Jacksonville Divorce Lawyer Blog

Florida family law cases involving children, custody, time-sharing, parental responsibility, and a parenting plan can be challenging not just in the initial case, but as time goes by. When these things are fought over, the parents often loose sight of the fact that they don't just have to raise a child while the court proceeding is going on, but until the child actually turns 18 and moves out of the house. Jacksonville and other North Florida courts try to keep the level of parental animosity to a low, but ultimately the court only has so much control over the individuals. However, one continuous arm the court and the parents have is when the parenting plan gives specific directions about speaking negatively about the other parent to the child, interfering with the child's relationship with the other parent, or simply alienating the child from the other parent.

In most parenting plans, there is specific language regarding the relationship of the parent with the child, especially when it comes to matters of the other parent. For example, in many cases, there may be language like, "Neither parent shall disparage the other to the child, speak negatively in front of the child about the other, or hinder the other parent's relationship with the child in anyway." The reason this language or similar language may be in an order is because the impact on the other parent's relationship with child may be severe damage. The parenting plan helps the parents understand what they can and cannot do, or should and should not do as parents raising a child in a divided home. When the parenting plan is placed into a final order and signed by the court, it becomes enforceable, meaning that there can be court recourse if a parent does not abide by the order.

When raising children, it is important to maintain the standard of, "the best interest of the child," and not, "the best standard for me." If a parent violates the parenting plan and begins to alienate the child, then action can be taken with a contempt action. In a Motion for Contempt, the court looks at the order for clarification of what should be done by both parties. Then, the court hears testimony and evidence regarding how the order has been violated by one of the parties. If there is evidence presented that shows that the child has, in fact, been exposed to negative, derogatory, or alienating words or actions by one parent against the other, then that parent may be held in contempt. If the same actions continue, then the parent being alienate may go back to court on more than one occasion to have the other parent held in contempt. Contempt is a voluntary and willful action of one party that is against the court order.

If a parent is held in contempt more than one time for the same alienating acts, then the non-offending parent may decide to file for a modification of custody (time-sharing) so that the child's exposure to the other parent is limited. Sometimes, jumping off at the point of, "I have been alienated by the other parent and I want to modify time-sharing," can be too much and the court may not find that there is enough to alter the prior order for time-sharing. However, if you can show a pattern of behavior to the court, then your chances are much greater to succeed in changing custody down the line. Hunter v. Hunter, 35 FLW D 1696 (Fla. 2nd DCA August 3, 2011).

In Jacksonville, Florida and other portions of North Florida, the courts are not typically keen on a 50/50 visitation schedule in a divorce or paternity matter. Visitation and custody battles in Florida have taken a legal overhaul in the last few years by the legislature so as to help parents not fight from the very beginning. The changes have impacted how we refer to these issues of visitation and custody by referring to these topics as time-sharing and parenting plans. In a Florida divorce or paternity case, the goal is for the court, the parties, and their respective attorneys, to reach a conclusion that is in the best interest of the children. However, many parents have interpreted time-sharing language to mean that they start and end with equal visitation with the kids. However, the impact the schedule may have on the children is not necessarily in their best interest because parents have different ways of parenting, doing homework, establishing chores, and the like. So, the courts have tried to look at many factors in determining time-sharing plans, including the above listed things, the proximity of the parent to the kids’ schools, the communication between the parents, the relationship of the parents with the kids, etc.

In Florida, determining a time-sharing plan that works for the parents and the children can be a challenge. Often, parents feel that they want 50/50 time-sharing for multiple reasons, sadly, including the fact that it will reduce their child support obligation. Parents have to understand that whether the children are living in your house 50% of the time or spending 90 overnights (i.e. standard guideline time-sharing in North Florida) you are still paying for them, just the payments are different. Child support is determined by a state regulated child support calculations that factors in things like the income of both parties, which parent is paying for health insurance and daycare for the kids, etc. By looking at the incomes of the parties, the calculation actually determines what the household income for the child would be had the parents lived together. Then, based on the overall household income, the money is based on each parent’s contribution thereto. For example, if the household income would be $100,000 and each parent makes $50,000, then each parent’s pro rata share is 50% of the household income. Then, credits are given for the party making health insurance and daycare payments.

