By

Written by: Lenorae Atter, Attorney at Law

1327117_house_1.jpgDivorce cases involving alimony have been popular recently in Florida. The Florida appellate courts seem to be making up for the lack of alimony legislation by making rulings that continuously limit alimony and the award of such. The Florida alimony statute recently underwent an overhaul, making clearer lines of the length of the marriage that must or should exist in order for certain alimony to be awarded to a spouse. However, the hole that has caused quite a stir is that Florida still does not have an alimony calculation to help in the determination of the amount to be paid. In Jacksonville and surrounding areas, there is a tendency to award alimony based on need and ability to pay, not just the income disparities, but that is not always the case nor the popular approach throughout Florida, thus the appellate courts have begun making more provisions for the award of alimony.

A disparity in income does not, in fact, mean that because one party makes more than the other party that she or he should automatically pay alimony to the other. The court must look at the practicality of such. The reality is that just because there is a disparity in income does not necessarily mean that one party is in need or the other has the ability to make both houses equal financially. Financial equality sustained by one income for two households runs quite a risk for the paying party because often, that individual also takes more of the debts from the marriage. In a recent appellate opinion, Walker v. Walker, 1D11-2869 (Fla. 1st DCA April 12, 2012). , the court quoted the following, “Simple disparity in income will not support an award of permanent periodic alimony: ‘the purpose of permanent periodic alimony is not to divide future income to establish financial equality.’ See Rosen v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003)(citing Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998); Langevin v. Langevin, 698 So.2d 601 (Fla. 4th DCA 1997); Wright v. Wright, 613 So.2d 1330 (Fla. 4th DCA 1993).” This basically establishes that alimony should be awarded to assist the needing party in the future, not just to establish an equal financial footing of both spouses.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

204799_files.jpgFiling for a divorce in Florida opens up your financial world to the court and the other party. In a Florida divorce, each party is required to submit documents of their paycheck stubs, bank statements (checking and savings), retirement account information, mortgage documents, and the like. Florida divorces or actions involving family matters like paternity cases are governed by the Florida Family Law Rules of Procedures. These rules layout the groundwork for what documents must be provided in order to be in full compliance with the court. So, how does this information help if you are divorcing someone?

As a Jacksonville family law attorney, I believe that these documents, especially bank statements, can reveal more about the other party than any other document provided or required to be provided. Often in cases, both parties claim not to have the financial ability to most anything, including paying attorney’s fees, paying for their home, etc. However, the truth of the claim, in my experience, rests in what is contained in the records.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

1242900_old_house_.jpgIn a Florida divorce, the parties often have a marital home that has to be divided by the parties regarding either the asset value or the debt owed. However, sometimes the house may simply shift ownership per a divorce agreement by the parties, especially when the home is underwater like most are in today’s economy. The shift normally occurs because the party that stayed in the home at the time of separation cannot afford to maintain the home after the divorce is final, but the other party can. As a Jacksonville divorce lawyer, I often receive questions from clients regarding what the home must be in at the time of transfer.

If possible, you want the divorce agreement or order to actually define the condition of the home and what necessary repairs must be done. It does not make sense that the party is returning the home in a better condition than how it was during the marriage, but it also should not be in worse condition. If the party with present possession does not have the ability to maintain the home, then it is unreasonable to expect the spouse to have the ability to fix in and all issues that were present during the marriage. Things such as lawn maintenance that was in place during the marriage should also be kept up. However, completely re-landscaping the yard to make it better looking is not a reasonable cost expectation.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

992546_bonding.jpg

Bristol Palin’s ex-boyfriend, Levy Johnson, is now going to father another child, according to recent stories. Recent news reports indicate that the former Wasilla mayoral candidate is expecting a child with his present girlfriend, Sunny Ogelsby. Again, entering into a paternity issue since he is unmarried to this mother-to-be. Contrary to popular belief, at least in Florida, paternity of a child born out of wedlock is not determined by a birth certificate or DNA, but by actually being established by the court. Therefore, Levy Johnson will most likely find himself in another courtroom to decide the fate of another child and the child support he will have to pay.

According to Levy Johnson, when questioned about his relationship with the child he shares with Bristol Palin, he has not been much of a father. He has told reporters, recently, “The Insider,” that he has not been able to exercise any visitation or time-sharing with the child due to Bristol Palin and her family denying him any visitation. This time, he has said he anticipates being involved with the child that was recently conceived after the couple, Johnson and Ogelsby, forgot to take birth control with them on a romantic getaway.

