Articles Posted in Uncategorized

The rapid growth in communication technology has led to many parents playing catch up. Unfortunately, as with most technological advances, the advent of mobile phones, amongst other things, has led to the almost elimination of home phones and pay phones as the primary means of communication. In an almost domino like fashion, beginning with the popular use of mobile phones, this shift has placed more mobile phones in the hands of children, who prior to the decline of home phones and pay phones, did not, typically, need their own independent means of communication. When purchasing a phone for your child, you will find that even the most basic mobile phone models have advanced capabilities. Beyond calling, phones are now equipped with means to communicate silently through text messaging, video chat, photo transmitting, and an ability to upgrade your phone capabilities through the downloading of various applications. The shifting times has essentially made it the norm for parents to choose to place private super computers in the hands of children, for their unlimited use and enjoyment.

Concerns should arise with the privacy in communication afforded to children through the ownership of a mobile phone. Parents should remain aware of whom the child is speaking with and the nature of those communications. In an effort to change with the times, the Florida Statutes attempt to limit the communication of minors by placing consequence on children who engage in the act of sexting. Florida Statute 847.0141 provides that a minor commits the offense of sexting if they knowingly use a device to transmit data or images to another minor containing any photograph or video of any person which depicts nudity and is harmful to minors; or they possess a photo or video that was transmitted to them which depicts nudity, and is harmful to minors. The sexting statute must be read in conjunction with other statutes to understand the application of the statute specifically related to defining nudity and harm to children.

While children may believe that transmitting certain images is harmless, funny, or acceptable based on society’s standards, these images could land them in trouble with the law. Statutorily for a first time offense the minor is ordered to pay a fine or eight (8) hours of community service and/or enroll in a training program. Minors who are found to have committed more egregious conduct, such as, transmitting images containing sexual conduct or sexual excitement, violating this statue multiple times, or do not comply with the court ordered penalties could face stricter penalties for their behavior.

Written by: Lenorae Atter, Attorney at Law

Bristol Palin’s ex-boyfriend, Levy Johnson, is now going to father another child, according to recent stories. Recent news reports indicate that the former Wasilla mayoral candidate is expecting a child with his present girlfriend, Sunny Ogelsby. Again, entering into a paternity issue since he is unmarried to this mother-to-be. Contrary to popular belief, at least in Florida, paternity of a child born out of wedlock is not determined by a birth certificate or DNA, but by actually being established by the court. Therefore, Levy Johnson will most likely find himself in another courtroom to decide the fate of another child and the child support he will have to pay.

According to Levy Johnson, when questioned about his relationship with the child he shares with Bristol Palin, he has not been much of a father. He has told reporters, recently, “The Insider,” that he has not been able to exercise any visitation or time-sharing with the child due to Bristol Palin and her family denying him any visitation. This time, he has said he anticipates being involved with the child that was recently conceived after the couple, Johnson and Ogelsby, forgot to take birth control with them on a romantic getaway.

In Florida you may be required to pay child support even if you are unemployed. You might ask, “how do they calculate my income for child support guidelines if I do not have an income?” The answer is that income may be imputed or attributed to you in certain circumstances. For instance, if you became unemployed voluntarily, the court may impute income to you at the level you were last earning. That means if you quit your job, decided to change fields and became unemployed as a result, or moved to a different market where you can’t find a job, the court may attribute income to you at the level you were earning or are currently capable of earning.

In order for the court to impute income, there must be competent substantial evidence supporting the imputation. Quinones v. Quinones, 870 So 2d 108 (Fla 2d DCA 2003) The imputation of income must be supported by specific findings of fact indicating the amount and the source of the income. Burkhardt v. Bass, 711 So 2d 158 (Fla 4th DCA 1998) The court may also find that a person is underemployed if they have taken a job that is below their skill set with no reasonable explanation. Lascaibar v. Lascaibar, 658 So 2d 170 (Fla 3d DCA 1995)

The burden of proof in a proceeding that calls this issue into question is on the spouse claiming that the other spouse is voluntarily unemployed or underemployed. If the unemployment is not voluntary and you do not have the ability to pay child support, the court will not require you to pay. However, there are few instances where a party has absolutely no source of income and does not have the ability to work.

Continue reading

Rehabilitative alimony is a type of alimony allocated to a spouse to provide assistance while her or she regains the ability to become self supporting. There must be a finding by the court that the dissolution of marriage will affect the requesting spouse’s ability to be self supporting for a period of time. If the marriage will not affect the spouse’s ability to obtain employment then rehabilitative alimony is unwarranted. The party seeking rehabilitative alimony has the burden of proof as to how they will gain training, what the object of the training will be, the length of the plan, and the cost. In addition it must be examined how this plan will make the spouse self supporting.

If a spouse is seeking rehabilitative alimony it may be necessary to call an expert witness to testify as to what the rehabilitative plan will be. The court will need to make a finding that the evidence presented is sufficient to make a factual finding that rehabilitative alimony is warranted. It may be a good idea to write the plan out and present it to the opposing spouse’s attorney prior to mediation.

Continue reading

This is the number one question I get from new clients. The answer is not easy to give. There a a number of factors that can increase the cost of a divorce. Divorces are very emotional and often times the reason they cost more is that couples can’t come to terms with the reality of their situation. An uncontested divorce where both parties are represented will easily cost about $2,500 per person just to iron out the terms of the marital settlement agreement. This is because it takes time to draft all of the documents, schedule the final hearing, and correspond back and forth to make sure the parties agree on everything and are all informed as to their rights in Florida and all matters are addressed in the agreement.

