February 19, 2013

In Florida, Why Your Case May Be Heard By a Magistrate When Dealing With a Divorce, Modification or Paternity Case?

282848_law_library-1.jpgIn a Florida divorce, post divorce or paternity case, there may be times the case is referred to a general magistrate instead of the judge. Often, a general magistrate's calendar is more accessible than the judge's calendar due to volume of cases. The magistrates have the power to listen to cases and make a ruling based on the evidence presented, which then must be provided to the judge before being entered as a court order. Therefore, the judge still has control over the case, but the magistrate is helping move the cases along.

A referral to a magistrate is generally done for temporary needs hearings, which is when a party is requesting a temporary order be entered with the court until the final hearing so that each party has what s/he may need to get to a final hearing, like child support, alimony, or use of the home. The reason is that the judge may not be able to get the parties in for a longer period of time and the magistrate can generally see them in a couple of months. It is also common for the case to be referred to the magistrate when a lawyer does not represent one or both parties.

How does a case get referred to a general magistrate? When certain documents or motions are filed with the court, the court may tag them to be referred to the magistrate instead. For example, when a party files a Motion for Temporary Needs, the judge may sign an order referring the case to the magistrate's office. When that happens, both parties receive a copy of the order and have ten (10) days to object to the transfer. In Florida, use of a magistrate has to be by consent, so if one party objects, then it will not go to the magistrate but must be heard by the judge instead. This may mean that the hearing is postponed for a time to correspond with the judge's calendar.

Another way the case may be referred to the magistrate is if one party files on his or her own, the legal term is "pro se." When that happens, the case is typically managed by the family court services and is tracked through the magistrate's office. This allows the court services to oversee a little more of the case to make certain that requirements have been met by both parties, for example, mandatory disclosure (e.g. financial affidavit is filed with the court).

Once a magistrate hears the case, the magistrate then drafts a report and recommended order to the judge. The report and order are sent to both parties and they have the right to object or file for exceptions to the report. This may be done if the report and evidence do not match, or if the magistrate's order is in conflict with the evidence provided. This may happen if a father provides evidence that mother has a severe alcohol and drug issue and mother does not have evidence showing otherwise, but the child is placed in mother's care. If that occurs, both parties have ten (10) days to file their exceptions with the court and ask for a hearing with the judge. Whichever party files is required to get a transcript of the original hearing to be provided to the judge and other party before the hearing on the exceptions.

Florida family law courts are generally at capacity, so the use of magistrates is helpful to having your case heard in a timely manner. However, since there are so many caveats, like both parties agreeing, it is wise not to bank on the hearing being held as quickly as you may hope. In dealing with such cases it is important to breathe through the delays, they will happen and managing the stress where you can may be your saving grace through the process. To better understand your rights, options and what to expect, you should speak with an experienced family law attorney in your area.

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February 12, 2013

Where Do I File for Divorce, Custody, Timesharing, and/or Child Support in Florida?

As a Jacksonville, Florida family law attorney, I often get questions from clients as to where their case should be handled if two parents and/or spouses live in two different cities. The question is one that does not always have an easy answer, as there are Florida family law rules governing, Florida statutes establishing the correct place to file a case, and there is also Florida case law that is down from the courts on the subject. Therefore, like many things in family law matters, it depends on the circumstances. To best answer this question, examples can be quite useful.

Example 1: Marie and Hank are married and spend the bulk of their marriage in Jacksonville, Florida where they purchase a home. After eight years of marriage, Marie and Hank decide to separate and Hank takes a job in Atlanta, Georgia. After a year of separation they would like to get a divorce realizing that reconciling is not an option.

Even though Hank is now a resident of Georgia and could technically file for divorce in Georgia, there is an issue of Georgia having control over the property of the marital home. Therefore, in order to make the divorce as clean as possible, Marie and Hank would most likely need to file for divorce in Jacksonville, Florida where the marital home is located. If they decide to file in Georgia, then Marie and/or Hank may have to take extra steps to enforce any court orders regarding the marital home.

Example 2: Maggie and Fred have a child, Calvin, together. They reside as husband and wife in Orlando, Florida for five years and then decide to separate. Fred and Maggie agree that given the demands of Maggie's job, Fred could have majority time-sharing with Calvin. Fred and Calvin then move to be closer to Fred's parents in Jacksonville, Florida. After seven months of living separately, Maggie decides to file for divorce in Orlando, Florida. Fred contests that Jacksonville is the proper place for the case since that is where he and Calvin live.

In this scenario, according the UCCJEA, which establishes jurisdiction of a child for court purposes, the child's residence for the six month before filing for divorce is in Jacksonville, so Fred could and should move the case to Jacksonville.

Example 3: Martha and Henry have a child, Charlie. They divorce in Pensacola, Florida in 2010. In 2011, Martha and Charlie move to Jacksonville and Henry moves to Miami, Florida. In 2012 Martha wants to get a modification of child support and Henry wants to modify his time-sharing schedule. Neither party is sure where to file.

This issue arises often in family law cases. In this type of case, the case law and Florida Statutes indicate that the case is still in Pensacola, Florida unless and until that court relinquishes jurisdiction (i.e. the courts are held in different jurisdictions, Duval County is the 4th judicial circuit) to another court. Either party may request that the court in Pensacola relinquish its hold of the case so that the parties may go to court in a more convenient location. If both parties are requesting the change, then Martha would win for the case to be moved to Jacksonville over Miami since it is where Charlie resided for at least six (6) months.

Dealing with these issues in a family law case can be challenging. If you are going through a divorce or need to modify a prior order, then you should speak with an experienced family law attorney to find out your rights and options.

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December 17, 2012

In a Florida Divorce What Documents Do I Have to Provide for Accounts and Retirement

Written by: Lenorae Atter, Attorney


1071930_check_book_and_statement.jpgWhen you file for divorce in Florida you should expect to release your financial information to your spouse. Even if you have kept your finances separate during the marriage, most likely you are going to have to provide him/her with information about your bank accounts, retirement accounts, investments, etc. In a Florida divorce, both parties are required to provide documentation of their paystubs, bank statements, and other financial accounting information. Florida Family Law Rules of Procedures govern the requirements of what parties have to do in their court action.

As a Jacksonville family law attorney, I often tell clients that the release of information is helpful to both parties because it lays out a detail of all items to be equally divided by the court. Also, if you reach an agreement before going to trial, and both parties have provided the documents, then neither party can later claim that she/he did not know about certain assets. The bank statements can also be the truth tellers when it comes to cases involving alimony requests, asset hiding, etc. The reason is that most of us no longer use cash to make purchases and that bankcard is a great indicator of where money is being spent on a monthly basis.

In Florida, alimony is based on a person’s need and the other party’s ability to pay. If a party is claiming a need for alimony, but using funds to pay for overly expensive haircuts, clothing, or even things like alcohol on a regular basis, then that need may be reduced significantly. Alimony is designed to help with living expenses, not unnecessary expenses. Obviously lifestyle of the parties is taken into consideration so if a party historically had a haircut in the higher range, they will not be expected to start getting their haircut for $10. The bank statements can help show both sides of the can and really paint a picture what “needs” are for each party.

Florida child support calculations are based on the incomes of both parties. IN some cases, a party may have one main job, but does side work, which can be difficult to prove. In addition to providing bank statement information, both parties are required to file financial affidavits with the court, which provide details of income information and monthly living expenses. The financial affidavit is a sworn document, so it’s truthfulness is important. However, many times when a party has more than one income she/he does not list that on the financial affidavit. So, if that party does not provide banks statement information it will be much harder to prove to the court that, in fact, she/he does have another source of income. That is one reason why the State of Florida requires the exchange of documents.

When going through a divorce, an additional benefit of hiring a lawyer, other than having someone to fight for you, is that a good lawyer will take the time to sift through the financial information. It’s a tedious job that many people would not think to do on their own, so when you hire a lawyer it is one less thing on your ‘to do” list before going to a hearing, mediation or trial.

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November 15, 2012

How to Deal With House Debt in a Florida Divorce

1304789_flooded_house_in_moravian_city.jpgHousing issues are a problem in most Florida divorces right now because a number of homes are upside down or underwater and in Florida, properties, assets and debts are to be divided equally. The courts struggle with this situation because even if the home is underwater it must still be factored into the equal distribution process. In addition, courts are aware that many people are now walking away from their homes and surrendering them into the foreclosure world. However, as a Jacksonville divorce lawyer, I prepare my clients for the house payments and associated insurance and related expenses because it is a factor in determining the outcome of the divorce and what debts may client may assume. Many people, even today, are hesitant to walk away from a house due to the impact it will have on credit and future purchases while trying to rebuild after a divorce.

Recently, a Florida appellate court evaluated this situation in Byrne v. Byrne, 3D10-2323 (Fla. 3rd DCA January 18, 2012). In the case, the parties had a condo that was $76,000 underwater. Originally, the Wife wanted to keep the home and make payments towards the property so as not to ruin her credit. She was initially awarded the home in the divorce, but was given no consideration by the court regarding the negative equity that she was taking ($76,000 would be owed upon sale). The trial court, in its initial decision, noted that there was a presumption that the Wife would actually turn the keys over the bank in foreclosure and would subsequently not lose the $76,000.

An appeals court is where one takes his/her case if the outcome of the initial case is factually or legally incorrect based on the evidence that is presented at court. Often, a transcript of the original trial will be necessary to preserve the evidence for the appeals court because the court transcript provides a formally written account of all statements made in the courtroom. Typically, a transcript is typed by a court reporter and since all witnesses are sworn in, their statements in court are sworn to statements that can be typed up and presented to the appeals court for review of all evidence.

In this case, the third district court of appeals in Florida considered the order entered by the trial court in the divorce and ultimately found that while the court was rational in its thought that many people are walking away from their homes. However, the appellate court also determined that there still must be consideration for the debt in the equal distribution of assets and debts because the bank may still come after the Wife for a deficiency (Husband too if the mortgage still has his name on it.).

The reality is that the judges are limited in their knowledge of the case because they only get to hear what is presented at court. While the parties may negotiate outside of the court and go to mediation, those negotiations are confidential and cannot be used at trial. Therefore, the judge may hear that a party, like the Wife, wants to keep the home, while in negotiations the Wife tried to give the debt of the home to the Husband because she did not want to have to deal with the mortgage, repairs and the like on a money pit. Ultimately, the courts have a duty to err on the side of the law and in Florida the law is for equal distribution of assets and debts regardless of what the party will actually do with the debts after the divorce (e.g. bankruptcy of all credit cards).

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November 7, 2012

Do I Have to Take Parenting Class in Florida Divorce?

Written by: Lenorae Atter, Attorney

1183643_must_be_true_its_written_in_books.jpgDivorce with children can be complicated, and in Florida, may require a parenting class to help deal with it. Florida divorces involving children have a requirement that the parents attend a parenting class previously approved by the Department of Children and Families (DCF). In some paternity cases in Florida, the parents are required to attend the same class that divorced parents attend given that the issues are similar in dealing with the children having, in essence, two homes.

There are online classes available, but they may not be permitted or used in the courts where you reside. For example, an online course is allowed for those who have a divorce case in St. Augustine, but not in Jacksonville. Unless a parent resides out-of-town, the parents in a Jacksonville divorce are required to physically attend the class.

In recent times there have been many questions about whether the online course is as effective as the in-person course. A recent study that was published in the local news on Jacksonville’s First Coast News reported that one of the online courses that is approved for areas like St. Augustine, could actually be completed by a dog as well as person. The study actually took the course to find out if, in fact, the computer program requires any type of functioning from the person taking it, and it did not. The class is designed to cover material in four (4) hours and what they found is that as long as a person logged onto the website and paid for the court, they got the certification after the program ran its course. The report basically verified what Jacksonville courts have pushed, that the in-person course, such as those provided at Hope Haven, are better for the parents to attend because there is actually a value to the in-person class setting and knowing that the parents are participating in the program.

The classes intent is to teach parents to handle the fact that their children are going to be going from one home to the other. It is also designed to assist parents in better communicating with one another as they co-parent from different homes, and to communicate more effectively with the kids without disparaging the other parent.

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.

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November 6, 2012

Alimony in Florida May Not Be Cut and Dry

Written by: Lenorae Atter, Attorney at Law

1388612_market_movements_2.jpgAlimony is not guaranteed in a Florida divorce. Though there are certain people that believe that simply because they are married that alimony will be awarded in a case where one party makes even just a little more than the other. The fear of filing for divorce often stems from such myths that circle throughout social networks and news. However, Florida is a little more methodical in its legal approach to an award of alimony. For example, the Florida legislature has provided guidelines to establish when alimony may be awarded in a divorce and has provided a guideline for the length of the alimony as well. Therefore, simply being married does not necessary mean you or your spouse are entitled to alimony payments, and it does not mean that if you do have an alimony case that the alimony will necessarily be forever.

Alimony in Florida is designed to provide support when the marriage meets certain criteria, in determining such, there are factors to consider such as: length of the marriage, contribution to the marriage, status quo of the marriage, education of the parties, and many other small details. Also, there is are different forms of alimony: permanent, lump sum, rehabilitative and bridge the gap.

In a two income family, when the spouses have equal or closely equivalent education and work experience, and the ability to earn relatively the same income, then chances are either spouse will be receiving nor paying alimony.

In a marriage of 20 years, when one spouse has been a homemaker, given up his/her education aspirations during the marriage, and provided support within the household as a homemaker, then permanent alimony will most likely be rewarded depending on the age of the party and ability to work. The concept of permanent alimony is not to punish a spouse, but to help maintain the same lifestyle for both spouses upon their divorce.

Most likely, alimony will not be awarded in a marriage of less than two years, though factors revolving around the marriage may lead to an award of alimony. Length of the marriage holds a great weight in determining alimony. A short-term marriage often does not have an alimony component. Bridge-the-gap” alimony may be awarded in a short-term marriage to help move the spouse from married into single life. This is for a set time period, often 6 months to a year.

In a marriage where one spouse had a partial degree or training and needs to finish the training to obtain gainful employment, rehabilitative alimony may be awarded to assist in the payment of such training. Rehabilitative alimony is designed to assist in educating or training a spouse so that he/she can reenter the workforce and have a chance to be self supporting.

Alimony is based on numerous factors and scenarios. Often one case is not the same as another and listening to what happened to a friend may be detrimental to your own divorce because you want the same result. Just like marriage, no divorce is exactly like another and factors have to be considered that match the spouses involved. Alimony is based on those factors and can assist a spouse in moving forward. However, reliance on alimony can also be a crutch that impedes one’s ability to graduate from married to single life effectively and you want to make certain that in fighting for it you are doing so out of need and not want. The want of alimony can lead to extremely high legal fees that ultimately do not justify the alimony award at the end of the day.

If you are going through a divorce, it is a good idea to speak with a lawyer about your legal rights and options and to better understand how best to proceed.

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October 31, 2012

Divorcing at an Older Age in Florida: Understanding the Move to the "Grey Divorce"

Written by: Lenorae Atter, Attorney at Law

1358390_sunset_over_a_lake.jpgFlorida has been known as a great place to retire. In a Florida divorce, however, there is also laws that indicate that anything accumulated during the marriage (with some exceptions) is marital and each spouse should get half of the marital property, assets and debts. Recently, Bowling Green State University conducted a study on the divorce rate amongst couples that are in their golden years. The study showed that for people over 50, the divorce rate has doubled over the last 20 years. According to the study, between 1990 and 2008, divorce amongst individuals over 50 has more than doubled.

The new trend has been referred to as, “the grey divorce,” and seems to only be increasing over the years. There are many reasons believed to be associated with this new phenomena, including the fact that individuals are healthier, look younger and have a different outlook on life in general than was the case in the earlier parts of the 20th century. Also, the fact that divorce no longer has the social stigma it once did has made divorcing seem more normal in the last twenty years than it had previously.

Regardless of the reason for the change, divorce issues arise the older the couple is and longer they have been married because normally the assets, property ownership, debts and the like are greater the longer the couple is married. There are other concerns as well, including health risks, health insurance, long-term care variables, etc. While the divorce may seem like a way out in order to enjoy the rest of ones life, the truth is that the process of divorcing may be more taxing than for those married a shorter period of time. However, one factor that is no longer an issue, generally in a “grey divorce” is that there really are not any custody or child support battles.

In a Florida divorce, the truth is that it comes down to the needs of parties, the financial situation of the parties, and their assets and debts. Dividing these things or establishing alimony may be a little different for an older couple than a younger one in that the needs of the parties are different. For example, depending on when the parties are divorcing, they may be living off retirement assets, social security income and the like. Therefore, determining how to divide incomes, retirement accounts and establishing alimony (if necessary) can become tricky.

The division of property is also a little different in that often times, couples have resided in their marital home for quite some time and no longer owe a mortgage. So, there is a question of dividing the actual equity in the home since there is no debt associated with it. The dividing of a marital home, for couples that have been married for some time, can be challenging in that they have ties not only to the home but also to the neighborhood. Therefore, what may normally be sold in a short-term marriage may become a factor in separating accounts between the parties instead of selling the home.

If you are thinking of divorcing, then you should speak with an experienced family law attorney in your area to better understand your rights and options. Understanding the process can make the divorce much less taxing than it would be otherwise. Also, it is important to properly divide your marital assets and debts so that you do not have additional court action in the future.

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October 15, 2012

Things to Consider When Reaching Divorce Agreement in Florida.

Written by: Lenorae Atter, Attorney at Law

1169459_money_or_mariage_3.jpgWhat are things that need to be considered when trying to reach a Florida divorce agreement? Many people think that a divorce is going to be ugly, no matter what they may do. However, as a divorce lawyer in Florida, I am often surprised by how many people come into my office with most everything agreed upon and just need the divorce papers formalized. However, often these people have discussed the main issues, like the marital home, but have forgotten other details, like retirement division. So, when you are trying to reach a divorce agreement, what are the things that you should both consider when separating your property, debts, and the like?

First, you will both be required to fill out a financial affidavit regardless of having consent agreement. Therefore, if may be helpful to start with a financial affidavit to actually see what income you have, what expenses you each have and what your actual debts and assets are. Once you have completed that document, it can be helpful to look over the other spouse’s to see what she/he may be claiming and what is marital versus non-marital. If it was purchased prior to the marriage, then it is marital. If it is a gift, typically the gift will stay with the receiving spouse. If something is an inheritance (with some exceptions) then it is most likely non-marital property/debt.

Next, make sure you actually understand your rights and options in a divorce. Though you may be able to reach an agreement, meeting with a lawyer together or separately can be helpful. You want to make certain that you both have a full understanding of what you are doing and how the transfer in ownership may impact loans, liability (vehicle liability can go as far as one party getting in an accident), taxes, etc. Not understanding these factors can be detrimental to your future after the divorce is final. Often, I tell people that if I would not operate on myself any sooner than I would get divorced without legal assistance. If you both share a lawyer, then you can get joint advice. However, it is important to know that a lawyer that meets with both spouses will most likely not be able to represent one of the spouses if negotiations go sour.

Know what you want. That is key, because dividing property, assets and debts can get confusing. If you are just wanting out of the marriage, then you may agree to accept more debt than usual. That is fine, but just know what your ultimate goal is. Also, it’s important to know what you are willing to negotiate on. In a true agreement, both parties normally walk away content, but not happy. It is important to know what your sticking points will be.

Remember, that anything purchased or accumulated during the marriage, with some exceptions, is marital. Therefore, marital debts, assets, including retirement are fair game for division. However, the entitlement is not to the full amounts, if some was accumulated prior to marriage, only the portion obtained during the marriage should be divided. If you want to go outside of the normal parameters, then that can be an option, if both parties agree (i.e. college tuition for children is not normally addressed by the court, but can be in an agreement for divorce).

Remember to seek an experienced lawyer's assistance even if you are in agreement, because the cost for doing things incorrectly can be more costly to you later. In many cases, correcting something that was not addressed in an agreement costs about two to three times more in legal fees that what you would have initially paid.

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October 3, 2012

Consequences to Selling Marital Property Before or During Divorce in Florida

Written by: Lenorae Atter, Attorney at Law

article_alimony.jpgWhen you file for divorce in Jacksonville and other cities in Florida, there is a standing court order that gives rules to the parties. The order requires that the parties not dissipate (i.e. selling, eliminating, etc.) marital assets. So, if you are married and then file for divorce and think that you are going to drain the bank account or sell your car for $1, you are sadly mistaken if you believe there will not be consequences.

In a Florida divorce, the court may actually look at marital assets and determine what the value of the assets are at the date of separation. However, the court also has discretion to go back further than two (2) years from the date of filing for divorce, if it can be shown that one of the parties hid assets or destroyed assets in anticipation of marriage. In a divorce, you are required to provide bank statements, financial statements of investments, and much more. In that discovery process, if it is shown that a spouse hid assets before the date of filing for divorce, then that spouse could be on the hook for reimbursing the other spouse 50% of the total value of that asset.

In a recent Florida appellate court decision, Amos v. Amos, 1D11-2714 (Fla. 1st DCA October 3, 2012), it was found that the Wife had actually moved a stock account into her brother’s name three years prior to filing for divorce. While §61.075, Florida Statutes, provides that you can go back two years from the date of filing, the appellate court found that you can go back further in finding hidden or dissipated assets to do “equity and justice.” This was previously held in another case, Beers v. Beers 724 So.2d 109 (Fla. 5th DCA 1998).

What can actually happen is that the party that moved, hid, sold, or otherwise dissipated the asset can be held liable for paying the other spouse 50% of the fair market value of the asset. This means that the act of selling priceless artwork for $1 like on the First Wives Club cannot actually be done in Florida. If a spouse were to do that, then that spouse may be required to pay the other one-half the actual value and not one-half of the price she or he got from the sale.

If you are going through a divorce in Florida, then you should speak with an experienced family law or divorce attorney to better understand your rights and options.

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September 28, 2012

Divorce in Florida Right the First Time to Save Money

Written by: Lenorae Atter, Attorney at Law

1218052_waste-basket____2.jpgIn a Florida uncontested divorce many people decide to draft papers on their own without meeting with or hiring a lawyer. With the invention of Internet forms people often believe that their divorce will be less expensive and go faster if they do not use a lawyer. Often, this is not the case. The fact is that you would most likely not fix your transmission unless you were a mechanic and you would most likely not perform your own surgery, even if you were a surgeon. So, why is that people thinking that they will do a better or equal job to an attorney in drafting their own documents for divorce? The answer most likely boils down to expense, but what happens is that such a money saving experiment can cost you thousands of dollars in the end, and sometimes substantially more than you would have paid initially. Why? Because often parties think that they are being reasonable, but really they are creating more problems for themselves.

For example, a married couple decides to divorce. The Wife has been the primary breadwinner during the marriage and it’s a 20-year marriage. The Wife, in trying to be nice and to work things out to just get the divorce done, decides to buy Husband a house. Wife later starts making less money and realizes that she cannot afford to buy Husband a home. Once that occurs, Husband may file an action with the court to require that Wife do what was previously ordered. Husband then decides to hire an attorney since he really needs the house and needs Wife to provide it since he does not have the credit history and established income to afford a house of his own. Wife then hires an attorney because she does not want to be held in contempt by the court and honestly feels that she does not have an ability to buy a house for Husband.

In that situation, the litigation for just this issue may cost both parties substantially more than had they hired an attorney to look over their agreement initially. An attorney may have told them the problem with such an agreement is tenfold given that the Wife could not claim the house, most likely, as a tax write-off and also would need to qualify for the purchase of the home. Husband’s attorney may have told him that it was more lucrative to get the house payment in alimony and to purchase his own house. However, now they are both paying attorneys to fix what they created.

Example two is when the parties agree that one parent is going to have majority time-sharing. After they divorce, the parties then start doing a split time-sharing schedule and never effectuate the agreement in writing or modify with the court. Later, one party no longer agrees with the split time-sharing and stops it all together forcing the other party back to the original time-sharing schedule. The other parent then has to modify the prior time-sharing schedule with the court and has the burden of showing what they parents had been doing. If that parent had not paid child support while doing split time-sharing, then the other parent may, as a weapon of defense, insist on back child support payments. This may cost the parents substantial legal fees and costs for a social investigation. It may, if the party responsible for paying child support cannot prove the prior agreement, require that the parent actually pay back child support in addition to present and future support. This may not have been the case had they originally gotten with an attorney to put the agreement in writing and file it with the court.

The truth is that a lawyer can seem expensive up front, but in the long haul, the expense can be minute in comparison to what is inevitably paid to correct the agreement written by the parties. Ultimately, it makes no sense to pay in excess of $10,000 for a wedding and try to spend nothing to divide property and establish your financial stability after the marriage. If you are going through a divorce or child custody matter, then you should speak with an experienced family law attorney to understand your rights and options.

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September 12, 2012

Florida Divorce, Visitation & Custody: How to Navigate Through the Divorce Process

778742_time.jpg
As a Jacksonville, Florida family law attorney, divorce, visitation and custody issues are part of my daily practice. Visitation and custody are usually emotional and working with a client on their parental demeanor is vital in moving forward and eventually going to court. When dealing with custody and visitation of a child it is important that the court sees that you are willing to cooperate with one another in an effort to look out for the best interest of the child(ren).
As of October, 2008, the Parenting Plan Statute went into effect with the purpose of countering bad behavior. The time-sharing and parenting statute requires all parents to file and have the court approve a parenting plan that lays out exactly how all issues of time sharing with the minor children are going to be handled. Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.
Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

1. Family Relationships
a. The kids having a great relationship with both parents
b. The kids having a great relationship with their extended families
c. Financial security for the children
d. Having a safe, secure home for the children
e. Having good schools for the kids
f. Providing for a college education for the children
g. Providing sports opportunities for the children
h. The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture.

a. Financial abilities of the parents
b. Parental/family member time available
c. What homes and schools are available and affordable
d. What the parents’ neighborhoods are like
e. The existing relationships between parents and children and the roles each parent plays with the children
f. What community resources are available
g. What special needs, if any, a child has
h. What interests the child has

Continue reading "Florida Divorce, Visitation & Custody: How to Navigate Through the Divorce Process" »

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September 10, 2012

Using a Florida Social Investigation or Parenting Coordinator in Your Divorce or Paternity Case Can Be a Helpful Tool

1088940_2_annual_reports__3.jpgPaternity cases and divorces in Florida have a standard of review by the court when children are involved, which is, “What is in the best interest of the child?” By changing things from “custody” to “time-sharing” and “custodial parent” to “majority time-sharing parent, “ the Florida legislature tried to help parents approach such subjects from a less adversarial position. As a Jacksonville divorce and family law attorney, I can attest to the fact that people seem to understand that visitation matters need to be addressed a little more openly, but it does not change the fact that parents sometimes want to fight over the time-sharing plan for many different reasons. That means that when parents disagree, which they often do, then the Court may appoint a parenting plan coordinator or social investigator to help them work out their differences.

The court, through Florida law, is allowed to appoint a parenting coordinator. The parenting coordinator will actually meet with the parents and the children to help determine what issues may be impacting the family, though a separated one. In so doing, the coordinator may be able to help the parents work through some of their issues that may be creating a communication challenge for them. Also, the parenting coordinator may be able to address issues with the children and parents that may have gone overlooked by the parents through the divorce or paternity action. There are psychological and emotional issues that can be associated with any type of family matter, the least of which is not divorce. The parenting coordinator is often trained in dealing with such matters and can help the parents and children reach a level of comfort with one another to express such issues. By doing so, the parenting coordinator may ultimately help the parties in reaching an agreement about the time-sharing and parenting plans that need to be filed with the court.

If the parents are in complete disagreement with one another from the beginning, the court may appoint a social investigator. The investigator’s role is to meet with the parents and the children. However, it is different from the parenting coordinator in that she/he actually interviews the parents and tries to seem each parent interact individually with the kids. Also, the investigator may employ psychological tools, evaluations to help determine any underlying issues the parents or children may have. Furthermore, the investigation may require home visits, which allows the investigator to see what the home life is like for the children and ultimately make a recommendation to the court based on all aspects of the investigation. If there are questions about the truthfulness of one or both parents, then the investigator may actually interview others and check up on the parents in their work-life, if it is deemed necessary. The investigation can help the court to better understand each household and to assess what type of time-sharing and parenting plan truly is in the best interest of the children.

While these tools can be helpful in your divorce or paternity action, not all cases require them. So, it is important to speak with an experienced family law attorney to help you better understand your rights and options.

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September 5, 2012

Can I file for divorce on my own in Florida?

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

1197499_stop_1.jpgDeciding to use your own agreement in a Florida divorce can be more costly than what you originally budget. Florida is a “no-fault” divorce state and the parties are able to receive half of everything accumulated during the marriage, including retirement; therefore, many people they can handle their own divorce with a form they find online or at the courthouse. While I am a family law attorney in Jacksonville, Florida, my interest in providing the “why not” to a DIY divorce is not related to my bottom line, but yours.

When your transmission goes out; do you normally fix it yourself? Unless you are a licensed mechanic, the answer to that question is probably, “no.” When you do not properly fix your car you end up paying more to get it fixed. The same is true in a divorce. When you try to do the paperwork on your own, without the proper education on what should and should not be included and what the future problems may be, then you may end up paying more to fix it down the road.

What typically happens when parties decide to handle their divorce without assistance is that the properties are not fairly divided; one party winds up with more debt than she/he can actually afford; one party is given excessive alimony and/or child support; and retirements are not properly divided. While the agreement may have seemed fair at the time they were divorcing, ultimately something will happen down the road to cause one or both parties to return to court.

When a post-divorce issue arises, the one thing that cannot happen is that the original agreement be simply overturned by the court. For example, if the Wife agreed to pay the Husband too much in child support originally, then without the Wife’s or Husband’s income significantly changing the child support will not be modified. Simply finding out later that you agreed to pay more than the child support guidelines mandates is not good reason for a judge to overturn the original agreement. The same is true with offering to pay excessive alimony or agreeing to allow the other spouse to have his/her retirement.

So what then happens when someone cannot actually afford the agreement that she/he entered? Generally, the party that was meant to receive the alimony, child support, retirement, etc. that is not receiving the same will file a Motion for Contempt against the other party. The reason is that the court can enforce the prior orders, regardless of their fairness because both parties actually agreed based on their present incomes and expenses at the time. Also, the nonpaying party will generally file a Petition for Modification. However, to be successful with a modification the requesting party must be able to prove to the court that she or he has had a substantial change in circumstance (e.g. demotion at work).

Now, both parties have hired attorneys and both parties now have to pay attorney fees to work out what may have been avoided in the beginning. The cost of fixing the prior agreement can actually be much more expensive than if the parties had simply hired attorneys in the very beginning. The reason is that the attorney for each party would be able to educate the husband and/or wife on what their rights and options are initially. Also, a divorce lawyer may be able to educate the husband/wife on what she/he can truly afford and what she/he is giving up if one agrees to waive his/her right to retirement, alimony, properties, etc.

Before deciding to file for divorce on your own with a form you found online, it is a good idea to actually meet with a lawyer and better understand the process. An experienced divorce attorney can actually educate you on potential outcomes and what may be fair for both spouses. Generally, divorce attorneys are happy to help formalize an agreement the parties have, but do so in a way that makes sense for both of you. As a divorce lawyer, it is not my job to simply fight because you are getting divorced, but to actually protect your interests and represent your needs and what you would like as an outcome. I am always happy to have an uncontested divorce because the parties do not necessarily need to fight over everything, but they do need to know what they are actually agreeing to. Entering an agreement without knowledge is no better than grabbing a tool and deciding to start fixing that transmission.

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September 4, 2012

Counseling Can Be Helpful to the Divorce Process in Florida

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

440683_wandering_the_path.jpgDivorce can sometimes seem like a four-letter word because often one spouse wants the divorce and the other has not quite reached that point. In Florida, filing for divorce does not require much more than living in the state for at least six months prior to filing and a claim that the marriage is irretrievably broken. While some states require a separation period before the parties can divorce, Florida does not. Some states require that the couple attend marriage counseling for a set period of time before filing, Florida does not. So, where does that leave the spouse that does not want to get divorced while the other is pushing for it? As a divorce lawyer in Jacksonville, this is a question I am often confronted with by clients and the answer is never a simple one.

A marital relationship is generally entered into through love and friendship between two people. A divorce is not usually so amicable. While both people knew that they wanted to marry one another before saying, “I do,” divorce is not normally that clean cut for both spouses. If you remember, there is normally a time between the engagement and the actual wedding, so you still have time to process the fact that you are leaving single life to enter into a marriage. Divorce sometimes just happens and there is nothing that you can do to prepare yourself for how you will feel.