Continue reading

By

police%20memorial.bmp

Florida divorces can be complicated for many reasons, and in Jacksonville, where there is a heavy military presence; divorces can be even more complicated. When a military couple divorces, the process is often more complex than when a civilian couple divorces. There are a number of additional factors to consider, especially when it comes to issues such as equitable distribution and child custody, since there are often multiple retirement accounts, savings accounts, issues of deployment and the like.

In a military divorce, often factors come up involving the divided household due to the service-member’s military responsibilities. These are also factors that are part of the every-day life of military families, so the issues are not necessarily new to the spouses while they deal with a pending divorce. Also, military divorces are not always for the reasons society seems to think, such as long deployments, uncertainty in war-times, possible moves, etc. Many people think that deployment of one military spouse would increase the risk of divorce. It is easy to assume that the risk of divorce increases when a military couple is separated for a period of time and the deployed spouse is faced with a number of stresses. But a recent study has debated whether deployment is related to an increase risk for divorce.

A new study conducted by Benjamin Karney (UCLA) and John Crown (RAND Corp), looked at whether the amount of time a person is deployed has an effect on the risk of divorce and what that effect could be. The study surveyed over one –half million service members who were married after 9/11 and who served between 2002 and 2005. The study included all branches of the service and reserves, and collected data about gender, race and presence of children among the couples.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

1097376_bens_eyes.jpgIn a Florida divorce, alimony may be awarded to one of the parties based on the circumstances surrounding the marriage. As a Jacksonville divorce lawyer, I typically tell clients that alimony is based on the need of the party and the ability of the party to pay alimony. As an example, if the Wife makes $30,000 per year and the Husband makes $100,000 per year and their expenses are not so vast as to create a vacuum in which the Husband cannot pay alimony, then most likely the Wife will be awarded alimony depending on her own monthly needs, expenses, debts and the like.

However, in determining alimony, the court must look to the available money of the parties. This means not just money available through employment, but any money that is accessible to either party, including possible monthly payouts from retirement accounts, investments or annuities, like an IRA. Therefore, in assessing whether alimony should be awarded and how much should be awarded, the courts can impute income that could be received from annuities and IRAs, even if the spouse is not yet 59 ½ for purposes of IRA withdrawals. Niederman v. Neiderman, 36 FLW D927 (Fla. 4th DCA May 4, 2011). And obviously, this would apply to wives over 59 1/2.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

944268_real_estate.jpgAlimony and division of property are often themes in a Florida divorce. Florida allows for alimony to be awarded when a spouse shows a need for alimony and the other party has an ability to pay. Florida also provides for marital property to be divided equally by the parties during their divorce. Therefore, if the parties own property in Jacksonville and are divorced, then the both may divide the property equally, whether by money value or actual division of property. However; what happens if a spouse dies after the divorce is final, but before the property is divided? And, what happens if a spouse filed for a change in alimony prior to his/her death?

Alimony is determined by need and ability to pay. The length of alimony is determined by many factors, including the length of the marriage, contribution of the parties during the marriage, marital lifestyle, etc. Once alimony is determined and ordered by the court, it is typically modifiable by both parties if something significant were to occur, such as change in health, retirement, etc. However, alimony obligations cease to exist upon the death of either party, which is why the obligor is typically required to maintain life insurance during the pendency of the alimony obligation. So, if a party dies so does the obligation. However, in a recent Florida case, the Former Wife filed for a modification of alimony and requested attorney attorney’s fees, Estate of Reale v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). Prior to the court hearing the argument to modify alimony, the Former Wife passed away, taking with her the right to alimony. However, since she had requested attorney’s fees, the Florida appellate court determined that her estate had the right to collect attorney’s fees from the obligor. Id.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

1287061_businessman_in_the_office_1.jpgIn Jacksonville and throughout Florida, child support is dictated by a statutory guideline calculation. The calculation takes the income of both parents, gives credit to the parent responsible for paying for the child’s health insurance and daycare and the overnight time-sharing schedule. The calculation is meant to put the child in the same position she or he would have been in had the parents lived in the same household. However, since it is based on incomes, what happens if one of the parents doesn’t work or a parent voluntarily quits his or her job to avoid paying child support?

In Florida, income may be imputed, meaning established without actual pay, if the parent is found by the court to be voluntarily unemployed or underemployed. For example, if it can be shown that the parent has a medical degree, but is a cashier at a grocery store, then the court may conclude that the parent is voluntarily underemployed from his or her skill set. This is especially valid if the parent has been working as a doctor during the marriage, and upon divorce decided to work as a cashier. If the court determines that the parent is underemployed voluntarily, then the court may impute income to the parent equal to that of recent work history, qualifications, and the earning level for someone in a comparable position in the community.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

1082945_playground.jpgFlorida divorce and paternity cases often revolve around the parent-child relationship and all factors related thereto, including parental responsibility. When someone comes into our Jacksonville office regarding a divorce or paternity case, often the question is whether she or he can have sole custody. As a divorce and family attorney, I have to educate clients on multiple things, including custody and what it actually means. Custody and having sole parental responsibility are two very different things because one deals with the big decisions regarding your child and the other deals with where the child will actually, physically reside.

