Divorce / Dissolution of Marriage

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.

Florida 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.

June 2, 2011

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

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

Florida divorces 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.

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.

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

If 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.

May 30, 2011

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

By Erlinger Family Law

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

In 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.

May 27, 2011

Can I Keep My Club Membership In A Divorce?

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

Club 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.

May 26, 2011

How Long Does It Take To Get Divorced In Florida?

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

As 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.

May 24, 2011

Parental Responsibility in Florida Divorce and Paternity Cases

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

Parental 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.

May 23, 2011

Social Media, Affiars and Divorce

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

As 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.

May 20, 2011

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

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

As 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.

May 19, 2011

Dividing Retirement and Pension in a Florida Divorce Case

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

Retirement 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.