Jacksonville Divorce Lawyer Blog

November 4, 2016

What Happens When You and Your Spouse are Unable to Agree on Dividing Assets in a Divorce?

Handshake During a divorce parties must divide the assets and the liabilities accumulated during the course of their marriage. One of the first things they tend to divide is the personal property items. Parties typically divide this property based out of simple want and desire. But, often times they hit a roadblock, as there is inevitably an item that neither of them wants to give up. How are parties to resolve these conflicts when they reach this barrier? Parties who are agreeable with one another tend to approach these issues by engaging in a give and take type of negotiation. However, in the midst of the emotional split one party tends to concede on the item, due to simply wanting to resolve this issue and move forward. While an amicable split and division of personal property is ideal, this is typically not the normal set of circumstances. Thus, it is essential for parties entering into divorce to understand what the court will consider when they move forward with dividing your assets and liabilities in litigation.

If warring couples are not able to amicably spit their personal and real property they will find themselves at the mercy of the court that will take into consideration the following factors related to the items: the classification of the item as a martial or non-marital asset, the value of the item, items already distributed as a part of equitable distribution, if the liabilities that have been distributed, the contributions to the marriage by each spouse, the economic circumstances of the parties, the length of the marriage, any sacrifices that lead to the interruption of the career or educational pursuits of a spouse, the desirability of one spouse in maintaining the property, the contribution of each spouse to acquiring, enhancing or producing income of the assets, any intentional depletion of the asset, and any other factors that the court would think must be considered to do equitable justice to the parties. The statute governing the distribution of property is found in Florida Statutes 61.075.

Jacksonville Divorce Lawyers

October 28, 2016

Why Paying Child Support Alone Will Not Guarantee You Timesharing with Your Child.

By Erlinger Family Law

FatherCustody Florida statutes require unmarried fathers to establish Paternity. While many parents believe merely signing a birth certificate is sufficient to establish rights to timesharing and parental responsibility regarding the child, it is not. I see many fathers who were never married to the mother of their child(ren) who act under the presumption that they have rights to see their child(ren), prior to legally establishing those rights. While each parent may not have the rights to timesharing with their children, each parent has a responsibility to support their children.

Through the Florida Courts an obligation for payment of child support can be established without establishing a right to timesharing. Florida Statue 409.256 allows for the state to begin a Paternity action in the following circumstances: the child’s paternity has not been established, when no one is named as the father on the child’s birth certificate or the person named as the father is the putative father named in an affidavit or a written declaration as provided in subparagraph 5 of the statute, The child’s mother was unmarried when the child was conceived and born, The department is providing services under Title IV-D., or The child’s mother or a putative father has stated in an affidavit, or in a written declaration as provided in s. 92.525(2), that the putative father is or may be the child’s biological father. The affidavit or written declaration must set forth the factual basis for the allegation of paternity as provided in s. 742.12(2).

While the establishment of child support payments without the establishment of timesharing for a Father can occur in numerous circumstances, I typically see it occur after the mother seeks state sponsored aid, which would fall under the category of the department providing services under Title IV-D. Often times when a mother is in need of state financial assistance, such as WIC, food stamps, or HUD housing, her case worker will request will inquire as to the support she is receiving, or not receiving, from the father of her children. The state will then seek to establish paternity of the child for the purposes of implementing a child support obligation on the father. Since the establishment of a child support obligation does not necessarily establish any rights of the father over the child, the father should file with the putative father registry in the State and file a petition to establish his parental rights. Filing with putative father registry allows for the State to be on notice that there may be a child that is biologically connected to the registered man and if anyone ever tries to terminate the parental rights of the child, then the registry is checked for a potential father of the child. Whereas, filing a petition to establish parental rights will allow for the establishment of timesharing, parental responsibility, and a child support arrangement (if one is not already in place).

October 21, 2016

An Award of 50/50 Timesharing May Not Eliminate Your Child Support Obligation

By Erlinger Family Law

Money In Florida parents are responsible for the support of their children. This support is not limited to just emotional and physical support, but also extends to financial support. This financial support is regulated by Florida Statute 61.30. There is a common misconception that exists amongst many clients regarding the amount of support each child is due. Many clients believe that if they are awarded 50/50 timesharing the support award will terminate. The logic is often based on the notion that if the parents are equally dividing time then there will be no need for extra financial support beyond what is provided during the time that the child is with each parent. This logic is flawed when dealing with Florida child support cases.

The Florida Statutes require the courts to assess child support by combining the net monthly income of the parties responsible for support, and then calculating the individual responsibility by determining the parent’s share of support based on their income. This calculation is done by dividing the parent’s net monthly income by the parties’ combined net monthly income. Then once the share of support is determined a calculation is made based on the timesharing awarded to each parent.

Typically when parents have a substantial difference in income the 50/50 timesharing award will not insulate the higher income earning parent from not paying some child support. The purpose of the Florida child support model is to allow the supported child to be financially supported to the same extent they would be if the parents lived together. Thus, when the income amounts are disproportionate and the timesharing award is 50/50 the higher earning parent will typically still owe a child support obligation to the lesser earning parent. While this may be the case in some instances, it does not apply uniformly to all cases.

