Jacksonville Divorce Lawyer Blog

March 29, 2012

College and Child Support in Florida

Written by: Lenorae Atter, Attorney at Law

Child support is often a topic in my divorce and paternity case appointments I have as a family law attorney in Jacksonville, Florida. As a divorce and family law attorney, I meet with clients to explain their rights and options and what are provided for under Florida law. Child support is a hot topic for many, especially when they are divorcing and there have previously been talks of college and how to pay for it. In Florida, child support is ruled by Statutes, which establish how to calculate child support and for how long child support must be paid.

During a marriage, it is common for spouses to discuss their children’s future as it relates to school and continuing on to college. College is an expense that many parents are concerned about, and rightfully so. As more kids decide to go to college due to the necessity of having a degree to find a job, parents think more about how they will pay for the rising cost of tuition and living expenses. However, when the parents decide to divorce, they now consider child support to get the kid through high school and wonder how it will impact the child’s ability to attend college.

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 23, 2012

Florida Child Issues Including Custody, Visitation and Time-Sharing Can Be a Challenge for Parents

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

As a Jacksonville, Florida divorce lawyer, I handle cases dealing with primary time-sharing issues, previously known as custody battles. In representing one parent against the other, my job is not only to represent my client, but to also make certain that in doing so I am preserving what is in the best interest of the child. The best interest of the child standard is used throughout almost every state in determining issues such as custody, time-sharing, visitation, parental responsibility, and the like. When the best interest of the child is in jeopardy the courts find it their duty to protect the children from irreparable harm, both physically and mentally.

A parent who fights for custody simply because she or he does not want to pay child support or simply because she or he needs child support, are not looking out for the best interest of the child, but their own best interest. This type of divorce and custody dispute can lead parties to make poor decisions for the children and cause a rift in their relationship with the children and also with the other parent, thus making it difficult to make big decisions together for the sake of the children. Once the case is over, the judge does not have a magic wand to put all relationships back as if the battle never occurred. Typically, the child will then grow-up with parents that barely communicate and the child may or may not have a solid relationship with each parent at the end of the day.

Bringing children into your legal battle is not for the child’s benefit. The child should be protected from the divorce battle or custody battle that is ongoing with the other parent. When the court is looking to which parent is the best choice to take care of the child the majority of the time, the judge typically looks for which parent is more likely to look after the interests of the child, help to foster a good relationship with the child and the other parent, etc. A drawn out dispute that leads to false allegations and actions of emotional or physical harm to a child is not going to bode well with any judge in Florida. Therefore, keeping these things at bay as parents, and trying to resolve matters in a light most favorable to the kids is more important than the financial strain of paying child support.

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 19, 2012

What Can I Do; My Ex Has a New Spouse and Is Trying to Stop Paying Me Alimony in Florida?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Alimony in a Florida divorce can be challenging to understand because it factors in multiple things, including the need for alimony and an ability to pay alimony. Once the divorce is final and alimony is awarded, the case is not really over. As a Jacksonville divorce lawyer, one thing I have recognized over the years is the repeat client. Unfortunately, while the divorce may be trying, getting someone to pay alimony, even when ordered, can be tricky. The paying party and the receiving party may find themselves back in court for a modification before the alimony is paid in full. A modification can be done when one or both parties have a substantial change in circumstance (i.e. health issues, long-term unemployment, etc.). Another factor that impacts alimony is cohabitation of the receiving party. Co-habitation is factor because it is believed that if you are living with someone, then you are receiving some financial support from them, thus impacting your need for alimony.

Often, clients will ask me whether the court will consider the co-habitation of the paying party as well. This is more common when the new girl/boyfriend or husband/wife makes a decent income. Recently, the Florida appellate court decided that such a relationship is a fact to be considered in determining whether the paying party has an actual ability to pay alimony as previously ordered. First, the appellate court in a recent case found that the alimony paying former husband could not rely on his co-habitation for purposes of modifying alimony. Morrell v. Morrell, 2D10-303 (Fla. 2nd DCA March 14, 2012). However, the court then ruled that his live-in companion’s financial assistance could be considered in determining whether he had an ability to pay alimony. The reason is that the Former Husband’s companion’s financial contributions more than likely reduce the Former Husband’s actual monthly expenses, thus decreasing his financial burden.

March 15, 2012

Can Florida Impose Interest on Child Support Arrearage?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Florida child support is calculated based on child support guidelines established by statute. In Florida, child support is based on the combined income of the parties and their pro rata (apportioned rate) that they each contribute. The calculation allows for credits to be given the to the parent that pays child’s insurance and daycare expenses. As a Jacksonville family lawyer, I often explain to clients that child support is based on their relative incomes because the child is entitled to live as if the parents were under the same roof. However, once child support is established, the court can enforce any back-owed child support up to two years from the date of the original filing of a petition for support. In that situation, the court can actually establish arrearage that must be paid back, sometimes at a minimal rate.

Recently, there was an appeal regarding whether child support arrearage can have an interest rate attached to it and if there can be a change to how it is paid back, since often it is at $20 per month. The Florida appellate court laid out the following guidelines for establishing interest and payments:

March 13, 2012

In Florida Can Custody Be Given to Grandparents or an Extended Family Member

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Florida custody battles are not always between two parents. Florida family law allows for a third party relative to petition the court for custody in certain circumstances where it is in the best interest of the child. There is a presumption that a parent should have the children, but there are circumstances that can lead to the court determining that the parent, at the time, does not have the ability to care for the children and find it necessary to change custody to a third party, such as grandparents. However, Florida does not recognize grandparents to have permanent rights to the child, unless the parent’s rights are terminated, but it can be on a temporary custody basis depending on the facts.

In a recent Florida appeals case, Slover v. Meyer, 2D10-6074 (Fla. 2nd DCA February 24, 2012), the court established the standard by which to determine the modification from custody to a third party to the parent. In this case, the Mother and Father had a child and the mother eventually died. The maternal grandmother and father actually entered into a parenting plan in Colorado and the grandmother was awarded custody of the child. Due to his history of drug abuse, the father was awarded supervised visitation for one year followed by unsupervised visitation. A step-up in visitation is common when supervised visitation is ordered because it awards the parent for participating in supervised visitation and helps to establish a better bond between the parent and child. In this case, the visitation went well and the father was in drug remission for a number of years while the child lived with the grandmother in Florida.

March 9, 2012

Will There Be Changes to Florida Alimony and Divorce Cases?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Alimony is on the forefront of many state law changes, including Florida. In the last two years, Florida has modified alimony provisions to make it less likely for permanent alimony to be awarded. While those changes have occurred, there is still a rising push to modify the laws even more to make it harder for permanent alimony to be awarded in a Florida divorce case. As a Jacksonville divorce lawyer, I see both sides to the argument given that my job is to represent my client, whether the husband or the wife. In so doing, it is vital that my understanding for the law be efficient enough to make arguments for and against alimony, which also makes it easier for me to properly prepare my clients for what may arise in his or her case.

The state’s interest in changing alimony has taken a national spotlight in recent months, including an article in The New York Times entitled, “In Age of Dual Incomes, Alimony Payers Prod States to Update Laws.” In 2012 it is more commonplace for both spouses to work during a marriage and the uprising in Florida and other states leads to the question of whether permanent alimony is really necessary in the 21st century. Permanent alimony was originally designed to protect the homemaker and caregiver upon the dissolution of the marriage because often women gave up their education and careers to provide such services in the home. The idea was that women should not suffer monetarily simply because they took care of the children and the home for 20 years.

Now, there are many individuals that feel permanent alimony is no longer necessary because more and more households have two working spouses. The request for changes in the Florida alimony laws is to make it harder for permanent alimony to be awarded in this type of environment because the necessity is lacking. The bill currently presented in the Florida House is one that takes some of the discretion from the Florida judges and puts limitations on the award of alimony. Presently, a lot of discretion rests in the hands of judges to make decisions regarding alimony and the bill will take much of that discretion away.

March 7, 2012

Florida Same-Sex Couple Has Custody Battle: How Will It Impact Florida Same-Sex Laws?

By Erlinger Family Law

Florida same sex marriage, adoption, parental rights, and custody questions have been plaguing the courts for a number of years. As a Jacksonville family law attorney, I have been curious about how such things will play out in the legal realm and whether the Florida lawmakers will finally give us something to use as guidelines. Finally, after the Florida Supreme Court did not hear the last adoption case, another same sex question is sitting on the courthouse steps according to a Florida Times Union article . Can a same sex couple have equal rights to a child?

The latest case to be ripe for the Florida Supreme Court on same sex couple issues is presently awaiting the word as to whether it will be on the Court’s calendar in the near future. Many Florida same sex couples have been patiently waiting for the Florida Supreme Court to tackle a number of issues, including parental rights of a same sex couple. The one ripe for a decision is a case involving two women who were in a relationship until 2006. In 2004, the couple had a child after they decided that one woman would provide her egg for in vitro fertilization and the other would carry the child to term. Thus, creating a proposed shared parental responsibility for the child born to them.

The couple subsequently separated in 2006 and the birth mother moved to Australia with the child without the knowledge and consent of the biological mother. After years of searching, the birth mother and child were located and the biological mother sued for parental right and custody of the child.

March 5, 2012

Florida Men Receiving Alimony in a Divorce May Be Challenging

By Erlinger Family Law

Written By: Lenorae Atter, Attorney at Law

Alimony in a Florida divorce is defined by statutes for qualification purposes, but defined by judges and case law for purposes of determining the amount of alimony. However, there are questions in Florida divorces regarding men receiving alimony when they have been the homemaker and stay-at-home-dad during the marriage because, unfortunately, judges may still have gender biases. In Jacksonville area divorces, I have not yet seen a judge deny alimony to a man who met the statutory requirements showing a need for alimony; however, that does not mean it does not happen. Biases sadly play into every sector of family law though most of the biases are more subconscious than blatant. Men, however, are entitled under Florida Statutes, to receive the same consideration for alimony as women.

The reason this issue has arisen in 2012 is due to a recent appellate case, Gulledge v. Gulludge, 2D11-472 (Fla. 2nd DCA February 29, 2012). In this case, the couple was married for 30 years (long-term under Florida Statute 61.08) and the Wife was the primary breadwinner making approximately $60,000 per year. The Husband did not make more than $15,000 per year during the course of the marriage and at the time of divorce was making $9,000. The Husband also had a GED and a history of taking care of the children and doing the homemaking. In the divorce, the Husband was fairly and accurately requesting to receive permanent alimony (as available through Florida Statute if he can also show a need). The parties did not settle their case at mediation, so the case went for the judge to ultimately decide. The judge listened to the testimony and evidence and ruled in favor of the Wife finding that that Husband did not have a need for alimony and that he was underemployed.

The trial court’s decision was appealed and the appellate court reversed or overturned the trial court’s decision. The appellate court ruled that the Husband had demonstrated a need for alimony, but also agreed with the trial court, that he was under employed. However, no ruling by either the trial court or appellate court stated what the Husband should be earning with his GED and 30-year work history (e.g. minimal work with homecare and child keeping). The appellate court basically said that there was a need for the Husband to have alimony and that at least $1 of permanent alimony should be awarded in case the Husband could not find gainful employment, then he could have it modified.