Jacksonville Divorce Lawyer Blog

Mediation and Other Options for a Florida Divorce, Part 2

Thu, 17 May 2012 09:00:04 -0500

When going through a divorce in Florida there are options beyond going to trial. Mediation and other forms of negotiations can be helpful to the parties because it can help the parties have some control over the outcome of their divorce versus leaving all decisions up to the judge. In negotiations, the parties have the ultimate say in the outcome of their divorce, while in a trial, all decisions are made by the judge. As previously discussed this week, forms of negotiations available to the parties are pre-filing mediation; collaborative divorce; an uncontested divorce; filing for divorce and then going to mediation. As a Jacksonville divorce lawyer, I think understanding these concepts can help spouses determine what is in their best interest and their children’s best interest as they part ways.

In review, pre-filing mediation is basically when both parties agree to attend mediation prior to filing for divorce. This is a time for the parties to find out what stands between them and a settlement agreement and to see if they can work through those differences. A collaborative divorce involves both parties having attorneys and fully disclosing all items to one another in hopes of resolving all issues in the divorce before filing. The process uses a neutral third party to assist in the process and can use financial outsiders and parenting coordinators to effectively reach an agreement.

So, what is an uncontested divorce? Basically, this is more of the process that parties may take with each other depending on what terms they are parting. Sometimes, parties can actually discuss the issues of asset division, retirement division, alimony, marital property and the like and ultimately decide; on their own, how they want things divided. Going this route does not mean that you should not consult with an attorney. You want to make certain that you are not leaving anything pertinent out in your negotiation, but also you want to make certain that the final agreement is drafted in a way that is legally enforceable. If you can speak with your spouse about these things, then you may want to schedule a joint meeting with an attorney to discuss where you are and to ultimately have the agreement drafted with the proper legal language.

Finally, what is post-filing mediation? Here, you or the other party has already filed for divorce. The process may be moving forward to trial, but in Florida, the courts generally require the parties to attend mediation. This type of mediation occurs after the divorce has been filed, after discovery or the exchange of financial information, asset information, debt information and the like has been completed, and the only thing left before trial is mediation. The reason for this is that mediation has proven to be a place where the majority of parties can reach an agreement on all pending issues in their divorce, thus not requiring a judge to make the ultimate ruling. This is really a chance for both parties to negotiate before trial to see if all issues can be resolved.

Mediation and Other Options for a Florida Divorce, Part I

Tue, 15 May 2012 08:30:00 -0500

Written by: Lenorae Atter, Attorney at Law

Options in a Florida divorce exceed beyond having to go to a trial. In a world where divorce seems an agonizing process and we are often inundated with horror stories of years of litigation, spouses dragging each other through the muck, and much more. However, in Florida, there are other ways to get divorced instead of simply committing to litigation or trial. The options consist of the following: pre-filing mediation; collaborative divorce; an uncontested divorce; filing for divorce and then going to mediation. As a Jacksonville divorce lawyer, I think understanding these concepts can help spouses determine what is in their best interest and their children’s best interest as they part ways.

What is pre-filing mediation? First, mediation is a process of both parties meeting with a neutral third party to determine if they can reach an agreement regarding all aspects of their divorce, such as: division of assets and debts, alimony, division of the marital home, a visitation schedule, and the like. The parties usually meet in the same room initially and then are separated and the mediator will go between the parties to help negotiate a settlement. If that process is successful, then they will file a petition with the court for the divorce and put into the petition that both parties have reached an agreement. Then, the final settlement agreement or Final Judgment has to be entered with the judge and only one spouse has to attend the hearing. If you choose this process, you still have the right to have a lawyer with you so that you understand your rights and options if you were to reach an agreement or what may happen if you go to court. The mediator, though neutral, cannot provide you with legal advice, so it’s a good idea to at least meet with an attorney prior to attending the mediation.

What is a collaborative divorce? This process is a little different because it goes into much greater detail for the parties from beginning to end. First, both parties hire an attorney that is familiar with the collaborative process. Second, instead of the parties signing a normal attorney/client contract they each sign one with their own attorney stating that they understand the attorney cannot represent him or her if the collaborative process is not successful. The reason for this is due to the nature of collaborative law is for the parties to share all information with one another and the attorneys can and will have a conflict of interest since the idea is for both sides to lay their cards on the table.

In Florida, Can Alimony Increase Due to Inflation?

Fri, 11 May 2012 08:45:00 -0500

Written by: Lenorae Atter, Attorney at Law
As a Jacksonville divorce lawyer, I often educate my clients on the fact that alimony in Florida is modifiable given a substantial change in circumstance, unless agreed by the parties as nonmodifiable. Inflation is an involuntary change in the economy and impacts living expenses, including utilities, food prices, etc. As such, inflation may impact the amount of alimony necessary to sustain an individual from day to day. When permanent alimony is awarded, such as in long-term marriages (greater than 16 years of marriage) or in cases where a spouse has a permanent disability and the ex-spouse has an ability to pay alimony, inflation may be grounds for an alimony modification. In Florida, to modify alimony, there must be a substantial change in circumstance. For alimony modifications due to inflation, there are more steps that must be proven.

