Jacksonville Divorce Lawyer Blog

January 7, 2012

Florida Divorce and Alimony Issues to be Heard on National Television Show

Florida divorces involving alimony issues have given rise to new legislation over the last few years and will continue into the near future. The alimony debate in Florida is based on a number of factors, including the lack of an alimony calculation that is state mandated in determining the amount of alimony to be paid. According to a press release on Market Watch, Anderson Cooper is reportedly doing a show on Monday, January 9, 2012 highlighting the issues of Florida alimony; however, the report that came out about the show seems to have things reported incorrectly and in an effort to decrease emotional responses, I thought, as a Florida divorce lawyer, that I would debunk some of the myths that allegedly will be reported on the show.

First, the idea that men are the ones that suffer from alimony payments. In Florida, like most of the country, men and women work. If a woman makes reportedly more money than her husband and they divorce, then she may be on the hook for paying alimony.

Second, alimony is awarded without regards any provisions other than a party makes more money than the other spouse. Again, this is not true. In Florida, the factors used in determining alimony include, but are not limited to, the length of the marriage, the contribution of both parties to the marriage, the marital lifestyle, the ability for the asking party to earn relatively similar income to that of the paying spouse, the employment history of the parties, the education history of the parties, the NEED for alimony, and the ABILITY to pay alimony. The court does not arbitrarily and without regard for incomes and expenses simply declare that a Husband will pay the Wife permanent alimony at 70% of the Husband’s income until he dies. In Florida, getting permanent alimony requires the asking party to show that the marriage is a long-term marriage (over 17 years); that the asking party has an ongoing need for permanent alimony (e.g. disability, lack of education, inability to earn, etc.); etc.

January 5, 2012

Can I Have Email and/or Skype Communication with My Child in Florida After a Divorce?

By Erlinger Family Law

Florida divorce and custody battles can impact the parent-child relationship and often raise concerns for both mother and father. Often, parties are concerned that since they may not see their child on a daily basis that the relationship with their child will lessen over time. While telephone communication is vital to maintaining the relationship with the parent and child, a parent that lives long distance from the child, especially, may miss the face-to-face interaction and want more than simple phone calls. With the invention of webcams and communication availability through things such as Skype, the courts have had to evolve to include such mechanisms. As a Jacksonville, Florida divorce and family lawyer I often ask my clients if they have access to the internet and whether the computer has webcam accessibility because I want to make certain that if video conferencing is available, that we request the court enter an order for electronic communication.

In accordance with Florida statute 61.13003, the Court may look at a number of factors before ruling on the use of electronic communication. Some of the factors include but are not limited to the availability of the equipment to both parties; whether the parties can afford the electronics necessary; the incomes of the parties to determine who should be responsible and how for the costs; whether telephone communication; whether there is a substance abuse issue of a parent; and if it is in the best interest of the child to have such communication.

If the court finds that electronic communication is in the best interest of the child, then the court also may impose safeguards to protect the parent and child from abuse of the electronic communication. There are concerns for safety online, so the Court has the discretion to impose rules on where the communication may occur, what time, etc.

January 3, 2012

How Can Military Duty Impact Time-Sharing or Visitation with Children in Florida?

By Erlinger Family Law

As a military town, Jacksonville divorce and family law attorneys, along with the courts, must understand that military duty may impact a divorce proceeding or other court matter, but also will most likely impact child custody and visitation matters at some point. Florida laws have made provisions for those in the military when it comes to custody; visitation; time-sharing; and child support matters if the servicemember is on active duty and set for deployment. Florida does not punish members of the military for serving their country by assuming that is in the best interest of the children to be with the nonmilitary parent. In fact, the law provides that if a servicemember is set for deployment, then the time-sharing plan may be modified in a couple of ways:

1. The court may grant a temporary modification of time-sharing and child support and upon the return of the servicemember parent, the prior order will go back into effect. Also, the court may grant extended time-sharing for periods when the servicemember is on leave. This way there are no permanent changes to custody or time-sharing, but simply an order to get from the time of deployment to returning home; or

2. If the deployment will be for more than 90 consecutive days, then the servicemember can actually designate a third party to have time-sharing in accordance with the original order. However, that individual must be a family member or stepparent. If the other parent objects, then that parent must show why it is not in the best interest of the children to have time-sharing with the designated family member of the serving parent.

