Jacksonville Divorce Lawyer Blog

August 8, 2011

Getting “Back on your Feet” After a Divorce

Slowly, Florida court ruling as to permanent alimony have changed over time. Today, alimony can still be awarded to men and women permanently, but it also serves to “get people back on their feet” after a divorce. Florida courts will consider a variety of factors when awarding alimony that include: the length of the marriage, the standard of living the spouses enjoyed during the marriage, each spouse’s age, each spouse’s physical and mental health and each spouse’s income or ability to earn an income. However, alimony is basically dependent upon the paying spouse’s ability to pay and the receiving spouse’s need for support.

Florida permits courts to award “rehabilitative alimony.” Rehabilitative alimony was first established in a 1983 Florida divorce action. The court’s opinion stated that rehabilitative alimony could be awarded temporarily in order to allow the financially weaker spouse to “obtain new skills, education and/or other rehabilitation.”

Florida Statute 61.08 allows a court to award rehabilitative alimony to assist a party in establishing the capacity for self support through either: (1) the redevelopment of previous skills or credentials, or (2) the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials. In order to receive rehabilitative alimony, there must be a specific and defined rehabilitative plan which should be included in any court order. An award of rehabilitative alimony may be modified or terminated based upon noncompliance with the rehabilitative plan or upon completion of the rehabilitative plan. In addition, it may also be terminated based upon a substantial change in circumstances.

August 5, 2011

Parenting Coordination: An Emerging Practice Area

By Wood, Atter & Wolf, P.A.

When you are facing a divorce in Jacksonville, Florida, there are many issues that must be resolved in order to obtain a final decree of divorce. The issues may include enforcement of a premarital agreement, division of property and debts, and alimony. For families that involve children, the most controversial issues that must be resolved are child support, custody, and visitation issues. The issues surrounding the decision making of children are not easily resolved, and often results in conflict between the parents.

During a high conflict divorce, Jacksonville parents can use the help of a parenting coordinator to help make amicable decisions regarding the care of their children. A parenting coordinator is an impartial third person who is usually a trained mental health or legal professional with experience in mediation. The role of a parenting coordinator is to create appropriate parenting plans; resolve ongoing conflicts between co-parents; monitor parental behavior; and with the approval of the parties and the court, make temporary decisions within the scope of the court order or appointment contract. The Parenting Coordinator is usually appointed by the Court and with the consent of the parents. Parents may also volunteer to utilize the services of a parenting coordinator voluntarily. Parenting Coordinator is not appropriate, and will not be assigned to families with a history of domestic violence.

More than one million children each year experience the harsh realities of divorce and family separation. It is the actions that parents take during and after a divorce that determine how a child will be affected. For more information on parenting coordination, see Parenting Coordination Central. The guidelines for parenting coordination are set forth in Florida Statute 61.125.

August 4, 2011

Are You Entitled to Alimony in a Florida Divorce?

By Wood, Atter & Wolf, P.A.

Under Florida law in a proceeding for dissolution of marriage, the court may grant alimony to either party. Alimony (also called maintenance or spousal support) is a legal obligation to provide financial support to one’s spouse from the other spouse after marital separation or from the ex-spouse upon divorce. In determining whether to award alimony, the court will first make a factual determination as to whether either party has an actual need for alimony and whether either party has the ability to pay alimony. If the court finds that alimony is appropriate, the court may grant the following types of alimony: bridge-the-gap, rehabilitative, durational, or permanent in nature, or any combination of these forms.

Bridge-the-gap alimony is meant to cover a short-term need as the recipient transitions to single life. The length of the award is limited to two years and it cannot be modified for any reason.

Rehabilitative alimony is intended to help support a spouse to allow him/her to renew old skills or gain new skills leading to self-support. It is intended to be short-term which enables a spouse to get back on their feet. This type of alimony is usually awarded to enable the spouse to go back to school or to acquire needed skills that would allow the spouse to be competitive in the job market.

