Jacksonville Divorce Lawyer Blog

If you are the victim of domestic abuse in Florida there are ways you can petition the Court for help with or without an attorney. The first step is to identify that there is a problem that you need to deal with. If you need to you can contact the police. However, many domestic situations have not arisen to the level of involving police. If you are fearful for your safety you can file for an ex parte emergency injunction against the person who is threatening you.

You can actually download the petitions and forms on the internet at http://www.flabar.org. You need to provide all of the information requested by the forms to seek appropriate relief. You may need to provide copies of any additional documents upon which your motion might rely. This could be the case if you are asking the Court to enforce an out of state order or previous judgment.

Although this process is setup so that individuals can file for relief on their own, it is a good idea to consult with an attorney regarding the process and the relief to which you might be entitled.

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In Florida, attorneys are not permitted to charge contingent fees in Family Law Cases involving a dissolution of marriage or seeking an award of alimony, child support, or equitable distribution. Family law cases are emotional by nature. This causes cases to often times take a long time to resolve. If attorney’s were able to charge contingent fees it’s possible these cases would take even longer to settle.

Most family law attorneys charge a retainer for their fees up front. This retainer can vary depending on the perceived complexity of the case and usually the experience of the attorney. Most Florida divorces will cost at least $5,000 in legal fees alone. There are a number of complex issues in the average divorce dealing with issues like child custody, support, and equitable distribution. The outcome of these issues will have a lifetime effect on everyone involved. It is important to fins a Family law attorney who understands the law and how it pertains to your particular situation.

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Many of my clients ask me to request an emergency hearing in their family law cases without really understanding what the term emergency means in Family law court. Clients have a different opinion of what constitutes an emergency than attorneys. In turn, judges have a different opinion of what an constitutes an emergency than attorneys. Although family law cases involve serious issues and extremely emotional situations, not every one is an emergency warranting immediate attention. This begs the question then what is an emergency in a family law case?

In the case of Shaw v. Shaw, 696 So 2d 391 (Fla 4th DCA 1997), the Court said an emergency is one in which there is imminent danger, a crisis or a situation requiring immediate and extraordinary action. Emergency hearings are generally held with little or no notice to the opposing party and therefore the Court has to be careful that it does not violate judicial procedure and common fairness. The District Court said in Hunter v. Hunter, said that “the trial court should only order relief in an ex-parte proceeding where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice.” Thus a motion seeking ex-parte relief “must demonstrate (1) how and why the giving of notice would accelerate or precipitate the injury or (2) that the time to notice a hearing would actually permit the threatened irreparable injury to occur.” Smith v. Knight, 679 So.2d 359, 361 (Fla. 4th DCA 1996)

Most emergency motions involve threatened domestic violence, minor children, or dissipation of marital assets. However, the Court looks at the facts of each case differently, and you will need to be prepared to show why there will be irreparable harm if an emergency hearing is not held.

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In Florida there is a residency requirement that must be met for a Florida court to have subject-matter jurisdiction. One of the parties must reside in Florida for at least six months before filing a petition for dissolution of marriage and have the intent to remain in the state at the time of filing. Generally this burden of roof is by clear and convincing evidence and is on the petitioner. However, either party may fulfill this requirement. This residency requirement requires an actual presence in Florida coupled with an intention to make the state your residence.

One party may fie for divorce against another party who is no longer living in the state so long as they reside in Florida. The residence requirement does not require that a person not leave the state for the entire six month period. For example there was a case where a woman spent her summers in a different state and filed for divorce in Florida. The court found that she had established a residence in Florida and simply vacationed elsewhere.

If a party moves from Florida after they have filed the petition, they may still satisfy the residency requirement under certain circumstances. However, this may affect the party’s burden of proof to show a mandatory intent to remain a resident as of the date of filing. The judge will generally look at the totality of the circumstances if the issue of subject-matter jurisdiction is raised in a Florida Divorce.

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In a Florida divorce the term for dividing up the assets and liabilities of a marriage during a divorce is called “equitable distribution”. The assets and liabilities of the marriage must first be identified, then classified as marital or nonmarital, and then a valuation of the marital assets must be completed. Only then can everything be equally distributed.

Family law judges have a lot of discretion to divide the marital assets and liabilities. This includes interpreting the intentions of the parties by analyzing their actions leading up to a divorce or over the course of the marriage. If it seems that one party was attempting to hide an asset or accrued liabilities in both parties’ names without one of the parties knowing, that will usually have a detrimental effect on the party engaging in such activity. The Court is also free to select the valuation method for assets to make its determination. A judge n a family law case must use competent substantial evidence when making its determination for equitable distribution.

