Divorce / Dissolution of Marriage

August 6, 2012

In a Florida Divorce Involving Custody Case, Can My Words Come Back to Haunt Me?

More courts throughout the country including Florida are recognizing a condition called Parental Alienation Syndrome or PAS. Parental Alienation Syndrome is often found in child custody or time-sharing battles in Florida. The basis for the issue is that one parent tries to pull the child into his/her corner and makes derogatory or disparaging remarks to the child about the other parent. The effect of which can be alienating the child’s affections from one parent to the other. As a Jacksonville divorce and family law attorney, I often counsel my clients early on that the children are not part of the case and are not meant to be involved. However, ultimately it is up to the parents to shelter the child from the court battle.

Often in a divorce, emotions run high and a parent may be concerned that the court will make a decision that takes the child from them. If emotions become too high and both parties are looking to achieve majority time-sharing, then the court may require that the parties undergo a Social Investigation, which took the place of a custody evaluation. The investigator is often a mental health professional that is trained to look at the parents and child to determine what is in the best interest of the child for purposes of time-sharing. The accusations of PAS should be brought to the attention of the investigator so that they can be properly identified and determined as to whether detrimental to the best interest of the child and the overall placement of the child with regards the time-sharing and parenting plans.

Issues involving claims or allegations of PAS can also be brought later by the parent-victim and determined by the court as to whether it is a substantial enough change to warrant a change in majority time-sharing. If PAS can be identified by the court through witness testimony (the child if she/he is old enough), and other evidence, then the court may find that the parent exhibiting such behaviors should be limited in his/her contact with the child, thus creating a need and environment for the child to be placed with the other parent on a majority basis.

August 3, 2012

Change to Florida Divorce Law Impact on Retirement, Life Insurance, Annuities, etc.

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce all assets and debts are to be equally divided regardless of fault of a spouse. Financial items such as annuities, retirement planning accounts, life insurance payouts that like are to be divided equally between the parties, if they were accumulated during the marriage. However, Florida did not have a law in place to automatically void or nullify assets as listed above in the event of the death of a party. For example, if an annuity was held in one spouse’s name and awarded to that spouse in the divorce, but she/he failed to change the beneficiary and she/he subsequently died, then the beneficiary remained the other spouse. As of July 1, 2012, that is no longer the law in Florida. Effective July 1, 2012, Florida law now has a post-divorce automatic nullification for beneficiary-designated non-probate assets (i.e. those assets that do not have to pass through probate upon the death of a party since). Such assets are as follows: life insurance, annuities, pay-on-death accounts, and retirement planning accounts.

While Florida previously recognized laws that automatically cut-out the divorced spouse from a will and from a revocable trust, there were no laws in place to cover the issue of accounts like life insurance. Previously, the recovable trust was the estate planning tool most common for individuals, so the laws made sense until other options became more readily available and popular. Over the years, financial planning and retirement accounts have grown in popularity and protecting them from a divorce has been a concern for many during the divorce and post-divorce process.

July 30, 2012

In a Florida Divorce, Do I Get Credit or a Set-Off for Payments on My Home?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, the process can be grueling and determining how to divide property can be both emotionally and mentally challenging. Understanding the divorce process in Jacksonville and throughout Florida can be helpful so that you can focus on the issues at hand and deal with those aspects of your finances and property that are going to be most impacted by the divorce. A common issue, especially in today’s real estate market, is deciding what to do with the marital house. The marital home is subject to equal distribution, per Florida divorce law and as such, the property’s equity and debt have to be determined along with the division. In many divorces there is a question that arises regarding credits or set-offs of the marital home. Often, one party may believe she/he is entitled to such credits or set-offs for multiple reasons. The way to receive said credits is determined in either an agreement by the parties or by the court, if evidence supporting such a request is provided.

Florida Statute 61.077 establishes the law regarding one spouse receiving a credit or set-off for the marital property upon the sale of the home. In order to provide for a credit or set-off from the sale of the home, the parties may reach a settlement agreement or have a final judgment entered with the court that equally divides assets and debts and provides for such credits. Regardless of the judge making the ruling or the parties reaching an agreement, there are certain provisions that have to be determined in order for the party to receive the set-off or credit upon the sale of the home. The following factors are to be considered, and should most likely be addressed in the final judgment, whether by agreement or the judge’s ruling in a divorce trial:

July 23, 2012

Myth or Fact: Moving Out During a Divorce Means You Abandoned Your Home in Florida?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

As a Jacksonville, Florida family law and divorce lawyer I get many questions regarding the martial house or home. The common question is whether moving out means abandoning the home and any rights to it. There seems to be a common myth in divorce situations regarding marital property and what you can and cannot do with it when going through a divorce and when you have actually given up your rights to the property or real estate in this case. So, fact or fiction, if you separate and move out of the marital home before the divorce, then you have abandoned the home and given up all rights to the home?

