Divorce / Dissolution of Marriage

November 3, 2011

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

A 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

October 31, 2011

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

By Erlinger Family Law

Florida 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.

October 28, 2011

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

By Erlinger Family Law

Alimony 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.

October 26, 2011

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

By Erlinger Family Law

A 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.

October 23, 2011

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

By Erlinger Family Law

Florida 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.

October 21, 2011

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

By Erlinger Family Law

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

Florida laws regarding divorce, alimony and child support are defined in Chapter 61 of Florida Statutes. To file for an action of divorce involving alimony and child support, or simply a dissolution of marriage, you have to file a petition entitled, “In re the marriage of ____, Husband, and ____, Wife,” Florida 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.

October 10, 2011

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

By Erlinger Family Law

Paul 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.

September 30, 2011

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

By Erlinger Family Law

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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.

September 29, 2011

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

By Erlinger Family Law

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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 ?

September 27, 2011

What is a Premarital or Prenuptial Agreement in Florida ?

By Erlinger Family Law

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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.