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Every time the subject of mediation comes up in one of my family law cases clients always ask me the same thing, “do I have to go to mediation”? The answer is almost always yes in Florida. The judiciary has found in Florida that the majority of family law cases settle at mediation. Even if all of the issues are not settled, usually you can get some of the major concerns resolved and save a trial for the issues you couldn’t resolve at mediation. This helps free up the court dockets and allows for shorter trials or no trial at all in most family law cases.

Mediation is a form of alternative dispute resolution where two represented or un-respresented parties meet with a disinterested third party mediator, usually an attorney that is certified as a mediator, who helps them come to an agreement on the outstanding issues in their family law case. The decision of the mediator is not binding unless the parties agree to the terms and sign a consent final judgment or marital settlement agreement at the end of the mediation.

The key advantage of mediation is that you negotiate for terms you are willing to accept as opposed to submitting the facts of your case to a judge to make a decision. You have to remember though that negotiations involve give and take. You may have to compromise your position somewhat to get what you want from the other party and vice versa. Although you may not get everything you want, you can usually end up with more than you may have gotten at trial with less risk. Judges do their best to come to a fair decision n family law cases. However, the judges only get a small picture of the issues involved and have to make a decision that will affect you for the rest of your life based on this limited disclosure. At mediation you and your spouse know the entire history of your case and can usually resolve the issues better with a little bit of compromise.

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In Florida there is a difference between a Simplified Dissolution Proceeding and an Uncontested Final Hearing. In an uncontested divorce one party has filed a petition and the other party has filed an answer. A simplified dissolution is where the parties file a joint sworn petition that there are no minor children and the wife is not now pregnant; the parties have agreed on the equitable distribution of property and debts; and any other facts set forth in the petition are true.

Several important factors in a simplified dissolution of marriage are as follows:

1) Both parties must appear at the final hearing;
2) Financial affidavits do no have to be filed if the parties wish to waive the requirement;
3) The parties do not have to make the waiver in writing;
4) Mandatory disclosure does not apply; and
5) The marital settlement agreement must be filed.

Simplified dissolutions are designed for married couples to handle themselves. However, there are a lot of important rights and responsibilities involved in getting divorced. It is always a good idea, even in a simplified dissolution, to consult an attorney prior to signing a settlement agreement. These agreements are binding and not easily altered once a judge enters a final order.

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In a Florida divorce the trial court may order the payor spouse to get a life insurance policy as security for his or her alimony obligation with the payee spouse as the beneficiary. The burden in this type of case is on the payee spouse to show several things:

1) necessity for the insurance;
2) insurability of the payor;
3) cost and availability of insurance;
4) reasonable premium;
5) affordable to the payor spouse; and
6) in some districts you will have to show special circumstances which would require the security.

The requirement, while provided for in the statute, is subject to the discretion of the trial court when the parties cannot agree on the issue. The purpose behind the insurance is to provide for the needs of the spouse who is entitled to an alimony award should the payor spouse die unexpectedly while the obligation still exists. A payee spouse left in this position could face dire consequences without this type of security.

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In a Florida divorce the court can award alimony to either party which may be rehabilitative or permanent in nature. Generally after the court has determined which party is entitled to what assets and is responsible for which debts, it will address the issue of alimony. Alimony in a Florida Divorce is not automatic and not guaranteed. The primary factors that determine an entitlement for alimony are the needs of the payee spouse, the ability of the payor spouse to pay, and the lifestyle established during the marriage. The court must make a finding of fact regarding these factors before it can award one party alimony.

There are several types of alimony in Florida:

1) Rehabilitative Alimony– this type is intended for a spouse while he or she regains the ability to support his or herself after the divorce. Generally the party seeking rehabilitative alimony has the burden of proof as to the rehabilitative plan (ie. job training, school), the approximate cost, duration, and how it will make the party self-supporting.

2) Bridge-The-Gap-Alimony– this is short-term alimony for a designated period of time to help the spouse seeking the award transition from married life to single life. This award can be awarded in a lump sum or periodic payments.

3) Permanent Periodic Alimony– this is support paid to the payee until they remarry or pass away.

4) Lump-Sum Alimony– is only awarded if permanent periodic alimony is justified, there is a good reason for a lump sum award, there are specific findings of fact regarding the issue, and there is money available to pay it. This can also be used to effectuate an equitable distribution.

5) Nominal Alimony– this is awarded when there is an entitlement to alimony but there is not enough money to pay the award. This allows the court to reserve jurisdiction to award a different amount in the future should the circumstances of the parties change.

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