When divorce is on the table, often the person that brings it up in the conversation is the one that has been thinking about it for some time. That spouse has processed all of his/her emotions and ultimately decided that the best thing to do is to end the marriage. Or, sometimes the decision is not based on processing emotions, but on making an emotional decision after some catastrophic occurs in the relationship. How ever, she/he that made the decision, regardless of emotion, is prepared for its aftermath and often wants things done quickly. The other spouse, well she/he is left trying to figure out if there is something that she/he could differently, if there is a way to save the marriage, and whether counseling will help.

If the spouse that decided to get the divorce files before the couple has a chance to discuss counseling, then the other spouse may ask the court to give them time to attend counseling to determine if the marriage can be retrieved. Remember, one of the things you have to show the court in order to get divorced is the fact that the marriage is irretrievably broken. While this action can put the divorce on hold and the court likes to try to keep marriages together, simply asking the judge to grant it does not mean that it will happen. The court will actually a hold a hearing on the matter to determine if counseling would be beneficial to the parties. If the other spouse, the one that is pushing for divorce, does not believe that it will help because she/he is no longer in love with the other spouse, or has moved on, then the judge will most likely not grant the request for counseling.

When you are on the receiving end of bad news, such as this, it can be helpful to understand the emotions that you are feeling so that you can process them in a healthy way. Understanding your feelings on the situation can be beneficial to you throughout the divorce process because it can help you think clearly throughout the division of marital assets and debts. I can be helpful to speak with an individual counselor to help you better understand what you are going through as well as working with an experienced family law attorney in your area who will help guide you throughout the actual divorce process.

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August 27, 2012

Can Child Support, Alimony, Time-Sharing be Temporarily Established During Florida Divorce?

Written By: Lenorae C. Atter, Attorney at Law

1336707_bandage_1.jpgChild support, alimony, financial accounts, visitation, and the marital home are factors in a Florida divorce, but are also factors when first separating from you a spouse. When separating from a spouse there are many questions that often arise, including who will stay in the house, how bills will get paid, etc. The other question that faces many couples is when child support should be paid and how much child support will be. As a Jacksonville divorce lawyer, I have many clients that need information about how to proceed once the choice is made that separation is necessary. If you decide to file for divorce, then you can also file an action with the court to address these issues on a temporary basis until the court can finalize the divorce. The idea is to get from point A, the filing of the divorce, to point B, the end of the divorce.

How do you have temporary needs established in a divorce? When you file for divorce in Florida, the other party has 20 days to respond to the petition. While you can file a Motion for Temporary Needs to request the court provide you with child support, spousal support, the home, etc., it cannot be scheduled for a hearing until either the 20 days expires or the other party responds to the petition, whichever occurs first. Once your spouse responds to the petition, the motion can be scheduled for a hearing. The hearing will either be held in front a court magistrate, which is allowed to hear cases and provide a ruling to a judge, or the judge him/herself will hear the motion.

Can we reach an agreement before the hearing? Yes. If your attorney and your spouse’s attorney can reach an agreement between you both prior to the hearing, then the agreement can be formalized into a written document and both parties will need to sign it. Once the agreement is signed, it is sent to the judge so that it may be signed an entered by the court as order regarding temporary needs. The order can address anything from support issues to a temporary time-sharing plan, so that the parties have a workable schedule for visitation with the children, if there are children involved.

If we cannot reach an agreement, how do we move forward? Once the hearing is scheduled with the court there will be a date assigned for both parties to be heard on the issues. At the hearing, much like at trial, both parties may have witnesses and present evidence regarding their financial needs, issues involving the children, the marital home, etc. The judge or magistrate will listen to the evidence and then decide what the best scenario is for the parties while the divorce is pending. Often, due to the temporary nature of the order, alimony may be awarded at an increased amount then what will happen in the final hearing, and child support may factor in certain things to help keep the parties in a sustainable place from the date of the hearing through the finalization of the divorce. What this means is that the court may be more creative with the outcome on a temporary basis so that the parties can make a transition without harming either party financially.

Before moving forward with your divorce, you should speak with an experienced family law attorney to better understand your rights and options.

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August 24, 2012

Attorney Fees Paid by Spouse in Florida Divorce?

Written By: Lenorae C. Atter, Attorney at Law

68916_law_education_series_2.jpgIf you want to hire a divorce lawyer in Jacksonville or another Florida city and your spouse controls the money accounts, then how do you pay for a divorce attorney? Paying attorney fees is a common issue in a Florida divorce because often, during a marriage, the parties separate responsibilities and one spouse may be in charge of the finances while the other may have different responsibilities. When that happens, hiring an attorney can seem challenging for the spouse that does not have direct access to the accounts, especially when they already separated and the other spouse is keeping funds from the joint account.

First, setting up a consultation with a law firm may be challenging if you do not have funds readily available because many divorce lawyers require a consultation fee. The consultation is designed to allow the attorney to meet with you, normally for an hour, to discuss your case and provide you with legal advice and options regarding your specific divorce needs. The consultation fee is generally required because the attorney bills at an hourly rate and you are securing your hour by paying for the lawyer’s time. Also, the consultation allows for the attorney to determine what your divorce may cost and what to charge for an actual retainer. So, if you are not in control of your finances, how can you schedule and pay for a consultation?

Most law firms accept credit card payments, so that is one option. Another option may be to borrow funds from a friend/family member and inform the attorney that you have done so because if the attorney asks for attorney’s fees you may reimburse that money to your friend/family. Also, you could inform the law office of your financial situation and let them know whether you would normally have the funds available but for your spouse’s actions. Then the lawyer can decide whether to waive the initial consultation fee and put the claim in for attorney fees to include the initial consultation.

How do you get attorney fees for the consultation and divorce? Well, once you file for divorce your attorney may file for temporary needs, in order to give you funds to live off between the date of separation and the finalization of your divorce. In addition to asking for financial support for living expenses, child support and the like, the attorney may also request attorney fees and provide documentation to the court about what the fees have been and are expected to be. The court then has to determine whether the other spouse has an ability to pay for the fees and costs associated with your divorce attorney and his/her own divorce attorney.

How does the court determine if the other spouse has an ability to pay? In a Florida divorce, the parties are required to file financial affidavits. Each party has to fill out a document that shows their individual present incomes, living expenses, children expenses, asset values (including bank accounts, retirement funds, vehicles, etc.). In addition, the parties are required to provide bank statements, payroll records (i.e. pay stubs), and other documents that prove or disprove the income and asset information. These items can then assist the judge and attorneys in determining whether a spouse has an ability to contribute to the other spouse’s attorney fees and costs associated with the divorce.

If you are going through a divorce, then you should seek advice from an experienced family law and/or divorce lawyer to better understand your rights and options.

Related Articles:
What Constitutes a Martial Asset?

Do I Owe Temporary Alimony or Attorney Fees in a Florida Divorce with a Prenuptial, Postnuptial or other Marital Agreement?

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August 20, 2012

Will My Inheritance Be Factored Into My Florida Divorce?

Written By: Lenorae C. Atter, Attorney at Law

1228830_wooden_box.jpgIn Florida, when dealing with divorce and post divorce matters numerous issues may come into play, including inheritance. In a divorce, marital properties, assets and debts are subject to equal division between the spouses. So what if one spouse has inheritance monies, properties or other assets? Also, if alimony is based on need, then if a party is most likely going to inherit funds or has already, then does that get calculated into determining whether alimony will be paid and how much? As a Jacksonville divorce attorney I find that many clients are concerned about inheritance and whether things that they received or may receive from a loved one, can impact their divorce.

The division of marital property, assets and debts is based on what was accumulated during the marriage by both parties. However, when someone passes away they may make one spouse a beneficiary to money, property or other assets. When this occurs, where the items go will generally tell you how they will be divided. For example, Jack and Jill are married and while they are married, Jack inherits $50,000 from his relative. The money is kept in a savings account with only Jack’s name on it and is not used for the couple’s living expenses. Jill files for divorce and lists that she wants one-half of the $50,000. Most likely, since the money was not co-mingled (i.e. placed in a joint bank account or used to enhance their lifestyle together), then the money is most likely going to be considered non-marital and will go only to Jack. Had Jack put the money into a joint account or used the funds to benefit them both, then it may be ruled marital funds.

In a case involving alimony, the rules are a little different. In Florida, alimony is based on the need of a spouse, the marital lifestyle, length of the marriage, etc. Well, if one is the beneficiary of money, then the need or ability to pay is lessened. For example, Jack and Jill are married and Jill inherits $100,000 from a relative. Jack and Jill decide to divorce and Jill wants and claims a need for alimony. Well, if the inheritance is considered a non-marital asset, which Jill will take all of, then she has $100,000 available to her immediately. Jack may still have to provide some form of alimony, depending on Jill’s actual needs, the length of the marriage, and Jack’s ability to pay alimony. However, the fact that Jill has some funds available to her will most likely be factored into what her actual needs are. If Jack and Jill have been living on $400,000 per year, then $100,000 is not going to necessarily provide for her needs in the long-term.

If the parties already divorced and Jack was ordered to pay Jill alimony, then Jill inherited money the court may modify the alimony. In Florida, alimony is modifiable unless the parties agree to non-modifiable terms in their final divorce order. If Jack has been ordered to pay Jill alimony and she inherits enough money to provide for her needs for the rest of her life, then Jack may ask the court to modify or terminate alimony. Again, the court looks at the needs of the parties, and if Jill’s needs changed, then she may not qualify to keep alimony now or in the future.

If you are going through a divorce, you should speak with an experienced family law attorney to help you better understand your rights and options.

Continue reading "Will My Inheritance Be Factored Into My Florida Divorce?" »

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August 17, 2012

In Florida, Can I Divorce if I Don't Know Where My Spouse Lives?

Written By: Lenorae C. Atter, Attorney at Law

1372604_paper_map_2.jpgAs a Jacksonville, Florida divorce lawyer, often I am asked how someone can divorced if they do not know where the other spouse is living. Florida does have a residency requirement that at least one party has to reside in Florida for at least six (6) months prior to filing for divorce, but what about the other spouse?

If one spouse lives in Florida and the other’s whereabouts are unknown, does that mean that the parties cannot get a divorce? No. For example, Will and Diane were married and living in Florida before they separated. Once they separated Diane stayed in Jacksonville, Florida and Will moved without telling Diane where he was going. They have not communicated since their separation and now Diane wants to get a divorce. If Diane lived in the State of Florida for at least six (6) months prior to filing for divorce, then she can file in a Florida court. However, since she does not know where to have Will served, Diane will have to file an affidavit with the court and swear to the court that she has done a diligent search and cannot locate her husband, Will.

So, once the affidavit is filed does Diane just simply get the divorce completed? No. Once Diane swears that she cannot locate Will, she must actually publish in a local paper where Will last lived that she has filed for divorce and that he has to respond to the publication within a certain period of time. Once she files the publication, it has to run in the paper for a set period of time before Will can be deemed not to have responded.

Does Diane’s divorce become final once the publication runs and Will does not respond? No. Diane has to actually file with the court a Motion for Clerk’s Default. The clerk of court actually has to review the file and the deadline for Will to respond and verity that Will did not respond to the publication with any documentation. If Will did not actually file any documents with the court, then the clerk may enter a default to show the court that Will is definitely in default of the petition for divorce.

Once the clerk’s default is entered is Diane then divorced? No. Diane still has to have a full hearing in front of a judge to explain to the judge that her marriage to Will is irretrievably broken and to tell the judge what she would like as a result of the divorce. In this case, Diane may tell the judge that she and Will previously divided their debts, but that they still have a joint checking account with money in it and she would like all of the money from the account. Since Will is not at the hearing there is no one there to disagree with Diane’s request, so the judge may award Diane any of the money in the account. The same goes for joint property as well.

Once the final hearing is held in front of the judge, the judge will enter an order based on the evidence and testimony presented by Diane and makes a ruling about the divorce. If the court believes that the marriage is irretrievably broken, then judge may award Diane her divorce.

If you are going through a divorce and do not where your spouse is located, then it is important to follow all of the necessary steps to actually finalize your divorce. To better understand your rights and options you should speak to a divorce lawyer/family law attorney.

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August 6, 2012

In a Florida Divorce Involving Custody Case, Can My Words Come Back to Haunt Me?

905626_finger.jpgMore 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 .

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August 3, 2012

Change to Florida Divorce Law Impact on Retirement, Life Insurance, Annuities, etc.

Written by: Lenorae Atter, Attorney at Law

1020934_retirement_money.jpgIn a Florida divorce all assets and debts are to be equally divided regardless of fault of a spouse. Financial items such as annuities, retirement planning accounts, life insurance payouts that like are to be divided equally between the parties, if they were accumulated during the marriage. However, Florida did not have a law in place to automatically void or nullify assets as listed above in the event of the death of a party. For example, if an annuity was held in one spouse’s name and awarded to that spouse in the divorce, but she/he failed to change the beneficiary and she/he subsequently died, then the beneficiary remained the other spouse. As of July 1, 2012, that is no longer the law in Florida. Effective July 1, 2012, Florida law now has a post-divorce automatic nullification for beneficiary-designated non-probate assets (i.e. those assets that do not have to pass through probate upon the death of a party since). Such assets are as follows: life insurance, annuities, pay-on-death accounts, and retirement planning accounts.

While Florida previously recognized laws that automatically cut-out the divorced spouse from a will and from a revocable trust, there were no laws in place to cover the issue of accounts like life insurance. Previously, the recovable trust was the estate planning tool most common for individuals, so the laws made sense until other options became more readily available and popular. Over the years, financial planning and retirement accounts have grown in popularity and protecting them from a divorce has been a concern for many during the divorce and post-divorce process.

Florida Statute 732.703 is designed to apply only to the following type of accounts;
1. Life insurance policy, a qualified annuity, or other similar tax-deferred contract held within an employee benefit plan;
2. An employee benefit plan;
3. An individual retirement account;
4. A payable-on-death account;
5. Security or other account registered in a transfer-on-death form; and
6. Life insurance policy, annuity or other similar contract that is not held within an employee benefit plan or tax-qualified retirement account.

Florida Statute 732.703 provides for the following actions:

1. Upon the divorce or annulment of spouses, the statute nullifies the other spouse as a beneficiary of non-probate assets like life insurance, retirement accounts, pay on death account, etc. However, state-administered retirement plans are exempt from Florida Statute 732.703.

2. Florida Statute 732.703 provides the blueprint for a payor of a non-probate asset to use in the identification of the appropriate beneficiary and specifically sates that the payor is not liable in certain situations for transferring an asset to the beneficiary identified through the Statute’s blueprint/criteria

3. The Statute further voids the designation of a former spouse as a beneficiary of interest in an asset that will be transferred or paid upon death of the ex-spouse if: (a) The marriage was legally dissolved (i.e. final divorce decree) or the marriage was declared invalid before the decedent’s death (i.e. annulment was entered by the court); and (b) The designation of the spouse beneficiary was made before the dissolution or order invalidating the marriage.

If you are going through a divorce and have questions regarding your estate planning accounts and/or how such items may be divided in a divorce or annulment, then you should speak with an experienced family law attorney and/or estate planning attorney to find out more information and to protect your rights and options.

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July 20, 2012

What is a Motion for Contempt and How is One Used in Florida?

Written by: Lenorae Atter, Attorney at Law

952313_gavel.jpgIn Florida, when the court enters an order regarding a divorce, child support, paternity, or other matter, then the court is telling the parties what they must do. If one of the parties is not doing what was previously ordered by the court, then the other party may file a Motion for Contempt, which means that she/he is asking the court to hold the offending party in contempt of court. Contempt of court basically means that a party has willfully and voluntarily not complied with the court’s orders. So, a motion for contempt is a way for the court to enforce the prior orders by punishing the offending party if she/he is held in contempt.

How does this work? If Mary and Frank have a paternity case and the judge entered an order that Frank will pay Mary $500 per month in child support, then Frank must pay $500 per month in child support. If Frank has a job and an ability to pay $500 per month and he chooses not to pay, then Mary may file a Motion for Contempt action against Frank. Mary would state in the motion what the prior order required and what Frank has not done. If Mary paid an attorney to file the action, then she may ask that Frank also pay for her lawyer fees since his actions are the only reason she had to hire a lawyer. Mary may also state that since Frank is voluntarily not paying child support that he should be put in jail.

When the judge ears Mary’s motion, Mary must inform the court of the situation and Frank has to prove that he cannot afford child support. Mary may show evidence to the judge that Frank is working and that he can pay, but is choosing not to. If Mary is successful, the judge may find that Frank is in contempt of court and the judge, if she/he believes Frank is acting voluntarily, may require Frank to go to jail for a set period of time or pay the amount of prior owned child support plus attorney fees. If Frank is successful, then the judge may determine the arrearage and impose that on top of Frank’s prior child support obligation. If Frank had not paid in two months, then he owes $1,000 in arrearage and he may have to pay $500 plus an amount towards the arrearage.

These issues do not only go to child support, but may include withholding the child from the other parent for time-sharing, disparaging the parent to the child, not paying alimony, or any other provision of an order. If you have such a situation, then it would be wise to contact an experienced family law attorney to find out your rights and options regarding having the prior order enforced. Not only can it provide immediately relief to the situation, but it also will help in establishing a record of behavior if a modification is ever needed.

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July 13, 2012

Divorce in Florida Requires Documents to be Provided

Written by: Lenorae Atter, Attorney at Law
gavel%20brown.jpg

In a Florida divorce, the assets and debts of the party are usually divided equally. Due to this aspect of a Florida divorce, many people believe that they can hide assets from their spouse in order to protect their own interest. In so doing, it is not only presenting false information to your spouse, but also to the court, which can have negative repercussions, such as later having the divorce overturned due to fraudulent activity. So, when someone asks if they should hide assets, the answer is going to be, “no.”

In a Florida divorce, the rules of family law procedure, which govern the proceedings, require that each party file mandatory disclosure items with the other party. The mandatory disclosure item requires each party to fill out and swear to the truth of their financial affidavit. A financial affidavit provides information regarding all forms of income and monthly expenses of the spouse. Each spouse is required to file his/her own financial affidavit. This document is sworn to, so you want to make certain it is filled out as accurately as possible so as not to lead to later discovered evidence that contradicts the form.

In addition to the financial affidavit, each party is required to provide the other bank statements for all accounts; any and all applications for loans, mortgages and the like; paycheck stubs; tax returns; mortgage accounts; deeds; etc. The list is provided in the Mandatory Disclosure list as established in the Florida Family Rules of Procedure. Not complying with the rules can lead to additional court action and can potentially mean that the court imposes attorney fees and costs to the party who does not comply. The idea is that each party has to provide full disclosure to the other so that all items are properly divided and addressed in the divorce action.

If a party feels that additional information is necessary to fully understand the financial picture of the marriage, then that party may file a request to produce documents. There are normally time constraints imposed for providing said documents, which is typically 30 days. If the documents are not provided in a timely manner, then again, you may be on the hook for the other party’s attorney fees and costs associated with enforcing the request. Furthermore, if there are documents that are not or cannot be provided because they are not readily available to you or the other party, then the documents may be subpoenaed. What that means is, for example the other party does not provide payroll information, then the party’s employer may be subpoenaed to provide the documents. While it is an uninvolved third party, the subpoena is legally sufficient to require their participation. Again, they typically have 30 days to comply.

If you are going through a divorce, then it is a good idea to speak with an experienced family law attorney to make certain that you are in compliance with certain court requirements, but to also make certain that your legal rights and options are protected. Understanding the process and being properly represented can be beneficial to the overall divorce process.

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July 11, 2012

In a Florida Divorce Will My Business Be Given to My Spouse?

Written by: Lenorae Atter, Attorney at Law
tug-o-war1.jpgIn a Florida divorce, regardless of fault, the marital property, debts and assets are to be divided equally. Florida divorce requires that marital items be equitably distributed through the court if the parties cannot otherwise agree on the division of assets, debts, and the like, with few exceptions. The one thing that often can be left out when couples try to divorce on their own is the division of a business. Yes, in Florida, if you start and own a business during the marriage, then that is a marital asset (sometimes a liability) that should be divided by the parties. However, it also means that there is another party to your divorce, the actual business itself, because the business has an overall interest in the outcome of the case.

For example Wanda and Hank have decided to divorce after twenty (20) years of marriage. About five (5) years into the marriage, Wanda started her own bakery, Wanda’s Treats, and it has been successful since it opened. Wanda is now more of a managing owner, than acting as lead baker so the business is self-running at this point in their marriage. Hank files for divorce and in his petition, requests that the business be equitably divided between him and Wanda. Normally, in filing for a divorce, the case will only list the parties as Hank and Wanda. However, since Hank wants part of the business, the business itself actually has a stake in the divorce and should actually be named as an additional party to the suit. When that occurs, Hank not only needs to serve Wanda with divorce papers, but also serve Wanda’s Treats’ registered agent, separately. Mathis v. Mathis, 2D11-298 (Fla. 2nd DCA June 15, 2012). By doing so, the business can actually have its own attorney as well to make certain that the business valuation is fair to the business and that any division is done to preserve the integrity of “Wanda’s Treats.”

In a divorce, to determine how the parties will divide a business, normally a business valuation has to be completed to determine its actual value. Generally, one or both parties, and sometimes even the business itself, may have their own valuation completed by a competent third party business valuator. However, the parties can also agree on one individual to complete the valuation and agree that they will accept the number established by the individual. The business valuation gives details as to the value of the businesses actual things (i.e. computer, ovens, mixers, etc.) and the approximate value of the business with regards to its name and product and what it may sell for if the business were purchased by someone else.

In determining the equal distribution of such an asset, the debts are also factored in because a spouse is not only entitled to the asset value, but also the debt associated with the business. So, the overall value would have a net amount, which would be the value minus the debts associated with the business and the court will ultimately have to determine how that will be divided between Husband and Wife.

If you own a business during your marriage, then you should speak with an experienced family law attorney to assist you in the divorce to better understand your rights and options.

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July 6, 2012

Tom Cruise and Katie Holmes File for Divorce: Understanding the Divorce Process Ahead

Written by: Lenorae Atter, Attorney at Law

0705-tom-cruise-katie-holmes-2.jpgTom Cruise and Katie Holmes have entered the spotlight again, this time for divorce. The couple’s marriage has provided them a six-year-old child, Suri, which seems to be Katie Holmes’ biggest concern at the moment. Katie Holmes has made it clear to those around her, as published in multiple articles, that she is mainly concerned about the best interest of the child and making certain that she is provided for after the divorce. There are talks that the couple has a prenuptial agreement, but that rumor has not yet been confirmed. However, prenuptial agreements can lend to some changes when it comes to determining child support since circumstances of the parties most likely changed since entering the prenuptial agreement. In a Florida divorce, Katie Holmes’ concept of looking out for the best interest of the child is standard. Florida courts put an emphasis on children issues because the children cannot ultimately make decisions for themselves and the court finds it necessary to make certain that decisions made by sometimes emotional parties is actually in the best interest of the child.

For Tom Cruise and Katie Holmes, the process is just beginning. Normally, one must be a resident in the State where divorce is filed for a period of time. To file for divorce in Florida, at least one party must be a resident for six (6) months prior to filing for divorce, unless due to an emergency (i.e. escaping an abusive spouse and/or parent). While Cruise and Holmes primarily reside in California, Katie Holmes filed for divorce in New York. The idea of filing in New York was to avoid the public records laws of California. Since California public records allows for divorce proceedings to be accessed by the public, Holmes’s action was done in hopes of keeping the details of the divorce private, or at least as much so as possible. The courts will have to make the determination if New York is the proper venue or jurisdiction for the case, if not, then the case may be sent to California.

The other aspects to the divorce will most likely include division of property that the couple has accumulated during their marriage and additional division of assets (cars, jewelry, etc.). In Florida divorce laws, such divisions of property and marital assets/debts are done equally. However, the language of a prenuptial agreement may better spell out the division of all property that was premarital, but also those things accumulated during the marriage. A prenuptial agreement can often times factor in how certain assets (i.e. properties, bank accounts, etc.) and debts will be divided if the marriage ends in divorce. A prenuptial can go into details about incomes of the parties, retirement accounts and the like and determine how those items will be used or divided if a divorce were to occur. If Cruise and Holmes have a prenuptial agreement, and with Tom Cruise estimated to make $75 million per year and Katie, well not as much, it is a safe bet that they did have something in place to outline the result of a divorce if one were to occur. The key to a prenuptial agreement is to make certain that both parties provide a full disclosure of their assets, properties, businesses, debts, etc. If the parties both provided full disclosure and the agreement was not signed on the cusp of marriage, meaning to imply coercion, then it will most likely be upheld and provide the blueprint for the divorce.

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June 29, 2012

In a Florida Divorce, What Emotions May I Expect to Have and My Spouse to Have?

Written by: Lenorae Atter, Attorney at Law

1193409_business_concepts_people_8.jpgBeing married for years and then deciding to go your separate ways can be a challenge for any Florida couple. As a divorce lawyer in Jacksonville, I meet with clients that are in different stages of the grief process over their marriage. Normally, the spouse that leads the conversation to divorce is generally the one that has processed the situation surrounding the marriage and ultimately already grieved over the loss of the relationship. Understanding where you may in the grieving process versus where your spouse may be is helpful to dealing with the dramas that may plague your divorce process.

We have all heard of the stages of grief when dealing with loss and divorce grief is no different. The loss, however, generally occurs at different times for spouses because one may be unhappy or not content for a longer time before the other spouse knows of the unhappiness. When couples get to this stage, normally communication has already broken down, so the conversations of what a spouse may need are over and the acceptance of not having those needs met may have already set in. Complacency of one spouse can be part of the process for that spouse to go through the stages of grief, all the way from denial to acceptance. Once a spouse has accepted the possible fate of the marriage she or he may have a conversation with his or her spouse about the next step, possibly divorce.

The spouse that is confronted with the possibility of divorce may or may not have realized how much the relationship had previously suffered. As such, upon learning of the news, then that spouse may begin the grief process from step one, denial. The denial stage is difficult for both parties because each require their own processing. For the one in denial, there may be a number of questions as to how; why and what could be done to save the marriage. For the spouse that broke the news, she or he is now required to answer those questions for the other and help his or her spouse better process that this is not a horrible joke, but in fact their present reality.

If you are the one that breaks the news, then anger towards the other for not understanding is normal. However, if you can try to view the situation from his or her perspective, then it may make the process easier for both of you. The easier you make the conversation the less you may actually have to fight about in the divorce, which could potentially save you time and money. If you can’t work through it, which is normal as well, then it is important to understand that at times one party may be thinking more rationally and business-like than the other due to emotions. Often, emotions cannot be removed 100 percent from a divorce, for even those that believe they have process the entire process. At the end of the day, divorce ultimately signals loss and while it may seem freeing at times, there are normally good times that are remembered along the way that will make you question yourself and your spouse.

To better keep emotion out of the process, it is a good idea to speak with a divorce lawyer that is experienced in handling such matters. A family law or divorce attorney can help you to keep things in perspective and not necessarily get carried away in the emotional minutia that can plague the divorce process.

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June 27, 2012

Can Facebook and Other Social Networks Impact My Florida Divorce?

Written by: Lenorae Atter, Attorney at Law

1260786_laptop_work.jpgAs a Jacksonville, Florida divorce lawyer I have seen social networking, such as Facebook, impact marriages and divorces significantly more in the last couple of years. In a Florida divorce, fault does not have to be alleged in a petition for divorce because Florida is a no-fault state. No-fault divorce is basically that the reason for the divorce is not generally necessary to be evidenced to the court. However, such things as gambling, adultery and the like can be alleged to show why one party should be awarded more than the other. Also, such things as disparaging comments about spouse, photographs of excessive drinking in front of children and the like can be used when parents are fighting over children. These allegations can be difficult to prove, but with social networking it can be much easier. In a recent article, "Can Facebook Ruin Your Marriage?" the issue seems to be impacting a number of marriages and divorces. Social networking sites have been used for many reasons including rekindling old relationships, developing new relationships, and posting dirty laundry of the marriage to friends and the world via page postings and status updates.

According to, “Can Facebook Ruin Your Marriage?” the word, “Facebook,” appeared in 33 percent of the 5,0000 divorces filed in 2011 for “unreasonable behavior” in Britain. This shows an increase from the 20 percent reported from a similar survey in 2009, thus showing the popularity of the site and its impact on divorces increasing over a short period of time. In the British study, the most common reasons that Facebook was cited in the divorce petition are as follows:

1. “Inappropriate messages to the opposite sex.”
2. “Separated spouses posting nasty comments about each other.”
3. “Facebook friends reporting spouse’s behavior.”

Similar surveys and studies have been done in America as well, in a 2010 survey by the American Academy of Matrimonial Lawyers showed that of lawyers questioned, 81 percent reported that they also noticed an increase in the use of the social networking site in divorces in the last five years. Social networking has made it easier and more socially acceptable to share personal details about your life and as such, when going through emotional issues, such as marriage difficulties or a divorce, the posting of such emotions is as easy as posting your new status when you log in. According to Cleveland Clinic clinical psychologist, Scott Bea, Psy. D., “I think social media right now really draws on people giving too much information, and until they experience the consequence of that, it may be hard for some people to really pull back.”

Social networking sites, such as Facebook can come back to haunt a spouse in a divorce. Often the other spouse will actually print the comments made, make copies of photos posted, and take screen shots of a spouse’s page or a friend’s page showing communication about the other spouse. These can be used to show certain things in a divorce, including evidence of an affair (which in Florida may be valuable in showing marital funds were used in furtherance of a relationship), that one party is disparaging the other openly to the world, which can impact their children, that a spouse is harassing the other, and many other issues. The site can be used in all issues of the divorce, including how marital money has been used (i.e. extravagant purchases since separating); drinking or doing drugs with the kids in tow; and many other things.

If you are going through a divorce, using social networking to attack the other party may come back to hurt your case more than you think. An emotional posting or airing of dirty laundry may feel good at the time, but the ultimate consequence may not be worth it. Also, if you are not the one posting, but the one targeted then knowing how to react or not to react can be vital as well. If you are going through a divorce you should discuss these issues with an experienced divorce attorney to make certain that such issues are handled.

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June 22, 2012

Do I Give Up My Rights to My House if I Leave in a Florida Divorce?

Written by: Lenorae Atter, Attorney at Law

1389111_home.jpgAs a Jacksonville divorce lawyer, I am often asked by clients whether they give-up their rights to their home if they move out. Often, when couples decide to divorce one of the parties will want to move out the home and clients are generally afraid that if it's him/her then rights to the home have been given to his/her spouse. In a Florida divorce, rights to marital property and assets is not determined by possession, but by when the property was purchased and possibly a couple of other factors. Property, assets and debts are normally divided in equal shares to the parties, unless there are reasons not to equitably divide. Florida is also a no-fault state, meaning that it does not matter who did what, the property still has to get split.

In a Florida divorce, property that was purchased after the date of marriage is marital property and subject to equitable distribution. For example, Amy and Ben get married and a month later purchase a home. Ann and Ben do not have kids and live in the home together for fifteen years and pay down the mortgage to a point that there is equity of $50,000 in the home. Ann and Ben decide to divorce and Ann moves out before the divorce is final. Ben claims that Ann forfeited her rights to the $50,000 because she, in essence, abandoned the home when she moved out. Ann claims that the property and the asset of $50,000 is marital and should be divided equally by the parties. Generally, the court will require the home to be sold and the equity divided 50/50, regardless of Ann moving out before the divorce was final. If Ben wants to keep the home, then he may be required to pay Ann her one-half share and buy her out of the home.

The other question that typically arises is whether the spouse that stayed in the home gets any credit for monthly mortgage payments made after the date of separation. For example, same facts as above, but when Ann moved out she did not contribute anything to the marital home. Ben took over payment for all financial issues regarding the home and was paying $1,000 per month towards the home for one year prior to the sale. When Ben and Ann are told to sell the house, the court may award the equity to be divided 50/50 between Ann and Ben. However, the judge may also say that Ben should receive credit for his financial contribution to the home for the 12 months, therefore, the equity is $50,000 Ben is given $12,000 and Ben and Ann then divide the remaining balance equally. This result does not necessarily occur in a Florida divorce, but there is a possibility, given the facts of each case that it can be the result. There are a number of factors to consider when the court decides whether such a credit will be given to one of the parties.