The Court’s position is not to punish individuals for serving their country, but to look after the best interest of the children while that parent is on active duty. Upon returning home, Florida Statute 61.13002 provides for the prior order to go back into effect so as not to impose a permanent change in time-sharing simply because duty to country exists. However, the statute also recommends that the provisions that will be in place during times of deployment be placed in the original order as to avoid future necessity of the court’s intervention since there may be significant time issues with notice of deployment and actually leaving. The State has also provided that such matters are to be heard on an expedited basis by the Court and the servicemember may appear by telephone if she or he is unable to appear in person due to their military orders.

December 30, 2011

Does an Income Deduction Order or Wage Garnishment Work for Alimony and Child Support in Florida?

By Erlinger Family Law

Florida divorce and child support laws dictate what may be paid in alimony and child support based on the facts of each case and incomes of the parties. Often, the paying party does not like the idea of writing a monthly check and the receiving party does not like worrying about whether the check is actually in the mail. Florida divorce and child support clients often ask their lawyer if there is another option and thankfully for both sides, the answer is, “Yes.” Florida Statute61.1301

An income deduction order basically garnishes the wages of the paying party per the payment agreement or order that was entered with the court. For example if you are ordered to pay child support at $300 per month and alimony at $100 per month, then the order will reflect when those payments will be made and to whom. If there is an income deduction order, then wages are garnished before you actually receive your paycheck and the money is automatically sent to the State Disbursement Unit.

Just as the paying party has an account, the receiving party has an account with the State Disbursement Unit and that account has to be set-up by the receiving party. The payments will then be made by check or they can go into an account, which the receiving party will receive a debit card for and that money can then be accessed like it’s own bank account.

December 28, 2011

In Florida, Are There Any Restrictions on Moving Away With My Child After a Divorce or Paternity Case?

By Erlinger Family Law

Often parents going through a custody battle think about whether they would like to stay in the same place where they are fighting the battle. Working as a divorce attorney in Jacksonville, Florida, I have noticed that many individuals feel that once they have gone through their divorce or custody issues, they really would like to relocate to a different city. When this issue comes up, whether it be for a job change or a life change, the answer is always the same in a Florida case involving children: If you have the child the majority of the time, then you must put the other parent on notice of your intent to relocate. Florida Statute 61.13001 is the Relocation Statute that dictates how a parent can move with a minor child in Florida.

As is the case with most statutes, understanding the terms is the key to actually following the provisions laid out by the legislature so that you are in compliance with Florida law. If you do not follow the statutory requirements, then you may move to your new place only to be forced back to Florida by the court and your ex.

To summarize the Statute, a relocation is based on a parent moving away from the primary residential address for more than 60 consecutive days and that move is more than 50 miles away from the residence. Basically, if you live in Jacksonville and move to Orlando, then you have to file for relocation under the statute.

December 26, 2011

Can My Wages Be Garnished for Child Support in Florida?

By Erlinger Family Law

Child support in Florida is based on numerous factors, including the income of the parents, the time-sharing/visitation schedule, etc. In a child support case, such as divorce or paternity actions, the Court may enter an order requiring one party to pay child support to the other, or sometimes, for both parents to pay support to a third party (i.e. when an extended family member is taking care of the child). When entering the child support obligation, the court determines which party will be responsible for paying child support based on multiple factors in the child support calculation outlined in Florida Statute 61.30. As a divorce lawyer in Jacksonville, Florida I often receive questions about how to stop child support once a child reaches 18 years of age. Thankfully, the Florida legislature recently modified how child support will be stopped instead of having to go back to court. Of course, like all new laws, it only impacts the orders that have been entered since it was entered, so there are still some hoops to jump through if your child support obligation is older than October of 2010, Florida Statute 61.13.

