Jacksonville Divorce Lawyer Blog

August 15, 2012

When Can I Get Child Support in a Florida Divorce or Paternity Case?

Written by: Lenorae Atter, Attorney at Law

In Florida, child support is an issue that often arises when parents separate. Parents that go from living in a home together and share expenses regarding the home and child often have financial concerns when their relationship does not work out. As a Jacksonville family law attorney, I handle cases involving divorce, paternity, child support, and the like. In the representation of my clients over the years I have seen more emotional concern over the parties’ financial situation than anything else. I attribute this to the fact that parents want what is best for their children and when financial means are threatened, my clients feel that there is inadequacy in their parenting. What then occurs is clients often want to have child support established sooner rather than later in order to continue to provide for the child.

In cases involving paternity establishment or divorce, the parents often want to understand how they will afford living on their own. The question most commonly asked when there are children involved is, “What can I expect to get in child support.” The reason is not because the mother or father wants to take money from the other parent, but because she/he knows that the money will be helpful to providing food, shelter, transportation and all other needs of the child and that she/he may not be able to afford those things on his/her own. When I represent the parent that is not fighting for time-sharing (e.g. visitation) with the child, then I normally explain to him/her the fact that child support is meant to provide for all needs of the child as if the parents were still residing in the same household.

In a two-income home, the child is allotted the benefits of living in what both parents can afford, and child support is designed to help keep that feeling of stability for the child. In divorce and paternity establishment cases, when the parents decide to separate and child support and time-sharing are issues, then I will try to work something out sooner rather than later regarding child support since it is a guideline calculation based. If we cannot reach an agreement without court action, then it may be necessary to file Motion for Temporary Needs.

A Motion for Temporary Needs is just that, it is a request made upon the court to establish a temporary time-sharing plan and award child support until such time that the divorce or paternity case is final. In cases where time-sharing is an issue, the case may take a long period of time and the majority time-sharing parent normally needs support between the opening and closing of the case. While many people feel that the outcome will be the same in the temporary needs hearing as in the final trial that is not always the case. The temporary hearing allows for some testimony, but will probably not factor into account any social investigations, parenting coordination, and the like that may come about as the case progresses. Therefore, the temporary needs hearing is designed to take a snapshot and make a determination based on the best interest of the child in the midst of further court actions.

The non-paying parent may accumulate arrearages in child support unless child support is paid in a timely manner. The benefit is not only to determine child support for the majority time-sharing parent, but it also helps decrease arrearages to be assessed in the final hearing. If a parent is not paying child support, then the lack of payment may equal a lump sum that is owed once child support is established. In Florida, the requesting party can go back two (2) years from the date of filing for child support. Therefore, the sooner child support gets paid the less will be owed in the future.

You should speak with an experienced family law attorney to better understand your rights and options when dealing with a child support case.

August 14, 2012

Child Support Changes in Florida Family Law: Automatic Child Support Cut-Offs

By Wood, Atter & Wolf, P.A.

Written by: Lenorae C. Atter, Attorney at Law

Recent changes in Florida family law have made it easier to handle child support modifications upon the 18th birthday or graduation date of a child. Previously, in a Florida divorce or other child support case (e.g. paternity cases) when child support was ordered it would go on forever unless one of the parties modified or terminated the child support order with the courts. Now, Florida law allows for the child support to be terminated without new for further court action or intervention.

Child support is based on the number of children, income of the parties and other related issues such as daycare, health insurance, etc. The prior law calculated child support for all children and did not allow for automatic changes based on the age and/or graduation date of the child. For example, Martha and Dave have two children, Carl, 7 and Carla, 17. Child support ordered for both children and was stated to terminate on Carla’s graduation date, June 2010. Carla graduated from high school but neither Martha nor Dave modified the child support and Dave still had the full amount of child support deducted from his paycheck. Dave later tried to modify to decrease child support to pay for only Carl and asked to be reimbursed for overpayment. While his child support was reduced, he was not able to get reimbursed for overpayment because it was looked at as a gift to Carl and/or Carla.