Continue reading "Do I Give Up My Rights to My House if I Leave in a Florida Divorce?" »

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June 21, 2012

Is Marriage Counseling or Family Counseling Necessary in a Florida Divorce

Written by: Lenorae Atter, Attorney at Law

Marriage-Counseling4.jpgDeciding to divorce can be a difficult process and one where both parties may want marital counseling, one spouse wants counseling, or neither spouse believes that counseling would help to rebuild the marriage. As a divorce lawyer in Jacksonville, Florida new clients often ask me whether marital counseling or family counseling is required before they divorce. I am also asked whether counseling will have an impact on the divorce. There are states that require spouses to attend counseling before moving forward with divorce, but Florida is not one of those states. However, while it is not required for filing the divorce, the judge may order family or marriage counseling as the case moves forward.

For example, if Allen filed for divorce from Beth, then the divorce proceedings have begun. However, Beth may respond to Allen’s petition for divorce and deny that the marriage is irretrievably broken. In Florida, for a divorce to be entered by the court, the judge must find that the marriage, in fact, is irretrievably broken. If Beth denies that the marriage is irretrievably broken and the case goes to trial, then Allen has to present evidence to prove the breakdown of the marriage. However, before it goes to trial, and probably soon after filing for divorce, Beth may file a motion with the court requesting that the judge order the parties to go to marriage counseling. At the hearing on the motion, the judge will listen to both sides as to whether there is reason to go to marriage counseling and then judge can order such compliance for a set period of time.

Once the judge enters an order requiring both parties to participate in marriage or family counseling, the divorce case is put on hold. The judge normally sets a reasonable timeframe for the parties to attend counseling to find out if the marriage can be retrieved. The stay on the case for that period of time is not to add delay to the case, but to let the parties work on their marriage instead of working towards their divorce. It also helps the parties so that attorney fees are not continuing to accrue during that time. The court and public policy mandates that the parties working on their marriage should not be taking steps to further their divorce proceedings at the same time.

After the time-frame for counseling has expired, if the parties reconcile during the counseling, then the case can be dismissed. If the parties attend counseling and then decide that there is no chance of reconciling, then the divorce will continue as planned. If the parties are not certain that they want to pursue the divorce and would like to continue counseling, then the court may extend the stay or hold on their case for another set period of time.

Continue reading "Is Marriage Counseling or Family Counseling Necessary in a Florida Divorce" »

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June 18, 2012

I Want to Divorce in Florida, Can I Take Out Money from Our Bank Account?

Written by: Lenorae Atter, Attorney at Law

701013_writing_a_check_2.jpgAs a Jacksonville, Florida divorce attorney I am often asked the question, "Can I take money out of our bank accounts?" When that question does not come up, I am often told that the other party cleaned out the bank accounts already. So, how are accounts generally divided in a Florida divorce and what should you do with your bank accounts while going through a divorce?

Florida is an equitable distribution state, which means that each party is generally entitled to equal shares of the marital assets, including bank accounts. When you file for divorce in Florida, most courts have what is called a, "Standing Family Law Court Order." The Order in the Jacksonville area establishes that neither party shall dissipate (sell, squander, gamble, etc.) away marital assets. However, is the set-up your own account and actual dissipation of the money in the bank?

What I normally tell clients is that if they feel there is a strong likelihood that their spouse will clean out an account, then the client should set-up his/her own account. When doing so, if money needs to be withdrawn from a joint account, then take a screen shot or printout of what is in the account on the day of the anticipated withdrawal. Then, at most, to take 50% of the funds, but not to use 50% of the funds simply hold them in his/her own account. The funds can be used for living necessities, but I do not recommend taking the money out to buy the sports car of one's dreams.

The reason that the money should not just be used as if it is yours from the word, "go," is because the court may find that there are grounds to award an unequal distribution of assets (i.e. that one party used marital funds to further an extramarital relationship) or that with division of assets and debts, the other party is owed more in assets because she/he took the majority of debts. These all play a factor in a divorce and until a judge puts his/her signature on an order, anything could happen with regards to your assets.

As an example of what could happen, say you have a one-year old gas grill and your spouse decides to sell the grill for $50 without first consulting you, then your spouse may be held in contempt for not following the Court’s standing order. In addition, since the grill most likely has more than a $50 fair market value, your spouse may be responsible for paying you one-half of the fair market value and not $25 (your one-half of the sale price).

When going through a divorce in Florida, you want to make certain that you protect yourself, but you also want to make certain that you are not putting yourself at risk for having to pay more than necessary in the end. Understanding your rights and options is vital to preparing for divorce so that things like a Standing Court Order, do not come back to haunt you by being held in contempt of court and having to pay your soon-to-be ex any additional funds. In order to protect yourself properly, you should meet with an experienced family law/divorce lawyer to be educated on what to expect and the dos and don’ts of divorce.


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May 24, 2012

Dividing Retirement in a Florida Divorce

Written by: Lenorae Atter, Attorney at Law

1150888_egg___.jpgRetirement accounts in our economy can be up and down, but one thing remains the same, in a Florida divorce your retirement that has been contributed to or earned during the marriage is one-half your spouse’s. Divorce in Florida is based on a premise that everything collected, including assets, debts and retirement accounts are going to be split equally between the parties. The concept is known as equitable distribution and it’s different in Florida than in some other states.

In some states, if both parties have a retirement account, regardless of value, then each take his or her own. In Florida, regardless of whether an account exists or should exist, the value of the accounts is what matters. If the Husband has a 401k with approximately $50,000 and the Wife has a 401k with an approximate value of $150,000, then their combined retirement is $200,000 (if all was contributed to and collected during the marriage. So, the court will look to split the $200,000 between the parties and the Wife’s account may be depleted by $50,000 and rolled into the Husband’s account to may his total $100,000 and her total $100,000.

If there is a pension account, which is based on the number of years worked, then there is a calculation that has to be done to determine the other spouse’s portion of the pension. What this means is that you look at the number of years of the marriage and the number of years the spouse has had in the company. Often the company provides a calculation to help in this process, but it will basically turn into a percentage amount for the spouse who does not have the pension.

Once retirement is awarded, the party that has received said retirement funds is responsible for having a Qualified Domestic Relations Order approved by the company with the account and then submitted to the court. This should be done as soon as the divorce is finalized in case anything was to happen to deplete the fund after the dissolution of marriage. The spouse that has the paying account cannot deplete the account without court approval, but if the funds are dependent on stock, then stock shares can change in a day and leave the account with less than what is owed to the other spouse.

In addition to rolling over the retirement account, the parties may reach an agreement for a pay out and now there are ways to have this done in a 401k or IRA without incurring penalties. If there is an agreement that a spouse is going to take $100,000 from the other spouse's 401k to equal another asset the other party took, to pay lump sum alimony, or another settlement agreement, then it can be disbursed without the penalty, but taxes must be paid. The idea is that a property settlement or settlement regarding the retirement accounts can be divided the parties without the benefiting party suffering any penalties. The IRS just wants to make certain it is getting its cut since the disbursement is income.

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May 17, 2012

Mediation and Other Options for a Florida Divorce, Part 2

282848_law_library.jpgWhen going through a divorce in Florida there are options beyond going to trial. Mediation and other forms of negotiations can be helpful to the parties because it can help the parties have some control over the outcome of their divorce versus leaving all decisions up to the judge. In negotiations, the parties have the ultimate say in the outcome of their divorce, while in a trial, all decisions are made by the judge. As previously discussed this week, forms of negotiations available to the parties are pre-filing mediation; collaborative divorce; an uncontested divorce; filing for divorce and then going to mediation. As a Jacksonville divorce lawyer, I think understanding these concepts can help spouses determine what is in their best interest and their children’s best interest as they part ways.

In review, pre-filing mediation is basically when both parties agree to attend mediation prior to filing for divorce. This is a time for the parties to find out what stands between them and a settlement agreement and to see if they can work through those differences. A collaborative divorce involves both parties having attorneys and fully disclosing all items to one another in hopes of resolving all issues in the divorce before filing. The process uses a neutral third party to assist in the process and can use financial outsiders and parenting coordinators to effectively reach an agreement.

So, what is an uncontested divorce? Basically, this is more of the process that parties may take with each other depending on what terms they are parting. Sometimes, parties can actually discuss the issues of asset division, retirement division, alimony, marital property and the like and ultimately decide; on their own, how they want things divided. Going this route does not mean that you should not consult with an attorney. You want to make certain that you are not leaving anything pertinent out in your negotiation, but also you want to make certain that the final agreement is drafted in a way that is legally enforceable. If you can speak with your spouse about these things, then you may want to schedule a joint meeting with an attorney to discuss where you are and to ultimately have the agreement drafted with the proper legal language.

Finally, what is post-filing mediation? Here, you or the other party has already filed for divorce. The process may be moving forward to trial, but in Florida, the courts generally require the parties to attend mediation. This type of mediation occurs after the divorce has been filed, after discovery or the exchange of financial information, asset information, debt information and the like has been completed, and the only thing left before trial is mediation. The reason for this is that mediation has proven to be a place where the majority of parties can reach an agreement on all pending issues in their divorce, thus not requiring a judge to make the ultimate ruling. This is really a chance for both parties to negotiate before trial to see if all issues can be resolved.

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May 15, 2012

Mediation and Other Options for a Florida Divorce, Part I

Written by: Lenorae Atter, Attorney at Law

605771_swimming_pool.jpgOptions in a Florida divorce exceed beyond having to go to a trial. In a world where divorce seems an agonizing process and we are often inundated with horror stories of years of litigation, spouses dragging each other through the muck, and much more. However, in Florida, there are other ways to get divorced instead of simply committing to litigation or trial. The options consist of the following: pre-filing mediation; collaborative divorce; an uncontested divorce; filing for divorce and then going to mediation. As a Jacksonville divorce lawyer, I think understanding these concepts can help spouses determine what is in their best interest and their children’s best interest as they part ways.

What is pre-filing mediation? First, mediation is a process of both parties meeting with a neutral third party to determine if they can reach an agreement regarding all aspects of their divorce, such as: division of assets and debts, alimony, division of the marital home, a visitation schedule, and the like. The parties usually meet in the same room initially and then are separated and the mediator will go between the parties to help negotiate a settlement. If that process is successful, then they will file a petition with the court for the divorce and put into the petition that both parties have reached an agreement. Then, the final settlement agreement or Final Judgment has to be entered with the judge and only one spouse has to attend the hearing. If you choose this process, you still have the right to have a lawyer with you so that you understand your rights and options if you were to reach an agreement or what may happen if you go to court. The mediator, though neutral, cannot provide you with legal advice, so it’s a good idea to at least meet with an attorney prior to attending the mediation.

What is a collaborative divorce? This process is a little different because it goes into much greater detail for the parties from beginning to end. First, both parties hire an attorney that is familiar with the collaborative process. Second, instead of the parties signing a normal attorney/client contract they each sign one with their own attorney stating that they understand the attorney cannot represent him or her if the collaborative process is not successful. The reason for this is due to the nature of collaborative law is for the parties to share all information with one another and the attorneys can and will have a conflict of interest since the idea is for both sides to lay their cards on the table.

Continue reading "Mediation and Other Options for a Florida Divorce, Part I" »

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May 8, 2012

Florida Divorce: Why Custody Plan Evaluations Are Important

Written by: Lenorae Atter, Attorney at Law

Olive%20branch.jpg
First, the Florida legislature changed child custody to "primary timesharing parent" in October, 2008. However, since most of us are familiar with child custody and custody issues, this article will still address the issue as the historic term, "custody."
As a Jacksonville Florida family law and divorce attorney, dealing with paternity cases and divorces with children, custody issues often arise and the Social Evaluation is an important factor in helping the parents better understand the issues facing the children, and the evaluation assists the judge in having a better understanding and comprehension of what is in the best interest of the children. In Jacksonville and throughout Florida, the social investigation is a component of the case that may be used in its entirety by the judge or may give the judge a basis for a particular ruling. In addition, the evaluation can provide the parties with a stepping-stone or format by which to reach an agreement regarding visitation issues.

The social investigation is conducted by a professional, usually someone with a psychology and law background, and the investigator actually interviews the parents, speaks with witnesses, talks to the kids, look at school records, etc. Once the reviews and statements are completed, the evaluator writes a comprehensive report to demonstrate the findings for each parent, child, and the overall assessment of a parenting plan and recommendations for the court regarding any other matters that should be addressed (i.e. whether counseling is recommended, communication issues, etc.).

So how do you present well in the social investigation? Basically, parties are often concerned that they need to present themselves in a certain light to impress the investigator. However, most of the individuals handing these matters can tell when a party is putting on a show. The idea is not to be fake or phony, but to present your concerns for the children, explain your relationship with the children, and truly identify your wants and needs and the children’s wants and needs before the interview. Being genuine with the investigator is beneficial because it allows the investigator to truly determine any family issues that may need to be addressed, the impact the divorce/separation is actually having on the children and the like. The reason for the investigation is not to berate the parents, but to simply identify what may be in the best interest of the children in the present and in the future.

Extend a mental olive branch to the other party. During your interview with the evaluator, do not destroy the other parent with disparaging remarks. Describe the parts of parenting that the other parent does well and be honest in your comments about the children's relationship with their other parent. Then share the things that do concern you about the other party, or about the separation of the children. You do not have to make it sound like everyone is great, you’re getting divorced there were issues in the home, so being real about the situation can be helpful in reaching the right conclusion for your case.

Continue reading "Florida Divorce: Why Custody Plan Evaluations Are Important" »

May 3, 2012

Domestic Violence Can Impact Family and Unrelated Victims

Written by: Lenorae Atter, Attorney at Law

Ammo.jpgDomestic violence issues in Florida and throughout the country can be seen in even the most heinous of crimes. Sometimes, the domestic violence can be a precursor for violence on others, including innocent, unrelated victims. A recent case is the much publicized case involving Jennifer Hudson’s family, but a case that struck many of us throughout the country, the sniper shootings in Virginia, also started with domestic violence. Mildred Muhammad, ex-wife of DC Sniper John Allan Muhammad, gave an interview to Larry King the night before her husband was to be executed for his crimes at a Virginia state prison. Muhammad left 10 dead in a shooting spree that his ex-wife believes was destined to end with her as its final victim.

Ms. Muhammad said she felt very guilty about the victims of her ex-husband’s rampage, which left millions of DC residents fearful of going out in public. She claims that she had done “everything I knew how to do” to bring Mohammad’s violent and abusive nature to the attention of authorities, but it wasn’t enough. And she has expressed feelings of shame for not realizing that his violent behavior would extend beyond her, to affect other people. Like many victims of domestic violence, Ms. Muhammad’s guilt lingers for her inaction, but domestic violence by another does not require the fault of the other spouse or victim, simply behaviors of violence that are so easily exposed by a trigger to the violent person.

Ms. Muhammad had divorced her husband because of his allegedly abusive behavior towards her. Authorities maintain that Muhammad started killing random strangers as a cover up, with the ultimate goal of shooting his wife the same way, so that he could take custody of their three children. Muhammad has always claimed that he is innocent of the charges.

After suffering from incessant abuse and a the violence that surrounded her family, Ms. Muhammad has worked through her guilty feelings and is concentrating on caring for her three children during this emotional time. Muhammad’s first wife, Carol Williams, was also interviewed by King, and said she planned to visit Muhammad in prison with their son before the execution. You can read more about the interviews at Ex-wife of infamous 'D.C. Sniper' felt guilty about shootings.

Domestic violence is very dangerous behavior, and it this case is a tragic example of how far it can go if left unchecked. People who are in reasonable fear of being in imminent danger of domestic violence should take very action to protect themselves, including calling the police and taking out an injunction.

If you are a victim of domestic abuse, please contact our firm to explore your legal options.

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April 30, 2012

Is Alimony in Florida Designed to the Lifestyle I Had During Marriage?

Written by: Lenorae Atter, Attorney at Law

1327117_house_1.jpgDivorce cases involving alimony have been popular recently in Florida. The Florida appellate courts seem to be making up for the lack of alimony legislation by making rulings that continuously limit alimony and the award of such. The Florida alimony statute recently underwent an overhaul, making clearer lines of the length of the marriage that must or should exist in order for certain alimony to be awarded to a spouse. However, the hole that has caused quite a stir is that Florida still does not have an alimony calculation to help in the determination of the amount to be paid. In Jacksonville and surrounding areas, there is a tendency to award alimony based on need and ability to pay, not just the income disparities, but that is not always the case nor the popular approach throughout Florida, thus the appellate courts have begun making more provisions for the award of alimony.

A disparity in income does not, in fact, mean that because one party makes more than the other party that she or he should automatically pay alimony to the other. The court must look at the practicality of such. The reality is that just because there is a disparity in income does not necessarily mean that one party is in need or the other has the ability to make both houses equal financially. Financial equality sustained by one income for two households runs quite a risk for the paying party because often, that individual also takes more of the debts from the marriage. In a recent appellate opinion, Walker v. Walker, 1D11-2869 (Fla. 1st DCA April 12, 2012). , the court quoted the following, “Simple disparity in income will not support an award of permanent periodic alimony: ‘the purpose of permanent periodic alimony is not to divide future income to establish financial equality.’ See Rosen v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003)(citing Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998); Langevin v. Langevin, 698 So.2d 601 (Fla. 4th DCA 1997); Wright v. Wright, 613 So.2d 1330 (Fla. 4th DCA 1993).” This basically establishes that alimony should be awarded to assist the needing party in the future, not just to establish an equal financial footing of both spouses.

Continue reading "Is Alimony in Florida Designed to the Lifestyle I Had During Marriage? " »

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April 20, 2012

Why Do I Have to Provide Bank Statements in My Florida Divorce?

Written by: Lenorae Atter, Attorney at Law

204799_files.jpgFiling for a divorce in Florida opens up your financial world to the court and the other party. In a Florida divorce, each party is required to submit documents of their paycheck stubs, bank statements (checking and savings), retirement account information, mortgage documents, and the like. Florida divorces or actions involving family matters like paternity cases are governed by the Florida Family Law Rules of Procedures. These rules layout the groundwork for what documents must be provided in order to be in full compliance with the court. So, how does this information help if you are divorcing someone?

As a Jacksonville family law attorney, I believe that these documents, especially bank statements, can reveal more about the other party than any other document provided or required to be provided. Often in cases, both parties claim not to have the financial ability to most anything, including paying attorney’s fees, paying for their home, etc. However, the truth of the claim, in my experience, rests in what is contained in the records.

Alimony
is based on an ability to pay and a need for alimony. Both of these things can be proven by go through the bank statements of the individuals, the retirement accounts, and the like. While talking to my client or the other party is beneficial, and sometimes crucial, it is these documents that will tell me more than anyone party can or will. In a world where cash has become almost obsolete, most of us use our debit cards, check cards or credit cards to pay for everything from groceries to utilities. These transactions show-up on our bank statements every month as a reminder of where our money is going. In a divorce case, it is evidence of how money is actually being used in the household. If the parties have different accounts, then it is also evidence of how the household bills were historically divided during the marriage. Using these tools can help establish a need and ability for purposes of alimony.

Child support is based on the incomes of the parties. Sometimes, an individual has one main job and does additional side-work of some kind. When asked on a financial affidavit, required in the case, what the party’s income is she or he will typically put the income earned from the main job and exclude the other one. However, deposits show up on bank statements, so incomes can actually be based on the available funds each party has on a monthly basis, as may be shown on their bank statements.

In going through a divorce, the benefit of hiring a divorce lawyer is that you are paying for us to do this type of research. The research can be time intensive and going it on your own can be more time consuming than you may imagine. The benefit of having this information is so that you have a better understanding of your own finances during the marriage and post divorce as well. An attorney should be able to help explain how these things will come up in your divorce whether at trial or in mediation.

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April 18, 2012

After My Florida Divorce, Am I Required to Make All Repairs to a Home?

Written by: Lenorae Atter, Attorney at Law

1242900_old_house_.jpgIn a Florida divorce, the parties often have a marital home that has to be divided by the parties regarding either the asset value or the debt owed. However, sometimes the house may simply shift ownership per a divorce agreement by the parties, especially when the home is underwater like most are in today’s economy. The shift normally occurs because the party that stayed in the home at the time of separation cannot afford to maintain the home after the divorce is final, but the other party can. As a Jacksonville divorce lawyer, I often receive questions from clients regarding what the home must be in at the time of transfer.

If possible, you want the divorce agreement or order to actually define the condition of the home and what necessary repairs must be done. It does not make sense that the party is returning the home in a better condition than how it was during the marriage, but it also should not be in worse condition. If the party with present possession does not have the ability to maintain the home, then it is unreasonable to expect the spouse to have the ability to fix in and all issues that were present during the marriage. Things such as lawn maintenance that was in place during the marriage should also be kept up. However, completely re-landscaping the yard to make it better looking is not a reasonable cost expectation.

The issues that typically arise in cases are where a spouse is upset about having to move out and then actually depletes the marital value of the home by destroying the property. Destruction of property is not reasonable wear and tear, but actually done to impact the value of the home and the ability for the other spouse to live in it. These actions can actually be brought up to a judge in a contempt and enforcement situation. The offending party may be responsible for all necessary repairs of the damage done and responsible for the attorney’s fees for the other party. Destruction of the home is more common than most people would like and is something seen not only in divorces, but in foreclosure cases as well. Understanding that the damage may come back as a cost to you can be a deterrent.

Also, in a divorce proceeding and contempt of the order, the judge can go so far as requiring the offending party to go to jail and give a purge amount of the cost for all repairs. The reason is that a violation of a court order is actually a legal violation that is punishable with time in jail. In a destruction of property action, the contempt may not be the only legal violation, but criminally, there may be action that the police can take for vandalism and intentional destruction of property, if the spouse is caught.

If you have a home that has been or will be divided in a Florida divorce, then you should speak with an attorney about your rights and options. If your home was to be transferred and the other party failed to do something or is trying to impose additional responsibilities, then you may need to file the proper action with the court.

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April 12, 2012

Military Divorce and Deployment: An Unexpected Twist is Shown in a Recent Study

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Florida divorces can be complicated for many reasons, and in Jacksonville, where there is a heavy military presence; divorces can be even more complicated. When a military couple divorces, the process is often more complex than when a civilian couple divorces. There are a number of additional factors to consider, especially when it comes to issues such as equitable distribution and child custody, since there are often multiple retirement accounts, savings accounts, issues of deployment and the like.

In a military divorce, often factors come up involving the divided household due to the service-member’s military responsibilities. These are also factors that are part of the every-day life of military families, so the issues are not necessarily new to the spouses while they deal with a pending divorce. Also, military divorces are not always for the reasons society seems to think, such as long deployments, uncertainty in war-times, possible moves, etc. Many people think that deployment of one military spouse would increase the risk of divorce. It is easy to assume that the risk of divorce increases when a military couple is separated for a period of time and the deployed spouse is faced with a number of stresses. But a recent study has debated whether deployment is related to an increase risk for divorce.

A new study conducted by Benjamin Karney (UCLA) and John Crown (RAND Corp), looked at whether the amount of time a person is deployed has an effect on the risk of divorce and what that effect could be. The study surveyed over one –half million service members who were married after 9/11 and who served between 2002 and 2005. The study included all branches of the service and reserves, and collected data about gender, race and presence of children among the couples.

Contrary to most expectations, longer deployment was associated with a lower risk of divorce. According to the authors of the study, ‘For the vast majority of the U.S. military--the longer that a service member was deployed while married, the lower the subsequent risk of marital dissolution.... Deployment appears to enhance the stability of marriage, the longer the deployment, the greater the benefit.’ In twenty (20) different tests, the authors found that only active duty officers and enlisted Air Force personnel were at more risk of divorce due to deployment.

The results of this new study are different from the usual reports in the press that think about deployment as a crisis similar to an illness or a natural disaster. Rather, this new study showed that deployment is a normative event for military families; it is a challenge to be dealt with but not a crisis. For more information on this topic, see Does Demployment Cuase Military Families to Divorce?

If you are in the bracket that is considering divorce, then you should speak with a family law attorney in your area to find out what factors need to be considered and what your rights and options are as you move forward.

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April 9, 2012

After a Florida Divorce, What Happens If One Spouse Dies?

Written by: Lenorae Atter, Attorney at Law

944268_real_estate.jpgAlimony and division of property are often themes in a Florida divorce. Florida allows for alimony to be awarded when a spouse shows a need for alimony and the other party has an ability to pay. Florida also provides for marital property to be divided equally by the parties during their divorce. Therefore, if the parties own property in Jacksonville and are divorced, then the both may divide the property equally, whether by money value or actual division of property. However; what happens if a spouse dies after the divorce is final, but before the property is divided? And, what happens if a spouse filed for a change in alimony prior to his/her death?

Alimony is determined by need and ability to pay. The length of alimony is determined by many factors, including the length of the marriage, contribution of the parties during the marriage, marital lifestyle, etc. Once alimony is determined and ordered by the court, it is typically modifiable by both parties if something significant were to occur, such as change in health, retirement, etc. However, alimony obligations cease to exist upon the death of either party, which is why the obligor is typically required to maintain life insurance during the pendency of the alimony obligation. So, if a party dies so does the obligation. However, in a recent Florida case, the Former Wife filed for a modification of alimony and requested attorney attorney’s fees, Estate of Reale v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). Prior to the court hearing the argument to modify alimony, the Former Wife passed away, taking with her the right to alimony. However, since she had requested attorney’s fees, the Florida appellate court determined that her estate had the right to collect attorney’s fees from the obligor. Id.

In a case involving division of marital assets, which are those assets accumulated during the marriage, the Former Husband died before property could be divided per the court order, King v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). The Former Husband’s estate attempted to have the final judgment enforced so that the estate could properly divide the Former Husband’s property accordingly. Since the property was not previously divided, the estate attempted to have the judgment enforced in the trial court that originally issued the divorce order. However, that court was not willing to hear the case and referred the estate to probate for determination. The case was brought up on appeal and the Florida appellate court determined that while the Former Husband was deceased, the right to the property was determined in the family court and enforcement of that final order had to go through the family law court. Therefore, the Former Husband’s estate sought to have the divorce order enforced by the original court. Id.

In situations of death and divorce often court action will be sought, whether through probate court or family law court. If the issue involves a prior divorce order, then most likely the issue will have to be addressed in the original family law court system. The estate, therefore, may have standing by substituting the Former spouse in the proceeding. If you are having such issues, then you should contact a family law attorney or probate attorney to assist you. At our firm, we actually have both available, which can make the process easier for clients to navigate.

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March 26, 2012

Can My Spouse Be Responsible for My Legal Fees in a Florida Divorce?

Written by: Lenorae Atter, Attorney at Law

1169459_money_or_mariage_3.jpgIn a Florida divorce, there are often concerns posed by potential divorcees about legal fees. Hiring an attorney can be beneficial to the preservation of your rights as they relate to alimony, child support, child custody (time-sharing issues), division of property and the like. However, attorney fees are also an expense that can sometimes be afforded by one party more than the other. The question then arises as to, “How can I hire a divorce lawyer if my spouse is the one working?” There are multiple answers to this question, which can be answered by your Jacksonville divorce lawyer, but a common answer is that the spouse making the majority of the money may be responsible for the other party’s attorney fees so that the discrepancy in income does not lead to unfair advantage in the courtroom.

However, disparity in incomes is not the only way that attorney fees and costs related to your divorce may be paid by the other party. Typically, when you first hire an attorney you are quoted a retainer based on the issues surrounding your case, the experience of the attorney, and the hourly rate charged by the attorney. However, if the other party forces excessive litigation against the other party, then there is the possibility of being awarded attorney fees for the unnecessary litigation actions of that party. For example, if you hire an attorney to represent you in a divorce with no children, no marital home, some assets (vehicles, furniture, etc.), and some debt (one or two credit cards), then the divorce should not be overly complicated because there is not a lot to fight over in the world of equitable distribution. However, if your spouse tries to argue over everything, a fork, a spoon, a knife and a light bulb and in the process creates additional and excessive legal fees. The courts have held that the party responsible for creating, “vexatious and frivolous litigation,” can be held responsible for the fees incurred as a result, Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999).

Also, in Rosen v. Rosen, 696 So. 2d 697, 700-01 (Fla. 1997), the Florida Supreme Court addressed the issue of attorney fees which, “has been interpreted as authorizing an award of attorney’s fees against a spouse for ‘over litigation.” The idea is that if a spouse is pursuing topics or arguments in the litigation which have no true basis have no prospect of winning, then that spouse can be held liable for the attorney’s fees associated with pursuing the action. For example, if the spouse is trying to get an award of the other spouse’s future inheritance, then there is no chance that the litigation will be prosperous for that spouse and the fees associated with pursuing the losing action can be held against the pursuing spouse.

The concept behind these court rulings regarding attorney’s fees and costs is to reduce the amount of unnecessary litigation in a divorce. The courts would rather the parties focus on the issues that are at hand via Florida statute versus trying to solve their own personal issues within the litigation and ultimately pushing one or both spouses into further debt.

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March 2, 2012

How Can Alimony Be Paid In Florida?

667996_porquet_guardiola.jpgAlimony in Florida is based on a number of factors, including need for alimony and the other party's ability to pay it. Even if these factors can be proven, there is always the questions of, "How much will I get or pay?"; "How will it get paid?"; and, "Will it get paid?" Answering these questions is not always the easiest thing for Florida divorce lawyers, including those in the Jacksonville and North Florida region because each judge has their own way of answering these questions. Without a State mandatory calculation for alimony, ultimately the decision rests with the judge if the parties cannot otherwise agree.

First, the question of qualifying for alimony. There are multiple forms of alimony in Florida, including bridge-the-gap [between married and single life]; rehabilitative; durational; permanent periodic; and lump sum. All of which have their own qualifying definitions under Florida Statute 61.08. Each are based on numerous factors, including length of the marriage, contribution to the marriage, lifestyle during the marriage, etc.
In addition, factors such as need and ability to pay are qualifying determinants.

Once the need and ability to pay are established and the type of alimony is established, the parties and/or the judge then look to see how much the alimony should be. There are many rules of thought on this, some believe it should be enough to equal out the incomes, some believe it should be enough to help the needing party with whatever deficit he or she has, and some believe that it should really put the needing party in a better position than the other party because the party with the work history has a greater ability to earn money. All of these points can be negotiated between the parties and if a settlement is not reached, then argued to the judge.

Once the amount is determined, the question of how it is going to be paid will arise. In determining this, there are multiple ways to pay alimony and all may be explored by the parties. Often, when I represent the individual responsible for paying alimony, there is a question as to whether the money can just be paid at one time instead of each month. The answer depends on multiple factors, including if the other party will accept a lump sum payment for alimony (often the offer for lump sum is less than what would be paid over time) and if the party has the money available to pay out at one time. When looking at the second factor for a moment, the paying party may look to already distributed assets, such as retirement of 401(k) plans. If the paying party has been awarded his/her 401(k) plan and it has sufficient funds for payment, then this may be a viable option for a lump sum payment. The question then is, "If I cash out a 401(k) don't I pay taxes AND a 10% penalty?" The truth is that in a divorce, if the 401(k) is being paid out to the other party as a divorce settlement, then the 401(k) may be paid out to the needing party with ONLY tax implications. If this is how the payment for alimony will be made, then a Qualified Domestic Relations Order has to be entered by the court to tell the 401(k) financial institution how to pay out said funds. This is a nice way to deal with the lump sum, pay taxes (since alimony is income to the receiving party) and pay no penalties. However, before going down this road, it is advisable to consult with your financial adviser or financial institution. The 401(k) can also be transferred to an IRA, so the best option for you is what your needs are now and in the future.

If you are going through a divorce case, then speaking with a divorce lawyer in your area can be helpful to better understanding your rights and options.

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February 21, 2012

Florida Divorce and Custody Disputes that Lead to Parental Abduction: What To Do To Recover Your Child

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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.

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February 17, 2012

Can Florida Parents Charged with Domestic Violence be Awarded Custody or Visitation Rights?

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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.

February 13, 2012

Should Obesity Be Considered in Determining Custody, Time-Sharing, or Other Factors in a Florida Divorce or Paternity Case?

Weight.jpgFlorida 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.

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February 10, 2012

Is There a Course Required in a Florida Divorce or Paternity Action

divorce.jpgIn 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.

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February 6, 2012

Can Florida Same Sex Marriage Couples Divorce?

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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.

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February 2, 2012

Dividing Marital Assets and Debts in a Florida Divorce After Using Marital Funds for Gambling, Affairs or Drugs

1129102_poker.jpgGambling 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.”

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January 27, 2012

What is Mediation and I Am I Required to Go in a Florida Divorce or Paternity Case?

1174069_management_team.jpgIn a divorce or paternity case involving issues with children including time-sharing/visitation, parental responsibility or child support, the court may refer the parties to mediation. Florida law provides for the judge in such a proceeding to send the parties to mediation over disputed matters to determine if such things can be settled out of court, Florida Statute 61.183. As a divorce and family lawyer in Jacksonville, it has been my experience that mediation can be beneficial to both parties without going to trial because the parties have more control over the outcome.

