Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.
If you are divorcing in Florida with assets purchased before marriage, Florida law recognizes them as premarital assets and those items typically remain with the person that brought them into the marriage. In Florida family law cases, clients often wonder which party will get the engagement ring.
Disability benefits are not subject to equitable distribution. Generally future lump sum disability benefits are not considered a marital asset. However, they may be used to calculate income for purposes of alimony.
There is also some case law which states that there may be a marital component to a disability pension. To the extent that a disability pension does not represent actual compensation for a disability, it may be considered a marital asset. [Gaffney v. Gaffney, 965 So 2d 1217 (Fla 4th DCA 2007) (where the trial court made findings that the husband’s disability was not a factor in the amount of the monthly benefit he receives and the only effect of husband’s disability was that he was able to receive his retirement benefits two years early, despite its “disability pension” designation, the marital portion of husband’s pension was a marital asset subject to equitable distribution to the extent it does not represent actual compensation for disability).]
Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.
In Florida, if you are going separate ways in your marriage, divorce is not a requirement to receive alimony and/or child support in Florida. If you and your spouse are separated, then the party in need of spousal or child support may petition the court without filing for divorce (Florida Statute 61.09). This allows for parties to separate without the pressure of divorce if that is not their ultimate goal.
The Court establishes alimony based on the same factors that are considered in a divorce proceeding, per Florida Statute 61.08, such as length of the marriage, contribution of the parties during the marriage, lifestyle of the marriage, etc.
Child Support is determined based on the child support guidelines in Florida Statute 61.30, as it would be under any other proceeding in family law matters ( divorce, paternity, etc.).
Child Support is based on the income of the parties, so if alimony is awarded, it will be factored in as income to the receiving party for purposes of child support.
In Florida there are several ways an unwed father can establish paternity to preserve their rights as a biological parent. Generally in Florida the biological mother’s rights are superior to an unwed biological father until he has taken steps to establish his paternity under the law. Florida Statute 742.10 governs the establishment of paternity for children born out of wedlock.
The statute provides that “if an adjudicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), creates a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier.”
The statute also provides that “both parties must provide their social security numbers on any acknowledgement of paternity, consent affidavit, or stipulation of paternity.” The father should also file a Claim of Paternity form with the Florida Putative Father Registry which charges a minor fee. If the father is not on the birth certificate he must get the mother’s permission to be added or seek an order from a court of competent jurisdiction.
Written By: Lenorae C. Atter, Attorney
Florida requires that a parent file a Petition for Relocation if that parent has the child the majority of the time and is moving more than 50 miles from the child’s principal residence. This petition is required if both parents, or another with rights to the child, do not agree on the relocation of the child.
Several years ago the statute that deals with parenting in Florida, F.S. Chapter 61, made some significant changes. These changes affect the way that parents and professionals should tailor parenting plans in family law proceedings and how the courts should deal with them. Below is a quick comparison of some of the more significant changes with the previous laws:
Old: A primary residential parent and a non-residential parent were designated.
New: No designation like this.
Old:Parents referred to as “primary” and “secondary”.
New: Referred to as “mother” and “father”.
Old: Primary parent had “custody” of the child or children.
New: The term “custody” is no longer used.
Old:General visitation guidelines were okay.
New:Specific timesharing agreement is required.
Old:Secondary parent visited with the child.
New: “Visitation” is no longer used. The new term is “timesharing”.
These are just a few of the important changes in the parent child relationship that took place.
Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.
In Florida, a Birth Certificate signed by both a mother and father lays a presumption that the one signing as the father is the child’s biological father, however, it does not lay a foundation for the father to have rights or obligations to the child in the eyes of the law. Therefore, if you have a child and are no longer in a relationship with you child’s father and you were never married, then you must establish that the father’s paternity in order to establish his obligation to pay child support.
In order to establish paternity, you must file a petition with the court alleging paternity of the respondent and seek support for the child. The alleged father can file a counter-petition for timesharing (previously known as visitation).