October 7, 2016

Keeping Your Children Informed of the Judicial Punishment Associated with Sexting

By Erlinger Family Law

Teen Texting

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.

September 30, 2016

Divorcing the Adulterating Spouse- Emotions and Tact when mentioning infidelity to the Court.

By Erlinger Family Law

Divorce is often time filled with emotional turmoil. Spouses are splitting up the property, the conversations can be heated, and at times children are thrown in the midst of this evolving chaotic environment. As an attorney I hear a variety of reasons attributed to the breakdown of a marriage. Often times finances, differing parental styles, general disdain, and infidelity cause irreparable rifts in even the most stable marriages. Contentious spouses come into my office constantly waiting to bring up every flaw and every wrongdoing of the other party. While an attorney’s office may be the first place many clients feel they can unload the weight of the marriage dysfunction, the courtroom is also a common place clients want to unload this weight, even though it may be to their own detriment.

Although the goal for the angry spouse seems riddled with vengeful desires, a skilled divorce attorney in Jacksonville would utilize caution and tact before bringing up the allegations made between the spouses in open court. An attorney must exercise judgment and apply the statutory considerations to every situation that arises. Whereas, one spouse may find it important to mention to the court that since the separation the other spouse has begun dating or that one spouse is engaging in a same sex relationship. A skilled attorney knows that while both of these situations stir the emotions swirling around the divorce mentioning these facts to the court may not be of the utmost importance.

Florida is a no-fault divorce state. This means under Florida family law if a party is seeking a divorce they do not have to prove specific grounds, other than that the marriage is “irretrievably broken”, for the court to grant the divorce. While the court may not care to hear of the other party’s indiscretions for the sake of deciding whether or not to grant the divorce, the court may be interested in these facts when considering other facets of the case. For example, the court may consider extramarital affairs and conduct of the other spouse when making a determination as to alimony and timesharing of the children. The court may consider a party’s extramarital relations if those relationships were conducted in a manner that caused harm to the child or marital funds were dissolved by the other spouse to maintain that extra-marital relationship.

September 23, 2016

Which Spouse Remains in the Home During the Pendency of a Florida Divorce?

By Erlinger Family Law

“I can’t take this anymore, we must get a divorce!” “Well, I’m not leaving.” This dialogue, to the extent there is any dialogue at all, is common prior to and during a Florida divorce case otherwise known as a Florida Dissolution of Marriage. This conversation then leads to the following question: Which spouse remains in the marital home during the pendency of a Florida divorce?

During a Florida divorce there are so many moving pieces and areas filled with uncertainty. Some divorcing couple move into separate residences prior to either party filing for divorce. Yet, there remains the other group of couples who are still living in the same home at the time of the initiation of the divorce proceedings. If one party does not voluntarily choose to move out of the shared residence, and the parties do not wish to continue to live together, who gets to remain in the home under the dissolution / divorce laws in the State of Florida? When real property or a leasehold is jointly titled to spouses both spouses have the right to the use of the owned or leased property, until a temporary order of exclusive use and possession or an ordered injunction placing restrictions on one spouse’s 1122707_divorce use is entered by a judge. If both parties remain in the home upon the filing of divorce, and neither party wants to budge on moving out of the home, the courts can be brought into the equation to have a neutral party make a ruling regarding who is to remain in the home. The court does not automatically get involved regarding who remains in the residence unless the appropriate motion is made by one of the parties to the divorce. The obligation of the parties and a Florida family law judge’s involvement in making a determination as to who is to remain in the residence is contingent upon a wide variety of factors. There is no simple answer to the question of who will stay and who will leave. The burden of proving that the other party should vacate the premises will be on the party making the motion. The court will consider the numerous factors and make a ruling based on Florida law and equity.

If you are leasing property together and the name of both spouses is on the lease both parties have the legal right to remain in the home, but that’s not always the ideal situation in the midst of a divorce. The lease is a separate agreement with yourself and the owner of the property. More likely than not the contract does not include a clause allowing you to dissolve the lease agreement as a result of your pending divorce. The obligation due under the contract will still remain. Even though you do not own the property in question the court still may rule on who has exclusive use and possession of the leased premises. While the court has the authority to make this ruling this is still an arrangement that should be discussed with the owner of the property so the appropriate changes can be made to the lease agreement and access can be restricted to the non-possessing spouse.

November 16, 2015

Birth Mothers and Adoption in Florida

By Erlinger Family Law

Adoption laws in Florida sometimes change due to cases that make their way through the court system. Adoptions are often a pleasant legal experience when everyone cooperates from the beginning, but that is not always the case. What results is not just a long court battle when things do not go as planned, but changes to the law to help minimize the risk of difficulties in the future. That recently occurred in Florida and the changes not only impact the adopting parents, but the birth mother as well.

In a recent Florida adoption case, the court determined that a birth mother, giving up her rights to the child through the signing of a consent, should be represented by her own legal counsel. Often the way adoptions go, the birth mother is generally advised of her rights by counsel that may be representing the adopting parents or by someone from the adoption agency. The Florida courts recently held that a birth mother should actually have her own adoption lawyer present at the time of signing consent so that she is fully advised and aware of her rights and options in the proceeding.