What is mediation? Mediation is a formal negotiation process involving the parties, their attorneys and a neutral third party (the mediator). The mediator’s role is to help facilitate the negotiation process by working with both parties to reach the best outcome. Mediation often starts with everyone in one room (e.g. a conference room) and the party’s attorney will give a brief overview of the case and what the client is looking to achieve. Once the attorneys have completed the opening statement to the mediator, the parties are divided into two separate rooms. The mediator will typically start the process by talking to the party that initiated or filed the court action and will then go in between the rooms to see what may be resolved. Everything that is shared with the mediator is confidential and everything that happens at mediation is confidential and cannot be used at trial if the case is not resolved.

While going through this process, the mediator can make suggestions to both parties about what his/her experience has been with the judge in the case and give recommendations for offers to each party in order to help facilitate an agreement. However, the mediator is not allowed to provide legal advice to either party, even if she/he is not represented.

In mediating the case, the parties may agree upon things that the court may not hear at trial, such as future children expenses (e.g. college tuition). The parties have a little more room to sift through issues that they find important for the children that stem away from simply determining who will have majority time-sharing to such things as where the kids will go to school, how that will be determined, how division of certain activities will be paid for, etc. It gives parents an opportunity to think through what they want for the children and not just leave it to the judge to decide what is in their children’s best interest.

If an agreement is reached at mediation, then the mediator may draft a consent agreement. The agreement may be in the form of a consent final judgment and both parties normally sign before leaving the mediation. The signing of the document not only formalizes it, but also makes it binding if one party were to later change his or mind. The consent agreement must be provided to the judge for approval and his/her signature and then entered with the court. Once the order has been entered, it is an enforceable order that the parties must abide by.

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January 24, 2012

Can I Get Attorney's Fees and Costs In a Florida Divorce or Family Law Case??

68916_law_education_series_2.jpgIn a divorce, often one party may have more financial security than the other party, either by income, inheritance, or the like, thus putting the other party in a financial situation that makes it difficult to pay attorney’s fees. When hiring a lawyer for a divorce or modification action in Florida, the concern is the price for an attorney and whether she or he will have the ability to pay for an attorney. The other concern is that, knowing the financial situation, the other party will have the money available to pay for an attorney and that will require the party without disposable income to borrow money from family or represent himself or herself. As a Jacksonville family law and divorce attorney, I use the consultation to determine what the issues are and approximate the attorney fees associated with the action, also I educate the potential client about Florida law as it relates to attorney’s fees. Florida actually provides for the court to determine whether one other party will be responsible for the other party’s attorney’s fees and costs. Florida Statute 61.16 provides parameters for the court to use in determining the award of attorney’s fees and costs to the needing party.

When a party does not have the financial means to pay for his or her own attorney’s fees and associated costs (e.g. Filing fee; deposition costs, etc.), then the court may look at the financial resources of both parties to determine if the other party does have the financial ability to pay reasonable fees and costs for the other. For example, A has been a homemaker and cared for the children during the fifteen (15) year marriage and B has been the breadwinner and makes approximately $200,000 per year. When A decides to file for divorce, A does not have income available that is nonmarital at the time of filing for the divorce. A feels that an attorney is necessary in the divorce and hires an attorney and files for divorce, which has a cost of $409 in Jacksonville and a cost is associated with serving B the divorce papers. A’s attorney can request, in the petition for divorce and with a request and motion for temporary needs, that B pay for A’s reasonable attorney’s fees during the divorce and at the end. The court would look at the financial situation of both parties and determine if A is in need of B paying A’s attorney’s fees and costs and whether B has the financial ability to do so.

However, if the reason for the case is the inaction or failure to comply with the court’s prior order by the needing party, and the court rules against the needing party, then often times the other party will not be required to pay attorney fee’s and costs for defending the action. For example: A is awarded child support in the original divorce order to be paid by B. A has more money than B due to an inheritance of $100,000.00, which is and was nonmarital, and B makes $30,000 per year. A hires an attorney and files a Motion for Contempt against B for failure to comply with the court order. B requests attorney’s fees and costs to defend against the action. The court finds that B has not complied with the order and is, therefore, in contempt of court. The court does not have to award B attorney’s fees since B’s own actions lead to the hearing and need for attorneys. In fact, B could be on the hook, if shown that B has the ability to contribute to A’s attorney’s fees, to pay back to reasonable attorney’s fees incurred as a result of B’s actions.

You should speak with an attorney about your rights and options in a divorce or other family law proceeding to make certain that you request the court provide you with reasonable fees and costs or defend against the request.

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January 20, 2012

Do I Owe Temporary Alimony or Attorney Fees in a Florida Divorce with a Prenuptial, Postnuptial or other Marital Agreement?

1097209_shaking_hands.jpgFlorida recognizes the use of premarital and post marital agreements when deciding the outcome or possible outcome of a divorce. In some cases, during the marriage the parties may find themselves thinking of divorcing and may enter into a marital settlement agreement, but ultimately not have the agreement entered with the court because they are able to reconcile the marriage, this too is valid in Florida. When parties decide to divorce any agreement between the parties, whether premarital agreement, post marital agreement or a prior marital settlement agreement that allows for enforcement later if the parties reconcile, can be construed as an enforceable contract in the divorce proceedings. As a Jacksonville divorce lawyer, issues can arise regarding the enforceability of the agreement and in order to fight the document, the parties may need to hire separate attorneys, potentially leaving one of the parties needing financial assistance during the contest of the divorce. Therefore, Florida case law allows for temporary support to be awarded for temporary alimony and attorney fees.

Enforcing or contesting a premarital agreement, post marital agreement, or a marital settlement agreement may require attorney time and costs. In order for an agreement to be contested, the issues that come to question are laid out in Florida Statute 61.079. Premarital agreements are enforceable unless it can be shown that one or more of the following occurred:

1. The agreement was not entered into voluntarily by both parties;
2. The agreement is the result of fraud, duress, coercion or overreaching (e.g. Hiding a bank account with thousands of dollars.)
3. The agreement was not done in good conscience and before the signing:
a. There was not a true disclosure of assets of debts;
b. There was no waiver of such a disclosure by either party; and
c. The other party could not have known of the hidden asset or debt.

The same provisions would be necessary in any agreement such post marital or marital settlement agreements. The court ultimately has to decide whether an agreement was reach in an unconscionable manner.

The real trick to most agreements is that the parties have to be in full disclosure of assets and liabilities so that they know what is being agreed upon. The reality is that full disclosure leads the parties to more open conversation about the future wants and needs and the ability to provide for such. Not doing so would lead the possibility of entering in an agreement that benefits only one party and ultimately leaves the other in a worse position than had the agreement not been signed. Communication and understanding of a contract and its related terms goes directly the enforceability of said contract and helps in future litigation. If the parties do not meet all criteria for such an agreement, then the agreement may be put aside and the court could make the parties proceed as if an agreement never existed. Again, agreement cannot waive a party’s right to spousal support and attorney fees that may be necessary temporarily while the validity of the agreement is contested in the Court. However, both parties can work at reducing the length of time necessary to contest such agreements.

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January 10, 2012

Disputing a Magistrate's Report in a Divorce, Paternity or Other Family Law Case

952313_gavel.jpgIn some circuits in Florida, like Jacksonville, St. Augustine and other surrounding areas, cases involving divorce, paternity, child support or other family law matters may be heard in front of a magistrate instead of a judge, if the parties do not object. The magistrate is given the power to hear cases and make rulings based on the facts and evidence presented. Once a magistrate makes a ruling, the order is submitted to the Judge to sign-off. If a party disagrees with a magistrate’s findings, then that party can file for exceptions to the magistrate’s report based on the evidence versus the decision contained in the report. In so doing, the judge will then hold a hearing for the parties to argue why the court should accept or deny the magistrate’s report.

When the hearing is held regarding the exceptions, the party that filed the exceptions is required to provide the Judge and the other party with a transcript of the hearing. At the hearing, there is a presumption, in accordance with Florida case law that the court must accept the magistrate’s report if the findings are supported by competent and substantial evidence. When issues of credibility arise, such as the credibility of a witness’s testimony, the court should reject the magistrate’s findings if the findings are stated in error to the testimony evidenced in the transcript.

Basically, a court is required to give discretion to the magistrate’s findings and report unless the report seems to be wrong on its face. The court does not get to change the ruling simply because it disagrees with the magistrate’s conclusions, if those conclusions are based on the evidence reflected in the transcript.

If the court finds that the evidence does not support the report, then it may send the case back to the magistrate for reconsideration. Once the magistrate writes a report, even the second time, the parties still have a right to file for exceptions and start the process over again. Ultimately, however, the court is tied to the magistrate’s report if the report has findings that can and are substantiated by the evidence reflected in the transcript.


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January 7, 2012

Florida Divorce and Alimony Issues to be Heard on National Television Show

641084_money.jpgFlorida divorces involving alimony issues have given rise to new legislation over the last few years and will continue into the near future. The alimony debate in Florida is based on a number of factors, including the lack of an alimony calculation that is state mandated in determining the amount of alimony to be paid. According to a press release on Market Watch, Anderson Cooper is reportedly doing a show on Monday, January 9, 2012 highlighting the issues of Florida alimony; however, the report that came out about the show seems to have things reported incorrectly and in an effort to decrease emotional responses, I thought, as a Florida divorce lawyer, that I would debunk some of the myths that allegedly will be reported on the show.

First, the idea that men are the ones that suffer from alimony payments. In Florida, like most of the country, men and women work. If a woman makes reportedly more money than her husband and they divorce, then she may be on the hook for paying alimony.

Second, alimony is awarded without regards any provisions other than a party makes more money than the other spouse. Again, this is not true. In Florida, the factors used in determining alimony include, but are not limited to, the length of the marriage, the contribution of both parties to the marriage, the marital lifestyle, the ability for the asking party to earn relatively similar income to that of the paying spouse, the employment history of the parties, the education history of the parties, the NEED for alimony, and the ABILITY to pay alimony. The court does not arbitrarily and without regard for incomes and expenses simply declare that a Husband will pay the Wife permanent alimony at 70% of the Husband’s income until he dies. In Florida, getting permanent alimony requires the asking party to show that the marriage is a long-term marriage (over 17 years); that the asking party has an ongoing need for permanent alimony (e.g. disability, lack of education, inability to earn, etc.); etc.

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December 19, 2011

Am I entitled to my spouse’s retirement when we divorce in Florida?

1020934_retirement_money.jpgRetirement 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.

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December 16, 2011

In a Florida Divorce, How Do I Divide or Split My Property?

Written By: Lenorae Atter, Attorney

578242_melon_serie_22.jpgWhen 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.

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December 14, 2011

Florida Divorce: If the Marital Home is Sold, Are There Any Credts for Payments Towards the Mortgage?

1108079_monthly_fee_5.jpgIn 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.

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December 12, 2011

Florida Divorce: Who Gets the House in a Florida Divorce?

1370565_bird_house_for_doves.jpgA 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.

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December 7, 2011

Florida Divorce: Can I Get Permanent Alimony?

701012_writing_a_check_1.jpgDivorcing 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.

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December 5, 2011

Florida Divorce: What Kind Alimony Can I Get for a Medium Length Marriage?

1285564_measuring_tape_detail_3.jpgIn 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.

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December 2, 2011

Florida Divorce: Can I Get Help With My Education with Alimony?

1184809_six_books.jpgMarriage 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.

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November 28, 2011

Florida Divorce: How Long Do I Have to be Married to Get Alimony?

1169459_money_or_mariage_3.jpgAlimony in Florida is based on a number of factors, including the length of the marriage. A party qualifies for alimony based on the length of the marriage, the need, and the other party’s ability to pay alimony.

The Florida legislature recently defined what a short-term marriage, moderate-term marriage and long-term marriage consist of in terms of years. This is helpful in determining which type of alimony may be awarded. In Florida, the length of the marriage is determined from the date of the marriage until the filing for the divorce.
According to Florida Statute 61.08(4), the Florida legislature has defined the length of marriage, which is a rebuttable (i.e. arguable) presumption, as follows:

1. Short–Term Marriage is a marriage duration of less than 7 years;
2. Moderate-Term Marriage is one having a duration of more than 7 years and less than 17 years;
3. Long-Term Marriage is of a duration of 17 years or more.

You should speak with a Florida divorce lawyer to better understand your rights and options in a Florida divorce.

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November 18, 2011

Florida Divorce: What are the Factors in Determining Alimony in Florida?

252256_nest_egg_ii.jpgAlimony cases in Florida are determined by Florida statute, but not by a Florida calculation. Since the court is the one to make the overall determination of alimony, the statutes provide certain guidelines in determining what type of alimony will be awarded; the need of the requesting party; and the ability to pay the alimony if awarded.

To make these determinations, Florida Statute 61.08(2) gives a number of factors for the Court to consider in making its decision. The factors include the following:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.

A Florida divorce lawyer can help determine whether your case will involve alimony and how to best present evidence regarding the issue.


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November 16, 2011

Florida Divorce: How Does Florida Determine Whether Alimony Will Be Paid? ?

1287061_businessman_in_the_office_1.jpgF.S. 61.08. Also, the court must determine whether the responsible paying party has the ability to pay alimony. These factors are based on the evidence presented in the divorce case and is based on factors like the financial earning ability of the parties; the present financial situation of the parties; the historical roles in the marriage (e.g. home maker and breadwinner); present expenses; health issues; etc. The court must be presented evidence from both parties in order to determine these factors.

A Florida divorce lawyer can help determine whether your case will involve alimony.

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November 14, 2011

Florid Divorce: What Kind Of Alimony Can Be Awarded in Florida?

456727_basket_mail.jpgDivorce often comes with concerns for alimony; the concerns are for paying alimony and qualifying for alimony. In Florida, divorce and alimony are controlled by statute. Statutes determine the law associated with everything from qualifying for alimony to how the alimony will be paid.

Florida alimony is determined by the court and can awarded in the following ways F.S. 68.01(1):
1. Bridge-the-gap: this is for a term to help the needing party get from married to single life;
2. Rehabilitative: designed to provide support to the needing party to finish his/her degree, get work training (i.e. computer training), or any other trade that the individual may need help with in order to procure a job/career;
3. Durational: meaning support is determined for a fixed period of time; or
4. Permanent: meaning that support is necessary forever to keep the needing party in a similar lifestyle to that developed in the marriage.

The type of alimony awarded by the court is based on a number of different factors. The court may consider the adultery of either party in determining the amount to award in alimony. However, the court must find facts in the case to support the award or denial of alimony.

A Florida divorce lawyer can help determine whether your case will involve alimony.

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November 7, 2011

Florida Divorce: How Does Florida Define Time-Sharing in a Visitation Matter?

1182878_woman_writing_in_the_agenda.jpgFlorida family law matters such as divorce, paternity and child custody or time-sharing issues are defined by Florida Statute. The statutes provide a groundwork for cases involving family law matters so that the issues may be properly addressed for spouses and the related children.

In a case involving children, the Florida Court’s now require that a time-sharing plan be developed to outline the schedule the children will be with each parent, according to Florida Statute 61.046(23). The time-sharing schedule must be included in the parenting plan and it shall be as follows:

1) The parents develop and agree to the plan and it must be submitted to the Court for approval; OR
2) The courts establishes the time-sharing schedule if the parents cannot reach an agreement or if the court does not approve the parents’ schedule.

A family law attorney can help you to better understand this process and guide your through it.

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November 4, 2011

How Does Florida Define Sole Parental Responsibility in a Divorce or Paternity Case?

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Florida divorce and paternity cases can involve issues regarding parental responsibility. Parental responsibility is the term used to define the actual building of parent/child relationships and parental decision making for children. When both parents are mentally healthy, stable and responsible individuals there is normally not a question of the division of such responsibilities, they will be shared. However, what happens if one parent is absent and remained absent from the child’s life or one parent has a severe drug addiction; will the parents still be required to make decisions together?

Florida Statute 61.046(17) defines shared parental responsibility as both parents having equal share in major decisions involving the children (i.e. school; non-emergency surgeries, etc. If it is not in the best interest of the children for the parents to share these decisions, then Florida Statute 61.046(18) defines sole parental responsibility as a court-ordered relationship in which one parent makes decisions regarding the minor child. This is normally an issue when the Court or parties agree that one parent is more likely to take responsibility for the children and the other party is less likely to be able to engage in such decision making as would be required during the life of the children.

You should speak with a family law attorney about your rights and options regarding matters involving your children when going through a divorce or paternity action.

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November 3, 2011

I Want to Divorce In Florida, What Do I Have to Prove?

1018103_broken_chain.jpgA Florida divorce must be by the book, meaning that the laws are followed to have a divorce approved by the Court. When filing for a divorce it is important to plead or argue certain facts, like there was a breakdown for the marriage. In fact, the laws surrounding divorce actually require that there be reason for the marriage to end. Simply saying, “I want a divorce,” does not mean that the Court has to or will grant the dissolution of marriage.

Florida Statute 61.052(1) indicates that a divorce can only be granted if the parties show one of two things:

(a) The marriage is irretrievably broken. This means that no matter what the parties have or may try, there is no chance that the marriage can remain intact; or

(b) One of the parties lacks the mental capacity to be married. However, this actually requires the alleged incapacitated party actually be adjudged (ordered by a court) as incapacitated for at least 3 years.. There are provisions that must also be met in this scenario for purposes of filing for divorce.

Before filing for divorce, you should speak with a divorce lawyer about your rights and options.

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October 31, 2011

How Does Florida Define Shared Parental Responsibility in Divorce and Custody Cases?

1145534_3d_maze_4.jpgFlorida divorce and paternity cases often revolve around one parent saying they want “sole custody.” However, there is a difference between “sole custody” and parental responsibility in Florida Statutes. Florida divorce statutes define many terms, including parental responsibility.

Shared parental responsibility is defined by Florida Statute 61.046(17) as when both parents have parental rights of the child and share responsibility for the child’s upbringing. This is typical in most cases because both parents have a responsibility to be a parent to the child and to make all life-related decisions for the child, together, regardless of the geographical location of the parents.

If you are going through a divorce or paternity case in Florida, then you should speak with a family law attorney about your rights and options.

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October 28, 2011

How is Income Defined in a Florida Child Support or Alimony Case?

911431_writing_check.jpgAlimony and child support are determined by a number of factors in Florida. Some factors that are considered and used for calculations are income and health insurance, which are defined by Florida Statute 61.046.

Income is used to help determine the ability for a party to pay alimony in Florida. Income is also used to shoe a need for alimony that one party may have, such as being on a fixed income. Child support is actually calculated by using the incomes of both parties to determine what the overall income of the household would be and each parent’s pro rata share of the same. Florida Statute 61.046(8) defines income as, “any form of payment to an individual, regardless of source, including, but not limited to: wages (e.g. hourly or tips), salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government.” Basically, any form of payments received by a party.

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October 26, 2011

How is Health Insurance Defined in a Florida Divorce or Paternity Case Involving Child Support?

1334532_ambulance.jpgA Florida divorce involving children or a paternity action will require, by Florida Statute, a determination of child support. Florida child support is based on a few factors, which are defined by Florida Statute. The factors considered in the child support calculation are the incomes of the parties, daycare costs, and health insurance costs. Understanding how Florida Statutes define these factors is key to understanding child support and how it is calculated.

Under Florida Statute 61.046, the Florida legislature established definitions found throughout the statutes involving divorce and child support cases. When calculating child support, the party that pays the health insurance costs actually receives a credit for such. Florida Statute 61.046(7) defines heath insurance as, “coverage under a fee-for-service arrangement, health maintenance organization, or preferred provider organization, and other types of coverage available to either parent, under which medical services could be provided to a dependent child.” This means that a party may have healthcare coverage under any of these types of scenarios, which also covers the children of the parties.


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October 23, 2011

What Does the “No Fault” Part of Florida Divorce Law Mean?

divorce.jpgFlorida is a “no-fault” divorce state. The idea is that you do not litigate why you are divorcing, but simply litigate a resolution to the divorce (i.e. distribution of assets, child support, alimony, etc.). To that end, Florida Statute 61.044 abolished certain defenses, such as condonation, collusion, recrimination, and laches.

Condonation is the defense that basically says, “You knew I was doing it and you were fine with it at the time.” This is not a defense to divorce because ultimately, it does not matter why the marriage broke-up, just that it’s not getting fixed.

Also, the defense of collusion has been abolished, so the parties cannot have a secret agreement being held over each other. For example, if a party tries to go to court and say, “She told me she would not ask for alimony.” That is not a defense to a request for alimony.

Recrimination, under Florida Statute 61.044 is abolished. Again, when the reason for divorce is not an issue, saying, “Well you also had an affair,” does not really help your legal case for the division of assets.

Laches are also abolished from a divorce defense because laches ultimately gives rise to another being responsible for a debt. However, a marital debt is going to be divided equally and the idea that the other party is responsible is not at issue in Florida.


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October 21, 2011

How Do I File for Divorce, Dissolution of Marriage, Alimony, or Child Support in the State of Florida?

Written By: Lenorae C. Atter, Attorney
latter@woodatter.com

1056041_man_woman_heart_5.jpgFlorida Statute 61.043. Once you file the petition in the Circuit Court (e.g. Jacksonville is in the Fourth Judicial Circuit), a summons is required so that the other party can be served a copy of the petition. In addition, the statute requires that the petitioner to fill-out and provide to the clerk an anonymous questionnaire for the research purposes.

Once the other party is served with the petition, she/he has 20 days in which to file an Answer with the court, under Florida Family Law Rules of Procedure. The answer actually provides a response to each paragraph alleged in the petition. For example, if you file a petition for divorce and a paragraph states, “Wife is in need of alimony and requests either lump sum, rehabilitative or permanent alimony,” then the Husband would answer, unless in agreement with this, that he denies that paragraph. If the other party does not file an answer within the 20 days, then the Petitioner may ask the court to grant everything requested because the other party is in default.


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October 10, 2011

Was There a Prenuptial Agreement for the Newly Married Paul McCartney?

PM_NS_t128799737_540x386.jpgPaul McCartney was married on Sunday to the independently wealthy American, Nancy Shevell. A marriage, that by all accounts seems happy, was hopefully preplanned with a prenuptial agreement, protecting both from future marriage mishaps, such as divorce.

Paul McCartney’s wealth far exceeds his iconic role as one of The Beatles. It was exploited in his publicized divorce from Heather Mills, in 2008, that his wealth is over $800 million dollars and consists of music royalties, rare paintings, real estate and the like. Nancy Shevell’s wealth includes business interests and other wealth endeavors that make sense to protect.

A prenuptial agreement is beneficial when one or both parties have wealth because it protects certain assets from becoming “marital” and divisible if the marriage were to end in divorce. Protecting those assets is not unromantic, simply a smart business decision by both parties.

Florida prenuptial agreements can be drafted to protect both parties, regardless of their independent wealth. If you are interested in a prenuptial agreement, then you should contact a Florida lawyer to assist you in the premarital planning.

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September 30, 2011

Should I Hide My Assets From My Spouse During a Florida Divorce ?

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Should a party hide assets from his or her spouse to gain an edge during a Florida divorce proceeding? The simple answer is "No". Florida law requires that each spouse fully disclose assets and income so that the Florida Family Law Judge can effectuate a fair and just ruling based on the facts and evidence. If a party withholds information and these actions are later discovered by the other party or the Judge, agreements and Judgments can be overturned and there can be significant negative consequences to the party who withheld information and / or attempted to hide assets from the consideration of the other party and / or the Judge.

Under Florida Family Law Rule 12.285, each party must completely disclose his / her financial background to the other. Through a Florida divorce proceeding, assets and debts are divided into two separate categories: Marital and Non-Marital. Through an Agreement by the parties and / or an Order by the Florida Family Law Judge, the assets and liabilities are then divided or apportioned to each party based on a variety of factors including the length of the marriage, lifestyle during the marriage, income generation by each spouse, needs of each spouse, needs of the children and other factors.

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September 29, 2011

Can I Get Alimony While A Florida Divorce Proceeding Is Pending? ?

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During a Florida divorce proceeding, a spouse can get alimony on the same basis that he or she would be awarded at Final Hearing except the alimony award is only for the period of litigation. Temporary alimony in Florida is governed by Florida Statute 61.071. At the final hearing or trial, if you do not meet the criteria for alimony, the temporary alimony would end with the entry of the Final Judgment of Dissolution of Marriage.

Temporary alimony is ordered in many cases to maintain the living standards of the spouse in a manner she/he was living before the filing of the action. Some of the same standards for determining alimony are the same. What are your needs? What is his/her ability to pay alimony ?

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September 27, 2011

What is a Premarital or Prenuptial Agreement in Florida ?

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A Florida premarital agreement is a contract between two parties who plan on getting married. While a premarital agreement is not the most romantic act or gesture between two people getting married, it does help prevent a good bit of acrimony and dispute should the parties separate and get divorced in the future. A Florida premarital agreement defines how issues will be resolved in the unfortunate event of a Florida divorce.

In Florida, there is even a law governing how you create such an agreement. Florida Statute 61.079.

A premarital agreement in Florida helps to resolve issues like what are marital assets and liabilities (debt), alimony, child support, and other expected issues. The validity and enforceability of the agreement can be affected if there is a lack of full financial disclosure or if there is fraud prior to the execution of the Florida premarital agreement.

Some parties draft their own premarital agreement. While this may save some money on attorney fees, it can be quite expensive in the long run if there is a separation or divorce in the future. A clearly drafted premarital agreement can help the parties avoid litigation and a big court fight in the future. An experienced Florida family law attorney should draft the premarital agreement and make sure that all necessary provisions are included in the agreement.

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September 26, 2011

What If My Spouse Controls All The Money And I Need An Attorney For Divorce In Florida?

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In many Florida marriages, one spouse controls or has all the finances and the other spouse cannot access funds or resources to pay an attorney a retainer to hire the attorney.This not only happens in affluent areas, like Ponte Vedra Beach and upscale neighborhoods in Jacksonville, but in all communities.

If one spouse has the greater ability to pay a Florida divorce lawyer, the judge can order that spouse to pay your lawyer attorney fees and costs in advanced. A Florida divorce attorney has the discretion whether or not to accept representation on a case. While most attorneys will want a retainer paid up front, some Florida divorce attorneys will take on a case and seek attorney fees from the more affluent and higher earning spouse.

Florida Statute 61.071 provides as follows:
"Alimony pendente lite; suit money.—In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor. If a party in any proceeding for dissolution of marriage claims alimony or suit money in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefor."

This Florida divorce law is designed to provide an even playing field for the spouse to have competent representation during a Florida divorce and that one spouse should not take advantage over the other because of money.

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September 24, 2011

What happens to a house in Florida divorce when it is underwater (i.e. the mortgage exceeds the value of the home)?

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In Florida, it is quite common these days for a home to be underwater or for the mortgage to exceed the value of the home. Even homes purchased 5 years ago are underwater. In a Florida divorce, the starting point for a Judge is to divide the assets and liabilities equally between the parties. When a home has no equity in it since the mortgage exceeds the value, there really is no asset of value that is part of the divorce; however, there is still the issues surrounding the mortgage, payment of the mortgage, use and possession of the marital home, and other issues that come into play in a Florida divorce.

A Florida divorce Judge can order that the home be listed on the real estate market and sold. A Florida judge also has the ability to award the marital home to one party and to effectuate orders as to the payment of the mortgage and other home related expenses.

Some homes end up in foreclosure while others turn into a short sale. The rulings of the Florida divorce judge are not necessarily binding on the mortgage companies and banks. In other words, if both husband and wife are liability under the note / mortgage, the Florida divorce judge cannot remove either husband or wife as a debtor to the bank or mortgage company.

The Florida divorce judge can have one spouse responsible to the other for these deficiencies but the bank will still has the ability and right to pursue either or both parties (husband and wife) for the debt / mortgage. Another way to rid yourselves of the house would be to try and negotiate a quitclaim deed back to the bank to bypass a foreclosure lawsuit if the bank would waive any further actions against you. A Florida divorce lawyer and / or Florida foreclosure defense lawyer can provide you with legal advice and representation in these situations.

If push comes to shove and you qualify, a Chapter 7 bankruptcy will allow you to surrender the house. Both spouses have to agree or again, the remaining spouse may still be liable.

As you can see, there are a myriad of issues when there is a Florida divorce and a marital home that is underwater. Before signing any documents or forming any agreements, it is advisable to discuss the situation with a Florida divorce lawyer, Florida foreclosure defense lawyer, and / or a Florida bankruptcy lawyer.

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September 23, 2011

How Does The Marital Debt Get Divided Between Husband and Wife in a Florida Divorce ?

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In this bad economic time, the husband and wife going through a divorce worry about how the marital debt gets split up (credit cards, medical bills, mortgages, etc.).

Florida Statute 61.075 gives your judge a basic guideline as to how marital debt should be divided. The Florida divorce judge has to balance the husband and wife's ability to pay, what type of assets they own, and what kind of debts exist. The Florida divorce judge has descretion as to how to divide up assets and assign liabilities to the husband and wife. As a starting point, the Florida divorce judge will split the assets and liabilities equally. This is just a starting point. The Judge will then consider the income of each party, earning ability of each party, education of each party, lifestyle of the parties during the marriage, and many other factors. If there is a disparity between the income of the husband and the income of the wife, there is a good probability that the division of assets and liabilities will not be split equally.

Generally, when it comes to secured debts like the house and mortgage or the car and its loan, whomever gets the property is responsible for the continuing payments. Of course, that is subject to other considerations like money available to each party or alimony awards. Again, the Florida Judge will consider various economic factors of the marriage and each party as well as the future earning ability of each party.

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September 19, 2011

How are assets and money divided in a divorce in Florida ?

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In Florida, marital assets divided in a divorce according to Florida Statute 61.075

How does one figure out who owns what of the marital assets? The first thing a Florida Family Law judge must do is determine what are actually marital assets. Basically, things and money acquired during the course of the marriage are assets to both the husband and wife. This includes either party's work salary or income.

If the house was bought during the course of the marriage, it is marital property regardless whose name is on the title. There are many variations and exceptions to this rule. For example, if one person used non-marital money for the downpayment, he or she may be entitled to an offset for reimbursement in divorce.

There are many factors that apply to the Florida Statute and it can be very complicated to figure out.

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September 16, 2011

What Are The Residency Requirements to File for Divorce in Florida ?

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Pursuant Florida Statute 61.021, one person of the marriage has to live in Florida for at least 6 months prior to filing for a divorce/dissolution of marriage.

There may be other considerations when discussing this requirement. Did you move out of the state where you were living with your spouse and leave your minor child/children behind ?

Where in Florida can you file for divorce ? Florida has counties that govern which court your divorce will take place in. This is called venue. The divorce must be filed where either the plaintiff or defendant resides or where either is regularly employed or has a place of business.

For more information on Florida Statute 61.021 - Residency Requirements For a Florida Divorce, see the official website for the Florida Statutes.

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September 1, 2011

Facebook Reveals Husband’s Second Marriage

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Lynn France discovered through Facebook that her husband had remarried another woman. Lynn typed into the search box on Facebook the name of the woman with whom she believed her husband was having an affair with and found wedding photos of him and his new bride. The wedding photos of the Walt Disney World wedding showed the husband dressed as Prince Charming, and his new wife dressed as Sleeping Beauty.

Lynn’s husband, John France does not deny that he remarried, but instead he claimed that his marriage to Lynn was never valid. His attorney is asking the family law court to declare that his marriage was void since its inception.

Under Florida law, a marriage that is “void” means that it never existed, and a man and woman are treated as if they were never married. The only valid grounds for a void marriage in Florida are as follows.

• Florida Statute 741.21- Incestuous Marriages Prohibited. No man or woman shall marry to anyone that is related by lineal consanguinity, or their brother/sister, uncle/aunt, or nephew/niece.

• Florida Statute 741.211- Common Law Marriages Void. No common law marriage entered into after January 1, 1968 is valid.

• Florida Statute 741.212- Sam Sex Marriages. Any marriages between persons of the same sex will not be recognized.

For more information on this topic, see On Facebook, Wife Learns of Husband's 2nd Wedding.

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August 31, 2011

Teen Court: An Alternative to Criminal Prosecution for First Time Juvenile Offenders

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Many Jacksonville Florida children will experience the stress of their parent’s divorce each year. How they will react depends on their age, personality and the circumstances surrounding the divorce process. Many times the initial reaction is one of shock, sadness, frustration, and anger. As such, it is not surprising for some children to act out and get themselves into trouble at school or in the community.

