Jacksonville Divorce Lawyer Blog

Written by: Lenorae Atter, Attorney at Law

As a Jacksonville divorce lawyer, I am often asked by clients whether they give-up their rights to their home if they move out. Often, when couples decide to divorce one of the parties will want to move out the home and clients are generally afraid that if it’s him/her then rights to the home have been given to his/her spouse. In a Florida divorce, rights to marital property and assets is not determined by possession, but by when the property was purchased and possibly a couple of other factors. Property, assets and debts are normally divided in equal shares to the parties, unless there are reasons not to equitably divide. Florida is also a no-fault state, meaning that it does not matter who did what, the property still has to get split.

In a Florida divorce, property that was purchased after the date of marriage is marital property and subject to equitable distribution. For example, Amy and Ben get married and a month later purchase a home. Ann and Ben do not have kids and live in the home together for fifteen years and pay down the mortgage to a point that there is equity of $50,000 in the home. Ann and Ben decide to divorce and Ann moves out before the divorce is final. Ben claims that Ann forfeited her rights to the $50,000 because she, in essence, abandoned the home when she moved out. Ann claims that the property and the asset of $50,000 is marital and should be divided equally by the parties. Generally, the court will require the home to be sold and the equity divided 50/50, regardless of Ann moving out before the divorce was final. If Ben wants to keep the home, then he may be required to pay Ann her one-half share and buy her out of the home.

The other question that typically arises is whether the spouse that stayed in the home gets any credit for monthly mortgage payments made after the date of separation. For example, same facts as above, but when Ann moved out she did not contribute anything to the marital home. Ben took over payment for all financial issues regarding the home and was paying $1,000 per month towards the home for one year prior to the sale. When Ben and Ann are told to sell the house, the court may award the equity to be divided 50/50 between Ann and Ben. However, the judge may also say that Ben should receive credit for his financial contribution to the home for the 12 months, therefore, the equity is $50,000 Ben is given $12,000 and Ben and Ann then divide the remaining balance equally. This result does not necessarily occur in a Florida divorce, but there is a possibility, given the facts of each case that it can be the result. There are a number of factors to consider when the court decides whether such a credit will be given to one of the parties.

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Written by: Lenorae Atter, Attorney at Law

Deciding to divorce can be a difficult process and one where both parties may want marital counseling, one spouse wants counseling, or neither spouse believes that counseling would help to rebuild the marriage. As a divorce lawyer in Jacksonville, Florida new clients often ask me whether marital counseling or family counseling is required before they divorce. I am also asked whether counseling will have an impact on the divorce. There are states that require spouses to attend counseling before moving forward with divorce, but Florida is not one of those states. However, while it is not required for filing the divorce, the judge may order family or marriage counseling as the case moves forward.

For example, if Allen filed for divorce from Beth, then the divorce proceedings have begun. However, Beth may respond to Allen’s petition for divorce and deny that the marriage is irretrievably broken. In Florida, for a divorce to be entered by the court, the judge must find that the marriage, in fact, is irretrievably broken. If Beth denies that the marriage is irretrievably broken and the case goes to trial, then Allen has to present evidence to prove the breakdown of the marriage. However, before it goes to trial, and probably soon after filing for divorce, Beth may file a motion with the court requesting that the judge order the parties to go to marriage counseling. At the hearing on the motion, the judge will listen to both sides as to whether there is reason to go to marriage counseling and then judge can order such compliance for a set period of time.

Once the judge enters an order requiring both parties to participate in marriage or family counseling, the divorce case is put on hold. The judge normally sets a reasonable timeframe for the parties to attend counseling to find out if the marriage can be retrieved. The stay on the case for that period of time is not to add delay to the case, but to let the parties work on their marriage instead of working towards their divorce. It also helps the parties so that attorney fees are not continuing to accrue during that time. The court and public policy mandates that the parties working on their marriage should not be taking steps to further their divorce proceedings at the same time.

After the time-frame for counseling has expired, if the parties reconcile during the counseling, then the case can be dismissed. If the parties attend counseling and then decide that there is no chance of reconciling, then the divorce will continue as planned. If the parties are not certain that they want to pursue the divorce and would like to continue counseling, then the court may extend the stay or hold on their case for another set period of time.