If you choose not to establish paternity of the alleged father, then he does have the right to file a petition for determination of paternity so that he may establish his rights to the child. Once those rights are established, the obligation for support follows. Until either you or the father file for said establishment of paternity, the father has no legal recognition as the child’s father. However, if you ever seek assistance from the State of Florida, such as Medicaid, then the The State of Florida may require a petition for determination of paternity in order to protect the State from having to pay assistance for a child that another individual is obligated to support.
Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.
Alimony is a common factor in Florida divorce cases. Alimony or spousal support is determined using a number of statutory factors, including but not limited to the lifestyle of the parties during the marriage, the length of the marriage, the contribution of each spouse to the marriage, etc. Once alimony is determined, the Florida court awards that amount to the needing spouse and it is often in place until the end of time specified in the order. However, given certain circumstances, the alimony amount can be modified if there is substantial change in circumstance.
Florida Statute 61.14 provides for a modification of alimony or spousal support if certain factor are presented to the court and the threshold is met. Modifications in alimony can be a request by the needing party for an increase in support or the payor may request a decrease of the alimony amount. In order to establish a modification, the moving party must allege a substantial change in circumstance has occurred for the decrease or increase of spousal support to be changed. For example, if spousal support was awarded and the paying party discovers that the receiving party is cohabiting or residing with another person in a supportive manner.
Florida Statute 61.14 identifies a supportive relationship and provides actual provisions under which alimony may be terminated. These include, but are not limited to the following:
1. A supportive relationship exists between the party receiving alimony and the person s/he lives with.
2. In determining the degree of support, the court is allowed to find out the nature of the relationship between the alimony receiving party and the person with whom their is a supportive relationship (spouse, girl/boyfriend, friend, family member, etc.).
3. The relationship can be determined by how the two individuals hold themselves out in society, but still does not recognize common law marriage.
There are other factors used in determining a change in alimony or spousal support and it is best to speak with a qualified family law attorney regarding such issues before proceeding.
Five years after the Mogul Pop Star married music executive Jordan Bratman, Christina Aguilera settled her divorce on Valentine’s Day of all days. After all, five years is a long time to be married anyway and what could be a more romantic present for her new beau Matt Rutler. It’s been reported that Christina, Jordan, and Matt have been living in the same house until recently. The thought of that doesn’t exactly conjure up a light-hearted “Three’s Company” episode. However, things are looking up for the recently troubled starlet as this marriage winds down and Jordan finally moves out.
Christina and soon to be ex-husband Jordan have a three year old child together. According to the agreement they will be sharing custody of the child. The couple had a prenuptial agreement and although the exact settlement terms have not been reported, Jordan is rumored to be getting a little something above and beyond what the prenup called for.
Prenuptial agreements in Florida are valid documents that hold a lot of weight when things don’t last. It’s important to have an experienced attorney draft the terms if you want to avoid some of the common pitfalls that can arise. There are also certain things that you cannot do in a Florida prenuptial agreement. The best thing about a prenup is it avoids lengthy divorce litigation.
As in Christina Aguilera’s divorce, the tough stuff is finished, the couple need only wait until April 15, 2011 when they will both be legally single under California law. There was no lengthy legal battle with an uncertain ending as in the highly publicized Kelsey Grammer divorce. Prenups are a great way to avoid litigation in which you may spend much a lot of the money each spouse might have otherwise walked away with.
Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.
Florida enforcement of child support can be brought through a Motion for Contempt if the responsible parent, the obligor, fails to pay child support per the order of child support entered by the Court. When a child support order is entered, it is done so based on the reported income of each parent and if an issue of nonpayment arises, then there is a presumption by the Court that the obligor maintains the ability to pay and it is up to that parent to prove otherwise.
If the obligor informs the court that s/he is unemployed or underemployed involuntarily, then the Judge may order that party to do the following:
1. Look for employment
2. File reports with the court, or the Florida Department of Revenue if the obligor is in receipt of Title IV services, that explain the party’s efforts in the search for employment.
3. Provide notification to the Court once employment is found.
4. Take part in programs that provide job training, placement, work experience or other similar programs that may be available to the obligor (chapters 445 and 446 of the Florida Statutes).
If the obligor voluntarily and unilaterally decides not to comply with the Court’s order, then s/he may be held in contempt. Contempt matters can range in punishment, but can include time in jail, with a purge or release amount totaling the owed child support amount.