Luckily for these children, the Duval County Courthouse offers first time misdemeanor offenders the opportunity to participate in a diversion program as an alternative to criminal prosecution. The program is called “Teen Court,” and gives juveniles between the ages of 10-17 a second chance to hold themselves accountable for their actions. Other specially trained teenagers fulfill the roles of prosecuting and defense attorney, bailiff and jurors. A practicing attorney or judge supervises the process as the magistrate and determines the final sentence. The juvenile defendant and their parent sign a contract agreeing to fulfill the imposed sentence. If the dependent successfully completes their sentence, adjudication will be withheld, and there will be no conviction on the juvenile’s record as a result.

The Teen Court program is based on the philosophy that youthful law violator is less likely to continue bad behavior when their peer jury decides the punishment. The program attempts to stop developing patterns of bad behavior by promoting feelings of self esteem and healthy attitudes toward authority. The program’s goal is to educate teens about citizenship and accepting responsibility for their actions.


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August 26, 2011

Determining the "Best Interests" of a Child in Florida Family Law Matters

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Florida courts make a plethora of decisions regarding children. These decisions range from timesharing and decision making, safety and permanency planning, and proceedings for termination of parental rights. Whenever courts make such decisions, it must consider whether its decision would be in the “best interests” of the child. Most States have a statute requiring that the child’s best interests be considered whenever certain types of decisions regarding a child’s custody, placement or other critical issues are made. Although there is no specific Florida statutory definition of “best interests of a child,” the concept typically refers to the deliberation that courts undertake when deciding what type of services, actions and orders will best serve a child as well as who is best suited to take care of a child.

During a Jacksonville Florida child custody proceeding, the court will consider a number of factors to determine the “best interest” of a child. These factors may include the love, affection, and other emotional ties between the parents and the child; the mental health, physical health and morality of the parents; and most importantly, which parent is more likely to encourage contact between the child and the other parent. For a complete list of the best interests factors, see Florida Statute 61.13.

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August 24, 2011

5 Tips to Help Save Your Marriage from Divorce

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Do you live in Jacksonville and feel like your marriage is doomed? Hopefully the answer is no, but if by chance your answer is yes, then Jeannie Goldstein has some advice for you. Listed below are five tips that Goldstein,a columnist, would offer to a friend in order to salvage a marriage.

First, stop putting all of the blame on your spouse. Try to take responsibility for your role in the dispute and attempt to end the behavior right away and get back to a pleasant relationship.

Second, let go of grudges. When you fight, try not to bring up incidents far back in the past and stick to the current issues. This may be difficult because it is hard to get over something that really hurt you in the past but ask yourself: Is it really worth it? Isn’t your marriage worth more than holding on to petty grudges?

Third, resolve outstanding grudges. Sometimes it is hard to forgive and forget. This is usually because one spouse does not think that the other spouse understood their pain or concerns. Closure requires that you listen to your spouse’s concerns and address these issues directly. The best way to avoid pent up aggression is to resolve issues rationally and respectfully as they arise.

Fourth, protect your marriage from the rest of the world. No one is invested in the success of your marriage except the two of you. It is your obligation as husband and wife to be a united front against the world. If either spouse does not take this obligation seriously, then third parties can bring problems into the marriage.

Lastly, do not be afraid to laugh; “laughter is the best medicine.” Laughter is a stress reliever. Sometimes, you have to be able to laugh at the good, bad and the ugly. And then afterwards, somehow it lightens your heart, and you can move onward to the next day. For more information, see How to fix your marraige: 5 tips to stop divorce in its tracks.

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August 22, 2011

Separation and Living Arrangements - Who Should Remain in the House?

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For many Florida couples the marital home represents the largest financial asset, so what happens to the home could substantially affect your financial security for years to come. But for some couples the marital home represents more than just a financial asset, it represents a life time of memories. Thus, the decision of who will remain in the house in the event of a divorce can be a tough decision to make- both financially and emotionally.

When you are deciding on whether to stay in your house there are many factors for you to consider: Mortgage payments, taxes, home owners insurance, utilities, and maintenance are only a few. Be smart, and make your decision on what you can afford, not what you want. Typically there are three options when it comes to the marital home during a divorce:

1. Sell the house immediately and split the proceeds with your former spouse.
2. Continue to own the house jointly with your spouse and make plans to sell the house at a future date. The proceeds would be split at that time. Often time if children are involved, this is the preferred option until the children reach the age of majority.
3. One spouse buys out the other’s interest in the home.

Today’s real estate market in Jacksonville has made decisions as to the ownership, possession, and / or sale of the marital home to be very complicated. Many couples cannot afford to sell the house until market conditions change. Others have decided to continue to live together during the divorce/separation process just to avoid the financial hassle. Regardless, it is likely to cause financial strain and stress to both parties.

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August 19, 2011

Florida Family Law and Military Servicemen and Servicewomen

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A divorce involving military families from or in Jacksonville, Florida can be complex because a military divorce has distinct issues that can involve Florida and federal law. Generally, dissolution of marriage is governed by the laws of the State of Florida, but the federal government has enacted legislation that applies to divorces and family law matters involving servicemen and servicewomen. Federal law governs when a military proceeding may take place, under what circumstances it may be postponed and how active military personnel may be served. Florida law also provides residency requirements for military families.

Child support in Florida is based on the child’s best interests and alimony is based on several factors. The factors a court will consider while determining property alimony award if any, are: (a) standard of living during the marriage, (b) duration of the marriage, age, physical and emotional condition of each party,(c) financial resources of each party, (d) liabilities and how they are distributed, and (e) contribution of each party to the marriage. Similar to a court dissolving a non military marriage, a court must make special findings as to a military member’s pay and allowances.

Similar to all dissolutions of marriage in Jacksonville, Florida, property division in a military divorce is based on the equitable distribution of marital assets. When spouses have inherited property, obtained significant assets or debts and have complex retirement/ pension plans, the marriage will be harder to dissolve. A military divorce that includes military retirement benefits will be governed by the Uniformed Services Former Spouses’ Protection Act.

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August 18, 2011

A New Study Shows a Decline in Kid’s Math Scores after a Divorce- Not in Months Prior

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It is no surprise that a divorce can have a serious impact on Jacksonville children. Research has shown that children struggle with divorce, but a new study is one of the first to pinpoint when those struggles emerge.

Researcher Hyun Sik Kim from the University of Wisconsin-Madison studied 142 grade school children with divorced parents. Kim was surprised to find that there was no significant reduction in performance in the months that preceded the divorce. It was only during the divorce itself that the children began to struggle, and almost two years later they remained behind their peers with married parents.

The study showed that in the fall of kindergarten, children whose parents were fighting and would eventually divorce scored three to four points lower on standardized math tests. By fifth grade, after the children’s parents had divorced, their scores were seven to 10 points lower than those children with married parents.

Attorneys and counselors were not surprised by Kim’s findings. One lawyer said, there is a difference “between parents just fighting, and fighting and divorcing.” When the parents are still married, the children think they have some stability, even though it’s bad, said the lawyer. The children are forced to face reality once the divorced is finalized.

How a divorce will impact children is a top concern for many Jacksonville families. A divorce can cause a child to fall behind their classmates in math and social skills and can cause anxiety, stress and low self-esteem. Although a couple might not make it as husband and wife, they need to work together and make it as parents for the sake of their children. For more information, see divorce hard on grade- schoolers' test scores.

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August 16, 2011

Florida Divorce and Summer Time-Sharing: Dealing with Summer Holidays, Summer Camp, and Vacation

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Jacksonville Florida parents who go through a divorce can write a parenting plan to decide how they will divide their children’s time after a divorce. The plan provides a roadmap for the child’s future, and is the most important document in a Florida divorce with children.

A parenting plan approved by the court must at a minimum: describe how parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the child will spend with each parent, a designation of who will be responsible for health care, school-related matters, other actives, and the methods and technologies that the parents will use to communicate with the child.

A parenting plan has two separate components: (1) decision making- parental responsibilities and privileges to make decisions relating to the health, education, and welfare of the child, and (2) time sharing- where the child lives at any given time and contact with the other parent. These two aspects are distinct and must be examined according to the best interest of the child.

In Florida, a statutory presumption exists that shared parental responsibility is in the best interest of a child. The burden is on the party opposing shared parental responsibility to demonstrate that it will be detrimental to the children. With shared parental responsibility, both parents retain full parental rights and responsibilities with regard to their children and confer to make mutual decisions about the children.

A “time-sharing schedule” is a timetable that is included in the parenting plan, which specifies the time that each child will spend with the parent. Florida Statute 61.13(4)(c) provide the court with specific means to enforce the time-sharing schedule in the parenting plan. When a Jacksonville parent refuses to comply with the schedule without proper cause, the statute lists a number of sanctions that the court may impose. For more information on parenting plans, see the Florida Statutes.

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August 15, 2011

The Strange Ways Science Can Predict Divorce

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Are you a woman who got married before the age of 18? Do you have a child with ADHD? Did you smile in your yearbook photos? Anneli Rufus uses scientific statistics to help predict the rates of success or failure in a marriage.

If you’re a woman who married before the age of 18, you face a 48 percent chance of divorce within 10 years. Age does matter; studies show that the younger the married couple, the riskier the bond. The risk for divorce decreases 40 percent for women who married at the age of 18 or 19, 29 percent for women who married at age 20 to 24 and 24 percent for women who married at age 25 or older.

The likelihood of divorce increases based on the gender of your child. If you have two sons, you face a 36.9 percent chance of divorce, but if you have two daughters, the likelihood increases to 43.1 percent. These findings by Columbia University economist Kristin Mammen reflect other studies that link the births of girls with elevated divorce rates.

If you have a child that has been diagnosed with ADHD, you are 22.7% more likely to divorce before that child’s eighth birthday than parents of child without ADHD. The reason is because ADHD is a challenging diagnosis, and raising a child with this disorder can put a huge stress on a marriage.

Did you smile in year book photographs early in life? If you did not, then your marriage is five times more likely to end in divorce than if you did smile. Two tests that studied college yearbook photos and other miscellaneous photos taken during a person’s younger years yielded this result. Apparently, people who smile are more optimistic and therefore find it easier to get along with people, including the people they are married to.

To view the rest of Rufus’s predictions, see 15 signs you'll get divorced.

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August 12, 2011

My Spouse Cheated On Me - How Does This Affect Alimony? Child Custody?

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Historically in Florida and other States, adultery and divorce were much more closely correlated than they are today in the eyes of the law. In order to get a divorce in the past, the innocent party had to prove that their spouse committed some significant wrongdoing in order to seek legal approval for the termination of marriage. However, today Florida along with most other states has no fault divorce laws. In no fault divorce cases, there are certain legal requirements but these do not include proof of adultery or other fault. However, under some conditions the Florida family law court will consider adultery when adjudicating other issues such as alimony or child support.

The Florida Alimony rule provides that “the court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” However, in order for the Florida family law court to give alimony based on the adultery, the adultery must have produced a financial loss to the innocent spouse.

When awarding child custody in Florida, the court will consider all factors affecting the welfare and interests of the child. One factor the court will take into consideration is “the moral fitness of the parents.” An act of adultery is likely to be a reflection on the moral fitness of a parent, but this factor alone is not enough to influence a court’s determination on custody. As the Florida Statutes suggest, there are a number of factors that a court will consider when determining the best interests of a child.

Continue reading "My Spouse Cheated On Me - How Does This Affect Alimony? Child Custody?" »

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August 11, 2011

Dangers and Evidence Provided by Facebook and Other Social Media in Divorces, Claims and Lawsuits

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Facebook, the world’s largest social network has over eight million users around the world. The New York Times reported that Facebook has become one of the “new titans of the Internet,” challenging even Google with a vision of a Web tied together through personal relationships.

Facebook is no doubt one of the most popular sites in the world, but your right to privacy is at risk the minute you log onto Facebook. It is possible that your personal information might be involuntarily shared with third parties due to security gaffes, marketing efforts, scam artists, or in the litigation context—opposing counsel.

Recently, a judge in Pennsylvania ruled that an attorney could access a worker’s Facebook account to discredit his claim that he suffered embarrassment and lost wages because of a workplace accident. The worker claimed he was unable to “enjoy life and life’s pleasures” or wear shorts because of an embarrassing scar, but he posted pictures on the public portion of his Facebook page which show him wearing shorts that reveal his leg scar and riding a motorcycle.

The defense filed a motion to gain access to his private Facebook posting. The judge rejected the worker’s privacy argument because the worker had voluntarily posted all the pictures and information on his Facebook page. The judge said that, “with the initiation of litigation …. any relevant, nonprivileged information about one’s life that is shared with others and can be gleaned by defendants from the Internet is fair game in today’s society.”

While one of the fun things about Facebook is sharing photos and messages with friends, keep in mind that the Internet is also a public resource. Only post information you are comfortable with anyone seeing because it can come back to haunt you in Jacksonville divorce proceeding or other legal proceeding or lawsuit For more information on this topic, see Facebook may poke holes in Northumberland County lawsuit.

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August 10, 2011

What Constitutes Grounds for Annulment in Florida?

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Marriages in Jacksonville can either be terminated by dissolution (divorce) or by annulment. Annulment is the process of nullifying a marriage where the court declares that the marriage never took place. In order to annul a marriage, the person seeking the legal action must have sufficient grounds for annulment. Florida has no specific statute or rule that governs annulment; the general venue statute is followed and the action is commenced in circuit court. What follows is a list of requirements or grounds that must be presented to the court to terminate a marriage by annulment.

A common ground for annulment typically involves a situation where one party lacked the capacity to legally enter into the marriage. Common examples include: either party has a prior existing marriage, extreme intoxication, lack of the requisite mental ability, or one party was under the age of consent.

Grounds for annulment can also include situations involving fraud, duress, or coercion. A fraudulent marriage can be if one of the parties never intended to be married, the marriage was sought to deceive the other party or the marriage was for the purpose of gaining citizenship rights. A marriage based on duress or coercion includes one party being forced or threatened into the marriage.

A person whose spouse is physically and incurably impotent during the marriage has grounds for annulment, so long as they were not aware of the impotency prior to the marriage. Also, impotency should not be confused with sterility. If a marriage was never consummated, then this also constitutes grounds for annulment.

Although one party who is contesting the marriage may prove some of the above grounds, annulment may not be allowed where that party has ratified the marriage. That means if the person seeking annulment is aware of the defects but confirms the marriage; it cannot be subject to annulment. Essentially, the moving party has waived their right to contest the marriage.

Continue reading "What Constitutes Grounds for Annulment in Florida?" »

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August 5, 2011

Parenting Coordination: An Emerging Practice Area

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When you are facing a divorce in Jacksonville, Florida, there are many issues that must be resolved in order to obtain a final decree of divorce. The issues may include enforcement of a premarital agreement, division of property and debts, and alimony. For families that involve children, the most controversial issues that must be resolved are child support, custody, and visitation issues. The issues surrounding the decision making of children are not easily resolved, and often results in conflict between the parents.

During a high conflict divorce, Jacksonville parents can use the help of a parenting coordinator to help make amicable decisions regarding the care of their children. A parenting coordinator is an impartial third person who is usually a trained mental health or legal professional with experience in mediation. The role of a parenting coordinator is to create appropriate parenting plans; resolve ongoing conflicts between co-parents; monitor parental behavior; and with the approval of the parties and the court, make temporary decisions within the scope of the court order or appointment contract. The Parenting Coordinator is usually appointed by the Court and with the consent of the parents. Parents may also volunteer to utilize the services of a parenting coordinator voluntarily. Parenting Coordinator is not appropriate, and will not be assigned to families with a history of domestic violence.

More than one million children each year experience the harsh realities of divorce and family separation. It is the actions that parents take during and after a divorce that determine how a child will be affected. For more information on parenting coordination, see Parenting Coordination Central. The guidelines for parenting coordination are set forth in Florida Statute 61.125.

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August 3, 2011

The Fear Factor: A Pary's Motivation to Settle in Mediation

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Proponents of Florida divorce mediation label mediation as a cooperative approach to end a dispute. Yet bargaining over scarce marital resources is fundamentally competitive and requires the mediator to use clever negotiation tactics in order to yield a successful resolution. The mediator’s role is to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and to otherwise facilitate voluntary agreements to resolve the dispute. A clever mediator will use the fear factor as a secret weapon to reach an agreement between two parties.

The fear factor exists when parties in a Florida divorce feel the force of the looming great unknown called their future. Everything has been turned upside-down for some of these families. They are concerned about the following issues:

Where are the children going to live and for what days / times of the week?

Who will be awarded the house in a Florida divorce?

How are the children going to handle the issues and aftermath of a Florida divorce?

How are the parties going to handle the financial responsibilities of two households?

Layer on top of all of these fears the big one: What is their spouse going to do? Are they going to fight for custody, exhaust the savings account, run up the charge cards, or take his/her superior income and leave the other financially unstable?

The mediator can use the fear factor as a motivating force when negotiating between the two parties. Even though intense anger and hurt may lurk in the room, when skillfully managed, a mediator can find out what each party needs, is worry about, and is looking for. Thus, the mediator can use the fear factor to determine what is most important to each party and use that knowledge to succeed in negotiation. For more information on mediation, see the Florida Family Law Rules of Procedure.

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August 2, 2011

Divorcing in Florida and Initial Expecations

1056041_man_woman_heart_5.jpgIn order to file for a divorce in Florida you must file a Petition for Dissolution of Marriage. The petition is designed to lay out all requests of the party filing for divorce. The divorce action will require a division of marital debts and assets, so you want to make certain that you address anything regarding non-marital debts and assets be established so that there is automatically a clear definition that these items may exits. In addition, if you need alimony and/or child support, then it is also important that these matters be alleged in the petition.
As a divorce lawyer in Jacksonville, Florida, I often have clients ask if they can keep the petition simple so that the other party is not too upset by the action. This is difficult to do, especially when there are children involved, because you have to allege your requests up front so that the court will hear them when the time comes. It is important to remember that if you do not ask for it you cannot get it, so often the initial petition will ask for the sun, moon and stars because otherwise you have barred your ability to request those items unless you file an amended petition.
Also, remember that if you are the party receiving the petition, you have the right to file a counter-petition and ask for the kitchen sink as well. Divorce can be messy, but understanding the process can help alleviate some of the emotions and help you better understand that it is business deal and not an emotional one. Keeping your business mind in the forefront of the divorce can make a difficult process a little easier to stomach as it goes on.
If you are interested in filing for divorce you should speak with a divorce lawyer to help you better understand your rights and options along with the process of the divorce.

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August 1, 2011

I Want to Change My Child's Lastname: Florida Name Change

Driver-License-Card.jpgA Florida name change of a minor child can be challenging if both parents are not present in the child's life. Name changes are often requested so that the child bares the name of a parent, especially when one of the parents is absent. If both parents share parental rights, then a name change requires both parents to consent to the change. However, in order to change a name a petition for change of name must be filed with the court and it can then be served on the other parent.

In the event the other parent cannot be found, or the other parent is no longer a resident, then the petition may be served by publication. If there is no response to the service, either actual or constructive (published), then the other parent would be in default and the name change may occur without actual consent, but implied consent by the inaction.

If you are interested in changing your child's name then you should speak with a family law attorney about your rights and options.

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July 29, 2011

My Florida Divorce and Death Benefits

life_insurance1.JPGThe demise of death benefits in a Florida divorce. The Florida Supreme Court recently held that if a final judgment of divorce is silent about death benefits, then the policy documents control the death benefit. The reason this can be an issue is that often during a marriage spouses will take out life insurance policies and name one another as the beneficiary. When the divorce is final, if there is no further designation or language taking that right away from a spouse, then the policy itself becomes the authority of the death benefit. So, if you divorce and forget to change the actual policy, and there is no language in the final judgment regarding the death benefit, then your ex-spouse may inherit the death benefit upon your demise.

In the recent case, Crawford v. Barker, SC09-1969 (Fla. June 9, 2011), the final judgment of divorce did not specify any new ownership or beneficiary regarding the death proceeds or beneficiary for a policy held on the husband's life. During the marriage, the husband had designated his spouse, now ex-wife, as the beneficiary on the policy. After the divorce, the ex-husband died and had not changed his policy to reflect a new beneficiary. Therefore, the ex-wife and the ex-husband's estate battled over the funds and the Florida Supreme Court decided that since the final judgment of divorce was silent, then the deciding documents were those of the actual policy. Since the ex-husband had not changed the policy to reflect a new beneficiary, the proceeds were decided to be that of the ex-wife.

In a divorce proceeding, it is important to have a true and accurate accounting of all assets, including death benefits. In addition, if it is your intent upon the divorce to take the death benefit away from your spouse, then be certain the language of the final divorce decree reflects that. Also, try to remember that you need to change the beneficiary on your actual policy so that the death benefit does not get held up on probate court later down the line.

Continue reading "My Florida Divorce and Death Benefits" »

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July 26, 2011

Prenups in Florida Require Full Financial Disclosure

963935_mortgage_and_money_2.jpgPrenuptial agreements are enforceable in Florida if all provisions are met, especially the full disclosure of assets and liabilities to each party. In a divorce, full disclosure is necessary and required by Florida law. In developing a prenuptial agreement, the same is true because both parties have to have a full snapshot of the other party's assets and liabilities before agreeing to the financial breakdown in case divorce was eminent. A full premarital financial disclosure is actually a tool that can be helpful in a relationship because both parties have an opportunity to better understand what they are walking into at the end of the aisle. A marriage is based on the joining of two people, but also the joining of their, "stuff." So, having a full picture is helpful in knowing what challenges and expectations may be ahead for the couple.
Full disclosure of assets means that you are both providing bank statements, investment statements, trust holdings, properties, etc. Both parties need a clear understanding of what the other has so that the agreement can be drafted to protect them both and not just one party. A prenup is not intended to be a body of armor for the party with the most, but is designed to make certain that if the marriage were to fail, that there are contentions in place for how to divide marital assets and decide which assets are actually marital and nonmarital.
Though it may feel like planning for the marriage to fall apart, the truth is that is actually helps people to plan their life together effectively because it brings issues to the forefront where they may have never otherwise been addressed until an argument occurs.

Continue reading "Prenups in Florida Require Full Financial Disclosure" »

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July 25, 2011

Is a Premarital / Prenuptial Agreement Always Enforceable in the State of Florida?

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Is a Pre-Marital - Pre-Nuptial Agreement Always Enforceable in the State of Florida? The answer to this question like many - "It depends."

The sad reality in our society is that most marriages will end in divorce. The United States currently has the highest divorce rate at roughly 50 percent for first marriages and almost 70 percent for remarriages. Fortunately, a premarital agreement can bring predictability and security to the circumstances surrounding settlement of your personal affairs following a marriage or remarriage.

The Florida Statutes define a “premarital agreement” as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Such agreements may also be referred to as Florida antenuptial or prenuptial agreements, and informally as Florida prenups. The couple planning to be married decides how important financial matters will be resolved in case of divorce, separation or death.

Florida's Uniform Premarital Agreement Act includes specific requirements needed for a premarital agreement to be valid and enforceable. First, the agreement must be in writing (a court will not enforce any verbal agreements between parties). Second, both parties must sign the agreement. Lastly, the agreement is valid without either party giving up any rights; the act of marriage is sufficient enough to create a valid agreement.

However, Florida law provides multiple ways in which a premarital agreement can be attacked or challenged. Examples include if either party can prove they did not sign the agreement voluntarily, due to fraud, duress, or coercion, or that the terms of the agreement were very unfair and one party was not provided fair access to the other party’s financial situation. For more information on this topic, see the Florida Statutes

Continue reading "Is a Premarital / Prenuptial Agreement Always Enforceable in the State of Florida?" »

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July 18, 2011

Florida Bigamy and Annulment Issue: Orlando Man Has Two Wives

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

love-triangle11.jpgRecently, a Florida man who is married to two women was to not be in violation of Florida bigamy laws. The Orlando man was caught in the marriage triangle by his wife, Heather Bennett in 2010. She and Tait were married in 2000 and he was married to Amy Bennett in 2005 in Las Vegas, Nevada. Due to the second marriage taking place in Nevada, the crime is considered to have happened outside of Florida and therefore, the State of Florida cannot prosecute Tait Bennett for the crime.
Tait Bennett filed for a Florida divorce from Heather Bennett in February of this year. However, they had been separated since 2008, before Heather knew of the second wife. In Florida family law, bigamy actually creates a void marriage to the second wife and is therefore considered annulled. He would have to remarry Amy Bennett to make their marriage official, regardless of Florida criminal laws. Heather Bennett may look into an annulment, but since she was the first wife, divorce may be necessary to effectuate their separation from the nightmare Tait Bennett created for his wives.

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July 13, 2011

Florida Parenting Coordinator Requirements in Your Florida Divorce or Florida Paternity Case

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

1220365_briefcase.jpgIn a Florida divorce or paternity action, if time-sharing cannot be agreed upon by parents, then the Court may require, or the parties may agree, that a parenting coordinator may be helpful. A time-sharing plan must be established for visitation in Florida, so a parenting coordinator can assist parties in developing one, or can give recommendations to the Court for one. A parenting coordinator must remain neutral to the situation and must meet the statutory requirements in order to be used in a divorce or paternity case.

Who can be a Florida parenting coordinator? According to Florida Statute, 61.125, a parenting coordinator must be one of the following: a licensed mental health professional, a physician certified by the American Board of Psychiatry and Neurology, have at least a master's degree in mental health and be a certified family law mediator, or be a member of the Florida Bar in good standing (i.e. a lawyer). The individual must be in good standing with any of the licensing or certification boards that they are on.

In addition, based on the need for the parenting coordinator must complete the following educational requirements: complete 3 years of post-licensing or post-certification practice; take and complete a certified mediation training program; take at least 24 hours of training in parenting coordination including ethics, coordination concepts, techniques, etc.; and complete at least 4 hours of domestic violence and child abuse training as it relates to parenting coordination.

If you believe that a parenting coordinator is right for your case you should speak with your divorce or paternity lawyer.

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July 12, 2011

What is Florida Parenting Coordination?

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

1338212_business_man.jpg49433_teamwork_2-1.jpgTime-sharing is an issue for Florida divorces involving children and in paternity cases. Florida requires a time-sharing plan to establish the visitation of schedules for parents and children. The time-sharing schedule can be agreed upon by both parents, but if they disagree, then the Florida family law court may require the parties attend parenting coordination in accordance with Florida Statute 61.125.
What is parenting coordination? Florida parenting coordination is completed to help resolve disputes between parents about what they want in a visitation schedule and who will have majority time-sharing (custody) of the children. Often parents do not agree about who should have the children the majority of the time, so the coordinator can help them better understand what is in the best interest of the children by educating the parents, interviewing them and the children, and by making recommendations to the court based on the court's provisions.
Speak with your divorce or paternity lawyer about your options and whether parenting coordination is in your best interest.

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July 11, 2011

What is Time-Sharing in Florida?

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

dpan3191l.pngFlorida time-sharing is not just for condos anymore. In a Florida divorce, involving children, the court now looks at time-sharing plans to determine the visitation schedule. So, what is a time-sharing plan?
A Florida time-sharing plan in a divorce is a plan that parents use for their visitation schedule. A time-sharing plan is not designed to start with a 50/50 visitation plan, but to develop a schedule in the best interest of the children and to help parents avoid fights along the way. The time-sharing plan should address issues like school, holiday and vacation schedules. The idea is to put the children in the best situation to develop a bond with each parent in a fair way.
If the parents cannot agree on a time-sharing plan, then the court may devise one based on numerous conditions. If the parents are arguing over majority time-sharing, then the court may require the parents to meet with a parenting coordinator or have s social investigation completed.
A time-sharing plan should be discussed with your divorce or paternity attorney to better understand your rights and options.

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July 8, 2011

Divorce in Family with Twins: Florida Divorces

691442_balloons.jpgDivorce is more prominent with families that have twins according to a recent study completed by Dr. Anupam Jena of Massachusetts General Hospital. The study looked at over 800,000 families since the 1980 census that claimed to have twins. Of that number, the study found that in families where twins were the oldest that 14% of the mothers were divorced from the father of the twins, which led to the conclusion that twins led to a greater increase in divorce for families. However, the increase in divorce is slight since mothers with only a single eldest child reported divorce 13% of the time.

Divorce can manifest in a number of ways, including income changes, stress increases, expense hikes, etc. When two children are the same age it does take a financial hit on a family because there is not the ability to pass down clothes, cribs, etc. In addition, two babies staying up all night puts both parents in a sleep deprivation, which can lead to stress increases. The parents can manage these factors, so simply having twins does not predetermine your marriage failing, but failing to recognize the stresses and addressing them together can lead to divorce.

If you are thinking of filing for divorce, it is a good idea to find out your rights and options by speaking with a Jacksonville divorce lawyer.

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July 7, 2011

Florida Timesharing and Divorce: Link Between Kids of Divorce and Suicide

998810_fingerpaint__14.jpgChildren in a divorce can significantly impacted by the divorce if parents do not take proper precautions and try to make the transition easier on children. According to a new study, there is a link between kids of divorce and suicide. The study quickly gives a disclaimer, as will I, that this does not mean that children of divorce are going to commit suicide, it simply shows that children can be impacted significantly unless parents take precautions to help with the transition.

The study conducted by Esme Fuller-Thompson, a professor at the University of Toronto, showed that men from divorced families are three time more likely to consider suicide and that women of divorce have an 83% higher chance of considering suicide. The study indicates that while they did research on a number of individuals there are certain factors missing, including how much time parents spent with the children post divorce. In addition, the number of suicidal ideations decreased for women when abuse and addiction situations were removed. However, for men, the number remained the same with those factors removed. The overall basis of the study was to see the correlation, but the study failed to find out what the root cause is, which led to the speculation that men often lose their male role model in a divorce and that lack of male influence has a strong impact on men as they grow from boyhood.

Florida timesharing allows for parents to think about kids first without first thinking about "custody". Timesharing replaced the terms, "custody" and "visitation" in 2007 to help put children first in the divorce. The idea is that parents do not need to look at children as property, but as kids that need guidance from both parents and hopefully, as both parents put the children first during and after the divorce the findings from the study will decrease over time.

Continue reading "Florida Timesharing and Divorce: Link Between Kids of Divorce and Suicide " »

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July 6, 2011

Divorce's Impact on Children According to New Study: Florida Divorce

1024823_blackboard.jpgChildren are misplaced in a divorce. Florida law has tried to counteract the effects of divorce on children by providing parenting class requirements and changing custody to timesharing and parenting plans. However, a recent study shows that maybe the changes are not all that is needed, but an actual understanding of the psychological impact divorce has on children. The study done by the University of Wisconsin-Madison showed that the living environment surrounding the kids before divorce proceedings does not have as much impact as actually starting the divorce proceedings.
The study took 3,585 students ranging from kindergarten to fifth grade and examined the impact on divorce on the children. The kids in the study were compared to those in stable, intact families. The most impacted area of the children were in their math studies since it is the one that builds on itself and requires foundation for future learning (1+1=2 is beginning to multiplying). The study’s researcher, Hyun Sik Kim, attributed the setbacks to not only a change of environment, but also the balance of time with each parent and economic changes based on the parents each being impacted by changes in income (child support, one income family, etc.).
Before proceeding forward find out what you can expect in the immediate and distant future by speaking with a lawyer in your area.

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July 5, 2011

Florida Timesharing for Children of Divorce May Help Reduce Impact on Kids

1340714_wooden_house_-_playground.jpgTimesharing and divorce can impact children in school, home and socially according to a new study. In a Florida divorce involving children, parents are encouraged to look at visitation as timesharing with the other parent and to develop parenting plans so that they can resolve issues together rather than at odds with each other. However, a recent study done at the University of Wisconsin-Madison showed that divorce first begins impacting children once they proceedings start.
Florida divorces involving children require that parents attend a parenting class to help them better understand the effects divorce may have on their children from beginning to end. Divorce does not just end with a judge making a decision, but will continue throughout the lives of the children since both parents will live in separate homes.
Florida adopted timesharing plans to help put kids at the front of the parents minds when going through a divorce. However, if parents are not willing to change their reactions or ways of handling a divorce, then the children will remain negatively impacted. If you are thinking of divorcing, it is a good idea to speak with a lawyer about your divorce and your concerns involving children before actually filing for divorce.

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July 4, 2011

Can I Get My Property in a Florida Divorce?

1240494_a_pair_of_couches.jpgIn a Florida divorce, marital property is often a topic of contention. In a divorce often there is an exchange of marital property necessary for both parties. When exchanging property it is a good idea to set a time and place for the exchange. If there is property in the marital home, then often a police escort can be helpful for making certain that there are no disputes that take place and that the parties do not items that have not been agreed upon by both parties. If there are items up for dispute, then it is a good idea to make a list of all items so that they can divided by the court when the time comes.

