Jacksonville Divorce Lawyer Blog

September 5, 2011

What Florida Law Applies to Moving a Child Out of The State of Florida ?

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Florida Statute 61.502 explains the primary purpose of the UCCCJEA, which include: (1) avoiding jurisdiction competition and conflict with courts of other states in matters of child custody; (2) promoting cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child; (3) deterring abductions and (4) reducing the harmful effects of jurisdictional conflicts.

The UCCJEA is a really confusing statute that has a lot of different parts. Essentially the main idea is this: You can’t just kidnap your child and relocate to another state and think you will get away with it, and think that you can haul the other parent in a foreign forum to defend a child dispute. The child’s home state has primary jurisdiction over any custody dispute. A child’s home state is usually determined by the answer to the following question: Where has the child continuously resided for the last six months? So, if you did happen to move to a new state with your child and want to sue your former spouse for child custody in your new state, you would have to wait at least six months after moving to the other jurisdiction before you can do anything. Even then, the new state could chose to decline to exercise jurisdiction on different grounds. For example, either the new state or old state could be deemed an “inconvenient forum.” Or, the new state may be required to defer to the previous state because the child still has “significant contacts” to the old state. A significant contact to the old state may be where the other parent lives, or if there are records and documents pertaining to that child in the old state.

The key point to keep in mind is that you are not going to win custody simply because you moved to another state with your kids. There is a possibility that you will still be bound by the child’s original home state. That home state may have assumed “exclusive” jurisdiction over the child and absent some specific circumstances, the home state will retain jurisdiction for the time.

September 2, 2011

Is Your Spouse’s Retirement Fund Subject to Equitable Distribution in a Jacksonville Divorce?

By Wood, Atter & Wolf, P.A.

Is Your Spouse’s Retirement Fund Subject to Equitable Distribution in a Jacksonville Divorce? Yes. The Florida Statutes and case law is clear that all marital property is subject to equitable distribution. In dissolution of marriage proceeding, the Jacksonville court will request a list of both parties’ assets (and liabilities). The assets that were acquired during the marriage as well as any increased value of the assets during the marriage due to marital funds or marital efforts are considered marital property.

A retirement fun or pension plan is money that is set aside for an employee after he/she is no longer working. A pension plan is defined as deferred compensation. Both the employer and employee contribute to the fund during the course of the employee’s employment. A spouse’s income during the marriage is subject to equitable distribution, so a spouse’s pension plan is also subject to equitable distribution.

Equitable distribution is the process of how a Jacksonville judge will divide marital property during a divorce. The objective of equitable distribution in Florida is to distribute the spouse’s property fairly between the two parties. Under Florida law, the court must first decide the equitable distribution of marital assets and liabilities before it makes any spousal support determinations. The court will first determine which property is “marital property” and which property is “non marital properly.”

September 1, 2011

Facebook Reveals Husband’s Second Marriage

By Wood, Atter & Wolf, P.A.

Lynn France discovered through Facebook that her husband had remarried another woman. Lynn typed into the search box on Facebook the name of the woman with whom she believed her husband was having an affair with and found wedding photos of him and his new bride. The wedding photos of the Walt Disney World wedding showed the husband dressed as Prince Charming, and his new wife dressed as Sleeping Beauty.

Lynn’s husband, John France does not deny that he remarried, but instead he claimed that his marriage to Lynn was never valid. His attorney is asking the family law court to declare that his marriage was void since its inception.

Under Florida law, a marriage that is “void” means that it never existed, and a man and woman are treated as if they were never married. The only valid grounds for a void marriage in Florida are as follows.

August 31, 2011

Teen Court: An Alternative to Criminal Prosecution for First Time Juvenile Offenders

By Wood, Atter & Wolf, P.A.

Many Jacksonville Florida children will experience the stress of their parent’s divorce each year. How they will react depends on their age, personality and the circumstances surrounding the divorce process. Many times the initial reaction is one of shock, sadness, frustration, and anger. As such, it is not surprising for some children to act out and get themselves into trouble at school or in the community.

