Articles Posted in Divorce / Dissolution of Marriage

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Fla Stat. §61.08(4) provides statutory guidelines for Florida courts to consider when evaluating importance of the duration of a marriage as a factor for alimony consideration.  In order to categorize the duration of marriages, courts look from the date the marriage began until the date one of the spouses filed for dissolution of marriage. According to the statute, short term marriages are marriages under seven (7) years, and long term marriages are all marriages that last longer than seventeen (17) years.  However, there is a “gray area” in the 10-year gap between these years. The marriages falling between the seven (7) to seventeen (17) year marriage lengths are known as marriages of “moderate duration.”

Categorizing the duration of a marriage is important. The court looks to a multitude of factors, found in Fla. Stat. §61.08 (2)(a-j), when considering the amount and the duration of an alimony award. A marriage categorized as a marriage of moderate duration is particularly important when considering an award of permanent alimony.

If a marriage is a long term marriage, as defined in the statutes, the marriage has with it a presumption in favor of a permanent alimony award. If after the court considers all other alimony factors and finds that no other alimony type would be proper, permanent alimony can be awarded. Whereas, a short term marriage would absolutely not have that same presumption. For a permanent alimony award in a short term marriage the court would have to find that exceptional circumstances exist to support such an award. Whereas, a moderate term marriage is open to a permanent alimony award also, but a higher standard of proof is necessary when awarding permanent alimony in cases of moderate duration marriages. Clear and convincing evidence as to the alimony factors must be presented to the court to prove  that the receiving spouse is entitled to alimony.

Florida is a no-fault divorce state. What this means is that the Florida court judges do not need to hear testimony or be shown evidence to support that one party caused the breakdown of the marriage or that the breakdown of the marriage occurred as a result of certain indiscretions, such as adultery, in order to grant a divorce. While Florida may be a no-fault state, the courts must still find that a marriage is “irretrievably broken” or that a mental incapacity has existed for a period of three years, Florida Statutes 61.052, before a divorce will be granted. Often times parties move for the grounds of irretrievably broken to seek their divorce. While the assumption can be made that anyone who goes through the tiring divorce process must being doing so because the marriage is irretrievably broken, the court must still be presented with evidence to support the status of the marriage as broken.

Parties are often surprised to discover that even in instances where they have agreed upon the terms of their divorce, filed a petition, sought legal counsel, drafted parenting plans, taken the parenting course, and agreed upon property division the judge is still able to reserve on granting the divorce until a later date, order counseling, or if minor children are of the marriage the judge may issue an order in their best interests if the judge sees fit. The judge can order the previously mentioned results in instances when one party responds to the petition that the marriage is not irretrievably broken, or in any instances when the marriage involves minor children. While this may not be the result divorcing parties desire this allows the courts to attempt at giving the parties another opportunity to reconcile for the benefit of themselves and/or the minor children. While reconciliation may not be in the best interest for the parties and the children in all instances the reservation of this power allows for an outside party to evaluate the circumstances and in some cases save families from a path that is not in their best interests. While the court reserves this power, it should be noted that it is not very often that the court does not move forward with the divorce proceedings.

If you have found yourself recently served with a petition for divorce and you believe that your marriage can be retrieved, you must inform the court in your initial responsive pleading that you deny the marriage is irretrievably broken. Answering a petition for divorce by denying the grounds of irretrievably broken will not guarantee the court will not grant the divorce. But, it may give your family one last chance at counseling, or allow for the passage of time to allow for you and your spouse to reconcile. Contact Wood, Atter & Wolf, P.A. today to discuss your Florida divorce.

 

Divorce is often time filled with emotional turmoil.  Spouses are splitting up the property, the conversations can be heated, and at times children are thrown in the midst of this evolving chaotic environment. As an attorney I hear a variety of reasons attributed to the breakdown of a marriage. Often times finances, differing parental styles, general distain, and infidelity cause irreparable rifts in even the most stable marriages. Contentious spouses come into my office constantly waiting to bring up every flaw and every wrongdoing of the other party. While an attorney’s office may be the first place many clients feel they can unload the weight of the marriage dysfunction, the courtroom is also a common place clients want to unload this weight, even though it may be to their own detriment.

Although the goal for the angry spouse seems riddled with vengeful desires, a skilled attorney would utilize caution and tact before bringing up the allegations made between the spouses in open court. An attorney must exercise judgment and apply the statutory considerations to every situation that arises. Whereas, one spouse may find it important to mention to the court that since the separation the other spouse has begun dating or that one spouse is engaging in a same sex relationship. A skilled attorney knows that while both of these situations stir the emotions swirling around the divorce mentioning these facts to the court may not be of the utmost importance.

Florida is a no-fault divorce state. This means under Florida family law  if a party is seeking a divorce they do not have to prove specific grounds, other than that the marriage is “irretrievably broken”, for the court to grant the divorce. While the court may not care to hear of the other party’s indiscretions for the sake of deciding whether or not to grant the divorce, the court may be interested in these facts when considering other facets of the case. For example, the court may consider extramarital affairs and conduct of the other spouse when making a determination as to alimony and timesharing of the children. The court may consider a party’s extramarital relations if those relationships were conducted in a manner that caused harm to the child or marital funds were dissolved by the other spouse to maintain that extra-marital relationship.

“I can’t take this anymore, we must get a divorce!” “Well, I’m not leaving.” This dialogue, to the extent there is any dialogue at all, is common prior to and during a Florida divorce case otherwise known as a Florida Dissolution of Marriage.  This conversation then leads to the following question:  Which spouse remains in the marital home during the pendency of a Florida divorce?

During a Florida divorce there are so many moving pieces and areas filled with uncertainty. Some divorcing couple move into separate residences prior to either party filing for divorce. Yet, there remains the other group of couples who are still living in the same home at the time of the initiation of the divorce proceedings. If one party does not voluntarily choose to move out of the shared residence, and the parties do not wish to continue to live together, who gets to remain in the home under the dissolution / divorce laws in the State of Florida? When real property or a leasehold is jointly titled to spouses both spouses have the right to the use of the owned or leased property, until a temporary order of exclusive use and possession or an ordered injunction placing restrictions on one spouse’s 1122707_divorceuse is entered by a judge. If both parties remain in the home upon the filing of divorce, and neither party wants to budge on moving out of the home, the courts can be brought into the equation to have a neutral party make a ruling regarding who is to remain in the home. The court does not automatically get involved regarding who remains in the residence unless the appropriate motion is made by one of the parties to the divorce. The obligation of the parties and a Florida family law judge’s involvement in making a determination as to who is to remain in the residence is contingent upon a wide variety of factors. There is no simple answer to the question of who will stay and who will leave. The burden of proving that the other party should vacate the premises will be on the party making the motion. The court will consider the numerous factors and make a ruling based on Florida law and equity.

If you are leasing property together and the name of both spouses is on the lease both parties have the legal right to remain in the home, but that’s not always the ideal situation in the midst of a divorce. The lease is a separate agreement with yourself and the owner of the property. More likely than not the contract does not include a clause allowing you to dissolve the lease agreement as a result of your pending divorce. The obligation due under the contract will still remain. Even though you do not own the property in question the court still may rule on who has exclusive use and possession of the leased premises. While the court has the authority to make this ruling this is still an arrangement that should be discussed with the owner of the property so the appropriate changes can be made to the lease agreement and access can be restricted to the non-possessing spouse.

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.

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.

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.

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.

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.

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.