Florida is an equitable distribution state, meaning that each party is entitled to one-half value of marital assets. So, if you have two new TVs, one party will get one and the other party will get the other TV. If you need to exchange items or get them from storage it is a good idea to have to have a 3rd party, not involved with the case, present so that you can have a witness. If you cannot agree on a 3rd party, contact the police for a police escort.

Speak with a lawyer about your rights and options before making any property changes.

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June 30, 2011

In My Florida Divorce, Can My Children Tell the Court Their Preference?

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

273159_welding_4.jpgDivorce 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.

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June 28, 2011

Alimony Needed In My Florida Divorce

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

754431_in_business.jpgFlorida 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.

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June 24, 2011

Does Child Support Mean Tax Exemption in a Florida Child Support Case?

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

369111_taxpapers.jpgIn 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.

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June 23, 2011

In My Florida divorce, Can I Get More of the Marital Property and Assets?

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

1122707_divorce.jpgIn 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.

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June 22, 2011

In Florida, Do I Have to Take A Parenting Class?

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

1264271_notebook.jpgIn 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.

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June 21, 2011

Florida Child Support Through Income Deduction Order Keeps the Payor and the Company on the Hook

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

1046879_house_symbol_3.jpgIn 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.

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June 20, 2011

See Your Children During a Holiday After a Divorce Can Be Challenging

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

1327447_fireworks_5_1.jpgHoliday 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.

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June 17, 2011

Alimony Can Break You In a Florida Divorce: Truth or Myth?

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

cla49c.gifFlorida 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.

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June 16, 2011

What Is Permanent Alimony in Florida?

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

43258379.IMG_0196.JPGAlimony 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.

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June 15, 2011

In Florida, Can I Get Permanent Alimony If I’ve Been Married for 10 Year?

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

1244710_2010.jpgIn 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.

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June 14, 2011

In Florida, How Do I Get Permanent Alimony?

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

lfin131l.pngAlimony 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.

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June 13, 2011

Permanent Alimony Changes in Florida Divorces

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

479150_ill_leave_a_mark____.jpgFlorida 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.

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June 10, 2011

Text Messages in Your Florida Divorcee

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

1104507_mobile_phone.jpgText 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.

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June 9, 2011

Keeping Children First in Your Florida Divorce and Paternity Case

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

1177694_lollypop.jpgFlorida 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.

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June 8, 2011

Emails Can Be Used in Your Florida Divorce and Paternity Cases

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

1215930_an_e-mail.jpgUsing 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.

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June 7, 2011

In Florida, Can I Use Instant Messaging (IM) Conversations in My Divorce or Paternity Case?

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

1178168_abstract_shape.jpgIn 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.

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June 3, 2011

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.

1260843_protect_your_money.jpgFlorida 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?" »

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June 2, 2011

I Have A Pension; Is That Divided in My Florida Divorce?

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

53621_calculator_v3.jpgdivorces 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.

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May 31, 2011

Divorced After 10 Years or More of Marriage? You May Be Eligible to Apply for the Same Social Secuirty Benefits as your Ex.

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

478224_application_form.jpgIf you divorce and were married for at least 10 years prior to the divorce, then you may be entitled to receive social security benefits equal to those of your spouse. You can qualify for this election at age 62, if you are divorced for at least two years from the person; not married at the time you reach that age; and your ex qualifies for social security benefits. If your ex is at retirement age and entitled to receive benefits, but has not done so yet, then you may still apply for the benefits. However, if you remarry and are still married by the time you reach social security age, then you cannot opt for your ex's benefit amount. By opting for the benefits of your ex-spouse, it does not impact what s/he may receive in social security benefits.
For more information, contact a family law attorney to understand if you qualify and how to qualify.

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May 30, 2011

In Florida, What Visitation or Timesharing Should I Expect With My Children if I Live Out-of-State

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

1235165_plane.jpgIn a Florida divorce or paternity case establishing a parenting and time-sharing are vital in dealing with visitation issues. However, if you live out-of-state during the divorce or paternity case, then the time-sharing plan may depend on your situation. For example, if you are in a paternity case and just found out that you have a child, then a judge may not require the child to simply get on a plane for you to see your child. What may happen is that you transition into a time-sharing plan where the child eventually will visit you at your home. In the meantime, you may be required to come to Florida to establish a relationship with the child so that the time-sharing can then be scheduled at your own home. If you already have a relationship established with the children, then other factors will be how far you live; transportation abilities; school schedules; etc. The Judge will look at these factors to help establish the best time-sharing schedule for all parties, including the child.
If you are in Jacksonville, Florida, then you may be asked if you are interested in what were previously 4th Judicial Circuit Long Distance Guidelines. They basically separate out holidays, summer vacation and three day weekends so that the long distance visits are lucrative for the parent and child to share bonding time.

Continue reading "In Florida, What Visitation or Timesharing Should I Expect With My Children if I Live Out-of-State" »

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May 27, 2011

Can I Keep My Club Membership In A Divorce?

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

844980_hotel.jpgClub memberships can be a point of argument in a divorce. Often, couples who have membership to a private club are both covered under the same member policy. Typically, one membership will include both people in the couple, so dividing the membership can be difficult. What is important to consider when fighting over such memberships is whether you van afford the membership after the divorce. Memberships are not considered an asset, but can be calculated in determining alimony expectations or as a negotiation tool. Before fighting try to have an understanding of what you are fighting over, including whether the members are going to be your social group during and after the divorce, whether you can have your own membership established without your spouse, etc. If the membership is one that you can have without your spouse, then you want to establish whatever cost would be. However, if the membership is through your spouse's employer, then it most likely will stay with your spouse because it is nontransferable. Understand what you are asking for before fighting over it because it will save you time, money and frustration through the divorce.
If you have questions regarding your divorce, then you should speak with a family law attorney.

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May 26, 2011

How Long Does It Take To Get Divorced In Florida?

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

708452_hourglass_4.jpgAs a Jacksonville divorce lawyer, I am often asked how long a divorce will take. The time for a divorce is based on a number of factors including whether there issues involving children; marital assets; alimony; personal businesses; etc. In addition to the issues surrounding the divorce, the court also has a calendar that it uses in scheduling hearing dates and trials. No matter how quickly a divorce agreement can be reached, you are still at the mercy of the Judge's calendar to go for a final hearing.
If you and your spouse agree on things, then a consent agreement may be reached at the very beginning and the divorce can be done rather quickly. However, if there are fights along the way regarding all matter surrounding the divorce, then the process can take anywhere from 6 months to 6 years. Parties are required to attend mediation and with a divorce surrounding multiple issues like children; business divisions; division of other marital property; then the parties may agree to attend more than one mediation session to work through all of the issues instead of leaving the ultimate decision to the Judge. Hopefully, understanding the process will lead to a faster resolution to the divorce.
If you are going through a divorce, it is good to speak with a family law attorney about your rights and options so you understand what you are fighting for and over.

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May 24, 2011

Parental Responsibility in Florida Divorce and Paternity Cases

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

1272854_pile_of_books_1.jpgParental responsibility is a portion of any case involving children, including paternity and divorce actions a divorce lawyer in Jacksonville, many clients ask for full custody. What I first explain is that Florida now refers to visitation and custody as "time-sharing" and second, unless there is good reason (abuse, alcoholism, etc.) then the other parent has a right to have say in where the children go to school, what activities they participate on, if surgery is in the best interest of the children and all other aspects that go into parenting a child. Florida law refers to these decisions as parental responsibility and without good cause, that responsibility is going to be shared by both parents.
When one parent decides to avoid this division of responsibility and decides to make one-sided, big decisions, then the court may intervene. The parent left out of such decisions may file a Motion for Contempt against the other parent and ask the court to impose fines and other consequences on the offending parent.
If you are having such difficulties, then you may want to speak with a family law attorney to help you.

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May 23, 2011

Social Media, Affiars and Divorce

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

1260785_laptop_work.jpgAs a Florida divorce lawyer, I have seen Social media's impact on marriages. Facebook, 2nd Life, dating sites, all making seeing what else is out there easy to locate in the confines of your office or home. Ease of dating makes ease of cheating even more realistic to couples. The impact can and has led to an increase in affairs and divorces are the result.
In Florida, divorce is based on whether a marriage is able to be saved and not on who is at fault foe the divorce. Equitable distribution is applied to both parties to divide assets equally. if one party can show that marital funds were used to create or continue an affair than certain assets may be divided unequally to pay back the no offending spouse. For example, if a spouse has been paying for websites to meet someone, then that money can be reimbursed to the no offending spouse through money or other assets.
To understand your rights and options you should speak with a divorce law attorney.

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May 20, 2011

What Is the Difference Between a Family Law Attorney and Divorce Lawyer?

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

883985_business_law.jpgAs a Jacksonville, Florida lawyer working in family law I am often asked what a family law attorney does. Basically, family law consists of handling divorces, child support cases, paternity cases, visitation or time-sharing matters, adoptions and the like. A divorce lawyer is just a more specific way of saying the same thing as, "I handle family law cases." When hiring an attorney to handle your divorce case or related matters, then looking for a family law attorney versus a divorce attorney or lawyer may broaden the scope in your search and better fit your needs.
Family law or divorce lawyers are one in the same, so you are not doing anything wrong by hiring a family law attorney instead of a divorce attorney to handle your divorce case. It is no different than referring to a lawyer as an attorney.

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May 19, 2011

Dividing Retirement and Pension in a Florida Divorce Case

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

484200_blue_calculator_54.jpgRetirement and pension accounts are often a source of of issue in a Florida divorce case. When divorcing, the law states that marital assets, including bank accounts, mutual accounts, pension and retirement accounts, must be equitably divided. However, each party can waive their right to the other's retirement or pension funds. When dividing pension and retirement accounts, the divide is not only based on the total in each account at the time of the parties' separation. The division is actually based on the amount contributed into the accounts during the marriage. So, if you work at your job for 20 years, then marry for 2, your spouse is only entitled to the amount contributed and earned during that two year period of time. However, if you have been married the entire time you've worked at that job, then the entire amount is divided equally.

When dividing accounts, it is important to understand and know what the marital value of the account is versus the total amount of the asset. To better understand your rights and options, it is a good idea to speak with a family law attorney.

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May 18, 2011

I Want a Divorce and I Want Everything....Florida Divorce

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

1255559_lucky_dice.jpgFlorida divorce law allows for an equal division of marital assets when the evidence shows that the assets are, in fact, marital. For instance, if you get married, by a house together and then file divorce then the house is considered marital and you both are entitled to one-half the value or one-half the liability associated with that house. If there is a nonmarital property, meaning it was purchased before the marriage, then that is left with the person that entered the marriage with that property. However, if the property is transferred into both names during the marriage, then it can be considered marital property depending on the situation surrounding the divorce and property. See Lacoste v. Lacoste, 36 FLW D784 (Fla. 1st DCA April 14, 2011).

Florida is also a no-fault state, which means that regardless of an affair, the court is required to equitably divide the property. The only time this is not true is when you can prove that marital property or money was used to help establish and maintain the relationship or other activity (i.e. gambling) outside of the marriage. Then division is still going to occur, but it may be a 40/60 division instead of equal.

Speak with a divorce lawyer before assuming that you are entitled to everything in a divorce because understanding the process will save you money in the long run.

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May 17, 2011

Do Short Term Marriages Get the Same Treament as Long Term Marriages in Divorce in Florida?

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

1129738_vintage_clock_2.jpgFlorida law holds that a short-term marriage is one that lasts for 7 or less years in accordance with Florida Statute 61.08(4). If a marriage is for less than seven (7) years, then the court may find that certain provisions of equitable distribution of assets do not apply, as in a recent Florida case Lacoste v. Lacoste, 36 FLW D784 (Fla. 1st DCA April 14, 2011).

This latest case found that the husband had placed nonmarital property (property acquired prior to the marriage) in both his and the wife's name when he believed they were reconciling the marriage. The husband and wife were married for only two years at the time and soon after the property was jointly titled, the wife filed for divorce. The court found that in a short-term marriage, with the idea that the property was jointly titled under the auspice of the parties staying married, that the wife should not benefit from the newly made marital asset. Furthermore, the court in Grieco v. Grieco, 917 So.2d 1052 (Fla. 2nd DCA 2006) ruled that a short-term marriage should not result in a payday to one of the parties when applying equitable distribution terms to the divorce per Florida Statute 61.075.

If you have such a case, you should speak with a lawyer that handles divorce matters so that you can fully understand your rights and options.

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May 16, 2011

Domestic Violence in Florida Divorce

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

c1main.florida.divorce.wsvn.bcso.jpgDomestic violence in marriage can be a major cause for divorce and knowing you are safe is key to the livelihood of you and your children. If you fear abuse or other harm from your spouse, you should apply for a domestic violence injunction with the court. In addition, in going through a divorce with someone that is violent, you should let your attorney know and the judge know that you are in fear for your safety in the presence of your spouse. If the judge is aware of the danger, then the judge can take the proper steps in insuring your safety while you are going through divorce hearings where you and your spouse are in the same room. The judge can have a bailiff sit-in on the proceedings to restrain the spouse if that spouse becomes violent.
A recent Florida case involved such issues and the wife, while attending a final hearing on the divorce, was severely injured by her husband during the court proceeding. The judge, and most likely the wife, at the time did not know of the husband's strong propensity towards violence and did not have a bailiff in the chambers. Luckily for the wife, the husband was restrained by her own attorney, but not before she suffered a broken nose.

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May 10, 2011

What You Should Do When Served With Divorce Papers In Florida

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

1138574_my_last_cash_5.jpgdivorce papers it can be overwhelming and difficult to understand what you will do next. Once you are served a divorce petition, you have twenty (20) days to file an answer with the court and provide a copy to the your spouse or the attorney for your spouse. An answer is a document that addressing each allegation or request in the petition and goes paragraph by paragraph. It is important to know that a petition often asks for more than the other party wants because if it is not requested in the petition, then it most likely will not be addressed. Also, you have the right to file a counter-petition along with your answer. A counter-petition basically lays out your own requests and allegations and your spouse has twenty (20) days to answer the counter-petition.

It is a good idea to file a counter-petition if your spouse has asked for the marital home and you want it, or if your spouse makes the majority of the money in the marriage, then you may want to request alimony. In addition, since Florida equally divides marital property, if your spouse used money in furtherance of an affair, then you would want an unequal distribution of assets to give you back the money used for that relationship. If you are served with divorce papers, you should speak with a family law attorney to better understand your rights and options.

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May 9, 2011

My Spouse Can Afford A Lawyer, But I Can't...What Are My Options? Florida Divorce

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

1331143_piggy_bank.jpgStay at home parents going through a divorce often question how they will get through the divorce financially. In Florida, if you do not have money to hire a lawyer, but your spouse does, then you will need to file a Motion for Temporary Needs and a financial affidavit, to get attorney fees and costs associated with the divorce. Florida recognizes that if one spouse can get a lawyer, then the other spouse should be capable of the same regardless of their independent financial issues. The idea is that a party that has money should not win simply because that person holds the Benjamins.

If you are in the above situation, you should speak with a lawyer about your upcoming or pending divorce and find out what your rights and options are in the process.

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May 6, 2011

In Florida, What Should I Expect to Pay In Child Support and Can I Change It If I Lose My Job?

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

1222661_sweet_home_1.jpgAs a lawyer in Jacksonville, Florida, I have a number of clients that want to know what they will pay in child support. Whether they come to me for a divorce, paternity action o modification of child support there is always concern for what should be budgeted.

Child support is based on factors of income, expenses paid for the child (daycare, health insurance, etc.), and time-sharing. Child support guidelines provide a calculation for how all of these factors are broken down and what the monthly obligation will be.

Once child support is calculated and ordered, it can still be modified of there are substantial changes of circumstance (i.e. Laid off from job). However, modifications should be petitioned immediately or else you will continue to be bound by the initial calculation and other consequences can occur, such as driver license suspension, jail time, etc.

Child support is not designed as a punishment to parents, but as simply providing support for the benefit of your child. When it seems like a high number consider that it is designed to provide the home, food, transportation, health needs , and other things for your child. In addition, it is designed to keep your child in the same lifestyle he would have if both parents lived in the same home.

When dealing with child support, issues it is a good idea to speak with a family law attorney to understand the process an your rights and options to be considered.

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May 5, 2011

In Florida, Is Alimony A Factor in Child Support Calcuations?

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

1030781_calculator_ballpoint_pen_and_paper.jpgIn Florida, if alimony is a factor in a divorce, with children, then alimony must first be determined in order to properly calculate the child support. Child support is based on the income of both parties and alimony is considered income to one spouse and a reduction of income to the other parent.
First, alimony is based on factors of the length of the marriage; the contribution to the marriage; the lifestyle of the parties during the marriage; and the supporting spouse's ability to pay.

Once alimony is determined the other factor for child support would be the time-sharing plan of the parties. Once that is done, the income of the spouses are put into the child support guidelines along with the time-sharing plan and a number for child support can then be calculated.

If you are going through a divorce with alimony an child support as factors, you should speak with a divorce lawyer to fully understand the process along with your rights and options.

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May 3, 2011

Can I Get Alimony In Florida For My Education?

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

1326285_graduation_2.jpgAlimony can be used to help finish or get an education after a divorce is final. In Florida, alimony can be used as a rehabilitative form of support to help the needing spouse get a degree or certification to make it easier to qualify for a job.

In a divorce, rehabilitative alimony does not stop alimony on a permanent basis or lump sum alimony. Types of alimony include rehabilitative alimony, which may be for a short period of time (how long it takes to finish a degree) and then alimony for a longer period may be awarded a well. For example, there may be alimony of $2,000 per month for 3 years for education rehabilitation, then decrease to $1,000 per month for permanent alimony. The idea is that you are giving more initially to allow time for the other spouse to get a job where less alimony will be necessary to keep the standard of living up.

If you are going through a divorce it is good to understand your rights and options. When going through a divorce, you should speak with a divorce lawyer to better understand the process and the law.

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May 2, 2011

Is There An Alimony Calcuation in Florida?

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

1038102_the_calculator_2.jpgAlimony in Florida does not have a calculation that can be used to determine the amount of alimony in a divorce. Florida law has been quiet on a fair amount for alimony, but has provided guidelines for the length of alimony. So, how is alimony calculated in Florida?
First, the length of the marriage is a determining factor for how long a spouse can collect alimony. Florida law states that a marriage of 17 years and more qualifies for permanent alimony. Under that length of marriage there may be qualifying reasons for permanent. Other forms of alimony are as follows: bridge the gap; lump sum; and rehabilitative.

The remaining factors in calculating alimony in Florida are as follows: the lifestyle of the marriage; the contribution of the spouse to marriage (i.e. Giving up schooling); the ability of the other suppose to pay; personal factors (i.e. Health issues). These are all used to determine how much alimony should be paid to the needing party. These factors are considered by the Judge and can also be used to help both parties reach an agreement at mediation.

In a divorce action it is important to understand your rights and options in regards to alimony. To nest understand the process you should speak with an experienced divorce lawyer.

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April 29, 2011

Healthy Mind and Body During Your Divorce Mediation is Imporant

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

1167888_tea.jpgMental and physical illnesses are often prevalent issues in divorces. A divorce, even for two healthy and fit individuals can be stressful, so the impact is even greater on those that are not.

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

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

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

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April 28, 2011

Don't Sweat the Small Stuff in Your Divorce: Dividing Property in Florida

1339588_catering_-_soup_plates.jpgWhen divorcing, dividing personal property and assets can be the most challenging part of any case. When going through a divorce it is important to remember not to sweat the small stuff because it can ruin a good agreement.

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

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

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

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April 27, 2011

I Got Served Divorce Papers; What Should I Do?

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

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

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

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April 25, 2011

In Florida, Can I Have Pet Visitation Established in My Divorce?

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

974025_dressed_dogs.jpgPet visitation is often a request I get as a Jacksonville divorce lawyer. Often, clients come in asking what will happen with their pet in the divorce and whether they can have visitation. While pets do feel like a child to many people and families, the law has not really caught-up. Florida law indicates that property is to be equally divided and that if there are children that there be a parenting and time-sharing plan; however, Florida does not provide a separate law for family pets.
How can I have visitation with my pet if Florida law does not provide it? In a divorce you are required to attend mediation where you may be able to reach agreements regarding the divorce. If you reach an agreement regarding the pets, then you will want that agreement put into a partial order with the following information: where they will live; how often the other party will get to visit; and where the visitation will take place. Once both parties sign the agreement, then the order can be signed by the court and it is enforceable if one party fails to comply.
However, without an agreement in mediation the court may simply divide the property and the judge can determine which party to place the pets with. If you have questions regarding this matter you should speak with an experienced family law attorney.

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April 20, 2011

I Own My Business; Does My Ex Get Half in Florida?

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

274924_my_office.jpgOwning your own business when going through divorce in Florida can be challenging. If the business started during the marriage, then it is considered a marital asset and is subject to equal division to both parties. However, some businesses are dependent of a product while others are set-up on a service provided. A business valuation should be obtained by both the husband and wife, or if you can agree then one valuation may be acceptable.
A business valuation should be done to determine the actual value of the business from office furniture to actual profit or loss generated. If the business is built on product, then the value of the business should be manageable to determine because the product has value it produces. If the business is dependent on service, especially the service or talents of one spouse, then the value of the business is more challenging to assess because its product is a person and their productivity.
When fighting over a business it is important to understand how money is generated from the company an how it is spent by the company. You may find out that the business makes "x" and has to spend "y" in overhead, marketing and other expenses, which in turn leaves very little of actual income or "z" to the parties. Also, if the business has debt, you are also asking the court to divide that debt equally. If you and your spouse are divorcing and you own a business, then it is recommended that you speak with a lawyer for both the divorce and business issues that are involved.

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April 19, 2011

Am I Responsible for My Ex's Car Accident?

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

1324052_a_car.jpgAm I on the hook for an accident if my soon to be ex was driving our car? Florida law recognizes that assets such as cars and houses are jointly owned if purchased during the marriage and must be equitably divided. Though you do not have to be joint title holders of vehicles purchased during marriage, if you are both on the title then you are both on the hook for any accidents that occur in that vehicle. In Florida, an owner or owners of a vehicle are responsible for accidents that may occur while they or another, who has permission, is driving the car.
If you are divorcing and own jointly titled cars, then you may both agree to turn title over to the other on each commonly used vehicle. This should be done as you would normally shift or transfer title to a new owner. Also, you have to inform your insurance company of the transfer of title so that insurance is established separately, though you may remain on the same policy until the divorce is finalized.
If you are fighting over the vehicles, as they are considered marital property, then you will want to make certain that the final divorce papers give a provision for how long you both have to transfer title.
Florida divorces include all marital property (property purchased during the marriage) not only jointly titled property. By speaking with a ">lawyer who handles family law you may protect your rights and options.

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April 18, 2011

Do I Get to Claim My Children on Taxes After a Divorce?

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

369107_taxpapers.jpgWhich parent should claim the children as dependents on their taxes when separated or divorced? Working as a lawyer in family law matters in Jacksonville, Florida, I get this question often. If there are children involved in a divorce, then typically one parent will be responsible for paying child support and one parent will have the children the majority of the time. In essence, both parents are responsible for the expenses created for the children, so determining which parent gets to claim the children on his/her taxes comes down to the facts surrounding the case.
If the divorce is finalized without a clause in the final order establishing which parent claims the children as a dependent on annual taxes, then typically the parent with the majority of time with the children will claim the children as dependents on the annual taxes. However, the parties can agree that they will alternate years of claiming the children as dependents on their annual taxes.
If the parents have equal time-sharing with the children, there may be a presumption created that they will alternate tax years. However, the presumption is not one that is legally binding if one parent chooses to claim the on taxes and files before the other. This may create an issue with the IRS and without the final order from the divorce specifically establishing the plan, then it may be the first filed will be honored.
If you are divorcing and have children, then make certain to address this issue with your ">attorney and the court. In a divorce order, you want to verify that there is a clause regarding the dependents being claimed so that there is no confusion or issues that arise with your ex-spouse or the IRS.

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April 16, 2011

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

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

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

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

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

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

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March 25, 2011

Adultery, Gambling and Drug Use; Are They Considered in Florida Divorce?

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

1035694_wedding_rings_and_money.jpgFlorida divorces are decided as a no-fault matter. Florida no-fault law that rules divorces basically means that the reason for the divorce is not important in determining issues surrounding the divorce. In Florida, divorces separate assets and liability (debts) equally between the parties; alimony is based on a number of factors including the lifestyle of the parties during the marriage, the length of the marriage, etc.; and the time-sharing plan for the children is based on the best interest of the children. None of these factors are decided based on who did what during the marriage.
In situations of adultery; gambling; drug use; etc. the court can consider whether marital funds were used in furtherance of those actions. If it can be shown that marital funds were dissipated by one of the parties for such actions, then the court may order an unequal distribution of marital assets and debts in order to payback the other party.
When determining the best interest of the child[ren], the court may consider whether one of the parties participates in activities that may be detrimental to the child[ren]. If there are extreme accusations, then the court may require a time-sharing coordinator and/or a social investigation in order to assist in determining the best situation for the kids.
Understand your rights and options before filing for divorce and contact a family law attorney to assist you with these issues.

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March 24, 2011

Florida Annulments Are Challenging Because Florida Annulments Based on Case Law

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

68948_law_series_4.jpgSeeking an annulment in Florida requires your facts to match those prongs necessary in Florida annulment law, based on cases and not Statute. Annulments are difficult to get due to the fact that they dissolve the marriage as if it never occurred. Florida annulments require proving that the marriage was void due to certain circumstances such as bigamy or is voidable, for example that the marriage was entered into based on the fraud of another.

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

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

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

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March 21, 2011

Florida Allows Temporary Support While The Divorce Is Pending to Help The Spouse With No Money

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

1132671_problematic.jpgFlorida divorce/family law courts recognize discrepancies in the incomes of both parties and have developed access to courts early in the process through a Motion for Temporary Needs. Once filed, there is a hearing to establish the needs of the parties until the divorce can be finalized. The motion for temporary needs can include the following issues:

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

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

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March 14, 2011

In Florida, Can Alimony Be Discharged in Bankruptcy?

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

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

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

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

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March 11, 2011

Using A Personal Property Appraiser In A Florida Divorce

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

1209269_modern_interior.jpgFlorida law requires equitable distribution of marital property in divorce cases. Furniture and items purchased or received during the marriage or anticipation of the marriage (wedding gifts: Greenberg v. Greenberg, 698 S.2d 938 (Fla. App. 1997)) are considered marital property and subject to distribution. Equitable distribution is based on the value of the property and furniture. The idea is to give each party the same monetary value of property.

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

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

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March 9, 2011

In A Florida Divorce, Do I Have To Return My Engagement Ring?

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

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

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

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

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March 8, 2011

Are Disability Benefits a Marital Asset?

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

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

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February 25, 2011

In Florida, When Can Alimony Be Modified or Changed?

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

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Alimony is a common factor in Florida divorce cases. Alimony or spousal support is determined using a number of statutory factors, including but not limited to the lifestyle of the parties during the marriage, the length of the marriage, the contribution of each spouse to the marriage, etc. Once alimony is determined, the Florida court awards that amount to the needing spouse and it is often in place until the end of time specified in the order. However, given certain circumstances, the alimony amount can be modified if there is substantial change in circumstance.

Florida Statute 61.14 provides for a modification of alimony or spousal support if certain factor are presented to the court and the threshold is met. Modifications in alimony can be a request by the needing party for an increase in support or the payor may request a decrease of the alimony amount. In order to establish a modification, the moving party must allege a substantial change in circumstance has occurred for the decrease or increase of spousal support to be changed. For example, if spousal support was awarded and the paying party discovers that the receiving party is cohabiting or residing with another person in a supportive manner.
Florida Statute 61.14 identifies a supportive relationship and provides actual provisions under which alimony may be terminated. These include, but are not limited to the following:

1. A supportive relationship exists between the party receiving alimony and the person s/he lives with.
2. In determining the degree of support, the court is allowed to find out the nature of the relationship between the alimony receiving party and the person with whom their is a supportive relationship (spouse, girl/boyfriend, friend, family member, etc.).
3. The relationship can be determined by how the two individuals hold themselves out in society, but still does not recognize common law marriage.

There are other factors used in determining a change in alimony or spousal support and it is best to speak with a qualified family law attorney regarding such issues before proceeding.

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February 24, 2011

Christina Aguilera Settles Her Divorce, You Can Too With A Florida Prenup

6.jpgFive years after the Mogul Pop Star married music executive Jordan Bratman, Christina Aguilera settled her divorce on Valentine's Day of all days. After all, five years is a long time to be married anyway and what could be a more romantic present for her new beau Matt Rutler. It's been reported that Christina, Jordan, and Matt have been living in the same house until recently. The thought of that doesn't exactly conjure up a light-hearted "Three's Company" episode. However, things are looking up for the recently troubled starlet as this marriage winds down and Jordan finally moves out.

Christina and soon to be ex-husband Jordan have a three year old child together. According to the agreement they will be sharing custody of the child. The couple had a prenuptial agreement and although the exact settlement terms have not been reported, Jordan is rumored to be getting a little something above and beyond what the prenup called for.

Prenuptial agreements in Florida are valid documents that hold a lot of weight when things don't last. It's important to have an experienced attorney draft the terms if you want to avoid some of the common pitfalls that can arise. There are also certain things that you cannot do in a Florida prenuptial agreement. The best thing about a prenup is it avoids lengthy divorce litigation.

As in Christina Aguilera's divorce, the tough stuff is finished, the couple need only wait until April 15, 2011 when they will both be legally single under California law. There was no lengthy legal battle with an uncertain ending as in the highly publicized Kelsey Grammer divorce. Prenups are a great way to avoid litigation in which you may spend much a lot of the money each spouse might have otherwise walked away with.

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February 22, 2011

How are Businesses Divided In a Florida Divorce?

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One concern a lot of my clients have is how to protect their business in the event they get divorced from their spouse. Under Florida law, a business acquired during the marriage is marital property and should not be distributed to only one party.

The first thing the court must do is identify the asset as a marital asset. This was held in the decision of Esposito v. Esposito, 651 So 2d 1248 (Fla 2d DCA 1995). It doesn't make sense though that the parties should be left running the business together after the divorce is finalized. Therefore, the court must value the business asset and then determine the distribution to the spouses.

Once the court makes the determination of what portion of the business is marital it can then determine the value. The valuation of the business as a marital asset must be determined through the presentation of competent substantial evidence to the court. After this value is determined the court will distribute the interests according to the principles of equitable distribution. This may include setoffs among other assets of the marriage or forms of alimony to compensate for one spouse's distribution without disturbing the business.

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February 21, 2011

How Are Uncovered Medical Expenses Divided in Florida Cases Invovling Children

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.
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Florida divorce cases involving children, child support cases and paternity cases often provide for support of the children based on Florida Child Support Guidelines in Florida Statute 61.30. However, the guidelines do not address medical expenses regarding the children, except for health insurance coverage purposes. So, how does Florida divide the parental financial responsibility for uncovered medical expenses for the children?

Often, agreements reached by the parties will include language that the parties are required to equally split the uncovered medical bills. These issues recently came up in the Florida 2nd District Court of Appeals, which ruled that uncovered medical expenses should be divided in relation to each parents percentage of income, as in the child support guidelines. Zinovoy v. Zinovy, 36 FLW D34 (Fla. 2nd DCA, December 29, 2010).

So, what does this mean? Florida child support is based on the overall income of the parents. Basically, if each parent makes $5,000 per month, then the overall monthly household income is $10,000 and each parent is 50% responsibility for that amount. So, their children's uncovered medical expenses would be divided 50/50. If one parent makes $4,000 per month and the other makes $6,000 per month, then the uncovered medical expenses would be divided 40/60. This helps maintain a fair balance based on the incomes of the parents.

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February 18, 2011

Attending a Final Hearing in a Florida Divorce: What Should You Expect?

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

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If you live and Florida and have filed for divorce and now have an agreement regarding the dissolution of marriage, then you may be attending a final hearing on the Consent Final Judgment. If you have reached an agreement that has been finalized in writing, then the next step is for one party to attend a final hearing. A final hearing requires testimony, but it is limited to the following:

Testimony and proof to the court that you were a resident of Florida for at least six (6) months before the filing of the divorce. In order to show the court that you have met the residency requirement, you must provide proof of residency with a Florida driver’s license, Florida voter registration card, etc. This allows the Judge to know that you have met the residency requirement per Florida Statute 61.021.