Luckily for these children, the Duval County Courthouse offers first time misdemeanor offenders the opportunity to participate in a diversion program as an alternative to criminal prosecution. The program is called “Teen Court,” and gives juveniles between the ages of 10-17 a second chance to hold themselves accountable for their actions. Other specially trained teenagers fulfill the roles of prosecuting and defense attorney, bailiff and jurors. A practicing attorney or judge supervises the process as the magistrate and determines the final sentence. The juvenile defendant and their parent sign a contract agreeing to fulfill the imposed sentence. If the dependent successfully completes their sentence, adjudication will be withheld, and there will be no conviction on the juvenile’s record as a result.

The Teen Court program is based on the philosophy that youthful law violator is less likely to continue bad behavior when their peer jury decides the punishment. The program attempts to stop developing patterns of bad behavior by promoting feelings of self esteem and healthy attitudes toward authority. The program’s goal is to educate teens about citizenship and accepting responsibility for their actions.

August 30, 2011

A Formal Deterrent to Domestic Violence: Domestic Violence Injunction

By Wood, Atter & Wolf, P.A.

Any person who is a victim of domestic violence or has reasonable belief to believe they will become a victim of domestic violence may apply to the Jacksonville Court for a Domestic Violence Injunction pursuant to Florida Statute 741.30. “Domestic violence” is defined by Florida Statute 741.28 as any “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” If the injunction is granted then the spouse (or other family member) cannot come with 500 feet of you; he/she must move out of the house and; they will be subject to criminal arrest for either violation. The initial injunction will be temporary (2 weeks), and then the court will schedule a hearing to decide whether the injunction will become permanent or dismissed.

A DV Injunction hearing is similar to a mini trial. The court establishes procedures, hears witness testimony and a court reporter is present. Constitutional rights are at stake at a DV Injunction hearing, so judges tend to be strict on the rules and procedures. The judge also has the power to make determinations on related issues such as child custody, support and visitation, and property. See Section 741.30, Florida Statutes.

August 29, 2011

Relocating Out of State – What Are the Florida Family Law Rules in Place?

By Wood, Atter & Wolf, P.A.

Following a divorce, when one Jacksonville Florida parent wants to move out of the State of Florida it can affect all parties involved, including: parents, children, grandparents and other extended family. As such, disputes often arise and may be difficult to resolve. According to Florida’s Relocation Statute, § 61.13001, strict procedures must be followed in relocation cases. Before a parent moves a child more than 50 miles away from their principal address, the primary residential parent must either: obtain a written agreement from all parties entitled to visitation with the child, or file and serve a Notice of Intent to Relocate.

A Jacksonville Florida parent may legally relocate the child’s principal residence more than 50 miles away if the relocating parent and the non relocating parent, along with any other person entitled to visitation with the child agree to the relocation by written agreement. A verbal agreement is not enough. The written agreement must include the following: consent of the relocation from all parties involved; visitation rights for the non relocating parent and anyone else entitled to visitation with the child defined; and any transportation arrangements related to the visitation, if necessary.

If the parents cannot agree to relocation by a written agreement as discussed above, then the primary residential parent must file a Notice of Intent to Relocate. The Notice of Intent to Relocate must be signed under penalty of perjury and include specific and detailed reasons for the proposed move such as: financial reasons, a better job, better schools, increased family support, etc. In addition, a new proposed visitation schedule for the non relocating parent must be included. The non relocating parent has 30 days to object to the relocation after they have received the Notice of Intent to Relocate. If the non relocating parent does not timely object, then the relocation will be allowed, unless the court finds that it would not be in the child’s best interest.

August 26, 2011

Determining the “Best Interests” of a Child in Florida Family Law Matters

By Wood, Atter & Wolf, P.A.

Florida courts make a plethora of decisions regarding children. These decisions range from timesharing and decision making, safety and permanency planning, and proceedings for termination of parental rights. Whenever courts make such decisions, it must consider whether its decision would be in the “best interests” of the child. Most States have a statute requiring that the child’s best interests be considered whenever certain types of decisions regarding a child’s custody, placement or other critical issues are made. Although there is no specific Florida statutory definition of “best interests of a child,” the concept typically refers to the deliberation that courts undertake when deciding what type of services, actions and orders will best serve a child as well as who is best suited to take care of a child.