If I move out of the home then I have abandoned the home and any interest I may have in it? False. A home purchased during the marriage is considered property to divided in a Florida divorce. The home may be “under water” or it may have equity, but whatever it’s financial state, the property has to be divided. Simply leaving the home does not exempt any liability you may have, especially if your name is on the mortgage. Moving out also does not have any bearing on you getting a portion of the equity of the home if it were to be sold. If the home is not going to be sold, but kept by the other party, moving out does not impact your ability to be bought out from your portion of the equity.

July 20, 2012

What is a Motion for Contempt and How is One Used in Florida?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

In Florida, when the court enters an order regarding a divorce, child support, paternity, or other matter, then the court is telling the parties what they must do. If one of the parties is not doing what was previously ordered by the court, then the other party may file a Motion for Contempt, which means that she/he is asking the court to hold the offending party in contempt of court. Contempt of court basically means that a party has willfully and voluntarily not complied with the court’s orders. So, a motion for contempt is a way for the court to enforce the prior orders by punishing the offending party if she/he is held in contempt.

How does this work? If Mary and Frank have a paternity case and the judge entered an order that Frank will pay Mary $500 per month in child support, then Frank must pay $500 per month in child support. If Frank has a job and an ability to pay $500 per month and he chooses not to pay, then Mary may file a Motion for Contempt action against Frank. Mary would state in the motion what the prior order required and what Frank has not done. If Mary paid an attorney to file the action, then she may ask that Frank also pay for her lawyer fees since his actions are the only reason she had to hire a lawyer. Mary may also state that since Frank is voluntarily not paying child support that he should be put in jail.

July 13, 2012

Divorce in Florida Requires Documents to be Provided

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

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In a Florida divorce, the assets and debts of the party are usually divided equally. Due to this aspect of a Florida divorce, many people believe that they can hide assets from their spouse in order to protect their own interest. In so doing, it is not only presenting false information to your spouse, but also to the court, which can have negative repercussions, such as later having the divorce overturned due to fraudulent activity. So, when someone asks if they should hide assets, the answer is going to be, “no.”

In a Florida divorce, the rules of family law procedure, which govern the proceedings, require that each party file mandatory disclosure items with the other party. The mandatory disclosure item requires each party to fill out and swear to the truth of their financial affidavit. A financial affidavit provides information regarding all forms of income and monthly expenses of the spouse. Each spouse is required to file his/her own financial affidavit. This document is sworn to, so you want to make certain it is filled out as accurately as possible so as not to lead to later discovered evidence that contradicts the form.

July 11, 2012

In a Florida Divorce Will My Business Be Given to My Spouse?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, regardless of fault, the marital property, debts and assets are to be divided equally. Florida divorce requires that marital items be equitably distributed through the court if the parties cannot otherwise agree on the division of assets, debts, and the like, with few exceptions. The one thing that often can be left out when couples try to divorce on their own is the division of a business. Yes, in Florida, if you start and own a business during the marriage, then that is a marital asset (sometimes a liability) that should be divided by the parties. However, it also means that there is another party to your divorce, the actual business itself, because the business has an overall interest in the outcome of the case.

For example Wanda and Hank have decided to divorce after twenty (20) years of marriage. About five (5) years into the marriage, Wanda started her own bakery, Wanda’s Treats, and it has been successful since it opened. Wanda is now more of a managing owner, than acting as lead baker so the business is self-running at this point in their marriage. Hank files for divorce and in his petition, requests that the business be equitably divided between him and Wanda. Normally, in filing for a divorce, the case will only list the parties as Hank and Wanda. However, since Hank wants part of the business, the business itself actually has a stake in the divorce and should actually be named as an additional party to the suit. When that occurs, Hank not only needs to serve Wanda with divorce papers, but also serve Wanda’s Treats’ registered agent, separately. Mathis v. Mathis, 2D11-298 (Fla. 2nd DCA June 15, 2012). By doing so, the business can actually have its own attorney as well to make certain that the business valuation is fair to the business and that any division is done to preserve the integrity of “Wanda’s Treats.”