Inflation has been warranted to create a substantial change in circumstance because it decreases the value of a dollar. So an alimony award in 1990 would not spend the same in 2012 and the courts recognize this issue. However, the courts also recognize that a change in circumstance cannot just be the impact inflation has on the value of a dollar, but on the impact that change has on the individual seeking the modification. Since alimony is designed to provide support for a spouse to have shelter, clothing, food, and other necessities, the receiving party has to show the court how inflation has made it more challenging to fulfill those needs.

While some people believe that alimony is designed to keep the parties in the same lifestyle they had during the marriage, lifestyle equality is subjective and not objective to the parties. Lifestyle equality to that of the marriage is often impossible because it is more expensive to have two households than to have one. Therefore, there will most likely be a change in lifestyle from married to single life. Also, modifying alimony based on inflation should be based on the needs to be met and not being able to do so, such as not having money for a utility bill. A modification of alimony should not be based on whether inflation has rendered it difficult to go to the spa everyday, as you once did.

Therefore, the courts in Florida have actually established rules on modifications of alimony due to inflation. It should not be a surprise that the court has found that a modification for inflation is proper when a spouse shows that costs associated with daily living expenses have inflated to a point where alimony no longer attributes enough to pay for a reasonable expenses (i.e. necessary car repairs, utility bills, etc.) as in Bedell v. Bedell, 583 So.2d 1005 (Fla. 1991). Basically, the court found that where inflation impacts the dire needs of the requesting spouse, then an upward modification is proper. However, in a recent case, the appellate court found that an upward modification of alimony due to inflation is not necessary when the dire needs of the requesting party are being met, but the lavish lifestyle needs are not, Silverman v. Silverman, 3D10-2682 (Fla. 3rd DCA May 2, 2012). In Silverman, the ex-wife requested an upward modification of alimony due to inflation and showed her need for the increase was due to her inability to keep a live-in maid or go on numerous trips annually. The trial court initially granted the request, but was overturned by the appellate court that referenced dire needs versus lifestyle. The opinions lay the ground work for showing a substantial change in circumstance for warranting a modification.

Custody and Visitation in a Florida Military Divorce or Paternity Case

Wed, 09 May 2012 08:30:00 -0500

Written by: Lenorae Atter, Attorney at Law

Jacksonville, Florida is home to many military families and as a divorce lawyer and family law attorney in the area; I find it important to educate my clients on some nuances that may occur when dealing with children in a military. In dealing with military divorce or paternity cases, the common issues that arise are visitation and custody; now considered time-sharing in Florida.

In a military family, the one thing that members of the family become familiar with is the idea that where you live now may not be where you live in six months or six years. Adapting to change is a gift that many involved in the military have to succeed at. However, if the family divides, then how does that impact the family unit regarding visitation and custody issues?

Often, the question of who will have the majority time with the child (i.e.) custody arises in a divorce or paternity case. The court looks at what is in the best interest of the child in making that determination. The best interest of the child is somewhat subjective, but is based on numerous factors including the historical relationship of the child with each parent, the stability each parent provides (i.e. emotional, not just geographical), the relationship of the parents, the likelihood of each parent helping to facilitate a relationship with the child and the other parent, etc. In making these determinations, the court may consider the likelihood of issues of deployment and moving arising, but the court cannot rule against a member of the military strictly due to these factors. So, how does the court deal with deployment and relocation of military members?

First, in a divorce or paternity action, the parents may reach an agreement outside of the court that establishes the time-sharing plan. The time-sharing plan can also hold provisions regarding matters that may arise or need to be modified, such as deployment and relocation. A lot of factors can be considered by the parties in establishing a time-sharing plan that works for the child and for the parents. However, if that can be accomplished, then the court may look at the historical factors of the active-duty parent’s deployment and relocation. In so doing, the court may make provisions such as where the child should live during those times or how the time-sharing will be impacted if the military parent is relocated. These agreements do not necessarily bypass the Florida relocation statute, but they do lead to an understanding that a prior agreement was reached regarding these matters and that the agreement is part of the prior court order. Therefore, it may be submitted to the court for the change in time-sharing upon the relocation taking affect.

The focus on both parents should be what is in the best interest of the child. Then go from there regarding all factors involving time-sharing, deployment and relocation. Making the transitions easier on the parents also makes it is easier on the child, thus creating continuous stability regardless of geography.

Florida Divorce: Why Custody Plan Evaluations Are Important

Tue, 08 May 2012 08:30:00 -0500

Written by: Lenorae Atter, Attorney at Law

First, the Florida legislature changed child custody to "primary timesharing parent" in October, 2008. However, since most of us are familiar with child custody and custody issues, this article will still address the issue as the historic term, "custody."
As a Jacksonville Florida family law and divorce attorney, dealing with paternity cases and divorces with children, custody issues often arise and the Social Evaluation is an important factor in helping the parents better understand the issues facing the children, and the evaluation assists the judge in having a better understanding and comprehension of what is in the best interest of the children. In Jacksonville and throughout Florida, the social investigation is a component of the case that may be used in its entirety by the judge or may give the judge a basis for a particular ruling. In addition, the evaluation can provide the parties with a stepping-stone or format by which to reach an agreement regarding visitation issues.

