Alimony

August 23, 2011

Military Divorces – Child Support and Alimony

Marriages have unfortunately become one of the many casualties of war and deployment. For members of the military based in Florida, it is not unusual for spouses and families to be separated for extended amounts of time. The transition back home can cause strains on both marriages and family relationships. Although there are the same grounds for a military divorce as there is for any divorce proceedings in Florida (either your marriage is irretrievably broken or your spouse is mentally incapacitated), other issues in a military divorce may differ from a civilian divorce.

Just like members of the general public, military service members still have an obligation to provide support to their children. However, enforcing these obligations can become more complicated when a parent is a member of the military. Military spouses often encounter two major issues related to child support agreements: (1) Military members receive various forms of special pay, and former spouses may be unsure how much is entitled to for child support, and (2) It may be difficult to enforce a child support agreement if a military member is not making payments. If a former spouse is not paying their child support then it is possible to seek a garnishment of wages or involuntary allotment order to protect your child’s rights to support.

Federal laws govern the rights and obligations of both military members and their spouses in the event of a divorce. The Uniformed Services Former Spouse Protection Act governs the issue of determining spousal support, among other complex issues in a military divorce. An experienced Jacksonville military divorce attorney can help explain your right and responsibilities regarding spousal support and the USFSPA.

August 19, 2011

Florida Family Law and Military Servicemen and Servicewomen

By Erlinger Family Law

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.

August 12, 2011

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

By Erlinger Family Law

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.

August 8, 2011

Getting “Back on your Feet” After a Divorce

By Erlinger Family Law

Slowly, Florida court ruling as to permanent alimony have changed over time. Today, alimony can still be awarded to men and women permanently, but it also serves to “get people back on their feet” after a divorce. Florida courts will consider a variety of factors when awarding alimony that include: the length of the marriage, the standard of living the spouses enjoyed during the marriage, each spouse’s age, each spouse’s physical and mental health and each spouse’s income or ability to earn an income. However, alimony is basically dependent upon the paying spouse’s ability to pay and the receiving spouse’s need for support.

Florida permits courts to award “rehabilitative alimony.” Rehabilitative alimony was first established in a 1983 Florida divorce action. The court’s opinion stated that rehabilitative alimony could be awarded temporarily in order to allow the financially weaker spouse to “obtain new skills, education and/or other rehabilitation.”

Florida Statute 61.08 allows a court to award rehabilitative alimony 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. In order to receive rehabilitative alimony, there must be a specific and defined rehabilitative plan which should be included in any court order. An award of rehabilitative alimony may be modified or terminated based upon noncompliance with the rehabilitative plan or upon completion of the rehabilitative plan. In addition, it may also be terminated based upon a substantial change in circumstances.

August 4, 2011

Are You Entitled to Alimony in a Florida Divorce?

By Erlinger Family Law

Under Florida law in a proceeding for dissolution of marriage, the court may grant alimony to either party. Alimony (also called maintenance or spousal support) is a legal obligation to provide financial support to one’s spouse from the other spouse after marital separation or from the ex-spouse upon divorce. In determining whether to award alimony, the court will first make a factual determination as to whether either party has an actual need for alimony and whether either party has the ability to pay alimony. If the court finds that alimony is appropriate, the court may grant the following types of alimony: bridge-the-gap, rehabilitative, durational, or permanent in nature, or any combination of these forms.

Bridge-the-gap alimony is meant to cover a short-term need as the recipient transitions to single life. The length of the award is limited to two years and it cannot be modified for any reason.

Rehabilitative alimony is intended to help support a spouse to allow him/her to renew old skills or gain new skills leading to self-support. It is intended to be short-term which enables a spouse to get back on their feet. This type of alimony is usually awarded to enable the spouse to go back to school or to acquire needed skills that would allow the spouse to be competitive in the job market.

July 29, 2011

My Florida Divorce and Death Benefits

By Erlinger Family Law

The 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.

July 20, 2011

Florida Alimony and Child Support Must Be Determined Separately

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

Child support and alimony laws of Florida often go hand-in-hand. In Florida, child support is calculated based on the income of both parties. In Florida, alimony is considered income to the party receiving the funds, including the person having to pay taxes on the alimony. As such, Florida requires that alimony be determined separately from child support and the order reflect said division to be certain that child support is properly calculated.

June 28, 2011

Alimony Needed In My Florida Divorce

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

Florida divorce law allows for a spouse to be awarded spousal support/alimony, if the court finds that the requesting party has a need for support and if the other party has the ability to pay alimony. Both tests are important in determining spousal support because the goal of the court is to make the parties whole, not to make one party whole while the other lives a destitute life. In addition to determining the need and ability to pay, the court must determine how long spousal support is necessary or allowed under the Florida alimony statute.

June 23, 2011

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

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

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

June 17, 2011

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

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

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