Child custody and visitation was changed by the Florida legislature in recent years. The change was done for a number of reasons, the main reason being the contentious actions of parents for, “custody.” So, the legislature made a decision to change the concept to what is now known as, “time-sharing.” No, this is not your condo at Disney, but actually the terminology used because after your case, you are actually sharing time with your child and your child is sharing time with his/her other parent. Time-sharing is basically the same idea, but instead of having the archaic, “custody,” you may request majority time-sharing, meaning that you spend the majority of the time with the child. In some jurisdictions, Jacksonville not being one of them, the courts have presumed this to mean that parents should start out with equal time-sharing. However, often that concept is being overruled by the appellate courts.
When looking at which parent will have majority time-sharing, the court looks to certain factors like:

a. Which parent is more likely to help facilitate a health relationship between the child and other parent;

b. Which parent is more likely to provide a stable environment for the child;

c. What is the historical relationship of the parent and child; etc.

Once the majority time-sharing parent is decided, the court or the parents, if they negotiated an agreement, enter a time-sharing plan. The time-sharing plan defines the times the parents will each have the child, including holidays, the actual visitation schedule and the like.

Continue reading

By

Written by: Lenorae Atter, Attorney at Law

1094608_retirement.jpgAlimony may be awarded in a Florida divorce, if one spouse can show a need for alimony based on income, expenses, lifestyle, etc. AND if the other party has an ability to pay alimony, based on income, expenses, lifestyle, etc. The initial award of alimony can be for a set period of time or it may be permanent, depending on a number of factors including length of the marriage, ongoing need for support and the like. Once alimony is determined, even if it’s permanent alimony, it may be modified or changed by the court if the seeking party can show a substantial change in circumstance, such as a decrease or increase in income by at least 15% or an illness, or multiple other factors that may lead the court to believe that there is need to modify the existing alimony order. The courts in Jacksonville and North Florida are likely to modify if a significant change in circumstance is shown and the need or ability to pay has been greatly impacted by post divorce issues.

In a recent Florida appellate case, Hahn v. Hahn, 36 FLW D1474 (Fla. 4th DCA July 6, 2011), the Former Husband had requested the trial court modify the permanent alimony he was required to pay. The Former Husband made such a request after he decided to retire at age 69. Upon his retirement, the Former Husband’s income reduced to $1,500 in Social Security and he had individual, monthly expenses of $2,100. He was also receiving financial assistance from his significant other, but he was still paying his individual expenses of the $2,100 per month. The Former Wife was unemployed and, at age 61, was looking for employment. At trial, the Court reduced the Former Husband’s monthly alimony to $450 per month. However, on appeal, the appellate court ruled that the Former Husband did not have an ability to pay, therefore, the appellate court instructed the trial court to either completely eliminate the Former Husband’s alimony obligation or reduce it to a nominal amount (typically a very small amount, sometimes $1 to preserver the alimony in case something were to change).

Previously, another case in a different district court of appeals, Suarez v. Suarez, 43 So.3d 118 (Fla. 3rd DCA 2010), the Former Husband requested a downward modification of his alimony obligation to the Former Wife. At the time of the divorce the Former Husband was making $90,000 per year and the Former Wife was making $21,000 per year. After the divorce, the Former Husband wanted to retire from his job and asked for a modification of alimony. At the time of the request, the Former Husband was receiving $58,000 per year in retirement benefits and the Former Wife was making $21,000 per year. At trial, the trial court ruled that the Former Husband’s alimony obligation was terminated based on the facts presented. However, the appellate court reversed the trial court. The appellate court determined that there was no avoidance of alimony by the Former Husband choosing to retire, but that there was also no determination that the Former Husband did not have an ability to pay alimony. Therefore, the appellate court determined that the Former Husband still made significantly more than the Former Wife and that the Former Husband had an ability to pay some alimony. The appellate court then instructed the trial court to determine some amount of alimony for the Former Wife

Continue reading

Contact Information
100 N Laura St #702
Jacksonville, FL 32202
Phone: (904) 355-8888 Fax: (904) 358-3061

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Wood, Atter & Wolf, P.A.
JUSTIA Law Firm Blog Design