Florida Statute 61.13 provides some guidelines for determining the nuances of child support, such as the length of time support will be paid, how it will be paid and the like. The Statute provides that child support can be paid through an income deduction order, which means that the wages of the paying party may be garnished. When an income deduction order is entered, there are provisions that must be in the order so that the payroll department and the Florida Department of Revenue are all speaking the same language from the beginning until the end of the obligation.

Since October, 1, 2010, the order must have language not just specifying the date for the child support to begin, such as January 1, 2012, but also when it will end (e.g. the child’s 18th birthday or date of graduation if it falls within 743.07(2)). Also, the order must specify how much support will be owed each month initially, and if there is more than one child, then what the child support will be when the oldest child no longer qualifies for child support. The order will also say whether the money will be deducted monthly, bimonthly or at the payroll schedule of the responsible party.

December 22, 2011

How Can I Best Present My Case for Keeping My Children in a Florida Custody or Time-Sharing Case?

By Erlinger Family Law

Paternity cases and divorces involving children revolve around the best interest of the child standard in Florida. Over the years, the Florida legislature has attempted to make the process less adversarial as it relates to child issues like custody, visitation and parental responsibility. In its attempt at doing so, the legislature changed a number of things including the terms used, so instead of visitation we now say, “time-sharing plan,” and instead of custody we say, “primary time-sharing parent.” As a Jacksonville divorce and family law attorney, this change in terminology helps, but it does not resolve the issues that surround such legal actions because parents do not want typically want to go days without seeing their children when it comes down to development of a time-sharing plan, so the Court can appoint a parenting plan coordinator to evaluate the parents, the children, the environments and then make a recommendation to the court based on that evaluation.

A parenting plan coordinator is available through Florida Statutes, and can be appointed by the Court upon a party’s motion. Often, the coordinator is a psychologist trained to deal with family matters, such as those related to a divorce or paternity case. Also, the coordinator’s background in psychology lends way to his/her understanding for an in depth analysis of the parties as they relate to the children. Ultimately, the parenting coordinator is tasked with the job of evaluating both parties and the children to determine what is in the best interest of the children as it relates to a parenting and time-sharing plan.

A parenting coordinator is a nice tool to use during a divorce or paternity case when the parties do not agree upon visitation. The parenting coordinator is able to do a more detailed analysis of the parents and their relationship with the children and help the Court and the parties see what may truly be best for the children. Since the coordinator typically meets with the children outside of the presence of the parties, the coordinator has an opportunity to hear the children’s concerns and interests for their own futures, thus giving them a voice. Since children do not get to testify in Court unless they are deemed an age and maturity to handle the situation, often the coordinator is the kid’s only line to the judge. Determining the best interest for children is not an easy task, so arming yourself with a coordinator that can look at all sides of the situation and provide an objective perspective can be a very useful tool when dealing with such matters.

December 21, 2011

Why Would I Want a Prenuptial Agreement in Florida?

By Erlinger Family Law

In accordance with the latest Census and ABC News, men and women are waiting longer to get married and the thought is that it decreases the chances for divorce. While studies seem to support the concept, as a Jacksonville, Florida divorce and family lawyer, looking at a marriage later in life also gives rise to new difficulties. As we wait to marry, our value also increases with home buying, retirement assets, career opportunities, business development and the like. So, once you are ready to take the plunge into marriage is there still a way to protect yourself from having to divide up what you have worked so hard to achieve? In Florida, there is an option of a prenuptial agreement, which must be completed, in good faith prior to the marriage.

Prenuptial agreements are outlined in the Florida statutes. However, understanding the provisions before entering the agreement is vital because you do not want to sign away things that you may otherwise be entitled to in case the worse were to occur. When looking to have a prenuptial agreement many people thing there is a stigma attached. However, it is not about planning for your marriage to fail, but insuring that you are protected if the unexpected were to occur. Since marriage can be a tricky relationship for those who have done it for even 30 years, the idea is to simply think about your finances before saying, “I do,” so that you are both protected in the years to come.