Continue reading " Time-Sharing, Visitation and Custody in Florida " »

Unlike mothers, fathers are not as easily determined to the parent of a child born out of wedlock and in Florida, the mother and/or the Department of Revenue may bring an action to establish paternity and child support. In a Florida, if the Department of Revenue is involved in a case it is typically due to the mother requesting some government aid for the child, such as Medicaid or Florida Kid Care. When the Department of Revenue is involved, the mother is asked to provide all information regarding the potential father of the child and the Department charges the mother a nominal fee to establish paternity and child support through the court. Since the father is not determined by simply signing the birth certificate, the petitioner, mother and/or Department of Revenue, may request a paternity test in order to scientifically establish the paternity of the child. In Jacksonville and most jurisdictions in Florida, the court will often require a DNA test even if was not requested in the initial petition simply to guarantee proper paternity is established.

DNA testing requires the putative or presumed father to comply with the DNA testing, the facility is often provided by the court, but the parties are typically responsible for paying for the test. The mother is also required to comply by taking the child to the DNA facility for the test to be complete. The DNA samples are then compared and an analysis or report is provided to the court. Cooperation by both parties is stand mandated by Florida Statutes.

If either party does not comply with the court order to have the DNA testing completed, then the judge can enter an order against the offending party. What this means, is that if the mother/guardian does not take the child for DNA testing, then the court may find that the presumed father is not the child’s father and is not obligate to pay child support. Department of Revenue o/b/o M.J.W. v. G.A.T.,Jr., 37 FLW D28 (Fla. 2nd DCA December 28, 2011). The impact of noncompliance would basically, according to the court, meet the standards established under Florida Statute 742.18(7)(b), which determines the disestablishment of paternity for noncompliance with DNA testing.

The impact of this ruling is that the DNA testing rules governs an action where paternity is questioned. Not having the testing completed basically means that the party that does not follow the court order is granting the court the authority to either order child support without a scientific finding of paternity or if the mother doesn’t comply, then not order child support be paid. However, the finding by the court did determine that noncompliance in the original case does not bar an additional case being brought in the future.

Child support in Florida cases is based on the income of the parties and the total income of a shared household. The pro rata share of each party’s income is a determining factor in the overall calculation of child support. As a Jacksonville lawyer handling child support cases, I try to educate my clients on what child support is meant to provide, including a roof over the child’s head, electricity and water for the child, gas in the car to transport the child, etc. A factor in the determination of child support is time-sharing or visitation exercised by the parties. In Florida, there is an automatic calculation of time-sharing at 20% of the time and anything over that amount may be a factor in reducing the amount of child support. In addition, the Florida child support guidelines provide credits for multiple items, including but not limited, daycare expenses and health insurance. In determining the income of the parties, the Florida Statute allows for the income of the parties to be determined based on taxable and nontaxable income, so if a party is in the military that party’s BAH and BAS pay will be considered income.

Florida family law cases are often required to go to mediation to determine child support, time-sharing (e.g. visitation or custody pre 2008), and the like. A mediated agreement is an agreement between the parties regarding all aspects of the case and it is reduced to writing and entered as an order with the court. However, if the parties do not have a time-sharing plan that is ultimately formalized into writing and entered by the court, then child support may be impacted. For example, if the case ONLY involves child support, such as cases brought by the Florida State Department of Revenue, then child support will be calculated without a time-sharing plan.

Sometimes, parents decide that they do no need to go to court to establish a time-sharing plan because they already have a verbal agreement and there are no visitation issues associated with their case. As such, the parties may allow the court to determine child support without actually entering a true time-sharing plan with the court. However, in 2011 the 1st District Court of Appeals in Florida made it clear that child support calculations may only defer from the usual 20% time-sharing credit IF the time-sharing plan is reduced to writing and entered as a time-sharing plan with the court. In the case before the appellate court, the parties had agreed to a verbal time-sharing plan where the nonresidential parent had the child 40% of the time. The appeals court found that unless the time-sharing plan was reduced to writing and approved by the court, then the 40% time-sharing that had been established by the parties could not reduce child support. Therefore, the paying party was required to pay more than would have been necessary had the time-sharing plan been entered with the court. DOR o/b/o Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011).

