Divorce / Dissolution of Marriage

April 18, 2012

After My Florida Divorce, Am I Required to Make All Repairs to a Home?

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, the parties often have a marital home that has to be divided by the parties regarding either the asset value or the debt owed. However, sometimes the house may simply shift ownership per a divorce agreement by the parties, especially when the home is underwater like most are in today’s economy. The shift normally occurs because the party that stayed in the home at the time of separation cannot afford to maintain the home after the divorce is final, but the other party can. As a Jacksonville divorce lawyer, I often receive questions from clients regarding what the home must be in at the time of transfer.

If possible, you want the divorce agreement or order to actually define the condition of the home and what necessary repairs must be done. It does not make sense that the party is returning the home in a better condition than how it was during the marriage, but it also should not be in worse condition. If the party with present possession does not have the ability to maintain the home, then it is unreasonable to expect the spouse to have the ability to fix in and all issues that were present during the marriage. Things such as lawn maintenance that was in place during the marriage should also be kept up. However, completely re-landscaping the yard to make it better looking is not a reasonable cost expectation.

April 12, 2012

Military Divorce and Deployment: An Unexpected Twist is Shown in a Recent Study

By Erlinger Family Law

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Florida divorces can be complicated for many reasons, and in Jacksonville, where there is a heavy military presence; divorces can be even more complicated. When a military couple divorces, the process is often more complex than when a civilian couple divorces. There are a number of additional factors to consider, especially when it comes to issues such as equitable distribution and child custody, since there are often multiple retirement accounts, savings accounts, issues of deployment and the like.

In a military divorce, often factors come up involving the divided household due to the service-member’s military responsibilities. These are also factors that are part of the every-day life of military families, so the issues are not necessarily new to the spouses while they deal with a pending divorce. Also, military divorces are not always for the reasons society seems to think, such as long deployments, uncertainty in war-times, possible moves, etc. Many people think that deployment of one military spouse would increase the risk of divorce. It is easy to assume that the risk of divorce increases when a military couple is separated for a period of time and the deployed spouse is faced with a number of stresses. But a recent study has debated whether deployment is related to an increase risk for divorce.

A new study conducted by Benjamin Karney (UCLA) and John Crown (RAND Corp), looked at whether the amount of time a person is deployed has an effect on the risk of divorce and what that effect could be. The study surveyed over one –half million service members who were married after 9/11 and who served between 2002 and 2005. The study included all branches of the service and reserves, and collected data about gender, race and presence of children among the couples.

April 9, 2012

After a Florida Divorce, What Happens If One Spouse Dies?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Alimony and division of property are often themes in a Florida divorce. Florida allows for alimony to be awarded when a spouse shows a need for alimony and the other party has an ability to pay. Florida also provides for marital property to be divided equally by the parties during their divorce. Therefore, if the parties own property in Jacksonville and are divorced, then the both may divide the property equally, whether by money value or actual division of property. However; what happens if a spouse dies after the divorce is final, but before the property is divided? And, what happens if a spouse filed for a change in alimony prior to his/her death?

Alimony is determined by need and ability to pay. The length of alimony is determined by many factors, including the length of the marriage, contribution of the parties during the marriage, marital lifestyle, etc. Once alimony is determined and ordered by the court, it is typically modifiable by both parties if something significant were to occur, such as change in health, retirement, etc. However, alimony obligations cease to exist upon the death of either party, which is why the obligor is typically required to maintain life insurance during the pendency of the alimony obligation. So, if a party dies so does the obligation. However, in a recent Florida case, the Former Wife filed for a modification of alimony and requested attorney attorney’s fees, Estate of Reale v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). Prior to the court hearing the argument to modify alimony, the Former Wife passed away, taking with her the right to alimony. However, since she had requested attorney’s fees, the Florida appellate court determined that her estate had the right to collect attorney’s fees from the obligor. Id.

March 26, 2012

Can My Spouse Be Responsible for My Legal Fees in a Florida Divorce?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, there are often concerns posed by potential divorcees about legal fees. Hiring an attorney can be beneficial to the preservation of your rights as they relate to alimony, child support, child custody (time-sharing issues), division of property and the like. However, attorney fees are also an expense that can sometimes be afforded by one party more than the other. The question then arises as to, “How can I hire a divorce lawyer if my spouse is the one working?” There are multiple answers to this question, which can be answered by your Jacksonville divorce lawyer, but a common answer is that the spouse making the majority of the money may be responsible for the other party’s attorney fees so that the discrepancy in income does not lead to unfair advantage in the courtroom.