As a lawyer, I agree with this change because I think that it better protects the birth mother throughout the process. Often emotions run high and you want to make sure that as a mother, one choosing to your child a home with an adopting family, that you understand the legal process from the beginning. I do not think that the birth mother should only be represented at the time of signing a consent, but as soon as possible when she has made the choice to place the child. This decision is a great decision to make and being armed with knowledge as to the process and feeling like you have support from the beginning can be crucial to a good outcome for you, the child and the adopting parents.

March 1, 2013

Florida Alimony and Proposed Legislative Changes for 2013

By Erlinger Family Law

Florida marriages lasting longer than sixteen (16) years may result in an award of permanent alimony if the spouses decide to divorce. Over recent years the debate of alimony in Florida has been at the forefront of legislative session. The Florida legislature along with special interest groups and the Florida Bar have thrown their hats into the rings of discussion creating some reform with things like new parameters for determining the length of alimony. In the 2013 legislative session a new bill has been proposed that has thus far passed in the Civil Justice Committee and is making its way through the House of Representatives. Its companion, Senate Bill 718 is not ripe for voting yet.

Mainly special interest groups like “Florida Alimony Reform,” who has presented prior bills and led demonstrations at the Florida State Capitol, have headed the proposed changes to alimony. The House Bill 231 makes the following proposed changes to the present Alimony law §61.08, Florida Statutes(2012) are summarized as follows:

1. Revision of factors considered in determining alimony;

February 26, 2013

What Is the Harm in Doing Your Own Divorce in Florida?

By Erlinger Family Law

The world of, “do it yourself,” has become far easier over the years with the invention of the internet. People now walk into doctors’ offices and tell the doctor what their diagnosis is and what medication to prescribe. The same is true for divorces, wills and the like. In a Florida divorce there can be many moving parts to figure out, for example, whether alimony should be paid; how long it should be paid; who will take what bank accounts and debts; etc. The reality is that dealing with a divorce is similar to a company dissolving and if each item is not accounted for, then the consequences to each party can be expensive and financially devastating.

In a Florida divorce, alimony is based on a number of factors, including but not limited to, length of the marriage, contribution of each spouse to the marriage, the standard of living of the parties, the needs of the requesting spouse (i.e. whether she/he has earning potential), and the ability for a spouse to pay alimony. Understanding these factors can be complicated because instead of looking at a need as a monthly amount we have a tendency to think through our bills and say, “You pay x, y and z bills.” In a divorce involving alimony, having a spouse pay such bills can be a challenge financially to the party receiving the benefit and the party paying. Alimony is income for tax purposes to the receiving party and a deduction for the party paying, not knowing the amount paid can be detrimental to filing taxes correctly.

Also, not knowing how long alimony should last can cause future complications if the parties reach an agreement, without legal help, and agree that the alimony is going to be non-modifiable over time. Non-modifiable alimony actually means that neither party can ask for more money or to pay less money each month. And often, when I see parties have reached their own agreement, this is a factor that they put into the agreement. The downfall, if the paying party wants to retire s/he must do so with a continued ability to provide alimony for whatever duration was agreed upon by the parties.

February 22, 2013

Establishing Paternity of a Child in Florida: Establishing Parental Rights and Visitation

By Erlinger Family Law

In recent years, the rules and laws regarding paternity actions in Florida have changed. Paternity cases generally establishes a father’s parental rights to a child in Florida; however, if the paternity case is brought by the Florida Department of Revenue those rights are limited to, basically, paying child support. In prior years, fathers were able to file a counter-petition in the Department of Revenue case and request time-sharing/visitation and even custody, and request to have parental rights shared by the mother and father to make decisions regarding the child’s life. Filing a counter-petition basically saved the father money because the filing fee is less and it consolidated the cases into one so as not to have to attend multiple hearings on the same issue. Recently, the ability to file a counter-petition in a Florida Department of Revenue case against a putative father was banned. So, how do you establish your parental rights when the State of Florida is only filing an action to establish your child support obligation?

To give some background, signing a birth certificate as the “father,” does not automatically give that person parental rights to the child, if the mother and father are not married when the child is born. Signing a birth certificate gives the presumption that the person that signed is, in fact, the father. However, the rights to the child have to be established by a court. If the father does not do that, and later the mother files for any type of government assistance, then the State of Florida may file an action to establish paternity and child support for the benefit of the child.

The State of Florida’s interest in filing an action to establish paternity is based on a financial need of the State and not public policy for children to have a father. If a mother is requesting government assistance, like Medicaid for the child, then the State has a right to look at whether another person has a financial obligation to the child and possibly has an ability to provide health insurance for the child. Therefore, the State will request that the mother give a list of all possible fathers of the child. After that application is completed, the State of Florida on behalf of itself and the mother, will file a paternity action against the possible fathers. A DNA test will then be requested to establish the biological father. The case will then move forward with regards to that one individual and the State will only request child support be established.