If you have a child support case, it is important to file a counter-petition to request that a time-sharing plan be entered by the court so that child support and your time-sharing can be properly established.

In a Florida family law case involving children, such as divorce, paternity, or change of custody, emotions can run rather high. Unfortunately, stress often surrounds these experiences and the consequences of the stress, if not handled properly, can lead to horrible actions by one parent. A parent who feels their world is caving in may turn to extreme acts, like abducting their child. Florida law has accepted, like most states, the the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which rules that initial child custody determinations should be made by the child's home state. A child's home state is the state in which a child has lived with a parent or guardian for at least six (6) months. It also determines that if a parent, in fact takes a child, the child should be returned to the home state unless an emergency lead to the fleeing (e.g. physical abuse of the parent and/or child by the other parent).
The UCCJEA allows for protection of the parents and the child by providing for legal action to be taken if a parent were to abduct the child. In the United States, there are numbers cases of parent abduction each year and having a protection like the UCCJEA is vital to recovering the children. What it allows is for the nonoffending party to file a petition with the court for an emergency child pick-up. The petition must state the actions of the other parent and give a place where the parent and child are most likely located. Once an order is entered in the home state of the child, like Florida, then the order must be adopted by the state where the child is physically located. Once the order is adopted, it is enforceable against the parent with the child and the parent is required to return the child to the home state. If the offending parent refuses or fails to do so, then the parent may be charged with kidnapping, not to mention the impact that parent’s actions will have on any custody dispute pending in the court.
In Florida, there are many individuals that moved from other countries and as a family law attorney, I often have clients concerned that the other parent will return to his/her country with the child. If a child is taken, without consent of both parents, to a different country, then the Hague Convention on International Kidnapping and Child Custody will have to be employed. The countries that have adopted this action often work diligently at having the child returned to the United States. However, not all countries have adopted the Hague Convention, which can lead to additional jurisdictional issues. A passport for a child requires both parents to consent by signing the application; if this is a concern of yours then you should deny the child getting a passport.
Child abduction is a serious matter and having an understanding for your rights and what actions can be taken to protect you and your child are vital in any type of case. If you have experienced a child custody battle or abduction, then you should speak with a family law attorney in your area for immediate assistance.

In the state of Florida, if a parent has been convicted of misdemeanor, first degree or felony domestic abuse charges, the judge may rule that it is not in the child’s best interest to award custody or time-sharing rights to that parent. The same is true if the parent is in prison for a crime that would warrant terminating parental rights. If a parent is denied parental responsibility by the courts, he or she has the right to ask a judge to consider evidence that might prove that it would not harm the child to allow the parent custody or visitation rights. The court’s job is to look at the fitness of the parents and what is in the best interest of the child. As a Jacksonville divorce and family law attorney I often have parents ask whether they will be granted time-sharing (visitation) or if they have a chance of getting majority time-sharing (custody). When evaluating this question, it is important to look at the historical nature of the family unit, the likelihood of the parent facilitating a good relationship with the child and the other parent, and multiple other factors. When there are reports, accusations or evidence of abuse in the family, then the question of custody is harder to answer because those factors will be considered by the court due to the interest in not putting the children in harm’s way.

If the parent has not been convicted of a domestic violence or child abuse offense, the judge will generally consider evidence of abuse, even if the accusing party has never filed an injunction for protection from domestic violence against them. The judge will use the evidence to determine what type of parental rights the alleged abuser is entitled to. The accused or convicted, may present evidence and testimony to dispute such accusations or to show the judge how things have changed since the incident occurred. If certain activities have been completed, including counseling, then the court may take that into consideration in determining whether there is still a propensity to commit violent acts.