However, disparity in incomes is not the only way that attorney fees and costs related to your divorce may be paid by the other party. Typically, when you first hire an attorney you are quoted a retainer based on the issues surrounding your case, the experience of the attorney, and the hourly rate charged by the attorney. However, if the other party forces excessive litigation against the other party, then there is the possibility of being awarded attorney fees for the unnecessary litigation actions of that party. For example, if you hire an attorney to represent you in a divorce with no children, no marital home, some assets (vehicles, furniture, etc.), and some debt (one or two credit cards), then the divorce should not be overly complicated because there is not a lot to fight over in the world of equitable distribution. However, if your spouse tries to argue over everything, a fork, a spoon, a knife and a light bulb and in the process creates additional and excessive legal fees. The courts have held that the party responsible for creating, “vexatious and frivolous litigation,” can be held responsible for the fees incurred as a result, Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999).

March 21, 2012

Going Through a Florida Divorce with a House Under Water

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

A Florida divorce in today’s economy can be tricky given the financial circumstances in which many people find themselves. Though there is economic recovery, the fact remains that many people are still underwater when it comes to their homes or properties and Jacksonville, Florida is no different. In a Florida divorce, the assets and the debts accumulated during the marriage are equitably divided in accordance with Florida Statute 61.075. An equitable distribution of property and debt can often be unequal if there is a disparity in the incomes or there is more than one significant debt held by the parties, then dividing the responsibility for each can be challenging.

In Florida, most often the home is often ordered to be sold unless the parties have a minor child. Given the marketplace and the realities facing many people who are upside down on their home, equitably dividing house debt can be a challenge. The concern for many is that even if the house were to be placed on the market, there is no way to recover the actual amount owed, so a short sale would have to be approved. Therefore, the parties are on the hook for whatever portion is remaining as a set-off. Also, the concern is that if one party is to take the home, then there is a strong likelihood that at some point, that party will be living rent free in the home until kicked out by foreclosure, thus strapping the other party with an unnecessary debt.

March 2, 2012

How Can Alimony Be Paid In Florida?

By Erlinger Family Law

Alimony in Florida is based on a number of factors, including need for alimony and the other party’s ability to pay it. Even if these factors can be proven, there is always the questions of, “How much will I get or pay?”; “How will it get paid?”; and, “Will it get paid?” Answering these questions is not always the easiest thing for Florida divorce lawyers, including those in the Jacksonville and North Florida region because each judge has their own way of answering these questions. Without a State mandatory calculation for alimony, ultimately the decision rests with the judge if the parties cannot otherwise agree.

First, the question of qualifying for alimony. There are multiple forms of alimony in Florida, including bridge-the-gap [between married and single life]; rehabilitative; durational; permanent periodic; and lump sum. All of which have their own qualifying definitions under Florida Statute 61.08. Each are based on numerous factors, including length of the marriage, contribution to the marriage, lifestyle during the marriage, etc.

In addition, factors such as need and ability to pay are qualifying determinants.

February 21, 2012

Florida Divorce and Custody Disputes that Lead to Parental Abduction: What To Do To Recover Your Child

By Erlinger Family Law

In a Florida family law case involving children, such as divorce, paternity, or change of custody, emotions can run rather high. Unfortunately, stress often surrounds these experiences and the consequences of the stress, if not handled properly, can lead to horrible actions by one parent. A parent who feels their world is caving in may turn to extreme acts, like abducting their child. Florida law has accepted, like most states, the the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which rules that initial child custody determinations should be made by the child’s home state. A child’s home state is the state in which a child has lived with a parent or guardian for at least six (6) months. It also determines that if a parent, in fact takes a child, the child should be returned to the home state unless an emergency lead to the fleeing (e.g. physical abuse of the parent and/or child by the other parent).

The UCCJEA allows for protection of the parents and the child by providing for legal action to be taken if a parent were to abduct the child. In the United States, there are numbers cases of parent abduction each year and having a protection like the UCCJEA is vital to recovering the children. What it allows is for the nonoffending party to file a petition with the court for an emergency child pick-up. The petition must state the actions of the other parent and give a place where the parent and child are most likely located. Once an order is entered in the home state of the child, like Florida, then the order must be adopted by the state where the child is physically located. Once the order is adopted, it is enforceable against the parent with the child and the parent is required to return the child to the home state. If the offending parent refuses or fails to do so, then the parent may be charged with kidnapping, not to mention the impact that parent’s actions will have on any custody dispute pending in the court.

In Florida, there are many individuals that moved from other countries and as a family law attorney, I often have clients concerned that the other parent will return to his/her country with the child. If a child is taken, without consent of both parents, to a different country, then the Hague Convention on International Kidnapping and Child Custody will have to be employed. The countries that have adopted this action often work diligently at having the child returned to the United States. However, not all countries have adopted the Hague Convention, which can lead to additional jurisdictional issues. A passport for a child requires both parents to consent by signing the application; if this is a concern of yours then you should deny the child getting a passport.

February 17, 2012

Can Florida Parents Charged with Domestic Violence be Awarded Custody or Visitation Rights?