During a Jacksonville Florida child custody proceeding, the court will consider a number of factors to determine the “best interest” of a child. These factors may include the love, affection, and other emotional ties between the parents and the child; the mental health, physical health and morality of the parents; and most importantly, which parent is more likely to encourage contact between the child and the other parent. For a complete list of the best interests factors, see Florida Statute 61.13.

August 25, 2011

How to Get Legal Custody over Your Grandchild

By Wood, Atter & Wolf, P.A.

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There are many reasons why a grandparent may need to care for a grandchild for an extended period of time in Florida. Obtaining a Florida court order placing the child in the grandparent’s custody would allow the grandparents to obtain medical attention for the child, the right to enroll the child in school and the right to apply for State and Federal benefits on behalf of the child. A grandparent who cares for their grandchild or who has the consent of the child’s parents may petition a Jacksonville (Duval County) Florida court for temporary relative custody.

Temporary Relative Custody in Florida may be considered when a parent is unable to care for the child due to drug or alcohol abuse, incarceration, financial instability, mental health issues, responsibilities related to work or the military. A Judge will award custody to the grandparent if it is in the child’s best interest and the parents do not object. If the parents do object, then the court must make a finding of abuse, neglect or abandonment by the parents before granting custody. The judge may also grant visitation rights to the parents, and order the parents to pay child support to the grandparent. The order may be terminated if either parent petitions the court to do so, if the judge finds that the parent is a fit parent or the grandparents consent to the termination of the order.

Temporary relative custody of a minor child may also be granted to other Jacksonville adult family members such as an aunt, uncle, sibling or first cousin. For more information on this topic, see Florida State 751- Temporary Custody of Minor Children by Extended Family.

August 24, 2011

5 Tips to Help Save Your Marriage from Divorce

By Wood, Atter & Wolf, P.A.

Do you live in Jacksonville and feel like your marriage is doomed? Hopefully the answer is no, but if by chance your answer is yes, then Jeannie Goldstein has some advice for you. Listed below are five tips that Goldstein,a columnist, would offer to a friend in order to salvage a marriage.

First, stop putting all of the blame on your spouse. Try to take responsibility for your role in the dispute and attempt to end the behavior right away and get back to a pleasant relationship.

Second, let go of grudges. When you fight, try not to bring up incidents far back in the past and stick to the current issues. This may be difficult because it is hard to get over something that really hurt you in the past but ask yourself: Is it really worth it? Isn’t your marriage worth more than holding on to petty grudges?

August 23, 2011

Military Divorces – Child Support and Alimony

By Wood, Atter & Wolf, P.A.

Marriages have unfortunately become one of the many casualties of war and deployment. For members of the military based in Florida, it is not unusual for spouses and families to be separated for extended amounts of time. The transition back home can cause strains on both marriages and family relationships. Although there are the same grounds for a military divorce as there is for any divorce proceedings in Florida (either your marriage is irretrievably broken or your spouse is mentally incapacitated), other issues in a military divorce may differ from a civilian divorce.

Just like members of the general public, military service members still have an obligation to provide support to their children. However, enforcing these obligations can become more complicated when a parent is a member of the military. Military spouses often encounter two major issues related to child support agreements: (1) Military members receive various forms of special pay, and former spouses may be unsure how much is entitled to for child support, and (2) It may be difficult to enforce a child support agreement if a military member is not making payments. If a former spouse is not paying their child support then it is possible to seek a garnishment of wages or involuntary allotment order to protect your child’s rights to support.

Federal laws govern the rights and obligations of both military members and their spouses in the event of a divorce. The Uniformed Services Former Spouse Protection Act governs the issue of determining spousal support, among other complex issues in a military divorce. An experienced Jacksonville military divorce attorney can help explain your right and responsibilities regarding spousal support and the USFSPA.