If an abusive parent is awarded visitation rights, the other party may request that the visits be limited or supervised. It will be up to the judge to decide whether or not the abuser represents a risk to the child or the other parent that warrants supervised or restricted visitation. A neutral third party, like the Family Nurturing Center in Jacksonville, Florida, typically does supervised visitation. The center actually observes the visitations and records them for additional protection of the children. If supervised visitation or time-sharing is ordered and over time there are no issues, then the parent observing such time-sharing may ask the court to modify the time-sharing plan to stop the supervision, but the court will again evaluate the case based on the best interest of the child.

If further violence does occur, the other party may still apply for an injunction for protection against domestic violence. If you are involved in a child custody or time-sharing battle, please contact our Jacksonville, Florida law firm for legal counsel.

Florida divorce and paternity cases often have a child component, which many refer to as a custody battle. Custody obviously refers to which parent will have the children after the divorce or paternity action is over and ultimately determines which parent will be responsible for paying child support. The term, “custody battle,” initiates any child action with a sense of war between two parents. In 2008, the Florida legislature changed child custody to "primary time-sharing parent,” in an effort to alleviate the idea of going to war over children and ultimately, simply phrasing the legal action so that parents understand that they are, in fact, sharing the children’s time. While the law changed in 2008, most Floridians, at least in Jacksonville where I practice divorce and family law, do not know the new term. The reason is two-fold, one reason is that like anything new, it takes time to get used to and a four year time-frame really isn’t that long after a generation grew up with the movie Kramer vs. Kramer, all revolving around a custody battle.

The change in the law is one that is designed to help parents focus on the overall outcome, the sharing of their child and not focus on who has the child more. However, even with name changes, the overall picture is still the same. When involved in a custody or time-sharing dispute in Florida, the law has not really changed as far as determining the correct parent to have majority time-sharing. The court is responsible for looking at a number of factors, including which parent is more likely to facilitate an ongoing healthy relationship with the child and the other parent, the stability of the parent, the parent’s ability to take care of the child, etc. When two parents fight over the custody or time-sharing issue, the court can actually order the parents to participate in a Custody Evaluation or Social Investigation. The social investigator actually meets with the parents and the children individually and sometimes in a parent/child session to see how the parent and child interact with one another. In addition, the social investigator may conduct a home study where she/he goes to the home of each parent to see the environment the children would live in.

Once the investigator has interviewed the parents and children, she/he may find it necessary to speak with other family members, school officials, friends, etc. to get a better understanding of the family dynamics. If there are issues of mental health or physical health issues of either parent, then the investigator may require medical records be provided so that a full evaluation can be completed. The social investigator takes all components of the investigation to reach a conclusion as to what is in the best interest of the children. While the social investigator’s opinions are helpful to a court, the court is not bound by investigator’s overall conclusion and the court must still look at all factors before determining which parent is most likely going to provide the safest, healthiest, most stable environment for the children.

The social investigation allows the parties and the children to have an opportunity to address concerns and issues regarding the home life. The kids may not be able to testify in court, but since they are part of the investigation, it does allow them a voice when they otherwise may not have one. For more information, contact a divorce or family law attorney if you are going through a divorce or paternity action.

