Divorce / Dissolution of Marriage

September 23, 2016

Which Spouse Remains in the Home During the Pendency of a Florida Divorce?

“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_divorce use 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.

February 19, 2013

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

By Erlinger Family Law

In 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.

February 12, 2013

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

By Erlinger Family Law

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.

December 17, 2012

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

By Erlinger Family Law

Written by: Lenorae Atter, Attorney

When 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.

November 15, 2012

How to Deal With House Debt in a Florida Divorce

By Erlinger Family Law

Housing 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.

November 7, 2012

Do I Have to Take Parenting Class in Florida Divorce?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney

Divorce 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.

November 6, 2012

Alimony in Florida May Not Be Cut and Dry

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Alimony 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.

October 31, 2012

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

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Florida 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.

October 17, 2012

Who Pays for Damage to a Home After a Divorce in Florida?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

When divorcing in Florida, there can be an issue regarding the marital home and dividing the property between husband and wife. The parties may reach an agreement about which spouse will take the property, for financial reasons or the like. This is quite common in a divorce, especially when the house is worth less than what is owed on the property, the parties do not worry so much about splitting the debt as they would in dividing equity. Working as a divorce lawyer in Jacksonville, Florida, I often have clients that are concerned about the condition of the home at the home of the division due to costs associated with any repairs that may be necessary.

Issues generally arise for spouses when one spouse has lived in the home during the divorce and the other is awarded the home at the end of the divorce. Issues may arise regarding the condition of the home and prompt questions of whether the party living in it previously is responsible or the spouse that was awarded the home. For example, in Husband decides to leave the marital home and file for divorce. Wife remains in the home while the divorce is pending and decides to ignore the home with regards to yard work, and decides to tear up the carpeting. Husband is awarded the home at the end of the divorce and moves back in to find that repairs of $2,000 are needed. Which spouse is responsible for those repairs?

October 15, 2012

Things to Consider When Reaching Divorce Agreement in Florida.

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

What 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.