so many others in Florida.

According to Florida Statute 61.077, the credit or set-off is not automatic, but must be ordered by the Judge or put into the language of the Consent Final Judgment of Divorce. In the absence of the parties having reached an agreement, the court can look at certain factors presented by the parties to determine whether there should, in fact, be a credit or set-off for the mortgage, repairs and other related expenses to the home.

A Florida family lawyer can help you understand your rights and options regarding the martial home. A divorce attorney is able to help you understand how the home may be divided in your set of circumstances and whether a set-off is in your best interest or will likely be awarded by the court.

Divorcing parties often separate before their divorce is finalized. When parties separate, even if by agreement, it does not mean that simply not having a court order means that a party is not entitled to alimony and/or child support. Spousal support is based on a need for support and the other party’s ability to pay, often this need is immediate and the party is entitled to receive funds from the date of the separation. Also, child support is designed to keep a child in the same lifestyle s/he would have if the parties were still living together, therefore, the need for child support is established at the time of the separation.

Florida Statute 61.09 allows for the determination of child support and alimony to be determined back to the date of separation. Florida Statute 61.09 states as follows:
“If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.”

A Florida family law attorney can help guide you through the separation and divorce process and help you to better understand your rights and options.

Divorcing in Florida after 16 years of marriage is considered a long-term marriage when determining alimony. Basically, the idea that has been passed down by the Florida legislature is that when parties have been married that long, if there is a need for alimony then that alimony may be needed permanently because the parties had their roles for so long and the needing party will most likely not have time to build a career to be at the same marital lifestyle or even close to it without alimony. The idea is that if a couple chose to have one spouse be a homemaker, then that individual will most likely not be able to go into the workforce and make equal to the spouse that has worked the length of the marriage.

Florida Statute 61.08 provides details for determining alimony and the length of the alimony. For a long-term marriage, permanent periodic alimony may be awarded if the requesting party can prove a need for alimony and prove that the other party has an ability to pay the alimony. Florida Statute 61.08(8) defines permanent periodic alimony as follows:
Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration, following a marriage of moderate duration if such an award is appropriate upon consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are exceptional circumstances. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s. 61.14.

A Florida family law attorney can help guide you through your divorce and help you to better understand your rights and options.

In a divorce, Florida law allows an award of alimony when a need is shown and the paying party has an ability to pay. Florida does not have an alimony calculator like some states, so instead Florida statute indicates factors that are to be used to determine the length of alimony and the court determines the amount based on again, need and ability. When the marriage is a short-term marriage often alimony is not awarded and if it is, then it may be for a brief time. The tricky determination for alimony is when the length of the marriage is between 7 – 16 years, then permanent is often not awarded and bridge the gap (between married and single life, typically 2 years) is not enough time.

Florida Statute 61.08(7) provides for durational alimony, which can be for a length of time that is more comparable to the needs and length of the marriage than the aforementioned alimony. Durational alimony is defined as follows:
"Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances in accordance with s. 61.14. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage."

A family law attorney can help guide you through your divorce by providing a better understanding of your rights and options.

Marriage is often an issue of give and take for many couples. When a couple goes through a divorce the give and the take may be brought up in a case of alimony in Florida. A Florida alimony case involves multiple factors, including the give and take during the marriage as it relates to education of the individuals in the marriage. In a Florida divorce, if one party gave up their college education to support the education of the other, then that may be brought up as an issue of the divorce.

Alimony is based on factors including length, contribution, and lifestyle of the marriage. A divorce is designed to dissolve the marriage, but not put either party in a destitute and poverty ridden situation. In order to help move the parties forward, the party that did not get a formal education or did but has not used it in 20 years of the marriage, may be entitled to rehabilitative alimony. Florida Statute 61.08 (6) requires a plan or anticipated plan be present to award rehabilitative alimony and defines the type of alimony as:

Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either:
1. The redevelopment of previous skills or credentials; or
2. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.

A family law attorney can help you through your divorce and assist you with understanding your rights and options.