August 10, 2012

Alimony in a Florida Divorce Can Address Future Issues

By Wood, Atter & Wolf, P.A.

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce involving alimony, there are multiple factors to be considered in determining an award of alimony. Florida statutes provides for alimony under circumstances, including the length of the marriage, needs of the parties, ability to pay alimony, lifestyle during the marriage, contributions to the marriage, etc. So, if you and your spouse make significantly different money, does that automatically entitle you to permanent alimony?

The courts have addressed this issue over the years and have determined that simply showing a difference in income does not mean that a party is entitled to permanent alimony. For example, if a Wife makes $300,000 per year and the Husband makes $500,000 per year, which does not mean the Wife automatically qualifies for permanent alimony. In order to be awarded permanent alimony it has to be shown that not only the length of marriage meets the statutory requirements (e.g. greater than 17 years), but also that the requesting party has an ongoing need for permanent alimony. A need for alimony basically goes to the actual living expenses of the spouse and whether she/he has an ability to pay said expenses. As such, if $300,000 per year is enough to help Wife maintain her expenses, then she does not have an ongoing need for alimony.

August 8, 2012

Establishing Paternity, the Father’s Rights, Child Support, and Time-Sharing in Florida

By Wood, Atter & Wolf, P.A.

Written by: Lenorae Atter, Attorney at Law

Establishing paternity in Florida can mean more than just filing with the State’s Department of Revenue. In Florida and most states, paternity is established by the court and not by a birth certificate. A birth certificate simply provides an assumption that the father listed is the baby’s actual daddy. However, to establish rights to the child, child support and the like, at least one parent has to actually file an action with the court. The action is called a petition to establish paternity and while a DNA test is not required for the action, it is suggested given that the responsibility to a child and a parent is for a lifetime.

If you file for state benefits for the child, like Florida Healthy Kids, then you most likely will have to establish paternity and child support. However, a state action to establish paternity is only designed to establish paternity for the purpose of starting child support. The state does not handle issues involving time-sharing/visitation matters between the parents. Therefore, if the state files a petition, then chances are that the father will file a counter-petition to establish his actual parental rights, including time-sharing.

August 6, 2012

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

By Wood, Atter & Wolf, P.A.

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 Wood, Atter & Wolf, P.A.

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.

August 1, 2012

Can a Professional License be Suspended or Denied for Nonpayment of Child Support of Alimony in Florida?

By Wood, Atter & Wolf, P.A.

In Florida, a failure to pay child support or alimony can result in the loss or suspension of a professional license. If a party fails to pay the ordered support, then the party in need of said support may file a petition with the court to suspend the license of the responsible party. The Florida Statute regarding such a petition requires that all other recourses be used before filing for the suspension of a license. The statute also gives provisions that must be followed before the petition can actually filed with the court. As a Jacksonville divorce and child support lawyer, I can vouch for the importance of following statutory requirements because of the statutory requirements are not followed, then the court may throw out the action all together.

Before filing a petition for the suspension or denial of a professional license, Florida Statute 61.13015, you must first send notice to the responsible party that she/he has 30 days to pay the delinquent support obligation or enter into an agreement for payments to be made regarding the delinquency. The responsible party is required to reach out the requesting party to establish such payments and to provide proof that such payments have been made.

If there is no response from the first notice, then the requesting party must send a second notice to the obligated party that states the amount owed and that she/he has 30 days to pay the delinquency or to set-up a payment arrangement to pay the amount owed. If an arrangement is made, then it should be reduced to writing and formalized with the signatures of the parties. The party responsible for the support should provide proof that the first payment has been made.

July 30, 2012

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

By Wood, Atter & Wolf, P.A.

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 Wood, Atter & Wolf, P.A.

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 Wood, Atter & Wolf, P.A.

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.