August 3, 2011

The Fear Factor: A Pary’s Motivation to Settle in Mediation

By Wood, Atter & Wolf, P.A.

Proponents of Florida divorce mediation label mediation as a cooperative approach to end a dispute. Yet bargaining over scarce marital resources is fundamentally competitive and requires the mediator to use clever negotiation tactics in order to yield a successful resolution. The mediator’s role is to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and to otherwise facilitate voluntary agreements to resolve the dispute. A clever mediator will use the fear factor as a secret weapon to reach an agreement between two parties.

The fear factor exists when parties in a Florida divorce feel the force of the looming great unknown called their future. Everything has been turned upside-down for some of these families. They are concerned about the following issues:

Where are the children going to live and for what days / times of the week?

August 2, 2011

Divorcing in Florida and Initial Expecations

By Wood, Atter & Wolf, P.A.

In order to file for a divorce in Florida you must file a Petition for Dissolution of Marriage. The petition is designed to lay out all requests of the party filing for divorce. The divorce action will require a division of marital debts and assets, so you want to make certain that you address anything regarding non-marital debts and assets be established so that there is automatically a clear definition that these items may exits. In addition, if you need alimony and/or child support, then it is also important that these matters be alleged in the petition.

As a divorce lawyer in Jacksonville, Florida, I often have clients ask if they can keep the petition simple so that the other party is not too upset by the action. This is difficult to do, especially when there are children involved, because you have to allege your requests up front so that the court will hear them when the time comes. It is important to remember that if you do not ask for it you cannot get it, so often the initial petition will ask for the sun, moon and stars because otherwise you have barred your ability to request those items unless you file an amended petition.

Also, remember that if you are the party receiving the petition, you have the right to file a counter-petition and ask for the kitchen sink as well. Divorce can be messy, but understanding the process can help alleviate some of the emotions and help you better understand that it is business deal and not an emotional one. Keeping your business mind in the forefront of the divorce can make a difficult process a little easier to stomach as it goes on.

August 1, 2011

I Want to Change My Child’s Lastname: Florida Name Change

By Wood, Atter & Wolf, P.A.

A Florida name change of a minor child can be challenging if both parents are not present in the child’s life. Name changes are often requested so that the child bares the name of a parent, especially when one of the parents is absent. If both parents share parental rights, then a name change requires both parents to consent to the change. However, in order to change a name a petition for change of name must be filed with the court and it can then be served on the other parent.

In the event the other parent cannot be found, or the other parent is no longer a resident, then the petition may be served by publication. If there is no response to the service, either actual or constructive (published), then the other parent would be in default and the name change may occur without actual consent, but implied consent by the inaction.

If you are interested in changing your child’s name then you should speak with a family law attorney about your rights and options.

July 29, 2011

My Florida Divorce and Death Benefits

By Wood, Atter & Wolf, P.A.

The demise of death benefits in a Florida divorce. The Florida Supreme Court recently held that if a final judgment of divorce is silent about death benefits, then the policy documents control the death benefit. The reason this can be an issue is that often during a marriage spouses will take out life insurance policies and name one another as the beneficiary. When the divorce is final, if there is no further designation or language taking that right away from a spouse, then the policy itself becomes the authority of the death benefit. So, if you divorce and forget to change the actual policy, and there is no language in the final judgment regarding the death benefit, then your ex-spouse may inherit the death benefit upon your demise.

In the recent case, Crawford v. Barker, SC09-1969 (Fla. June 9, 2011), the final judgment of divorce did not specify any new ownership or beneficiary regarding the death proceeds or beneficiary for a policy held on the husband’s life. During the marriage, the husband had designated his spouse, now ex-wife, as the beneficiary on the policy. After the divorce, the ex-husband died and had not changed his policy to reflect a new beneficiary. Therefore, the ex-wife and the ex-husband’s estate battled over the funds and the Florida Supreme Court decided that since the final judgment of divorce was silent, then the deciding documents were those of the actual policy. Since the ex-husband had not changed the policy to reflect a new beneficiary, the proceeds were decided to be that of the ex-wife.

