Divorce / Dissolution of Marriage

March 14, 2011

In Florida, Can Alimony Be Discharged in Bankruptcy?

Bankruptcy filings in Jacksonville, Florida have increased since the recession began. For many people going through a divorce or having been divorced where alimony is a factor often wonder if the alimony obligation can be discharged in bankruptcy.

According to the bankruptcy laws, only certain items are dischargeable in an action for bankruptcy as outlined inUnited States Code, Title 11, Chapter 13. According to bankruptcy and Florida law, the outcome from a discharge of an alimony obligation may be detrimental to the receiving party, therefore the alimony cannot be discharged in the bankruptcy court.

In addition, the debt incurred by a spouse, ex-spouse or child through a divorce action cannot be discharged by the bankruptcy, according toSection 523(a)(15) of 11 U.S.C. Sec. 23 .

March 11, 2011

Using A Personal Property Appraiser In A Florida Divorce

By Wood, Atter & Wolf, P.A.

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

Florida law requires equitable distribution of marital property in divorce cases. Furniture and items purchased or received during the marriage or anticipation of the marriage (wedding gifts: Greenberg v. Greenberg, 698 S.2d 938 (Fla. App. 1997)) are considered marital property and subject to distribution. Equitable distribution is based on the value of the property and furniture. The idea is to give each party the same monetary value of property.

March 9, 2011

In A Florida Divorce, Do I Have To Return My Engagement Ring?

By Wood, Atter & Wolf, P.A.

Written By: Lenorae C. Atter, Attorney

Wood, Atter & Wolf, P.A.

If you are divorcing in Florida with assets purchased before marriage, Florida law recognizes them as premarital assets and those items typically remain with the person that brought them into the marriage. In Florida family law cases, clients often wonder which party will get the engagement ring.

March 8, 2011

Are Disability Benefits a Marital Asset?

By Wood, Atter & Wolf, P.A.

Disability benefits are not subject to equitable distribution. Generally future lump sum disability benefits are not considered a marital asset. However, they may be used to calculate income for purposes of alimony.

There is also some case law which states that there may be a marital component to a disability pension. To the extent that a disability pension does not represent actual compensation for a disability, it may be considered a marital asset. [Gaffney v. Gaffney, 965 So 2d 1217 (Fla 4th DCA 2007) (where the trial court made findings that the husband’s disability was not a factor in the amount of the monthly benefit he receives and the only effect of husband’s disability was that he was able to receive his retirement benefits two years early, despite its “disability pension” designation, the marital portion of husband’s pension was a marital asset subject to equitable distribution to the extent it does not represent actual compensation for disability).]

February 25, 2011

In Florida, When Can Alimony Be Modified or Changed?

By Wood, Atter & Wolf, P.A.

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

Alimony is a common factor in Florida divorce cases. Alimony or spousal support is determined using a number of statutory factors, including but not limited to the lifestyle of the parties during the marriage, the length of the marriage, the contribution of each spouse to the marriage, etc. Once alimony is determined, the Florida court awards that amount to the needing spouse and it is often in place until the end of time specified in the order. However, given certain circumstances, the alimony amount can be modified if there is substantial change in circumstance.

Florida Statute 61.14 provides for a modification of alimony or spousal support if certain factor are presented to the court and the threshold is met. Modifications in alimony can be a request by the needing party for an increase in support or the payor may request a decrease of the alimony amount. In order to establish a modification, the moving party must allege a substantial change in circumstance has occurred for the decrease or increase of spousal support to be changed. For example, if spousal support was awarded and the paying party discovers that the receiving party is cohabiting or residing with another person in a supportive manner.
Florida Statute 61.14 identifies a supportive relationship and provides actual provisions under which alimony may be terminated. These include, but are not limited to the following:

1. A supportive relationship exists between the party receiving alimony and the person s/he lives with.
2. In determining the degree of support, the court is allowed to find out the nature of the relationship between the alimony receiving party and the person with whom their is a supportive relationship (spouse, girl/boyfriend, friend, family member, etc.).
3. The relationship can be determined by how the two individuals hold themselves out in society, but still does not recognize common law marriage.

There are other factors used in determining a change in alimony or spousal support and it is best to speak with a qualified family law attorney regarding such issues before proceeding.

February 24, 2011

Christina Aguilera Settles Her Divorce, You Can Too With A Florida Prenup

By Wood, Atter & Wolf, P.A.

Five years after the Mogul Pop Star married music executive Jordan Bratman, Christina Aguilera settled her divorce on Valentine’s Day of all days. After all, five years is a long time to be married anyway and what could be a more romantic present for her new beau Matt Rutler. It’s been reported that Christina, Jordan, and Matt have been living in the same house until recently. The thought of that doesn’t exactly conjure up a light-hearted “Three’s Company” episode. However, things are looking up for the recently troubled starlet as this marriage winds down and Jordan finally moves out.

Christina and soon to be ex-husband Jordan have a three year old child together. According to the agreement they will be sharing custody of the child. The couple had a prenuptial agreement and although the exact settlement terms have not been reported, Jordan is rumored to be getting a little something above and beyond what the prenup called for.

Prenuptial agreements in Florida are valid documents that hold a lot of weight when things don’t last. It’s important to have an experienced attorney draft the terms if you want to avoid some of the common pitfalls that can arise. There are also certain things that you cannot do in a Florida prenuptial agreement. The best thing about a prenup is it avoids lengthy divorce litigation.

As in Christina Aguilera’s divorce, the tough stuff is finished, the couple need only wait until April 15, 2011 when they will both be legally single under California law. There was no lengthy legal battle with an uncertain ending as in the highly publicized Kelsey Grammer divorce. Prenups are a great way to avoid litigation in which you may spend much a lot of the money each spouse might have otherwise walked away with.

February 22, 2011

How are Businesses Divided In a Florida Divorce?

By Wood, Atter & Wolf, P.A.

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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 Wood, Atter & Wolf, P.A.

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 Wood, Atter & Wolf, P.A.

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 Wood, Atter & Wolf, P.A.

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.