Florida divorce and custody battles (e.g. time-sharing battles) often center on the parenting styles of each party, the relationship of the children with each party, and the ability to care for the children in a safe, stable environment. When these things are questioned it can lead to legal arguments that center on the children and their academics, health, social environment and the like. As a divorce and family lawyer in Jacksonville, it has come to my attention over the years that sometimes the health of the children is more than simply getting check-ups, but also receiving the proper attention to their diet, school activities, etc. When these battles ensue, often fingers are pointed for things such as neglect, abuse (emotional or physical), lack of participation in homework and the like. However, in a 2009 Time Health article, the question of obesity in children has risen as a concern in custody or time-sharing disputes given the rise in the epidemic over the years.
The question, according to the article, is “Should morbidly obese children be taken from their parents?” While I do not see the Florida Department of Children and Families coming into everyone’s home with this issue, I can see how it may impact a legal case between two parents, especially if one parent is seeking a modification from a prior custody or time-sharing order. In order to file for a modification of time-sharing in Florida you must show a substantial change in circumstance. The question then would become, “Is the child’s excessive weight gain a substantial change in circumstance?” I believe, based on the health of the child, that the question may prompt legal action in the future.
According to the Time Health article, experts seem to be debating whether parenting styles can impact a child’s risk of obesity, thus making it healthier for the child to be out of the home of said parent. The concern is that if the child is gaining weight in the current environment, then there may be cause to remove the child to allow the child a chance at a healthier lifestyle in a different environment. The concern is a real one given that, “Childhood obesity can lead to a host of health problems, including Type 2 diabetes, which until recently was primarily a problem seen in adults. Overweight children can also develop insulin resistance, hypertension, high cholesterol, sleep apnea and orthopedic problems and go into early puberty,” according Time Health.
While the debate may exist for experts, parents of children suffering from this problem may grow concerns for their child’s health if it is believed that the majority time-sharing parent is attributing to the child’s weight issues. The courts have stepped into this debate in certain states and countries over the years, Scotland haven taken a drastic step in removing the child from an intact home due to the child’s morbid obesity. The question can become a legal debate and argument that one may take to court if the concerns of the child are truly there.
If you are concerned about your child’s weight or other health problems and believe that it is in the best interest of the child to modify your Florida time-sharing plan, then you should speak with a family law attorney to help in that pursuit.

In Florida divorces involving children and paternity cases involving time-sharing and parenting plans (custody/visitation), the parties must attend a course known as the Parent Education and Family Stabilization Course. Each jurisdiction may refer to the course by a different name, such as in Jacksonville, it’s Children First in Divorce, but the concept is all the same. As a Jacksonville divorce and family law attorney, I try to educate my clients on the importance of the course. These programs are mandated by Florida statute 61.21 and are developed and approved by the Department of Children and Families. The concept of the course is to teach parents the best way to communicate with each other and the children during the pendency of the divorce or paternity case.

The course program is required to be completed by both parties at the initiation of the case. The person that files the original petition has 45 days from the date the petition was filed to show completion. The person served with the petition is required to complete the course within 45 days after receiving the petition. The idea is that the course helps the parties through the divorce and paternity case better understand the emotions of the other party, but especially the children. If the class is not taken early on, then it may lead to more misunderstandings and poor parenting through the court process.

The course is required to have at least the following components taught, in accordance with Florida Statute 61.21(2)(a):
1. Legal aspects of deciding child-related issues between parents.
2. Emotional aspects of separation and divorce on adults.
3. Emotional aspects of separation and divorce on children.
4. Family relationships and family dynamics.
5. Financial responsibilities to a child or children.
6. Issues regarding spousal or child abuse and neglect.
7. Skill-based relationship education that may be generalized to parenting, workplace, school, neighborhood, and civic relationships.

These different subjects can help the parties better understand what they are fighting each other about and to help them cope with the legal process ahead. The aspects regarding emotions may sound trite to some, but the truth is that many divorces and paternity cases are dragged out due to emotions not legal matters. Overcoming those emotions and understanding them rationally can help facilitate an easier and less expensive legal path for both parties and their children. Also, understanding the financial needs of the children can help facilitate conversations regarding child support. Many times parents do not realize the expenses associated for children individually and when they see the child support calculation it often makes the paying party nervous. Understanding how money is determined for the sake of the child and what expenses should be covered with child support can help take the anxiety away. Education on these topics can assist the parties in understanding their legal case in a way that they may not otherwise have.

The course often has a fee associated with it, to help in the costs of running the course so that the State is not taking on all expenses for the education. However, there are options available for those individuals that may have financial difficulties and have filed for indigence status.

More courts throughout the country including Florida are recognizing a condition called Parental Alienation Syndrome or PAS. Parental Alienation Syndrome is often found in child custody or time-sharing battles in Florida. The basis for the issue is that one parent tries to pull the child into his/her corner and makes derogatory or disparaging remarks to the child about the other parent. The effect of which can be alienating the child’s affections from one parent to the other. As a Jacksonville divorce and family law attorney, I often counsel my clients early on that the children are not part of the case and are not meant to be involved. However, ultimately it is up to the parents to shelter the child from the court battle.