Testimony must be given to the Court that the marriage is irretrievably broken. You may be asked to explain why and a simple answer can be provided, such as, “We no longer love one another.” The Judge does not need to have full details for reason you are seeking a divorce.

If there are children born or expected of the marriage or the testifying party denies that the marriage is irretrievably broken, then the Court may do the following:

a) Order one or both parties to attend counseling
b) Continue the divorce proceedings for a reasonable period of time, often three (3) months.
c) Other action found reasonable and in the best interest of the children

The only thing left to testify to is whether you have actually reached an agreement and that the order presented to the Court formalizes the agreement in writing. You may be asked whether it properly lays out alimony, child support, timesharing and parenting plans, and distribution of marital property. Also, you must testify that the signatures on the agreement are yours and the other party’s.

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February 17, 2011

Charlie Sheen's Divorce Finalized?

charlie-sheen1916.jpgMaybe I was the only one who wasn't aware that Charlie Sheen was still married while listening to recent accounts of his exploits with a house full of porn stars and a pile of cocaine that sent him into rehab last month. Then again, this is Florida and that's California....I guess things are a little different in Jacksonville. California law says that a married couple cannot get divorced until at least six months after the divorce papers were filed. In other states the wait is longer. Nevertheless, Charlie Sheen's divorce from Brooke Mueller is final.

According to news reports, Charlie Sheen will have to pay his ex $55,000 per month in child support and $750,000 in lump sum alimony. It is also reported that they will share custody of their twin sons who will be two years old next month. The couple had signed a prenuptial agreement prior to getting married. That is a good thing for Charlie Sheen who is reportedly the highest paid actor on television and makes upwards of one million dollars per episode acting on the popular show "Two And A Half Men". Under California law, his wife would have been entitled to half of anything he made while they were married. Thanks to his prenuptial agreement she will only get a small portion of those earnings.

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February 16, 2011

In a Florida Divorce, Is Counseling Required?

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

therapy-office-200.jpgrequirements before filing are that at least one party must be a resident of Florida for at least six (6) months prior to filing a petition and that the marriage is irretrievably broken.

If the marriage is not irretrievably broken, meaning that there is a chance you may get back together, then the Court may require you attend counseling and postpone the divorce proceedings for a reasonable period of time, often three (3) months.
If the Court orders marital counseling or counseling for one of the parties, then the petition is not thrown out, but is put on hold for the time established by the Court.

If you go to counseling for less than the time ordered by the Court and know that you would like to proceed with the divorce, then you may speak with your lawyer about filing a Motion with the Court to allow the divorce to continue.

If you are able to amicably resolve the divorce issues and reach an agreement prior to the trial, then you or your spouse will have to testify that the marriage is irretrievably broken. If that fact is denied to the Judge, then you may be ordered back to marital counseling. However, if the testimony to the court is that the marriage is broken irretrievably, then the Court will most likely enter the agreement as an order of divorce.

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February 14, 2011

Florida Child Support Cases Require Filing a Financial Affidavit and Complying with Mandatory Disclosure Documents

334225_press_conference.jpgFlorida paternity and divorce cases involving children require child support to be calculated. Child support is based on the income of both parties and in order to establish that the Court does not simply accept testimony. So, how do parties actually provide proof of their individual incomes?

Florida divorces are ruled by Florida Family Law Rules of Procedure, which requires that both parties file a financial affidavit. A financial affidavit details the monthly expenses of the individuals including their income and expenses. In addition to personal expenses, the financial affidavit requires the children’s expenses be calculated as well. That way the court knows which parent is paying for childcare and the child’s health insurance, which all goes into the child support calculation. Since it is an affidavit, the parties must sign and have the affidavit notarized.

In addition to the financial affidavit, the parties are required to provide documentation outlined in Mandatory Disclosure, also detailed in the Florida Rules of Family Procedure. Some of the documents required are the following:

a) At least three (3) months of bank statements for all accounts held individually and jointly. Joint accounts are any accounts with the party’s name on them, including those held for elderly family members.
b) At least three (3) months of paycheck stubs. If you are paid hourly and work overtime, it is a good idea to provide as many months as possible.
c) Any and all loan applications filled out by the individual or done as a cosigner. This documentation often has questions related to your income and allows the Court to see what type of loans you may have outstanding.

All of these items help establish the actual income of each party and what the children’s needs are. Child support is based on the combined income of the parties and what each individual’s percentage of contribution is to that combined amount.

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February 11, 2011

Florida Allows Income Deduction for Child Support and Alimony Obligations from Paternity and Divorce Actions

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

754431_in_business.jpgAs a Jacksonville, Florida family law attorney, I represent clients in paternity, child support and divorce cases. Payment of obligations for child support and alimony seem to weigh on both parties because one needs the support and the other wants to make certain payments are made on time so there are no future actions for lack of payment. The answer is that Florida does allow income deduction orders to be entered against the party responsible for payment, which means that wages can be garnished for the support. Income deduction is an easy way for the obligor to pay the money owed and it allows the money to be direct deposited into the proper account. In addition, it allows for proper accounting of all monies paid so that accusations of nonpayment can be properly defended.
According to Florida Statute 61.103, an income deduction order can be entered in connection with an order that establishes the support obligation for child support or alimony. The income deduction order must state that an order for the obligation has been entered by the court and it must include the date the order was entered, the court that entered the order (i.e.

Jacksonville is the Fourth Judicial Circuit) and it must provide the court number associated with the original order.
Once the income deduction order is entered, the court must furnish the obligor with a statement rights and remedies associated therewith and provide details of the fees associated with the deduction, the amount to be deducted, that notice will be given to the obligor's employer and that subsequent employers must be notified by the obligor, and other factors related to Title IV-D cases.
Income deduction orders can be a good tool used by both parties in a divorce, paternity or child support case because it helps protect the interests of both parties. and

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February 10, 2011

Florida Divorce: Who Gets The House?

images-4.jpegWho gets the home in a Florida Divorce? This a common question in most of my clients' cases. The answer is not that simple. The Court usually begins with the premise that the division of the home should be equal. Understandably, this raises a number of additional questions: How do we divide the house?; Do we sell it?; Who gets to live in the home if we can't sell it or do not want to sell it?; and What if we can't afford two separate households?

If there are minor children of the marriage the Court has to take into consideration who the children will be living with. The Court must consider whether it is in the best interests of the minor child for the parent with majority timesharing to remain in the marital home. Generally, absent compelling financial circumstances, the parent with the majority timesharing will retain the use and possession of the marital home until the minor child or children reaches majority or the parent remarries.

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February 9, 2011

Requirements for Filing for Divorce in Florida

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

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Filing for divorce in Florida? Florida Statute 61.052 lays the ground work for filing for divorce in Florida. First, you must qualify by being a resident of Florida for at least six (6) months before filing a petition, then you must meet the requirements for a divorce to be granted.

In order to start a divorce, one party must file a petition for dissolution of marriage, which should allege the following: that the marriage is irretrievably broken or one spouse was adjudged mentally incapacitated at least three (3) years preceding the petition; whether there were children born, adopted or expected from the marriage; request for alimony; request child support; request for timesharing/parent plan; equitable distribution of marital assets and debts or unequal if there is a legitimate basis for the request (depletion of marital assets by one party); and any additional requests that may be sought.

The party that is served with the petition must file an answer to the petition within 20 days of the date of service. That party may also file a counter-petition requesting the same or similar things as those pled in the initial petition. If a counter-petition is filed, then an answer must also be filed to that petition within 20 days. Once everything is filed, then you can move on with the divorce by asking for a trial date.

During the time between filing a petition and before trial, there is a period of discovery, where both sides must provide documentation of their assets and debts along with a financial affidavit. There is a timeframe for all of the proper documentation to be provided to the other side.

Prior to attending a final hearing, the judge will require that you attend mediation to possibly settle the case before trial. Mediation is a chance for a neutral third party to assist both sides in working through some of the issues and hopefully settle their case without a trial.

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February 8, 2011

Florida Residency Requirement for Filing Divorce

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

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In Florida, to file for divorce, you must reside in the State for at least six (6) months prior to filing a petition with the court. The Florida residency requirement only requires one of the parties to have residence in Florida, to file here and actions can be brought against a party that resides outside of Florida.
An example would be if you and your spouse live in New York and decide to separate and during the separation you move to Florida for at least six (6) months, then you can file for divorce in Florida though your spouse still resides in New York. Typically, if there is an issue with children, the matters involving the children will be in the court where the children physically reside. However, the actual divorce, equitable distribution of assets, etc. can be decided by a Florida court.
The easiest method of proving your residence is by showing the Court a Florida drivers license. If you do not have one or it was not issued six months prior to your filing for divorce, then you can use the following: lease agreement that signed and dated; utility bill, in your name; or anything that may show the court that you have actually resided in Florida for six (6) months. If you do not have one of those available, then you may have a signed affidavit by someone that can attest that you have lived in Florida for the required time.

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February 7, 2011

Do I Need A Prenuptial Agreement In A Florida Divorce?

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Florida Statute 61.079 governs premarital agreements in Florida.The definition of a premarital agreement per the statute is "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage". The agreement must be in writing and signed by both parties and is enforceable with no other consideration than the marriage itself.

The parties to a premarital agreement can contract with respect to property and its disposition, spousal support, the making of a will or trust to carry out the agreement, benefits from life insurance policies, the choice of law governing the agreement, and any other rights not in violation of law or public policy. Premarital agreements can be amended after the marriage with the consent of both parties.

Whether you need a premarital agreement in Florida is a personal decision. There is no right or wrong answer to the question posed in this article. However, you should take a careful look at your particular situation to decide if you need one. Some factors to consider are:
1) Disparity in income between the parties,
2) Whether one spouse has a number of family heirlooms that are valuable or a prior inheritance,
3) Prior marriages and debts,
4) Whether you are getting married for love or necessity (ie. unplanned pregnancy or immigration issue),
5) Extensive premarital assets including retirement benefits, or
6) One spouse owns a business and doesn't want to risk the other spouse getting an interest in a divorce.

Failing to plan in any of the above scenarios could cost you a bundle should you go your separate ways.

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February 4, 2011

A Social Investigation for a Parenting and Time-Sharing Plan is a Helpful Tool in Florida Divorce, Paternity and Modification Cases

Written By: Lenorae C. Atter, Attorney

980848_not_talking_1.jpgIn Florida divorce, paternity, modification or other family law cases involving children, if the parents cannot agree on a parenting and time-sharing plan, then the Court may order a social investigation per Florida Statute 61.20.

A social investigation can be a helpful tool in deciding where the children will reside the majority of the time. When the court orders a social investigation, then the court may appoint the individual handling the investigation by the court's own preference or by agreement of the parties. When the investigation is ordered by the court, the investigator is required to be a qualified staff of the court; an agency that works in child placement and licensed under Florida Statute 409.175; a licensed psychologist; or a licensed clinical social worker, marriage and family counselor, or mental health therapist.

Once the investigator is appointed, the parties and children will attend sessions with the individual and a final report with recommendations for a parenting and time-sharing plan will be provided to the parties and to the court. While the investigation is helpful and often relied upon, it is not a final statement of what will be ordered by the court. The parties can still discuss the parenting and time-sharing plan and may agree on terms that were not necessarily recommended in the report. The court may also review the report and deviate from the recommendations if the parties are still not able to reach an agreement. What the report does provide is a detailed analysis of the situation so that the court can ultimately rule in the best interest of the children, which is the standard in Florida for determining issues involving children.

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February 2, 2011

Florida Visitation Guidelines and Time-Sharing Plan

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Jacksonville, Florida is in the Fourth Judicial Circuit of courts, prior to the 2007 legislative change from visitation to time-sharing, there was a standard visitation guidelines established by the court. Since time-sharing is a new concept for many people in Florida, the idea of the old “standard visitation schedule” seems to be used frequently in establishing a time-sharing plan. Because such schedules were developed by the court, each circuit court of Florida that used one had something different than the other. The difficulty I see with this issue is that often one parent will do research, find a schedule for visitation and try to apply it without court action. I often have clients call and ask me what “standard visitation,” is because the other parent told them that is what they have to do. Since there are different versions out there, often times my client does not know which one the other parent is even using. The legislative change to establish a time-sharing plan is designed to assist in this issue.

First, the Fourth Judicial Circuit visitation guidelines basically provided the minimum amount of visitation for the non-residential parent. According to this circuit, again each had their own standard; the non-residential parent received the following:
One day per week from after school got out until 8 p.m. one night per week, typically Wednesday; alternating weekends; alternating Thanksgiving from the day school got out until the day before returning to school; alternating Christmas break with one year from the day school got out until Christmas day at 3:00 p.m. and the next from 3:00 p.m. Christmas day through the day before school started; one-half summer and the other parent received alternating weekends; Mother’s Day with mom and Father’s day with dad; alternating birthdays; and other provisions.

If the standard visitation schedule was not working, often parents did not know what else to do because this was the court order and that is what they were going to follow. A time-sharing plan can still use these same ideas; however, it is designed to think through matters more intently so that parents can actually have time with the children greater than a minimum amount. Furthermore, some families celebrate different holidays than those accounted for in the above schedule, so the time-sharing plan takes those factors into consideration. The other thing that a time-sharing plan can assist with is developing a schedule that accommodates the parents and children since they often have more activities the older they get.

In dealing with any matter regarding children, the first step is to determine what the children’s needs are and go from there. Establishing a plan that makes sense on paper does not mean that it is going to be the right schedule in practice. Life is filled with the unexpected and having two households means that the unexpected can happen twice as often. Working through a time-sharing plan allows the parties to think through real issues before going in front of a judge and the plan can often be tweaked by agreement of the parties. In addition, it is an option to place in the plan that if the parties cannot agree on changes, then they will first go to mediation before filing for a modification of time-sharing with the court. This gives an opportunity for the parents to work through their disagreement with a neutral third party and hopefully, ultimately agree on a plan that will work.

It is not a good idea to inform the other party that you are making them go to guideline visitation because they will not understand and will not know to which set of guidelines you are referring. If you provide the parent with the guidelines that you wish to use, then allow him or her time to look over them and decide if they are agreeable. If you both have lawyers, then have yours provide your proposal to the other attorney. This can help in reaching the right time-sharing plan for both parties.

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January 31, 2011

Benefits of a Florida Time-Sharing Plan in a Divorce or Paternity Case

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

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In Florida, Time-Sharing Plans have replaced the normal visitation schedules previously enforced by the courts. A Time-Sharing Plan is used in Florida divorce and paternity cases in order to assist the parents in scheduling visitation with their children. Visitation schedules, in the past, often provided for visits at times that were not practical for the children or parents. The idea of a Time-Sharing plan assists the parties in keeping the children first in developing the schedule.

In order to prepare a Time-Sharing Plan, often parents use the children's school, events, sports and camping calendars to assist in an accurate schedule throughout the year. Instead of simply saying each parent will have every-other-weekend and half the summer, it actually allows the parties to establish a schedule that can be used year round. In addition, it allows the party that does not have the majority of the time with the children, to spend more time with the kids as it fits into their schedules.

Developing a useable Time-Sharing Plan can be challenging and negotiating is often necessary to reach the best outcome. Understanding your options and knowing there are tools to accomplish a goal of proper visitation time with your children is helpful in reaching the best outcome. The challenge may best be met with the assistance of a lawyer who is experienced in handling such issues because s/he may be able to guide you along the way.

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January 28, 2011

Do I Have to Attend Mediation in My Florida Divorce, Child Support, Timesharing or Paternity Case?

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

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In Jacksonville, Florida family law matters, such as divorce, paternity actions, timesharing, and child support must go to mediation before a trial can be conducted. Mediation is a court ordered process that allows parties to reach an agreement, with the help of a neutral third party, without having all issues decided by a judge.

Typically, when a family law case begins a petition for the action is filed with the court. Once the opposing party files an answer the case is then brought to court for the judge to determine a trial date and order the parties to mediation. A mediation, which is a neutral third party trained in mediating (assisting parties to reach an agreement) is ordered by the court and typically the parties will agree on who will be the mediator. If the parties cannot agree on the mediator, then the Judge will assign one to the case.

Mediation is a good tool because it keeps the decision-making on the parties and their attorneys. The parties have more control over the outcome if they can reach an agreement on the issues. If all issues cannot be decided upon, but some can, then there can be a partial settlement and the remaining issues can be heard at trial for the Judge to make the ultimate decision.

When attending mediation, it is a good idea to keep an open mind and know that negotiations are a give and take. In family law issues, emotions often run high and it is difficult to make a business decision with such emotions. If you can, it is good to have an attorney with you because your attorney can help you better process the information and make a sound decision.

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January 26, 2011

Florida Options for Collecting Unpaid Child Support

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

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Florida child support that has been ordered but gone unpaid may be collected through a Motion for Contempt or by the Department of Revenue's Child Support Enforcement. A court order is enforceable, so if you have not received child support payments, you may want to look into both a private action of a Motion for Contempt and the State's assistant with enforcement.

A Motion for Contempt may be brought by the parent that should be receiving child support that was previously court ordered. The action requires the party responsible for paying support to show to the court why s/he is not paying. If the obligor (the one owing support) cannot show good cause for nonpayment and cannot present the court with a financial solution to the support presently owed and the amount owed for past support, then that parent may be held in contempt. One result for being held in contempt may be jail time, with an amount for release set at what is owed in support. The action may also lead to a financial solution that requires child support, plus back support to be paid.

If Child Support Enforcement (CSE) is aware of the arrears owed, because the money was owed through the State Depository, then CSE may get the obligor's driver license suspended, keep any tax refund going to that parent, freeze that parent's bank accounts, petition the court for jail time, etc. Florida has an interest in getting support for children because otherwise that child may be on State support. Therefore, the State is quite active in enforcing support obligations.

When such issues arise, it is a good idea to speak with an attorney that can guide you through the process and further explain your options.

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January 21, 2011

Florida Divorce and Using the Right Tool to Protect Your Kids From the Fight

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In Florida, going through a divorce involving children can be difficult on the parents and children alike. In determining where the children are going to live, often the parents have to put their wants and wishes to the side and consider the best place for the child. If the parents are unable to agree, then a Social Investigation may be necessary to determine the time-sharing (custody/visitation) and parenting plan to be used once the divorce is final. This is a helpful tool because it takes the arguing away from the parents and places it with a neutral third party, therefore, protecting the kids from a fight.
A Social Investigation in a divorce, is typically done by a non-related, neutral third party that is familiar with such situations and can determine the best time-sharing (visitation) schedule and parenting plan for the children. Sometimes these investigations are done by a licensed psychologist or mental health therapist. The individual chosen, generally agreed upon by both spouses, actually speaks with the mother, father and children to find out what the relationships and the structure of the home are like.
The evaluation is designed to help the Judge assess the family situation and what is in the best interest of the children. It is a helpful tool because it takes the fight away from the parties and places the matters in a professional's hands.

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January 17, 2011

In Florida, Can I Be Responsible for My (Ex)Spouse's Car After a Divorce?

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In a marriage, cars are normally titled in the husband and wife's names. In Florida, if you cause an accident, then you are responsible for any damages that result. However, if your spouse is on the car, then s/he is also responsible for any damages that result because you are both owners of the vehicle. So, if you get a divorce in Florida and you go through the equitable distribution of assets, meaning that you both take equal shares of your assets, property, etc. and one car goes to you and the other to your (ex)spouse, it does not change the fact that you are responsible if s/he gets in an accident.
If you take one car and your (ex)spouse takes the other, then make certain to get titles switched into your individual names. You would actually need to do a transfer of title and get it registered with the State of Florida. Once that is done, you also want to get the vehicle insurance changed.
Vehicles are not the only property that has title. If you are going through a divorce, you should consult with an experienced family law/divorce attorney. A Florida lawyer can help you understand your rights and how to best move forward with property division including your home, bank accounts, retirement and, of course, vehicles.

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January 14, 2011

What Factors Are Considered in Alimony Divorce Cases in Florida?

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Alimony or spousal support, in Florida, is determined by the set of facts surrounding the divorce, not a calculation like you have in Florida child support cases. Unlike Child Support, the determination is not based on a statutory guidelines that says x +y = z, instead factors of the marriage are used to determine what “z” will be. Some factors used to determine whether there is alimony to be awarded and how much that alimony will be are as follows:
How long was the marriage? If the marriage was 0 – 7 years, then that is considered a short-term marriage, 7 – 16 years that is a moderate-term marriage and 17 or more is a long-term marriage.
What was the standard of living during the marriage? If both parties worked and made relatively equal money, then there will be no alimony. If one spouse worked and the other did not, then alimony will most likely be awarded.
How much will be awarded? This is the most difficult thing for the court to determine because it brings into consideration the above factors and looks at what is available to each party regarding finances, assets, property, etc. Basically, a lifestyle cost analysis has to be completed to see what is available and needed by each party.
If you are going through a divorce and feel that alimony is a factor, you should speak with an experienced divorce attorney to find out what factors will be considered in your case.

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January 13, 2011

Options in a Florida Divorce When Your Home Has Equity

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Florida divorces are ruled by statute that divides marital property equally. Obviously a home has to either be taken by one party or sold. However, if there is equity in the property, then the decision on who takes the home or if it is sold becomes more difficult because both parties are entitled to 50% of the equity. When going through a divorce where there is a marital home that has equity, some of your options are as follows:
First, selling the home may be the easiest and cleanest way out. If the home can be sold, which today’s market is hard to determine, then the equity would be determined based on the selling price minus closing costs, the remaining amount to be divided equally by the parties.
Second, one party can stay in the home and sell it in a set time to then split the equity. An appraisal should be done at the time of the decision so that an accounting of the present market value and present equity can be determined. A decision must then be made as to who will pay the closing costs and associated taxes. In addition, the person that stays in the home and pays the mortgage, if done without the assistance of the other, should get credit for said payments. So, if the equity would be $10 and one spouse has paid $2 towards the home, then the equity would be $8 to be split equally. There are some other provisions that should be considered including improvements, large repairs, etc.
Third, if one party would like to stay in the home and there is presently equity in it, then an appraisal can be done and the spouse keeping the home could agree to paying a lump sum figure to the party leaving the home. For instance, the party staying in the home could agree to buy-out the other’s interest in the home. This is a clean departure for both parties because it divides the home equitably and leaves no issues to be determined at a later date.
These are small examples of your options, if you are going through a divorce and have a home, it is important to review all of your options and determine your position. In order to better understand all of your options, it is a good idea to speak with an experienced attorney to walk you through the process.

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January 12, 2011

How Does An Affair Affect My Divorce in Florida?

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In Florida, couples do not need a reason for divorce other than their marriage is over. In fact, Florida is a no-fault divorce state which means that even if the actions of one party led to the end of the marriage (an affair), that action is not considered in determining separating assets, debts or determining alimony (spousal support).
In a Florida divorce, the object is to separate marital assets and debts and put the parties in a position that is as fair as possible. Equitable distribution is the term used to divide the marital properties and works to do just that, equally divide the property (assets and debts) between the parties.
However, if one party uses marital money to benefit an affair, then the other spouse is entitled to half of the money used for said affair. For instance, if a wife uses $10,000 to travel with her boyfriend, then the husband is entitled to $5,000 of that money. In a divorce, if there is not $5,000 in cash available, then assets may be divided differently than 50/50 to make-up for the lost money. For example, if the assets total $20,000 then instead of $10,000 to each party, they may be divided so that a greater portion is awarded to the husband to compensate for the $5,000.
The idea is to place the non-offending party in the same position as s/he would have been without the existence of the affair. It is not designed to punish or award either party.
If you are filing for a divorce and are seeking this type of compensation, it is important that it be asked for in the beginning. When you file for divorce you actually file a petition with the court, which should outline what your interests are in the outcome. Typically, the court will default to equitable distribution unless a party requests a greater than 50/50 division. It is a good idea to speak with an experienced lawyer to help you understand your rights and options before filing.

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January 11, 2011

Florida Divorce: Is My Home a Marital Asset?

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Dividing your property when going through a Florida divorce can be challenging because there is marital property and nonmarital property and marital property gets divided equally, Florida Statute 61.075(5)(a)(2). Determining what is marital property and nonmartial property has been a challenge, even for the courts. If you buy a home before the marriage, then technically, it is nonmarital. However, the Florida Supreme Court recently came out with an opinion stating that a nonmarital home, that was under a mortgage during the marriage and now has equity, can be a marital asset. The court laid out the following guidelines for determining whether the home’s equity is marital or not, most of which will be determined through the divorce proceeding:
First, the fair market value of the home must be decided. Basically, what is the home worth in today’s market? Both parties will want appraisals done and sometimes can reach an agreement on this figure.
Second, the court has to decide whether here has been passive appreciation. The court has to determine if the home has gained value because of changes to the market. In today’s market that is probably not the case, but it depends on when the home was purchased.
Third, once a passive appreciation is determined, it must be decided whether that appreciation is marital or nonmarital for purposes of division. In order to show that it is marital, then there has to be proof that marital funds were used to pay for the home. There also has to be a determination as to how much those contributions raised the value of the home.
Fourth, the court must determine what portion of the passive appreciation occurred during the marriage. And finally, fifth, the court must determine how to best divide and allocate the passive appreciation as determined under equitable distribution.
In order to best understand your rights, what should be divided and how, it is best to speak with a Florida divorce attorney.

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January 10, 2011

What is Marital and Nonmarital in Florida Divorces?

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A divorce in Florida can be difficult for both parties. Florida recognizes marital property and debts as jointly owned, regardless which name it is titled in. When couples go through a divorce, the property is to be equitably divided, which can be challenging for the parties because there is uncertainty with where things will go at the end of the process.
What is considered marital? While there are some hiccups in determining this, there are some basic rules to understanding the process. First, marital property is property that was purchased since the date of your marriage. If you were married January 1, 2011 and you purchased a home one January 2, 2011, then that home is marital. Marital assets are the same and include your car(s), boat(s), bank accounts, etc. The court does not care in whose name such things were purchased, simply the date of the purchase. Marital debts are the same and can range from student loans to mortgages.
So, what is nonmarital? Basically, if you purchased something prior to the marriage, it’s yours once the marriage is over. Again, the rule is the date of the marriage and what was purchased, signed for or guaranteed prior to the date of marriage is considered nonmarital.
There, are of course, some rules that go against this idea. An engagement ring typically belongs to the purchaser, not the receiver. Also, a home purchased prior to the marriage, but paid for during the marriage (long-term mortgage) or had improvements made during the marriage, may be considered marital and the equity in it may be divided. In order to better understand your situation, it is best to speak with a Florida divorce attorney to walk you through the process.

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January 7, 2011

How Long Can I Expect A Florida Divorce To Take?

938-010divorce-posters.jpgIn a Jacksonville there is no way to figure out exactly how much time a divorce will take. There are too many variables involved to give a broad estimate. However, a Florida Family Law Attorney can take a look at your situation and give you a better idea based on the facts of your case.

I would estimate that an average divorce with no seriously contested issues will take about 6 months. However, once a divorce is contested it can last for years. Most cases settle after mediation, which is required in Florida divorces at this point, and never go to trial. It's a good idea to have an idea of what your goals are before you meet with an attorney. This will help you pick the type of attorney you want to hire and gauge their personality at your initial consult. Some attorneys are extremely litigious for no apparent reason. Other attorneys are too timid and may let you get pushed around. Make sure your attorney is the right fit for you. Either way, make sure they have common sense and will not cause you unnecessary litigation that will increase your legal bills.

Once you have the right attorney you still have to worry about the other party and their attorney. This is the hard part. You and your attorney can control your side of the litigation, but you can't control the other side. Once again this can lead to excessive costs and legal fees for unnecessary litigation. There are some remedies for this type of behavior in the way of reimbursed attorneys fees and sanctions, but it's easier to avoid this if possible.

Any way you look at it, divorce is not easy. Do your homework before you meet with an attorney, have a game plan in mind, and try to divorce yourself from your emotions when making decisions regarding your case. This will help you make sensible decisions that will ultimately make your life easier once the divorce is over.

Continue reading "How Long Can I Expect A Florida Divorce To Take?" »

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January 5, 2011

"Girls Gone Wild" Founder Ends Seven Week Marriage

s-JOE-FRANCIS-SPLIT-large.jpgJoe Francis, the infamous founder of the "Girls Gone Wild" brand, has announced his split to long-time girlfriend and wife (well not exactly), Christina McLarty, after seven short weeks of marriage. He released the following statement to Us Weekly:

"After careful and thoughtful consideration on both our parts, Christina and I have mutually decided to end our relationship. We entered into our relationship with love and it's with love and kindness that we leave it. We wish each other the best for the future."

The couple was married in November of 2010 after four years together. However, it is not through divorce that the couple will be ending their relationship. "There was no divorce and there will be no divorce because the couple was never legally married," a publicist for Francis told RadarOnline."

The catch is that the two were married during a lavish ceremony in Mexico where the civil ceremony has no legal effect in the United States. Since they never got a marriage license in the United States their marriage in Mexico is not legally recognized. This is one of the details that couples who plan on being married under the laws of the United States must pay close attention to if they want to benefit from the legal benefits of being married.

Of course, if you're looking for a quick marriage, this may be the safest route.

Continue reading ""Girls Gone Wild" Founder Ends Seven Week Marriage" »

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January 4, 2011

Debt Related To Divorce Decree Is Dischargeable

Bankruptcy.jpegOn November 4, 2010 a federal bankruptcy judge in West Virginia ruled that the obligation to pay a former spouse a debt under a divorce decree was dischargeable. In this case the former husband, who later filed for bankruptcy, owed the former wife money for her share of the equity in the marital home, attorney's fees from the dissolution action, costs from the same action, and money owed on a credit card account. The former husband sought to have these debts discharged in a subsequent bankruptcy.

Typically support obligations arising out of a family law case are not dischargeable.

Under 11 U.S.C. sec. 523(a)(5), "[a] discharge under section . . . 1328(b) of this title does not discharge an individual debtor from any debt . . . (5) for a domestic support obligation." The term "domestic support obligation" is defined in the Bankruptcy Code.

In this particular case the Court found that although the debts met three of the four elements under the definition of "domestic support obligations" under the Bankruptcy Code, they did not all meet the fourth requirement that the obligation be in the nature of alimony, maintenance, or support.

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December 28, 2010

Bifurcation In Florida Divorce Proceedings

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In recent news it has been reported that actor Kelsey Grammer is getting divorced from his wife of thirteen years, Camille. A recent development in the case is that the actor has requested a bifurcation of the trial proceedings so he can finalize the divorce as soon as possible and marry his current fiance' Kayte Walsh. It is reported that Kelsey Grammer did not have a prenuptial agreement with his current wife and will probably have to pay her at least $50 million as part of the settlement. The couple spent their marriage in California which is a community property state. This means that the money the couple earned while they were married is to be split evenly. Apparently they earned somewhere in the neighborhood of $100 million dollars during the marriage from his acting career, multiple property deals, and other unknown sources. That money is subject to division according to California's divorce laws.

I have had cases where clients will do the same thing in a Florida divorce. Often times it is for the same reason. I'm usually surprised that someone going through an expensive and litigious divorce would be willing to move so quickly into another marriage. The court, in these types of cases, will maintain jurisdiction to decide the property and support issues after the divorce is finalized. The purpose of the bifurcation is to separate the action into two separate cases so that one may be resolved quicker than the other. Often times there is no dispute that the couple wants the divorce. The more complex issue is who is entitled to what property.

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December 20, 2010

Researcher Says Marriage and Divorce Trends Not So Affected by Economy

marriage%20and%20money.jpgIn an op-ed piece in the New York Times, economic researcher Justin Wolfers says that recent media accounts of how the economy has reduced both marriage and divorce rates is misleading, and that both are pretty much on the same track they have been on the past 30 years.

Noting that marriage and divorce rates have remained “remarkably immune” to the ebb and flow of business cycles, Wolfers said it is misleading to count marriages among people in their 20s and early 30s because the average age of marriage has been increasing since 1970 – it is now 28 for men and 26 for women.

Instead, he says, we need to look at the number of marriage certificates issued to gauge whether or not marriage and divorce rates are decreasing during the recession. For 2009, there were about 2.1 million of them issued in the U.S. – a slight decline since the recession began, but the same rate of decline that has existed for the last three decades.

What has changed most about marriage, says Wolfers, is that it is now based on shared passions instead of economic benefits. Because of easy access to all the perks of modern living – prepared foods, labor-saving technologies and even inexpensive clothing – men and women rely on each other less for the traditional roles of man in the marketplace and woman in the home.