Florida Statute 61.079 defines a prenuptial agreement as, “…an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” To put it simply, it is a contract between fiancés before the contract of marriage is completed. The idea of the agreement is to simply separate out what assets belong to what parties before the marriage, during the marriage and at the end of the marriage, if a divorce were to occur. The idea is to also leave as much out of litigation if divorce were to occur, so that way neither party is tied up in an unnecessary legal battle. The most popular example of this type of agreement working is the Tiger Woods divorce. Since there was a prenuptial agreement, the Woods’ were not in divorce battle for years, which could have easily occurred without the prior contract.

December 19, 2011

Am I entitled to my spouse’s retirement when we divorce in Florida?

By Erlinger Family Law

Retirement benefits are often a combination of employee and employer contributions during ones job. The retirement benefits are normally grown through the length of employment, and if an employee is married during his/her employment, then the contribution he/she is making is actually a marital contribution for purposes of a Florida divorce. As a divorce lawyer in Jacksonville, Florida, I have clients that are uncertain if they actually will get any type of retirement benefits if they were to divorce, and sometimes they even postpone divorce due to their fear of their financial futures. To best understand your rights and options as they relate to a divorce, property division and retirement separation, you should speak with a divorce attorney in your area.

In a Florida divorce, the property, including retirement funds, are to be equitably distributed between the parties. However, nonmarital assets are not divided in the divorce because they are considered the property of the spouse that brought them into the marriage. How that plays out with retirement is that if you are married for 10 years and you work for 10 years at the same company before the marriage, then only 10 years of your retirement may actually be divided during the divorce proceedings.

In Florida law, there are mandatory disclosure requirements, which require both parties to provide copies of documents related to bank accounts, IRA, 401(k)s, etc. The reason for this disclosure is so that the proper funds can be disbursed between the parties. A true accounting of your 401(k) can make it easier to guarantee that the correct amounts of funds are actually divided in the final divorce order. The rules governing this division of retirement funds can be found in Florida Statute 61.076.

December 16, 2011

In a Florida Divorce, How Do I Divide or Split My Property?

By Erlinger Family Law

Written By: Lenorae Atter, Attorney

When going through a divorce in Florida, it is often difficult to think about separating the things that have been accumulated during the marriage. As a Jacksonville divorce lawyer, I am often asked how items such as the house, cars, debts, retirements and alike will be divided. Also, divorce attorneys are challenged with the ever-popular issue of the smaller, more emotionally meaningful items like furnishings, gifts, awards, collectibles, etc. The division of assets and debts is not always easy, but Florida Statute 61.075 provides that the division should be equitable, meaning that each party has equal division of all assets and liabilities (e.g. debts). It is best to speak with a divorce or family law attorney to find out your rights and options when going through a divorce in Florida.

Equitable distribution in Florida is designed to make it where the parties are able to fairly take from the marriage since they collected the items together over the course of marriage. The Statute provides specifics for the division of nonmarital assets/debts (e.g. those purchased or accumulated prior to the date of the marriage) and marital assets/debts (e.g. collected during the marriage). The court should first establish what is nonmarital and separate those items from the marital property. The parties can do this individually before going to court and can reach an agreement on what is actually marital property before entering the court for a final hearing or trial. When going through a divorce, it is a good idea to make a list of all of your property and make a list of what is marital and what is nonmarital, share that list with your attorney and your attorney can then share that with your spouse’s lawyer.

Once a list of marital items has been developed, the Court is responsible for dividing the marital property equally. The equal distribution of marital assets is based on value of the property. Since the debts are also equally distributed, there are often give-and-take of assets value versus the debts in order to reach an equal resolution, especially since debts will be based on ability to pay as well as equal distribution. Given that parties often have a disparity in their incomes, and other circumstances may arise to give the Court reason to unequally distribute property, the Court may consider the following factors when distributing marital property and debts in accordance with Florida Statute 61.075(1):

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, free from any claim or interference by the other party.