Often in a divorce, emotions run high and a parent may be concerned that the court will make a decision that takes the child from them. If emotions become too high and both parties are looking to achieve majority time-sharing, then the court may require that the parties undergo a Social Investigation, which took the place of a custody evaluation. The investigator is often a mental health professional that is trained to look at the parents and child to determine what is in the best interest of the child for purposes of time-sharing. The accusations of PAS should be brought to the attention of the investigator so that they can be properly identified and determined as to whether detrimental to the best interest of the child and the overall placement of the child with regards the time-sharing and parenting plans.

Issues involving claims or allegations of PAS can also be brought later by the parent-victim and determined by the court as to whether it is a substantial enough change to warrant a change in majority time-sharing. If PAS can be identified by the court through witness testimony (the child if she/he is old enough), and other evidence, then the court may find that the parent exhibiting such behaviors should be limited in his/her contact with the child, thus creating a need and environment for the child to be placed with the other parent on a majority basis.

In Florida and most other states, the courts use the best interests of the child standard and most often, alienating one parent from the child is not in the child's best interests. In Florida, the court also determines time-sharing based on factors such as which parent will most likely facilitate a caring and nurturing relationship for the child with the other parent. Creating issues for the child and the other parent can have a negative impact both on the child and in the courtroom. The judges and social investigators look at all factors of the family unit to determine the best interest of the child and must look to the environment created by each parent. For more information about this issue and other issues involving divorce, child custody, child support, or family law issues, please contact our firm .

Same-sex marriage in Florida is not recognized, which has posed a number of questions to Jacksonville and other Florida divorce attorneys about how to handle to such matters. The State of Florida originally initiated a statute defining that same-sex marriage would not be considered legally authorized or recognized in the state of Florida. That, not being enough, in 2008, Floridians voted by 62% to institute Amendment 2 to the Constitution, which gave us the language of Article I, Section 2, defining marriage as, "the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."
As other states, like Vermont, have enacted the right for same-sex couples to forge in the bonds of matrimony, that marriage is not given full faith and credit in states like Florida. In accordance with Florida Statute 741.212, such marriages that are valid elsewhere are not considered valid if the couple decides to reside in Florida. Therefore, a legal marriage is not legally dissolved in Florida. This means that if the marriage is valid in another state and not recognized where the couple resides, for the marriage to be properly dissolved, the couple must move to a state where their marriage is legal. In places like Vermont, the residency requirement before filing for divorce is one year as opposed to six months in Florida. This can put a strain on the individuals if they were to have the marriage dissolved effectively. However, there may be arguments to say that since you reside in a State where the marriage is not recognized that there are no real reasons to have it properly dissolved because in essence, the marriage is void. In that situation though, the problem would be in dividing property, assets and debts, which can be divided equally or fairly in a divorce.
This leaves a great deal of difficulty for same-sex couples and could potentially be construed as unconstitutional and interfering with ones right to travel, which has been upheld as a constitutional right by the U.S. Supreme Court, beginning with U.S. v Guest, 383 U.S. 745 (1966).
The real question becomes, when will a couple challenge the State's law? Couples that are moving to Florida for work in an economy desperate for jobs, are not afforded the same rights as a marriage between a man and a woman. Furthermore, if that couple is not able to work through their difficulties, divorce is not available to them in Florida. Therefore, the laws have to be creative in order to separate property, assets, debts and the like so as not to overburden the married couple. If there are items, such as a home, purchased during the marriage, then assessing the person responsible for the debts, expenses, etc. comes down to possibly developing a contract to separate out such property. Therefore, the arguments may be similar to a divorce, but the ultimate outcome may be a contract instead of a divorce order.
If you are in a same-sex marriage and are in need of legal assistance regarding your rights in Florida, please contact an attorney who understands the laws and can properly assist you. Also, if you are in a same-sex relationship, there are financial protections you can have, it is important to find out all of your options from a qualified individual.