By Erlinger Family Law

In the state of Florida, if a parent has been convicted of misdemeanor, first degree or felony domestic abuse charges, the judge may rule that it is not in the child’s best interest to award custody or time-sharing rights to that parent. The same is true if the parent is in prison for a crime that would warrant terminating parental rights. If a parent is denied parental responsibility by the courts, he or she has the right to ask a judge to consider evidence that might prove that it would not harm the child to allow the parent custody or visitation rights. The court’s job is to look at the fitness of the parents and what is in the best interest of the child. As a Jacksonville divorce and family law attorney I often have parents ask whether they will be granted time-sharing (visitation) or if they have a chance of getting majority time-sharing (custody). When evaluating this question, it is important to look at the historical nature of the family unit, the likelihood of the parent facilitating a good relationship with the child and the other parent, and multiple other factors. When there are reports, accusations or evidence of abuse in the family, then the question of custody is harder to answer because those factors will be considered by the court due to the interest in not putting the children in harm’s way.

If the parent has not been convicted of a domestic violence or child abuse offense, the judge will generally consider evidence of abuse, even if the accusing party has never filed an injunction for protection from domestic violence against them. The judge will use the evidence to determine what type of parental rights the alleged abuser is entitled to. The accused or convicted, may present evidence and testimony to dispute such accusations or to show the judge how things have changed since the incident occurred. If certain activities have been completed, including counseling, then the court may take that into consideration in determining whether there is still a propensity to commit violent acts.

If an abusive parent is awarded visitation rights, the other party may request that the visits be limited or supervised. It will be up to the judge to decide whether or not the abuser represents a risk to the child or the other parent that warrants supervised or restricted visitation. A neutral third party, like the Family Nurturing Center in Jacksonville, Florida, typically does supervised visitation. The center actually observes the visitations and records them for additional protection of the children. If supervised visitation or time-sharing is ordered and over time there are no issues, then the parent observing such time-sharing may ask the court to modify the time-sharing plan to stop the supervision, but the court will again evaluate the case based on the best interest of the child.

February 13, 2012

Should Obesity Be Considered in Determining Custody, Time-Sharing, or Other Factors in a Florida Divorce or Paternity Case?

By Erlinger Family Law

Florida divorce and custody battles (e.g. time-sharing battles) often center on the parenting styles of each party, the relationship of the children with each party, and the ability to care for the children in a safe, stable environment. When these things are questioned it can lead to legal arguments that center on the children and their academics, health, social environment and the like. As a divorce and family lawyer in Jacksonville, it has come to my attention over the years that sometimes the health of the children is more than simply getting check-ups, but also receiving the proper attention to their diet, school activities, etc. When these battles ensue, often fingers are pointed for things such as neglect, abuse (emotional or physical), lack of participation in homework and the like. However, in a 2009 Time Health article, the question of obesity in children has risen as a concern in custody or time-sharing disputes given the rise in the epidemic over the years.

The question, according to the article, is “Should morbidly obese children be taken from their parents?” While I do not see the Florida Department of Children and Families coming into everyone’s home with this issue, I can see how it may impact a legal case between two parents, especially if one parent is seeking a modification from a prior custody or time-sharing order. In order to file for a modification of time-sharing in Florida you must show a substantial change in circumstance. The question then would become, “Is the child’s excessive weight gain a substantial change in circumstance?” I believe, based on the health of the child, that the question may prompt legal action in the future.

According to the Time Health article, experts seem to be debating whether parenting styles can impact a child’s risk of obesity, thus making it healthier for the child to be out of the home of said parent. The concern is that if the child is gaining weight in the current environment, then there may be cause to remove the child to allow the child a chance at a healthier lifestyle in a different environment. The concern is a real one given that, “Childhood obesity can lead to a host of health problems, including Type 2 diabetes, which until recently was primarily a problem seen in adults. Overweight children can also develop insulin resistance, hypertension, high cholesterol, sleep apnea and orthopedic problems and go into early puberty,” according Time Health.

February 10, 2012

Is There a Course Required in a Florida Divorce or Paternity Action

By Erlinger Family Law

In Florida divorces involving children and paternity cases involving time-sharing and parenting plans (custody/visitation), the parties must attend a course known as the Parent Education and Family Stabilization Course. Each jurisdiction may refer to the course by a different name, such as in Jacksonville, it’s Children First in Divorce, but the concept is all the same. As a Jacksonville divorce and family law attorney, I try to educate my clients on the importance of the course. These programs are mandated by Florida statute 61.21 and are developed and approved by the Department of Children and Families. The concept of the course is to teach parents the best way to communicate with each other and the children during the pendency of the divorce or paternity case.

The course program is required to be completed by both parties at the initiation of the case. The person that files the original petition has 45 days from the date the petition was filed to show completion. The person served with the petition is required to complete the course within 45 days after receiving the petition. The idea is that the course helps the parties through the divorce and paternity case better understand the emotions of the other party, but especially the children. If the class is not taken early on, then it may lead to more misunderstandings and poor parenting through the court process.

The course is required to have at least the following components taught, in accordance with Florida Statute 61.21(2)(a):