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December 14, 2010

How to Save Money in a Divorce

money%20chained.jpgIf you are about to get a divorce or care about someone who is, there are some ways to make it less expensive that should be greatly appreciated in these trying economic times. Here are some tips on how to save money in a divorce:

Try to work out as much as possible in advance. The more you can agree on prior to involving attorneys, the cheaper it will be for both of you. Try to work out the division of assets and child custody issues so you only need to use your divorce lawyers for the legal stuff. Using your attorneys to argue with each other over who gets what piece of furniture and how you’ll handle holidays is a sure way to run up your legal bills in a hurry.

Get smart on your assets and liabilities. Engage a financial planner to help you make smart economic decisions for your future. Know exactly what and where your assets are, as well as the liabilities that each of you will be responsible for. Use the planner to help you figure out a fair approach to retirement account splits, alimony, etc.

Remember the “law” in “lawyer”. Feeling really upset and want to have a long talk with someone about divorce emotions? Talk to your therapist. Have a financial question? Talk to your planner. Use the lawyers for your legal needs and you’ll save yourself money.

Also, if you are contacting your attorney to find out minor details, like if paperwork has been received or filed, ask your lawyer’s assistant instead of asking to speak with your attorney. Those minutes add up to billable hours. You can also save by making copies of all your paperwork yourself instead of handing it all over to your attorney for copying.

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December 13, 2010

Social Media Agreements Now Part of More Divorce Cases

Facebook.jpgBitter Twitters and Facebook fits are becoming increasingly more common during bitter divorce and child custody disputes, and the idea of social media non-disclosure agreements between warring spouses is beginning to gain traction among divorce attorneys, according to a recent article in Canada’s National Post.

The Post interviewed celebrity divorce attorney Gloria Allred, who noted that the fact cyber-based non-disclosure is being discussed at all is a “2010 phenomenon” and a sign of the times. While most celebrity divorces include non-disclosure agreements, that trend has not yet filtered its way down to the mass divorcing public. However, that may soon change.

Recently, a judge in Canada told a father to “unfriend” his daughter on Facebook so she could not see the unflattering remarks about her mother on his wall page, and to change his password so she would not have access to his Facebook account.

A divorce mediator quoted in the article says it is becoming increasingly common for her clients to discuss their social media habits and make new rules for what they will and will not share with the online world.

Some divorce attorneys have said that while these agreements are not yet legally binding, this may soon change. Those interviewed for the article said that while most couples realize it is in their own best interest not to have their divorce settlements made public, in this age of instantaneous access to social media, it may be time to make explicit agreements ruling online conduct.

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November 29, 2010

Financial Advisers Often Called Upon to Act as Divorce Detectives

maze.jpgA recent Reuters article focused on the use of financial advisers by divorce attorneys to help their clients discover hidden assets through the analysis of financial information.
Lili Vasileff, president of the Association of Divorce Financial Planners, gave the following tips for finding hidden assets:

Tax returns – examine the interest income schedules to ensure that all the accounts listed there are also listed on the net worth statement that divorcing spouses must fill out listing all their assets. You should also compare mortgage interest and real estate taxes listed on the return with the real estate listed on the net worth statement.

Loan applications – check loan and credit card applications to compare the assets listed.

Bank and brokerage accounts – check these for any large transfers or withdrawals, and track where the money went. If it went to a family member or close friend, it may be an attempt to hide cash.

W-2 – examine annual W-2 forms from previous years to be sure that a bonus is not being withheld for the asset calculation.

Business – if a spouse owns a business, it can make it easier to hide assets. Expenses can be inflated to reduce income. Investments in things like art can be written off as a business expense to reduce the income available to split.

Advisers are also cautioned to be wary if they uncover "hidden" assets too easily. One divorce attorney noted, "The best way to hide $1 million well is to hide a quarter of a million dollars badly."

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November 28, 2010

Wiretapping and Divorce: Is It Legal?

Communication.jpgThe wild rants of celebrities like Mel Gibson and Alec Baldwin that were released to online sources and are now available to anyone may be tempting for spouses involved in a bitter divorce or custody dispute to emulate except for one big problem: it’s against the law.

Using a voice recorder to tape your ex’s rants as leverage or evidence in a divorce or child custody suit may be enticing, but it is also illegal and could do more harm than good to your own case.

In Florida, all parties must consent both to the recording and the disclosure of any wire, oral or electronic communication. If you record, disclose or try to disclose any of these types of communication, you could be charged with a felony, unless it is your first offense committed without any illegal purpose or commercial gain. In addition, the person you recorded without consent can sue you for damages.

If your spouse is harassing you or making derogatory comments about you routinely to your children, you can ask your divorce attorney to petition the court to allow both of you to record phone conversations, which can then be used as evidence in a child custody dispute.

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November 27, 2010

How to Make Smart Divorce Financial Decisions

concept%20of%20divorce.jpgGetting a divorce is bad enough emotionally without having to suffer unnecessarily when it comes to your finances. Here are some tips for making smart divorce financial decisions:

Count all your assets. In preparation for a divorce, you both will need to make an itemized list of all your assets. These should include both individual and joint assets, and cover what you have now as well as what you may expect in the future from inheritances, gifts, insurance policies, etc. Working with a financial professional like a certified divorce financial analyst can help you not only uncover all your assets but also project what you will likely need to live on in the future so you can negotiate for it in your divorce settlement.

Close joint accounts. First, be sure to check with your divorce attorney on when to close accounts so it doesn’t have an adverse impact on your case. If possible, divide the joint accounts equitably and open individual accounts.

Consider tax consequences. Consult with your CPA as soon as a divorce is imminent so you understand all the potential tax consequences to dividing IRAs, 401(k)s and other assets. Make sure you know what your tax liabilities are not only for now but for the future as well.

Protect future support payments. If you are awarded alimony and child support and your ex dies, those payments will stop. It is a common practice to negotiate for a life insurance policy on your ex as part of your divorce settlement, to ensure you will continue to get paid even if your ex is no longer around to make those payments.

Review beneficiary designations. Be sure that your ex is no longer listed as the primary beneficiary on any of your insurance, investment or retirement accounts. If your ex is a beneficiary of your parents’ will or trust, be sure they make those changes as well.

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November 25, 2010

Lack of Intimacy Cited as Reason for Over-50 Divorce

older%20couple.jpgA survey among 1,900 UK residents who divorced after the age of 50 found that a lack of intimacy was the main reason for their split. What differed between men and women was how they defined intimacy – one-third of men say their marriage ended because their partner was no longer interested in sex, while 28 percent of the women surveyed said they divorced because their partners became emotionally cold.

The survey also found that 14 percent say that nagging was responsible for their divorce, and 10 percent said they no longer had anything in common with their partners. Five percent of those surveyed said they had waited until later in life to divorce because of their children.

Researchers said they believe that older couples divorce for different reasons than younger couples. Once their children have left home and they are nearing the age of retirement, intimacy becomes a more important attribute in their choice of partner for their later years. In addition, women begin to see more opportunities for themselves that may not have been there when they were first married or occupied with raising children.

Relationship experts said that couples over 50 need to work harder at rebuilding their relationships after the children have left home to minimize the risk of divorce.

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November 24, 2010

Jacksonville #9 on List of America’s 50 Divorce Capitals

jacksonville%20skyline.jpgJacksonville has ranked #9 on a list of America’s Top 50 Divorce Capitals compiled by The Daily Beast, and another Florida city – Panama City – ranks #1.

The Daily Beast looked at 2009 divorce statistics, including the number of divorces and the percentage of the population in each city that was currently divorced. Four cities in Florida made the top 10 – Panama City, Deltona, Palm Bay and Jacksonville – and 11 Florida cities made the top 50.

Jacksonville’s divorced population stands at 13 percent, with 4.7 percent of the population obtaining a divorce in 2009. In Panama City, 15.5 percent of the population is divorced, and 4.3 percent got a divorce in 2009.

One Florida marriage counselor says that he believes that Florida’s lenient divorce laws and bad economy contribute to a higher rate of divorce in the state. Dr. Joel Prather told Panama City television station WJHG, “People come to the state of Florida for opportunity, for jobs or to get away from their past life. I have people come in frequently to see me who have moved here and are trying to fix their marriage and they think moving here for some reasons going to help."

However, he noted that the reality is that marital problems follow you wherever you go, so although troubled couples may move to Florida to “fix” the marriage, they often wind up ending it here instead.

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November 22, 2010

The Divorce Process in Florida

concept%20of%20divorce.jpgIn Florida, anyone who wants to divorce must have been a resident of the state for at least six months and wait for a period of 20 days before a final judgment can be entered. A roadmap of the Florida divorce process includes:

Gathering financial information. Pull together all recent tax returns, bank statements, retirement accounts and other important business documents. These will be used for making property division and support decisions.

Discussing property division. Try to hash this out with your spouse early on if possible. Even if you cannot come to an agreement, you will have a better understanding of what your spouse’s position is regarding the division of marital property.

Filing a petition for divorce. Even if the decision to divorce is mutual, only one spouse files a petition for divorce.

Do you have minor children? If so, then a temporary order of child support and child custody will be filed.

Proof of service. The spouse who filed for divorce files a statement that the other spouse has received the petition for divorce.

Response to the petition. This is filed by the other spouse, and can address a number of divorce-related issues including a dispute of the divorce, setting forth a defense against any of the statements in the original petition, child custody, child support, spousal support, and more.

Negotiation. Except in cases of abuse, it is usually best for both spouses if their divorce can be settled via mediation, arbitration or collaborative divorce.

Trial. If issues cannot be resolved through negotiation, then the case goes to trial.

Order of Dissolution. The Order of Dissolution details the court’s decisions regarding alimony, child support, child custody, visitation, property division, etc. A judge finalizes the divorce after both parties have agreed on the final order.

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November 20, 2010

Baseball Star’s Wife Accuses Him Of Exposing Her to HIV in Divorce Suit

concept%20of%20divorce.jpgThe wife of former baseball star Roberto Alomar has filed for divorce in Tampa and accuses him of knowingly exposing her to the AIDS virus.

According to a Florida divorce court filing, Maripily Rivera Alomar says that Alomar had unprotected sex with her even though he knew he was HIV-positive, and lied to her about having tested negative for sexually transmitted diseases prior to their first sexual contact.

This is the second time Alomar has been accused of exposing a partner to HIV. He was sued by a former girlfriend last year who claimed that Alomar had AIDS but encouraged her to have unprotected sex with him. The case was settled in May. At the time of the suit, Maripily Rivera was his girlfriend and defended him vigorously, saying that the story of Alomar’s AIDS diagnosis was “a vile lie.”

Her Florida divorce filing says that after they were married in 2009, she discovered that he was HIV-positive. Her filing says she would not have married him if she had known he was HIV-positive.

The filing also notes that while Maripily has not yet been infected with HIV, “uncertainty still exists due to the delay in the onset of the virus.”

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November 19, 2010

Familiarity Breeds Contempt: Long-Married Couples Know Less About Each Other

OldLoveNewlove.jpgA joint study of long-lasting marriages by researchers at the University of Basel (Switzerland) and Indiana University has found that couples wed for an average of 40 years know less about each other’s preferences when it comes to food, design and entertainment than those who have been married for only a few years.

The researchers studied two sets of married couples – one aged 19-32 and another aged 62-78. They said that the findings -- that accuracy in predicting each other’s preferences decreases over the course of a long relationship – were unexpected.

“That wasn’t what we expected to find, but this evidence lends support to a hypothesis that accuracy in predicting each other’s preferences decreases over the course of a relationship despite greater time and opportunity to learn about each other’s likes and dislikes,” said Peter Todd, a psychologist at Indiana University and one of the authors of the study which will appear in the Journal of Consumer Psychology.

The researchers believe that the knowledge decline among older couples happens because they pay less attention to each other – mostly because they are comfortable in their relationships, view themselves as already fully committed or may assume they have nothing more to learn about each other.

If you would like to learn about obtaining a Florida divorce, contact our Jacksonville family law firm.

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November 18, 2010

Florida Divorce: Can Hiring a Shark Come Back to Bite You?

shark.jpgMany clients looking for a Florida divorce attorney equate being good with being mean. They want a shark, a bulldog, a nasty SOB who will take their husband to the cleaners or ensure the wife gets nothing.

But does that really work in the long run?

First, most divorce lawyers worth their salt will tell you that you want to do whatever you can to avoid an acrimonious divorce, especially if there are children involved. If you have children, you will be tied to your former spouse for as long as you both are living. You can avoid as much contact with the other person as possible, but they will never be totally out of your life. Do you want someone who hates you to be sharing that energy with you forever?

Being nasty also takes time and money. Fees for attorneys who send out complaint letters, file petitions, conduct depositions and other various legal maneuvers can really pile up over time. That in turn usually leads to the other party engaging in the same actions, requiring more reaction from your side. Is this something you can afford?

When entering a divorce action, you should give careful thought to your overall objective in going through this painful process. You should list your financial goals, your wishes for child custody and visitation rights, the dispensation of your property and other financial assets and communicate those wishes clearly to your Florida divorce attorney.

You can rightly expect your divorce lawyer to be aggressive in protecting your rights when necessary. But looking for a shark just for the purpose of inflicting pain may bite you in the long run.

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November 17, 2010

Can You Afford a Florida Divorce?

money%20chained.jpgWhile money issues continue to be a leading reason couples divorce, in these tough economic times, divorce rates are actually declining.

Simply put, many people say they just can’t afford to get divorced.

Like any legal proceeding, divorce takes planning. While it may be hard emotionally to delay a divorce action, it may actually provide you with the necessary time you need to fully prepare yourself and your family for divorce, both financially and emotionally.

Here are some tips for divorce planning:

Get your financial paperwork in order. Organize bills, bank statements, mortgage statements, investment portfolios, IRAs and other financial documents to get a true picture of your financial condition.

Budget for your divorce. Determine what you are currently spending and break it out into “essentials” and “nonessentials”. Then cut that it half to see what you are likely to need for living expenses once a divorce is finalized. You will then be able to see how much you need to save or make plans for increasing income or decreasing spending.

Reduce your debt. By reducing your credit card debt now, you’ll be in a better financial position once your divorce is final.

Save. Financial experts are currently recommending at least a nine-month “cushion” of savings to see you through any emergencies or reversals like job loss, etc.

Going through a divorce is one of the most traumatic events in anyone’s life, but foresight and planning – and consulting with a Jacksonville divorce attorney -- can ease the pain for all involved.

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November 15, 2010

Florida Divorce Law: Tax Time Rolls Around Again

tax-income.jpgIf you’ve gone through a divorce in 2010, tax time will take on an entirely new meaning for you. You want to be sure you take all the deductions you’re entitled to (and that were set forth in your divorce decree, if dependent children were involved) and that you’re following all the rules.

If you were married or divorced recently, there are a couple of things you’ll want to do to ensure the name on your tax return matches the name registered with the Social Security Administration.

Here are tips from the IRS for recently married or divorced taxpayers. Following these steps will help avoid problems when you file your tax return:

If you took your spouse’s last name or if both spouses hyphenate their last names, you may run into complications if you don’t notify the Social Security Administration. When newlyweds file a tax return using their new last names, IRS computers can’t match the new name with their Social Security Number.


If you were recently divorced and changed back to your previous last name, you’ll also need to notify the SSA of this name change.


Informing the SSA of a name change is simple; you’ll just need to file a Form SS-5, Application for a Social Security Card at your local SSA office.
 Form SS-5 is available on SSA’s Web site at www.socialsecurity.gov, by calling 800-772-1213 or at local offices. It usually takes about two weeks to have the change verified.


If you adopted your spouse’s children after getting married, you’ll want to make sure the children have a Social Security number (SSN). Taxpayers must provide a SSN for each dependent claimed on a tax return.

For adopted children without SSNs, the parents can apply for an Adoption Taxpayer Identification Number – or ATIN – by filing Form W-7A, Application for Taxpayer Identification Number for Pending U.S. Adoptions with the IRS. The ATIN is a temporary number used in place of a SSN on the tax return. The W-7A is available on IRS.gov, or by calling 800-TAX-FORM (800-829-3676).

For more 2010 tax tips, click here.

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November 14, 2010

How to Hire a Good Florida Divorce Lawyer

Telescope.jpgBefore beginning – or replying to – any divorce action, people want to know how to find a good divorce lawyer. Rather than just hitting the Yellow Pages, you should consider asking friends or family members who’ve gone through a divorce to make recommendations, do some online research of divorce attorneys in your area and arrange to meet with several different divorce lawyers to see who would be the right fit for you and your circumstances.

As a general rule, you want to find a divorce lawyer who is:

A good listener – someone you can speak with frankly and confidentially and feel you can trust. Someone who returns your calls and keeps you up to date on your case.

A good problem-solver – someone who is willing to negotiate when it makes sense for you and who can structure a well-thought-out strategy for your case.

A good communicator – someone who keeps you informed every step of the way and encourages your involvement in your own case.

An experienced divorce attorney – someone who has a good track record in family law, who is respected by other attorneys and judges.

Divorce is a tough process – be sure you have the right partner going in, and you’ll fare better coming out.

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November 12, 2010

Health Insurance a Concern in Divorce After 50

HealthInsurance.jpgFor those over the age of 50 going through a divorce – and those numbers are rising for this age group – healthcare is one of the largest concerns they have about moving forward. Many spouses who may have been covered under their soon-to-be ex’s company insurance plan may be worried that they will be left without health insurance after the divorce.

Here are some tips and information on healthcare coverage for divorcing couples:

Start shopping. If you will be responsible for your own healthcare coverage after the divorce, start shopping for coverage as soon as possible. There are many, many different options available and you should take the time to study and understand them before making a choice. You may also want to contact an independent insurance agent to do some of this legwork for you. Having someone who is knowledgeable about the industry and plan options to discuss deductibles and the kind of coverage you want can be comforting.

COBRA. If you have been covered under your spouse’s employer, you are eligible for up to three years of coverage if you agree to pay the premiums. This is often the best and least expensive option for newly divorced spouses. You will need to contact the plan administrator at least 60 days prior to the finalization of your divorce that you will need COBRA coverage.

You may also want to take advantage of tax-deductible Health Savings Accounts to cover medical expenses (not insurance) if you have a high deductible insurance policy.

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November 10, 2010

Florida Divorce: Division of Marital Debt

Cut%20up%20credit%20cards.jpgThe sad reality in today’s economic environment is that divorcing spouses are increasingly more concerned about dividing debts rather than assets. Under Florida law, both assets and liabilities must be divided equitably – which does not necessarily mean that you will split them equally, but that the court will endeavor to split them fairly so that one spouse does not suffer more financial harm following the divorce.

During your marriage, if you have opened credit card accounts in both your names, or added your spouse to what was previously an individual account, then you are still both liable for the debt. In this case, the court will usually split the debt as equitably as possible – perhaps assigning different accounts to each spouse, as long as the total is fairly equal.

However, what most people do not realize is that a court order does not supersede the right of a creditor to pursue a judgment against both parties if the one responsible for paying the debt as the result of a divorce defaults. The fact is that both spouses are still liable for the debt. In the case where one spouse cannot pay, a creditor has the right to pursue the other spouse for the debt.

Usually, the only way to discharge the debt if you cannot pay is to file bankruptcy. But if only one spouse files, the creditor can still pursue the other for the debt. In that case, it may be financially prudent for both spouses to file bankruptcy in order to discharge all marital debt they are unable to pay.

If you have questions regarding marital debt, contact a Jacksonville divorce attorney.

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November 7, 2010

The Difference Between Annulment and Divorce

concept%20of%20divorce.jpgPutting it simply, a divorce dissolves the bond of marriage and an annulment is as if the marriage never happened.

The state of Florida recognizes annulments, but they are governed not by state law, but by case law. Annulments are exceedingly rare, especially these days – they are most common for religious reasons.

In Florida, there are two ways to be granted an annulment. You must show that the marriage was either void (one of the spouses was married to someone else) or voidable, which is the more common scenario.

To prove a voidable marriage, you must prove to the court that your marriage is invalid for one of these reasons:

Fraud or deceit – someone lied about something important, like their identity, and the other partner married them based upon that lie.

Duress and undue influence – someone was coerced into marriage by threat or coercion.

Consanguinity – marrying a close blood relation.

Impotence – the inability to have children that was not revealed until after the marriage.

If the marriage was consummated by having sexual relations after learning it was voidable, then an annulment claiming a voidable marriage is not possible.

Because annulments are rare and not governed by Florida law, they usually require more work than a divorce. You should consult with a Florida family law attorney to determine if your marriage qualifies for an annulment, or if you must pursue a divorce instead.

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November 5, 2010

When Custody is a Dog Fight

beagle%20crop.jpgIn today’s society, pets are often considered members of the family, almost like children – and like children of divorce, they are increasingly becoming involved in custody disputes.

Currently, under the law, pets are considered property. However, the California-based Animal Legal Defense Fund wants to change that. On its Animal Bill of Rights petition to the U.S. Congress, it promotes the need for federal legislation to protect animal rights, including in court:

Petition to the United States Congress

I, the undersigned American citizen, believe that animals, like all sentient beings, are entitled to basic legal rights in our society. Deprived of legal protection, animals are defenseless against exploitation and abuse by humans. As no such rights now exist, I urge you to pass legislation in support of the following basic rights for animals:

The Right of animals to be free from exploitation, cruelty, neglect, and abuse.

The Right of laboratory animals not to be used in cruel or unnecessary experiments.

The Right of farm animals to an environment that satisfies their basic physical and psychological needs.

The Right of companion animals to a healthy diet, protective shelter, and adequate medical care.

The Right of wildlife to a natural habitat, ecologically sufficient to a normal existence and self-sustaining species population.

The Right of animals to have their interests represented in court and safeguarded by the law of the land.

Even though pets are still classified legally as property in Florida, many courts are beginning to find that pets should be treated differently than other marital property and rulings on custody should be based on what is best for the animal.

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November 4, 2010

Questions to Ask a Florida Divorce Lawyer

question%20mark%20in%20front%20of%20face.jpgIf you’re a Florida resident who is seeking a divorce, there are some important questions you should be asking the divorce lawyers you interview. Yes, interview. You should interview Florida divorce attorneys to determine who would best represent you – someone who will handle your case like you want it handled and can get you a fair settlement at a fair price.

These questions should help you learn about whom you are hiring:

1. How many divorce cases does your firm handle each year?
2. How many of those cases go to trial?
3. How many of those cases center on (whatever your biggest issue is – custody, alimony, etc.)?
4. Who will be working on my case, specifically? What are their billing rates?
5. What is the experience level of the people assisting you with my case?
6. Who do I call when I have questions?
7. How do you keep me informed about developments in my case?
8. Will you personally be handling court appearances?
9. What is your hourly rate and is it the same for court appearances and trial work?
10. Exactly how and what do you bill for? Can we collect your fees from my spouse?
11. What hours are you in the office? Do you have any big trials coming up?
12. How much input will I have in determining the strategy for my case?

The Florida divorce lawyer you choose should have no difficulty answering these and any other reasonable question you may have about your case.

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October 27, 2010

Dodger Divorce Mediation Fails for Second Time

LA%20dodgers%20logo.pngA second round of mediation brought Los Angeles Dodgers owners Frank and Jamie McCourt no closer to an agreement in their divorce, and no further talks are scheduled, according to a Los Angeles Times article.

With no settlement in sight, a judge has until Dec. 28 to rule on whether or not a 2004 agreement that makes Frank McCourt the sole owner of the MLB team is valid, or if it should be nullified, which would make the team community property.

The high profile trial was held last month to determine the ownership of the team, currently valued at more than $1 billion, as part of the McCourt’s divorce action. The 2004 agreement is in contention because the couple had drawn up a revised marital agreement in 2008 that would have made them joint owners in the team. However, Frank McCourt never signed the revised agreement.

Frank’s attorneys have notified the court that if the judge throws out the 2004 agreement, they plan to seek a second trial to argue that the team is his sole property because he purchased them through a company he established prior to the marriage.

Attorneys have estimated that if Frank prevails, Jamie’s share of their community property would add up to “only” $70 million.

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October 26, 2010

How to Keep Your Good Credit During a Divorce

Cut%20up%20credit%20cards.jpgOne of the major reasons couples divorce is money, and it is usually because one spouse has better spending and saving habits than the other. If you want to protect your credit during a divorce, here are some tips:

Check your credit scores. As soon as possible, pull individual credit reports on both you and your spouse from Experian, Equifax or Transunion. Check to see if there are any debts you are unaware of or that have been neglected.

Close joint accounts. Do this prior to divorce proceedings, especially if you think a vindictive spouse may incur more debt in order to punish you. You are both responsible for joint account debts until the divorce is final.

Open individual accounts. Turn existing joint accounts into individual accounts so you will not have to re-establish your credit following a divorce.

Communicate with creditors. Let creditors know that a divorce is pending, and advise them in a timely fashion about any address change. If possible, include the settlement of joint debts in your divorce agreement so you can have a fresh start.

Pay bills on time. Do not skip a payment because you believe your soon-to-be ex is responsible for it. It will go on your credit report and adversely affect your rating.

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October 25, 2010

Florida Divorce: What You Need to Know About Your Insurance Policies

concept%20of%20divorce.jpgThe Insurance Information Institute has provided guidance on what to do with your insurance policies if you are headed for a separation or divorce:

Auto insurance – if there is a change in ownership of a vehicle, it will also be necessary to change who holds the insurance policy. You can protect yourself against liability by removing a former spouse from your policy in case he or she gets into an accident. If you have a multi-car discount, this will probably result in an increase in your auto insurance rate.

Homeowners insurance – the homeowner’s policy should be in the name of whoever stays in the home. You should also review the policy to ensure it covers the cost of rebuilding your home in case it is destroyed. If you are now living on a smaller income, you may want to raise your deductible amount so you have smaller payments. If you are moving out of the house and renting an apartment, you will need to get renters insurance to cover yourself for loss or damage.

Life insurance – if you already have a life insurance policy that names your spouse as primary beneficiary, you need to revisit it in light of your new circumstances. If you have to pay alimony, a life insurance policy is usually part of a divorce settlement, so that payments can continue even if you are no longer around to make them.

Disability insurance – if a person is supplying alimony or child support, consideration should be given to having a disability insurance policy to cover them in the event they can no longer work.

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October 23, 2010

How the Recession is Affecting Divorce

broke.jpgDivorce has declined over the past couple of years, due in large part to the recession and the adverse financial impact the bad economy has had on home value, prices and savings accounts. Couples who have found it hard to make ends meet for one household may find it virtually impossible to support two different homes. The ability to refinance a mortgage is also much more difficult, and selling a home in Florida’s dismal housing market is usually not a viable choice either.

So what is a couple that wants to divorce to do?

Financial experts suggest that planning ahead and being practical about financial divorce settlements is a must. Divorcing couples may need to either delay the divorce until the economy improves or agree to share in the losses that may be incurred with a financial settlement in a depressed economy.

If a couple is able to hold on to their assets until the economy improves, or split them in a way that will maintain their value, they should seek this type of solution. Cutting expenses to the bone will likely become a necessity for many couples seeking to divorce in a recession as well. Basically, financial experts agree that this may be a time to make decisions based on financial rather than emotional needs.

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October 20, 2010

Divorce Records Used in Political Races

DivorceBattle.jpgDivorce records have been used against political candidates by their opponents in Kentucky and Georgia as the election mud-slinging kicks into high gear just weeks before the election.

In Kentucky, Re. Lincoln Davis, who is seeking his fifth term in Congress, is running television commercials about the alleged violent behavior of his opponent, Dr. Scott DesJarlais, from his 10-year-old divorce case. The attorney for DesJarlais’ ex-wife alleged that the doctor “became violent and threatening, dry firing a gun outside the locked bedroom door” and “holding a gun in his mouth for three hours.” DeJarlais denied the incidents ever took place, saying the allegations “were never proven and are simply false.”

In Georgia, a judge will rule on Oct. 26 about whether or not the 2001 divorce records of Republican Austin Scott, who is running against Democratic incumbent Jim Marshall for the state’s 8th Congressional District seat, will be made public. A Democratic activist and blogger filed a motion to get the records unsealed amid rumors that Scott’s divorce files contain allegations of domestic violence and a restraining order.

Scott, who is vigorously opposing making the divorce records public, has said he will not discuss his 2001 divorce and alleges that the effort to get the records unsealed is a political dirty trick by his opponent, who is the incumbent in the Congressional race.

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October 18, 2010

Florida Divorce: What to Do With the House

life%20preserver.jpgWith so many Florida homeowners underwater on their mortgages, many divorcing couples that want to sell their house are wondering if it is even possible. Mortgage experts say that there are several things to consider when deciding what to do with the marital home in the event of a divorce:

Consider staying put. See if one of you can afford to stay in the home, at least until the housing market improves. If one of you can afford to stay, and you can refinance the mortgage in your name alone, be sure that the other spouse is removed from the deed as soon as the divorce is final.

Sell. If you have to sell, the good news is that Florida homes sales are on the rise, with an increasing influx of foreign buyers. Engage a real estate agent as quickly as possible to get your home on the market.

Short Sale. If you have been unable to sell the home and cannot afford your payments, talk to your lender about a short sale, where the lender agrees to sell the house for less than the mortgage. It is important for you to speak with an attorney to be sure the lender releases you from any obligation for loss on the home.

Avoid Foreclosure. You and your ex should not try to just walk away from your mortgage obligation. Talk to a foreclosure defense attorney first before taking action.

Bankruptcy. Filing for bankruptcy could be an option for divorcing couples that cannot afford their mortgage and cannot get approval for a short sale. Speak with a Florida bankruptcy attorney about how to proceed.

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October 16, 2010

Facebook Used as Evidence in Divorce Proceedings

comp%20evidence.jpg

Social networking sites such as Facebook, MySpace and Twitter are becoming increasingly popular. However, one area of unexpected popularity is in the courtroom. An article published by USA Today discussed how sharing too much information on social networks has led to an overabundance of evidence in divorce cases. A survey revealed that 66% of lawyers cited Facebook indiscretions as the source of online evidence; MySpace followed with 15% and Twitter with 5%. The categories of evidence are expansive, from pictures of spouses cheating to a father forcing his son to de-friend mom, which would bolster mom’s alienation of affection claim against dad.

Some attorneys, without revealing the names of clients and violating the attorney-client privilege, gave examples of instances when social networks were cited as evidence:

1. While a husband was seeking primary custody of his children, husband also had a Match.com profile claiming his was single with no children.
2. Father seeks primary custody of his children, claiming the mother never attends the events of their children. Evidence was subpoenaed from the gaming site World of Warcraft, which revealed the mother on the site with her boyfriend at times when she was suppose to be out with her children. The same was revealed by Facebook’s Farmville.
3. A mother denies allegations of drug use in court but posts pictures of herself on Facebook partying and smoking marijuana.


Attorneys offered tips on how to ensure online personal lives do not end up in divorce court:

1. If you plan on claiming something in court, make sure there is nothing online that shows something to the contrary.
2. Be wary of who you confide in. A divorce can be very emotionally challenging and the desire to talk badly about your spouse is high. However, friends are likely to take sides during a couple’s divorce. The reality of it is, if you are going through a divorce that is the worst possible time to share your feelings online.
3. A picture is worth a thousand words. Do not post partying or sexually explicit photographs of yourself during a contentious divorce – the photos are great evidence.
4. Use your privacy settings.

To read more on this article see Social networks used as evidence in court.

Contact Wood, Atter & Wolf P.A. for legal representation in your divorce.

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October 14, 2010

Woman Receives $250,000 Settlement 18 Years After Ex-Husband’s Death

gavel%20and%20wedding%20rings.jpgTwenty years after her divorce – and 18 years after her ex-husband’s death – a Canadian woman has received a legal settlement for over $250,000 in a lawsuit stemming from her original divorce.

When Julie Ladner was divorced from Vancouver attorney Hugh Ladner in 1990, her ex-husband was ordered by the court to maintain a $400,000 life insurance policy to cover court-ordered spousal support of $2,340 per month for her lifetime. However, Hugh Ladner never obtained the insurance policy, and when he died from drowning in 1992, she was left without alimony.

Julie Ladner later sued her ex-husband’s estate for breach of contract, but was unable to recover the full amount because the estate was insolvent by the time she filed suit. She eventually received a $165,000 settlement from the estate.

Ladner then sued the law firm that handled her case, alleging that her attorney was negligent for failing to pursue an alternative trust claim that would have provided her with priority over other creditors for her husband’s estate.

A British Columbia Supreme Court Justice found that her divorce attorney was negligent, and she was awarded damages of over $250,000 for her negligence claim.

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October 13, 2010

Florida Supreme Court Rules That Passive Appreciation A Marital Asset