Jacksonville Divorce Lawyer Blog

February 22, 2011

How are Businesses Divided In a Florida Divorce?

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One concern a lot of my clients have is how to protect their business in the event they get divorced from their spouse. Under Florida law, a business acquired during the marriage is marital property and should not be distributed to only one party.

The first thing the court must do is identify the asset as a marital asset. This was held in the decision of Esposito v. Esposito, 651 So 2d 1248 (Fla 2d DCA 1995). It doesn’t make sense though that the parties should be left running the business together after the divorce is finalized. Therefore, the court must value the business asset and then determine the distribution to the spouses.

Once the court makes the determination of what portion of the business is marital it can then determine the value. The valuation of the business as a marital asset must be determined through the presentation of competent substantial evidence to the court. After this value is determined the court will distribute the interests according to the principles of equitable distribution. This may include setoffs among other assets of the marriage or forms of alimony to compensate for one spouse’s distribution without disturbing the business.

February 21, 2011

How Are Uncovered Medical Expenses Divided in Florida Cases Invovling Children

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Florida divorce cases involving children, child support cases and paternity cases often provide for support of the children based on Florida Child Support Guidelines in Florida Statute 61.30. However, the guidelines do not address medical expenses regarding the children, except for health insurance coverage purposes. So, how does Florida divide the parental financial responsibility for uncovered medical expenses for the children?

Often, agreements reached by the parties will include language that the parties are required to equally split the uncovered medical bills. These issues recently came up in the Florida 2nd District Court of Appeals, which ruled that uncovered medical expenses should be divided in relation to each parents percentage of income, as in the child support guidelines. Zinovoy v. Zinovy, 36 FLW D34 (Fla. 2nd DCA, December 29, 2010).

So, what does this mean? Florida child support is based on the overall income of the parents. Basically, if each parent makes $5,000 per month, then the overall monthly household income is $10,000 and each parent is 50% responsibility for that amount. So, their children’s uncovered medical expenses would be divided 50/50. If one parent makes $4,000 per month and the other makes $6,000 per month, then the uncovered medical expenses would be divided 40/60. This helps maintain a fair balance based on the incomes of the parents.

February 18, 2011

Attending a Final Hearing in a Florida Divorce: What Should You Expect?

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

If you live and Florida and have filed for divorce and now have an agreement regarding the dissolution of marriage, then you may be attending a final hearing on the Consent Final Judgment. If you have reached an agreement that has been finalized in writing, then the next step is for one party to attend a final hearing. A final hearing requires testimony, but it is limited to the following:

February 17, 2011

Charlie Sheen’s Divorce Finalized?

By Erlinger Family Law

Maybe I was the only one who wasn’t aware that Charlie Sheen was still married while listening to recent accounts of his exploits with a house full of porn stars and a pile of cocaine that sent him into rehab last month. Then again, this is Florida and that’s California….I guess things are a little different in Jacksonville. California law says that a married couple cannot get divorced until at least six months after the divorce papers were filed. In other states the wait is longer. Nevertheless, Charlie Sheen’s divorce from Brooke Mueller is final.

According to news reports, Charlie Sheen will have to pay his ex $55,000 per month in child support and $750,000 in lump sum alimony. It is also reported that they will share custody of their twin sons who will be two years old next month. The couple had signed a prenuptial agreement prior to getting married. That is a good thing for Charlie Sheen who is reportedly the highest paid actor on television and makes upwards of one million dollars per episode acting on the popular show “Two And A Half Men”. Under California law, his wife would have been entitled to half of anything he made while they were married. Thanks to his prenuptial agreement she will only get a small portion of those earnings.

February 16, 2011

In a Florida Divorce, Is Counseling Required?

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Filing for divorce in Florida does not require a period of time for martial or individual counseling. If you are filing for divorce, then the only requirements before filing are that at least one party must be a resident of Florida for at least six (6) months prior to filing a petition and that the marriage is irretrievably broken.

If the marriage is not irretrievably broken, meaning that there is a chance you may get back together, then the Court may require you attend counseling and postpone the divorce proceedings for a reasonable period of time, often three (3) months.
If the Court orders marital counseling or counseling for one of the parties, then the petition is not thrown out, but is put on hold for the time established by the Court.

If you go to counseling for less than the time ordered by the Court and know that you would like to proceed with the divorce, then you may speak with your lawyer about filing a Motion with the Court to allow the divorce to continue.

If you are able to amicably resolve the divorce issues and reach an agreement prior to the trial, then you or your spouse will have to testify that the marriage is irretrievably broken. If that fact is denied to the Judge, then you may be ordered back to marital counseling. However, if the testimony to the court is that the marriage is broken irretrievably, then the Court will most likely enter the agreement as an order of divorce.

February 15, 2011

The Difference Between Timesharing and Parental Responsibility In Florida Family Law.

By Erlinger Family Law

This is a concept that a lot of clients have trouble grasping. Under the Florida Family Law Rules these are two separate and distinct concepts. Parental responsibility involves the parents’ involvement in the major decisions in the child’s life including health care, school, child care, etc. In Florida there are three types of parental responsibility:

1) Sole Parental Responsibility- for one parent over all aspects of the child’s life;
2) Shared Parental Responsibility- where the parents jointly make decisions on all parenting decisions; or
3) Shared Parental Responsibility With Ultimate Responsibility- for one parent or the other over certain aspects of the child’s life or over all aspects, if the parents do not agree on decisions in those aspects of the child’s life.