If the divorce is contested then all bets are off. Starting legal fees for each party will typically be around $4,000 to $5,000. In addition, Jacksonville judges typically require the parties to go to mediation. If the case doesn’t settle at mediation then the parties will have to have a trial or final hearing.

Continue reading

Judges in Florida family law cases are big proponents of family law mediation. It is estimated that 90% of family law cases are actually settled at mediation. If that is accurate it means that a majority of family law cases are taken off of the court’s docket before they go to a final hearing. This has the effect of freeing up the judges’ dockets for other cases that cannot be resolved through mediation. It’s no mystery then that judges in Florida family law cases promote mediation for family law clients. Most judges in Duval, Clay, Nassau, and St. Johns counties require mediation before you can even attend a final hearing.

Mediation is a form of alternative dispute resolution that uses negotiating through a disinterested third party to forge a resolution among the parties. Generally the mediator is a lawyer themselves and has practiced family law in the past or may still practice family law. This is helpful because they have a good understanding of what the laws are and how judges in your jurisdiction interpret those laws. A good mediator can help you understand what a judge might do in your particular situation if you go to trial.

At mediation the parties are usually in the same room for the mediator’s introduction and then split into different conference rooms with their respective attorneys for the negotiation process. The mediator has a discussion with each party and their attorney and goes back and forth between the parties with settlement offers on the issues involved. If the parties reach an agreement the mediator types up a settlement agreement and consent final judgment for the judge to sign and the case is concluded with a non-adversarial final hearing with the judge. The terms of the mediated agreement become effective as soon as it is signed.

A settlement reached at mediation is often preferred to one at trial because the parties are able to set their own terms. This is not to say that you get everything you want at mediation but you know exactly what you are getting and can make a conscious decision to either reach an agreement or an impasse. If there is no agreement then the case simply goes to trial and the judge decides your fate.

Continue reading

If you are the victim of domestic abuse in Florida there are ways you can petition the Court for help with or without an attorney. The first step is to identify that there is a problem that you need to deal with. If you need to you can contact the police. However, many domestic situations have not arisen to the level of involving police. If you are fearful for your safety you can file for an ex parte emergency injunction against the person who is threatening you.

You can actually download the petitions and forms on the internet at http://www.flabar.org. You need to provide all of the information requested by the forms to seek appropriate relief. You may need to provide copies of any additional documents upon which your motion might rely. This could be the case if you are asking the Court to enforce an out of state order or previous judgment.

Although this process is setup so that individuals can file for relief on their own, it is a good idea to consult with an attorney regarding the process and the relief to which you might be entitled.

Continue reading

In Florida, attorneys are not permitted to charge contingent fees in Family Law Cases involving a dissolution of marriage or seeking an award of alimony, child support, or equitable distribution. Family law cases are emotional by nature. This causes cases to often times take a long time to resolve. If attorney’s were able to charge contingent fees it’s possible these cases would take even longer to settle.

Most family law attorneys charge a retainer for their fees up front. This retainer can vary depending on the perceived complexity of the case and usually the experience of the attorney. Most Florida divorces will cost at least $5,000 in legal fees alone. There are a number of complex issues in the average divorce dealing with issues like child custody, support, and equitable distribution. The outcome of these issues will have a lifetime effect on everyone involved. It is important to fins a Family law attorney who understands the law and how it pertains to your particular situation.

Continue reading

Many of my clients ask me to request an emergency hearing in their family law cases without really understanding what the term emergency means in Family law court. Clients have a different opinion of what constitutes an emergency than attorneys. In turn, judges have a different opinion of what an constitutes an emergency than attorneys. Although family law cases involve serious issues and extremely emotional situations, not every one is an emergency warranting immediate attention. This begs the question then what is an emergency in a family law case?

In the case of Shaw v. Shaw, 696 So 2d 391 (Fla 4th DCA 1997), the Court said an emergency is one in which there is imminent danger, a crisis or a situation requiring immediate and extraordinary action. Emergency hearings are generally held with little or no notice to the opposing party and therefore the Court has to be careful that it does not violate judicial procedure and common fairness. The District Court said in Hunter v. Hunter, said that “the trial court should only order relief in an ex-parte proceeding where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice.” Thus a motion seeking ex-parte relief “must demonstrate (1) how and why the giving of notice would accelerate or precipitate the injury or (2) that the time to notice a hearing would actually permit the threatened irreparable injury to occur.” Smith v. Knight, 679 So.2d 359, 361 (Fla. 4th DCA 1996)

Most emergency motions involve threatened domestic violence, minor children, or dissipation of marital assets. However, the Court looks at the facts of each case differently, and you will need to be prepared to show why there will be irreparable harm if an emergency hearing is not held.

Continue reading

In Florida there is a residency requirement that must be met for a Florida court to have subject-matter jurisdiction. One of the parties must reside in Florida for at least six months before filing a petition for dissolution of marriage and have the intent to remain in the state at the time of filing. Generally this burden of roof is by clear and convincing evidence and is on the petitioner. However, either party may fulfill this requirement. This residency requirement requires an actual presence in Florida coupled with an intention to make the state your residence.

One party may fie for divorce against another party who is no longer living in the state so long as they reside in Florida. The residence requirement does not require that a person not leave the state for the entire six month period. For example there was a case where a woman spent her summers in a different state and filed for divorce in Florida. The court found that she had established a residence in Florida and simply vacationed elsewhere.

If a party moves from Florida after they have filed the petition, they may still satisfy the residency requirement under certain circumstances. However, this may affect the party’s burden of proof to show a mandatory intent to remain a resident as of the date of filing. The judge will generally look at the totality of the circumstances if the issue of subject-matter jurisdiction is raised in a Florida Divorce.

Continue reading