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Written by: Lenorae Atter, Attorney at Law

As a Jacksonville, Florida divorce attorney I am often asked the question, “Can I take money out of our bank accounts?” When that question does not come up, I am often told that the other party cleaned out the bank accounts already. So, how are accounts generally divided in a Florida divorce and what should you do with your bank accounts while going through a divorce?

Florida is an equitable distribution state, which means that each party is generally entitled to equal shares of the marital assets, including bank accounts. When you file for divorce in Florida, most courts have what is called a, “Standing Family Law Court Order.” The Order in the Jacksonville area establishes that neither party shall dissipate (sell, squander, gamble, etc.) away marital assets. However, is the set-up your own account and actual dissipation of the money in the bank?

When going through a divorce in Florida there are options beyond going to trial. Mediation and other forms of negotiations can be helpful to the parties because it can help the parties have some control over the outcome of their divorce versus leaving all decisions up to the judge. In negotiations, the parties have the ultimate say in the outcome of their divorce, while in a trial, all decisions are made by the judge. As previously discussed this week, forms of negotiations available to the parties are pre-filing mediation; collaborative divorce; an uncontested divorce; filing for divorce and then going to mediation. As a Jacksonville divorce lawyer, I think understanding these concepts can help spouses determine what is in their best interest and their children’s best interest as they part ways.

In review, pre-filing mediation is basically when both parties agree to attend mediation prior to filing for divorce. This is a time for the parties to find out what stands between them and a settlement agreement and to see if they can work through those differences. A collaborative divorce involves both parties having attorneys and fully disclosing all items to one another in hopes of resolving all issues in the divorce before filing. The process uses a neutral third party to assist in the process and can use financial outsiders and parenting coordinators to effectively reach an agreement.

So, what is an uncontested divorce? Basically, this is more of the process that parties may take with each other depending on what terms they are parting. Sometimes, parties can actually discuss the issues of asset division, retirement division, alimony, marital property and the like and ultimately decide; on their own, how they want things divided. Going this route does not mean that you should not consult with an attorney. You want to make certain that you are not leaving anything pertinent out in your negotiation, but also you want to make certain that the final agreement is drafted in a way that is legally enforceable. If you can speak with your spouse about these things, then you may want to schedule a joint meeting with an attorney to discuss where you are and to ultimately have the agreement drafted with the proper legal language.

Written by: Lenorae Atter, Attorney at Law

Options in a Florida divorce exceed beyond having to go to a trial. In a world where divorce seems an agonizing process and we are often inundated with horror stories of years of litigation, spouses dragging each other through the muck, and much more. However, in Florida, there are other ways to get divorced instead of simply committing to litigation or trial. The options consist of the following: pre-filing mediation; collaborative divorce; an uncontested divorce; filing for divorce and then going to mediation. As a Jacksonville divorce lawyer, I think understanding these concepts can help spouses determine what is in their best interest and their children’s best interest as they part ways.

What is pre-filing mediation? First, mediation is a process of both parties meeting with a neutral third party to determine if they can reach an agreement regarding all aspects of their divorce, such as: division of assets and debts, alimony, division of the marital home, a visitation schedule, and the like. The parties usually meet in the same room initially and then are separated and the mediator will go between the parties to help negotiate a settlement. If that process is successful, then they will file a petition with the court for the divorce and put into the petition that both parties have reached an agreement. Then, the final settlement agreement or Final Judgment has to be entered with the judge and only one spouse has to attend the hearing. If you choose this process, you still have the right to have a lawyer with you so that you understand your rights and options if you were to reach an agreement or what may happen if you go to court. The mediator, though neutral, cannot provide you with legal advice, so it’s a good idea to at least meet with an attorney prior to attending the mediation.

What is a collaborative divorce? This process is a little different because it goes into much greater detail for the parties from beginning to end. First, both parties hire an attorney that is familiar with the collaborative process. Second, instead of the parties signing a normal attorney/client contract they each sign one with their own attorney stating that they understand the attorney cannot represent him or her if the collaborative process is not successful. The reason for this is due to the nature of collaborative law is for the parties to share all information with one another and the attorneys can and will have a conflict of interest since the idea is for both sides to lay their cards on the table.

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