There are often situations where one parent has shared parental responsibility but has less than 50% of the timesharing and may only see the child or children every other weekend. Timesharing on the other hand is the amount of time the child spends with each parent. Timesharing is established by submitting a parenting plan to the court that has been either agreed upon by the parties or for a judge to make a determination on. Once timesharing is ordered the parents must abide to the schedule set forth in the parenting plan unless they agree to modifications.

February 14, 2011

Florida Child Support Cases Require Filing a Financial Affidavit and Complying with Mandatory Disclosure Documents

By Erlinger Family Law

Florida paternity and divorce cases involving children require child support to be calculated. Child support is based on the income of both parties and in order to establish that the Court does not simply accept testimony. So, how do parties actually provide proof of their individual incomes?

Florida divorces are ruled by Florida Family Law Rules of Procedure, which requires that both parties file a financial affidavit. A financial affidavit details the monthly expenses of the individuals including their income and expenses. In addition to personal expenses, the financial affidavit requires the children’s expenses be calculated as well. That way the court knows which parent is paying for childcare and the child’s health insurance, which all goes into the child support calculation. Since it is an affidavit, the parties must sign and have the affidavit notarized.

In addition to the financial affidavit, the parties are required to provide documentation outlined in Mandatory Disclosure, also detailed in the Florida Rules of Family Procedure. Some of the documents required are the following:

a) At least three (3) months of bank statements for all accounts held individually and jointly. Joint accounts are any accounts with the party’s name on them, including those held for elderly family members.
b) At least three (3) months of paycheck stubs. If you are paid hourly and work overtime, it is a good idea to provide as many months as possible.
c) Any and all loan applications filled out by the individual or done as a cosigner. This documentation often has questions related to your income and allows the Court to see what type of loans you may have outstanding.

All of these items help establish the actual income of each party and what the children’s needs are. Child support is based on the combined income of the parties and what each individual’s percentage of contribution is to that combined amount.

February 11, 2011

Florida Allows Income Deduction for Child Support and Alimony Obligations from Paternity and Divorce Actions

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

As a Jacksonville, Florida family law attorney, I represent clients in paternity, child support and divorce cases. Payment of obligations for child support and alimony seem to weigh on both parties because one needs the support and the other wants to make certain payments are made on time so there are no future actions for lack of payment. The answer is that Florida does allow income deduction orders to be entered against the party responsible for payment, which means that wages can be garnished for the support. Income deduction is an easy way for the obligor to pay the money owed and it allows the money to be direct deposited into the proper account. In addition, it allows for proper accounting of all monies paid so that accusations of nonpayment can be properly defended.
According to Florida Statute 61.103, an income deduction order can be entered in connection with an order that establishes the support obligation for child support or alimony. The income deduction order must state that an order for the obligation has been entered by the court and it must include the date the order was entered, the court that entered the order (i.e.

Jacksonville is the Fourth Judicial Circuit) and it must provide the court number associated with the original order.
Once the income deduction order is entered, the court must furnish the obligor with a statement rights and remedies associated therewith and provide details of the fees associated with the deduction, the amount to be deducted, that notice will be given to the obligor’s employer and that subsequent employers must be notified by the obligor, and other factors related to Title IV-D cases.
Income deduction orders can be a good tool used by both parties in a divorce, paternity or child support case because it helps protect the interests of both parties. and

February 10, 2011

Florida Divorce: Who Gets The House?

By Erlinger Family Law

Who gets the home in a Florida Divorce? This a common question in most of my clients’ cases. The answer is not that simple. The Court usually begins with the premise that the division of the home should be equal. Understandably, this raises a number of additional questions: How do we divide the house?; Do we sell it?; Who gets to live in the home if we can’t sell it or do not want to sell it?; and What if we can’t afford two separate households?

If there are minor children of the marriage the Court has to take into consideration who the children will be living with. The Court must consider whether it is in the best interests of the minor child for the parent with majority timesharing to remain in the marital home. Generally, absent compelling financial circumstances, the parent with the majority timesharing will retain the use and possession of the marital home until the minor child or children reaches majority or the parent remarries.

February 9, 2011

Requirements for Filing for Divorce in Florida

By Erlinger Family Law

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

Filing for divorce in Florida? Florida Statute 61.052 lays the ground work for filing for divorce in Florida. First, you must qualify by being a resident of Florida for at least six (6) months before filing a petition, then you must meet the requirements for a divorce to be granted.

In order to start a divorce, one party must file a petition for dissolution of marriage, which should allege the following: that the marriage is irretrievably broken or one spouse was adjudged mentally incapacitated at least three (3) years preceding the petition; whether there were children born, adopted or expected from the marriage; request for alimony; request child support; request for timesharing/parent plan; equitable distribution of marital assets and debts or unequal if there is a legitimate basis for the request (depletion of marital assets by one party); and any additional requests that may be sought.

The party that is served with the petition must file an answer to the petition within 20 days of the date of service. That party may also file a counter-petition requesting the same or similar things as those pled in the initial petition. If a counter-petition is filed, then an answer must also be filed to that petition within 20 days. Once everything is filed, then you can move on with the divorce by asking for a trial date.

During the time between filing a petition and before trial, there is a period of discovery, where both sides must provide documentation of their assets and debts along with a financial affidavit. There is a timeframe for all of the proper documentation to be provided to the other side.

Prior to attending a final hearing, the judge will require that you attend mediation to possibly settle the case before trial. Mediation is a chance for a neutral third party to assist both sides in working through some of the issues and hopefully settle their case without a trial.