In a divorce proceeding, it is important to have a true and accurate accounting of all assets, including death benefits. In addition, if it is your intent upon the divorce to take the death benefit away from your spouse, then be certain the language of the final divorce decree reflects that. Also, try to remember that you need to change the beneficiary on your actual policy so that the death benefit does not get held up on probate court later down the line.

July 28, 2011

Modifying Child Support in Florida

By Wood, Atter & Wolf, P.A.

Child support is modifiable in Florida. Modifying child support requires that a substantial change in circumstance. Simply not having a job does not automatically mean that a party qualifies for modification, the party must prove that she/he was fired or laid off from the job and it was not voluntary on his/her part. Also, if a party leaves a job for a less paying one, then that is considered voluntary underemployment and does not qualify for grounds of child support modification.

Florida calculates child support based on incomes of the parties and modifying that number requires a significant deviation (up or down) in the incomes of the parties. The increase or decrease of income, if significant enough, can lead to a change a child support in regards to the calculation. however, a small deviation, such as a 5% increase or decrease would not significantly impact the guidelines and therefore does not give rise to a modification.

Both parties are allowed to ask for a modification. This allows both parties access to the courts so that an increase or decrease in child support can be properly assessed based on the present situation. This is helpful for those that get divorced or have a paternity action while the children are young because over time both parties will most likely make more money and child support should be inflated to keep up with the households the child lives in the majority of the time. Also, if the child decides to reside with the each parent equally, then child support should be modified to reflect that time-sharing differential.

July 27, 2011

Florida Prenuptial Agreement: How To Value Assets and Why

By Wood, Atter & Wolf, P.A.

Planning for Florida divorce before your marriage can be difficult emotionally. When deciding to use a prenuptial agreement it is important to understand that you are planning for your life together in a way that helps divide assets before and during the marriage.

Separating assets, especially if you marry later in life, can be important if you both feel that your stuff should be yours and not your spouse’s upon marriage. However, it also means that you have to think differently when entering the marriage because you do not want to use marital funds in premarital (non-marital) accounts because it mucks the water if anything were to divide you later. Non-marital assets are those things that have been purchased prior to the date of marriage, including homes, stocks, etc. However, if you use marital funds (income to you or your spouse) to increase the value of those assets, then the increased value may be considered a marital asset. When creating a prenuptial agreement it is important to know “today’s” value of the assets so you have a reference point of premarital value and marital value if the marriage were to dissolve.

If you are interested in a prenuptial agreement, you should speak with a family law attorney to understand your rights and options and how to set-up the agreement in the best possible way.

July 26, 2011

Prenups in Florida Require Full Financial Disclosure

By Wood, Atter & Wolf, P.A.

Prenuptial agreements are enforceable in Florida if all provisions are met, especially the full disclosure of assets and liabilities to each party. In a divorce, full disclosure is necessary and required by Florida law. In developing a prenuptial agreement, the same is true because both parties have to have a full snapshot of the other party’s assets and liabilities before agreeing to the financial breakdown in case divorce was eminent. A full premarital financial disclosure is actually a tool that can be helpful in a relationship because both parties have an opportunity to better understand what they are walking into at the end of the aisle. A marriage is based on the joining of two people, but also the joining of their, “stuff.” So, having a full picture is helpful in knowing what challenges and expectations may be ahead for the couple.
Full disclosure of assets means that you are both providing bank statements, investment statements, trust holdings, properties, etc. Both parties need a clear understanding of what the other has so that the agreement can be drafted to protect them both and not just one party. A prenup is not intended to be a body of armor for the party with the most, but is designed to make certain that if the marriage were to fail, that there are contentions in place for how to divide marital assets and decide which assets are actually marital and nonmarital.
Though it may feel like planning for the marriage to fall apart, the truth is that is actually helps people to plan their life together effectively because it brings issues to the forefront where they may have never otherwise been addressed until an argument occurs.