In Florida, a failure to pay child support or alimony can result in the loss or suspension of a professional license. If a party fails to pay the ordered support, then the party in need of said support may file a petition with the court to suspend the license of the responsible party. The Florida Statute regarding such a petition requires that all other recourses be used before filing for the suspension of a license. The statute also gives provisions that must be followed before the petition can actually filed with the court. As a Jacksonville divorce and child support lawyer, I can vouch for the importance of following statutory requirements because of the statutory requirements are not followed, then the court may throw out the action all together.

Before filing a petition for the suspension or denial of a professional license, Florida Statute 61.13015, you must first send notice to the responsible party that she/he has 30 days to pay the delinquent support obligation or enter into an agreement for payments to be made regarding the delinquency. The responsible party is required to reach out the requesting party to establish such payments and to provide proof that such payments have been made.

If there is no response from the first notice, then the requesting party must send a second notice to the obligated party that states the amount owed and that she/he has 30 days to pay the delinquency or to set-up a payment arrangement to pay the amount owed. If an arrangement is made, then it should be reduced to writing and formalized with the signatures of the parties. The party responsible for the support should provide proof that the first payment has been made.

Both notices should be sent the obligated party by certified mail. The return receipt will suffice as service and receipt of the notice and the 30 days starts on the date it is signed. The notice should be mailed to the last known address filed with the State depository. If the address is incorrect or there is not one filed with the State, then service must be done by publication. The statute, however, is not clear as to whether both notices must be published or if the first publication will suffice. As an family lawyer, I tend to make such decisions based on what I believe the intent, and would suggest running the notice twice or for 60 days. The court knows whether the article was published because the publication site will provide confirmation of such.

If the obligor does not contact the requesting party within the timeframe established, then the needing party may filed the petition for suspension or denial of a professional license, as long as one of the following does not apply:

1. That the denial or suspension would harm the obligor or his/her employer irreparably; or
2. The denial or suspension would not ultimately accomplish the goal of getting payments; or
3. The party responsible for payments shows proof that she/he tried, in good faith, to reach an agreement regarding the delinquency.

Gambling debts, martial affairs, excessive drug use and the like can lead to a divorce in Florida. However, Florida is a no-fault state so these things do not really come into play when determining such things as alimony. As a Jacksonville divorce lawyer, I am often able to get these acts of impropriety and waste into the case because Florida law does allow for these actions of using martial funds for the benefit of one spouse to play a role in dividing assets and liabilities. Florida Statute Sec. 61.075 (1)(I) provides that one of the factors for unequal distribution is: “The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” Therefore, the use of marital funds to further such things as an affair, within two years of filing for divorce, can be used to unequally distribute assets and debts to the parties.

When the court hears a divorce case and the court makes a decision regarding division of assets, then the losing party may believe that there are grounds for an appeal. In that case, the appealing party provides a brief to the appellate court establishing the legal basis and argument for why the first court’s order should be overturned. In a recent Florida case, Zambuto v. Zambuto, 36 FLW D2758 (Fla. 2nd DCA December 16, 2011), the Husband filed an appeal after the Wife was awarded an unequal distribution of marital debts and assets to her favor. In this case, the Husband had gambling debts/losses of $90,000.00 that were established two years before the filing for divorce. In the first court, the debts for gambling were charged solely to the Husband and the Husband appealed. The appellate court heard the case and ultimately decided to overturn the first trial court’s decision regarding said debts due to the lack of specific findings that the gambling only benefited the Husband and that the gambling occurred during the “undergoing of irreconcilable differences,” meaning the parties were not getting along and heading towards divorce.

While the appellate court seems to put this new twist on the statute, there is question as to whether the appellate court intended to require that in all circumstances, the debt for the benefit of one party is accumulated during the “undergoing of irreconcilable differences.” In this case, there was a history of the Husband making more money than the Wife and using gambling as a way to entertain business clients, and sometimes the Wife joined in the gambling. Therefore, the thought may be that the court intended this second portion for purposes of activities that historically benefited both parties, not just one, and that the use of the martial funds was done at a time when the Husband already stopped the benefit to the Wife by reducing the money in their joint accounts, moving out, etc. However, the case does not specifically state this and therefore leads to the question of whether funds depleted two years before filing must only be considered if the funds were depleted during the, “undergoing of irreconcilable differences.”