July 6, 2012

Tom Cruise and Katie Holmes File for Divorce: Understanding the Divorce Process Ahead

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Tom Cruise and Katie Holmes have entered the spotlight again, this time for divorce. The couple’s marriage has provided them a six-year-old child, Suri, which seems to be Katie Holmes’ biggest concern at the moment. Katie Holmes has made it clear to those around her, as published in multiple articles, that she is mainly concerned about the best interest of the child and making certain that she is provided for after the divorce. There are talks that the couple has a prenuptial agreement, but that rumor has not yet been confirmed. However, prenuptial agreements can lend to some changes when it comes to determining child support since circumstances of the parties most likely changed since entering the prenuptial agreement. In a Florida divorce, Katie Holmes’ concept of looking out for the best interest of the child is standard. Florida courts put an emphasis on children issues because the children cannot ultimately make decisions for themselves and the court finds it necessary to make certain that decisions made by sometimes emotional parties is actually in the best interest of the child.

For Tom Cruise and Katie Holmes, the process is just beginning. Normally, one must be a resident in the State where divorce is filed for a period of time. To file for divorce in Florida, at least one party must be a resident for six (6) months prior to filing for divorce, unless due to an emergency (i.e. escaping an abusive spouse and/or parent). While Cruise and Holmes primarily reside in California, Katie Holmes filed for divorce in New York. The idea of filing in New York was to avoid the public records laws of California. Since California public records allows for divorce proceedings to be accessed by the public, Holmes’s action was done in hopes of keeping the details of the divorce private, or at least as much so as possible. The courts will have to make the determination if New York is the proper venue or jurisdiction for the case, if not, then the case may be sent to California.

June 29, 2012

In a Florida Divorce, What Emotions May I Expect to Have and My Spouse to Have?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

Being married for years and then deciding to go your separate ways can be a challenge for any Florida couple. As a divorce lawyer in Jacksonville, I meet with clients that are in different stages of the grief process over their marriage. Normally, the spouse that leads the conversation to divorce is generally the one that has processed the situation surrounding the marriage and ultimately already grieved over the loss of the relationship. Understanding where you may in the grieving process versus where your spouse may be is helpful to dealing with the dramas that may plague your divorce process.

We have all heard of the stages of grief when dealing with loss and divorce grief is no different. The loss, however, generally occurs at different times for spouses because one may be unhappy or not content for a longer time before the other spouse knows of the unhappiness. When couples get to this stage, normally communication has already broken down, so the conversations of what a spouse may need are over and the acceptance of not having those needs met may have already set in. Complacency of one spouse can be part of the process for that spouse to go through the stages of grief, all the way from denial to acceptance. Once a spouse has accepted the possible fate of the marriage she or he may have a conversation with his or her spouse about the next step, possibly divorce.

June 27, 2012

Can Facebook and Other Social Networks Impact My Florida Divorce?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

As a Jacksonville, Florida divorce lawyer I have seen social networking, such as Facebook, impact marriages and divorces significantly more in the last couple of years. In a Florida divorce, fault does not have to be alleged in a petition for divorce because Florida is a no-fault state. No-fault divorce is basically that the reason for the divorce is not generally necessary to be evidenced to the court. However, such things as gambling, adultery and the like can be alleged to show why one party should be awarded more than the other. Also, such things as disparaging comments about spouse, photographs of excessive drinking in front of children and the like can be used when parents are fighting over children. These allegations can be difficult to prove, but with social networking it can be much easier. In a recent article, “Can Facebook Ruin Your Marriage?” the issue seems to be impacting a number of marriages and divorces. Social networking sites have been used for many reasons including rekindling old relationships, developing new relationships, and posting dirty laundry of the marriage to friends and the world via page postings and status updates.

According to, “Can Facebook Ruin Your Marriage?” the word, “Facebook,” appeared in 33 percent of the 5,0000 divorces filed in 2011 for “unreasonable behavior” in Britain. This shows an increase from the 20 percent reported from a similar survey in 2009, thus showing the popularity of the site and its impact on divorces increasing over a short period of time. In the British study, the most common reasons that Facebook was cited in the divorce petition are as follows: