Jacksonville Divorce Lawyer Blog

February 19, 2013

In Florida, Why Your Case May Be Heard By a Magistrate When Dealing With a Divorce, Modification or Paternity Case?

In a Florida divorce, post divorce or paternity case, there may be times the case is referred to a general magistrate instead of the judge. Often, a general magistrate’s calendar is more accessible than the judge’s calendar due to volume of cases. The magistrates have the power to listen to cases and make a ruling based on the evidence presented, which then must be provided to the judge before being entered as a court order. Therefore, the judge still has control over the case, but the magistrate is helping move the cases along.

A referral to a magistrate is generally done for temporary needs hearings, which is when a party is requesting a temporary order be entered with the court until the final hearing so that each party has what s/he may need to get to a final hearing, like child support, alimony, or use of the home. The reason is that the judge may not be able to get the parties in for a longer period of time and the magistrate can generally see them in a couple of months. It is also common for the case to be referred to the magistrate when a lawyer does not represent one or both parties.

How does a case get referred to a general magistrate? When certain documents or motions are filed with the court, the court may tag them to be referred to the magistrate instead. For example, when a party files a Motion for Temporary Needs, the judge may sign an order referring the case to the magistrate’s office. When that happens, both parties receive a copy of the order and have ten (10) days to object to the transfer. In Florida, use of a magistrate has to be by consent, so if one party objects, then it will not go to the magistrate but must be heard by the judge instead. This may mean that the hearing is postponed for a time to correspond with the judge’s calendar.

February 12, 2013

Where Do I File for Divorce, Custody, Timesharing, and/or Child Support in Florida?

By Erlinger Family Law

As a Jacksonville, Florida family law attorney, I often get questions from clients as to where their case should be handled if two parents and/or spouses live in two different cities. The question is one that does not always have an easy answer, as there are Florida family law rules governing, Florida statutes establishing the correct place to file a case, and there is also Florida case law that is down from the courts on the subject. Therefore, like many things in family law matters, it depends on the circumstances. To best answer this question, examples can be quite useful.

Example 1: Marie and Hank are married and spend the bulk of their marriage in Jacksonville, Florida where they purchase a home. After eight years of marriage, Marie and Hank decide to separate and Hank takes a job in Atlanta, Georgia. After a year of separation they would like to get a divorce realizing that reconciling is not an option.

Even though Hank is now a resident of Georgia and could technically file for divorce in Georgia, there is an issue of Georgia having control over the property of the marital home. Therefore, in order to make the divorce as clean as possible, Marie and Hank would most likely need to file for divorce in Jacksonville, Florida where the marital home is located. If they decide to file in Georgia, then Marie and/or Hank may have to take extra steps to enforce any court orders regarding the marital home.

February 11, 2013

Florida Child Custody Changes and Understanding the Custody Battle of 2013

By Erlinger Family Law

Custody of a child has changed significantly over the last few years in Florida. Custody implies that one person has more control over a child than another, and the Florida legislature, along with members of the Florida family law division of the Florida Bar worked to make changes that no longer implied one parent being greater than another. While the changes started a few years back, the general public is still in need of education on the topic so that, hopefully over time, the the correct terminology will be used on a day-to-day basis and the animosity that generally follows with a divorce involving children or a paternity action will slowly wind down. While not an easy feat, we can at least make strides to make that happen with continuing to change laws and hopefully open up more communication between parents.

What are these changes? Historically, in Florida family law there was a presumption that one parent, typically the woman in many respects, was going to have “custody” of the children when there is a divorce or paternity case. Any case involving children had a certain spin to it in society where it was believed that women were more nurturing than men and therefore should have the kids. Laws, over time, have changed and the Florida judicial system started to recognize that life is not normally cut and dry in most family dynamics and there may be a need to change from the earlier presumptions of women over men. It is not to imply that the laws changed in order for men to be given preference over women, but that laws evolved to recognize that the court needs to look at the mother and father, their individual relationships with the children, and ultimately decide what is in the best interest of the child.

What took time to reach and is slowly becoming more recognized is that the alternating weekends and one evening per week may not always be the best situation for children of a broken home. The term custody was completely thrown out by the legislature in hopes of getting the parents on the same page and to help determine what type of visitation or time-sharing schedule is best for the children. The legislature’s hope in making this change was to get parents to communicate more openly and hopefully, over time, take away some of the animosity that is created through a divorce or paternity case and ultimately can lead to long, tiresome and often hurtful litigation between parents and the children suffering through the fight.

January 22, 2013

Can Florida Alimony Payments Be Changed?

By Erlinger Family Law

Divorce laws change from state to state regarding such things as alimony. Couples that have divorced and have either moved to Florida or were divorced in Florida and have changes in their lifestyle and circumstance that warrant a modification of alimony may need to know whether a change to alimony is possible. Florida does allow for a party to file for an increase, decrease or termination of alimony in certain circumstances. Understanding your rights and options in an alimony modification case can be beneficial to you in protecting your rights and interests.

In order to have access to the court for a modification there must be a substantial change in circumstance. For example, if you were awarded alimony based on the fact that you can hold a job, but that your income is less than your ex-spouse, then you may need to seek an increase in alimony if you become disabled and unable to work. Alimony in Florida is typically awarded to a party if she/he is in need of financial assistance from the other party and the other spouse has a financial ability to pay alimony. However, the amount is based on the need of the individual as well. So, if that person’s needs change, not due to voluntary action of that party (i.e. quitting his/her job), then alimony may need to be modified accordingly.

The same is true of a downward modification of alimony, meaning a decrease in the amount of alimony to be paid. For example, Hank has an annual income of $350,0000 and Mildred has an annual income of $30,000. In this case, Hank most likely would be ordered to pay Mildred alimony. However, Hank suffers an eye injury and can no longer work in his job and is placed on disability. Hank’s income decreased due to an involuntary occurrence, meaning he most likely did not intentionally go on disability; therefore, his ability to pay alimony at the same amount is limited. Hank may be given a decrease in the alimony he is to pay Mildred or it may deemed that he can no longer pay.

December 17, 2012

In a Florida Divorce What Documents Do I Have to Provide for Accounts and Retirement

By Erlinger Family Law

Written by: Lenorae Atter, Attorney

When you file for divorce in Florida you should expect to release your financial information to your spouse. Even if you have kept your finances separate during the marriage, most likely you are going to have to provide him/her with information about your bank accounts, retirement accounts, investments, etc. In a Florida divorce, both parties are required to provide documentation of their paystubs, bank statements, and other financial accounting information. Florida Family Law Rules of Procedures govern the requirements of what parties have to do in their court action.

As a Jacksonville family law attorney, I often tell clients that the release of information is helpful to both parties because it lays out a detail of all items to be equally divided by the court. Also, if you reach an agreement before going to trial, and both parties have provided the documents, then neither party can later claim that she/he did not know about certain assets. The bank statements can also be the truth tellers when it comes to cases involving alimony requests, asset hiding, etc. The reason is that most of us no longer use cash to make purchases and that bankcard is a great indicator of where money is being spent on a monthly basis.

December 11, 2012

Military and Time-Sharing/Visitation Issues in Florida

By Erlinger Family Law

Written by: Lenorae Atter, Attorney

As a Jacksonville, Florida divorce lawyer, I have many clients that have military ties. When there are military components to the case, often there are things that need to be considered dealing with time-sharing and relocation that do not come up as often in other divorce and paternity case. Time-sharing and relocation issues are often questioned by those going through the divorce or paternity proceedings in Florida because people are used to dealing with terms like visitation and custody, especially when it comes down to which parent is going to spend the majority of time with the child and whether that parent will have the ability to move somewhere else, if the issue arises.

In a military family, deployment and/or moving are often the concerns of the parents. The parents want to make certain that certain provisions are provided for so that there are not unanswered questions when the military calls with orders. Preparing for these changes can be difficult when the family is intact and can cause a riff when they family is separated through divorce or simply never actually lived together. In dealing with these issues the court has had to consider the factors of life for both parents. The truth is that regardless of which parent has majority time-sharing, the realities of military life will impact the separate families.

December 3, 2012

In Florida, When Can a Child Testify in a Family Law Case or Custody Battle?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney

In the Jacksonville, Florida family law courts there is a debate as to when a child is old enough to provide relevant testimony in a divorce or custody proceeding. Many of my clients often want their child to testify as to what their wishes are, regardless of the child’s age. However, the courts value the testimony of the children, but also believe, and rightfully so, that the child should be of an age of maturity to fully understand what she or he is testifying to and that would be difficult to do if the child is under a certain age. The majority of judges feel that a child’s testimony should be elicited at no sooner than 13 years of age. The Florida legislature has not provided a specific age-range to judges, so the discretion really rests with the court to decide.

Florida Statute 92.55 provides for the use of witnesses for children that are under 16 years of age and for witnesses that suffer from a mental handicap or have other special needs. In order for a child to testify, the party requesting such testimony must submit a motion to the court asking for permission for the child to testify. Normally, in a family law proceeding, the request is for the child’s testimony outside of the presence of either parent and his/her attorneys, also known as “in camera testimony.”

November 28, 2012

What Is Considered Income in Determining Florida Child Support?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney

As a Jacksonville, Florida divorce and family law attorney I often have clients that are going through a divorce or paternity case with children. In handling such cases, I believe it is important to educate my clients on child support; it’s use and how it is calculated in Florida. Child support is not simply a magic number than a judge or attorney comes up with, but a guideline calculation based on Florida Statute 61.30. The first step in determining child support is to know the incomes of both parents. The child support calculation is based on the monthly income available to each parent.

In order to calculate guideline child support it is important to know what “income” actually is. While some people work for a company and earn an hourly wage, others work on a salary, while others may work on commission or have their own business. So, how does Florida define income for purposes of calculating child support? Florida Statute 61.30(2)(a) provides a list of what gross income is, but does not limit the income to the following:

November 15, 2012

How to Deal With House Debt in a Florida Divorce

By Erlinger Family Law

Housing issues are a problem in most Florida divorces right now because a number of homes are upside down or underwater and in Florida, properties, assets and debts are to be divided equally. The courts struggle with this situation because even if the home is underwater it must still be factored into the equal distribution process. In addition, courts are aware that many people are now walking away from their homes and surrendering them into the foreclosure world. However, as a Jacksonville divorce lawyer, I prepare my clients for the house payments and associated insurance and related expenses because it is a factor in determining the outcome of the divorce and what debts may client may assume. Many people, even today, are hesitant to walk away from a house due to the impact it will have on credit and future purchases while trying to rebuild after a divorce.

Recently, a Florida appellate court evaluated this situation in Byrne v. Byrne, 3D10-2323 (Fla. 3rd DCA January 18, 2012). In the case, the parties had a condo that was $76,000 underwater. Originally, the Wife wanted to keep the home and make payments towards the property so as not to ruin her credit. She was initially awarded the home in the divorce, but was given no consideration by the court regarding the negative equity that she was taking ($76,000 would be owed upon sale). The trial court, in its initial decision, noted that there was a presumption that the Wife would actually turn the keys over the bank in foreclosure and would subsequently not lose the $76,000.

An appeals court is where one takes his/her case if the outcome of the initial case is factually or legally incorrect based on the evidence that is presented at court. Often, a transcript of the original trial will be necessary to preserve the evidence for the appeals court because the court transcript provides a formally written account of all statements made in the courtroom. Typically, a transcript is typed by a court reporter and since all witnesses are sworn in, their statements in court are sworn to statements that can be typed up and presented to the appeals court for review of all evidence.

November 9, 2012

Can Parental Rights be Terminated for Not Paying Child Support in Florida?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney

Terminating a parent’s parental rights in Florida is not easy. As a Jacksonville family lawyer I often have clients that are frustrated because one parent has continuously failed to pay child support. The parent may have hired the Florida Department of Revenue to find the parent, but been unsuccessful in getting result. The parent who is responsible for the child the majority of the time often grows tired of always having to track down the “deadbeat parent”. However, Florida laws protect parents’ rights and want to make certain that the children’s best interests are looked after.

Under Florida law, nonpayment of child support is not enough to show abandonment of a child. A parent cannot seek to terminate another’s rights simply because child support has not been paid. Also, a parent cannot deny the other time-sharing (i.e. visitation) with the children simply because child support has gone unpaid. Child support and time with your child are two very different things and the Florida courts treat them as such.