The social investigation is conducted by a professional, usually someone with a psychology and law background, and the investigator actually interviews the parents, speaks with witnesses, talks to the kids, look at school records, etc. Once the reviews and statements are completed, the evaluator rights a comprehensive report to demonstrate the findings for each parent, child, and the overall assessment of a parenting plan and recommendations for the court regarding any other matters that should be addressed (i.e. whether counseling is recommended, communication issues, etc.).

So how do you present well in the social investigation? Basically, parties are often concerned that they need to present themselves in a certain light to impress the investigator. However, most of the individuals handing these matters can tell when a party is putting on a show. The idea is not to be fake or phony, but to present your concerns for the children, explain your relationship with the children, and truly identify your wants and needs and the children’s wants and needs before the interview. Being genuine with the investigator is beneficial because it allows the investigator to truly determine any family issues that may need to be addressed, the impact the divorce/separation is actually having on the children and the like. The reason for the investigation is not to berate the parents, but to simply identify what may be in the best interest of the children in the present and in the future.

Extend a mental olive branch to the other party. During your interview with the evaluator, do not destroy the other parent with disparaging remarks. Describe the parts of parenting that the other parent does well and be honest in your comments about the children's relationship with their other parent. Then share the things that do concern you about the other party, or about the separation of the children. You do not have to make it sound like everyone is great, you’re getting divorced there were issues in the home, so being real about the situation can be helpful in reaching the right conclusion for your case.

Domestic Violence Can Impact Family and Unrelated Victims

Thu, 03 May 2012 10:10:14 -0500

Written by: Lenorae Atter, Attorney at Law

Domestic violence issues in Florida and throughout the country can be seen in even the most heinous of crimes. Sometimes, the domestic violence can be a precursor for violence on others, including innocent, unrelated victims. A recent case is the much publicized case involving Jennifer Hudson’s family, but a case that struck many of us throughout the country, the sniper shootings in Virginia, also started with domestic violence. Mildred Muhammad, ex-wife of DC Sniper John Allan Muhammad, gave an interview to Larry King the night before her husband was to be executed for his crimes at a Virginia state prison. Muhammad left 10 dead in a shooting spree that his ex-wife believes was destined to end with her as its final victim.

Ms. Muhammad said she felt very guilty about the victims of her ex-husband’s rampage, which left millions of DC residents fearful of going out in public. She claims that she had done “everything I knew how to do” to bring Mohammad’s violent and abusive nature to the attention of authorities, but it wasn’t enough. And she has expressed feelings of shame for not realizing that his violent behavior would extend beyond her, to affect other people. Like many victims of domestic violence, Ms. Muhammad’s guilt lingers for her inaction, but domestic violence by another does not require the fault of the other spouse or victim, simply behaviors of violence that are so easily exposed by a trigger to the violent person.

Ms. Muhammad had divorced her husband because of his allegedly abusive behavior towards her. Authorities maintain that Muhammad started killing random strangers as a cover up, with the ultimate goal of shooting his wife the same way, so that he could take custody of their three children. Muhammad has always claimed that he is innocent of the charges.

After suffering from incessant abuse and a the violence that surrounded her family, Ms. Muhammad has worked through her guilty feelings and is concentrating on caring for her three children during this emotional time. Muhammad’s first wife, Carol Williams, was also interviewed by King, and said she planned to visit Muhammad in prison with their son before the execution. You can read more about the interviews at Ex-wife of infamous 'D.C. Sniper' felt guilty about shootings.

Domestic violence is very dangerous behavior, and it this case is a tragic example of how far it can go if left unchecked. People who are in reasonable fear of being in imminent danger of domestic violence should take very action to protect themselves, including calling the police and taking out an injunction.

If you are a victim of domestic abuse, please contact our firm to explore your legal options.

Is Alimony in Florida Designed to the Lifestyle I Had During Marriage?

Mon, 30 Apr 2012 09:20:00 -0500

Written by: Lenorae Atter, Attorney at Law

Divorce cases involving alimony have been popular recently in Florida. The Florida appellate courts seem to be making up for the lack of alimony legislation by making rulings that continuously limit alimony and the award of such. The Florida alimony statute recently underwent an overhaul, making clearer lines of the length of the marriage that must or should exist in order for certain alimony to be awarded to a spouse. However, the hole that has caused quite a stir is that Florida still does not have an alimony calculation to help in the determination of the amount to be paid. In Jacksonville and surrounding areas, there is a tendency to award alimony based on need and ability to pay, not just the income disparities, but that is not always the case nor the popular approach throughout Florida, thus the appellate courts have begun making more provisions for the award of alimony.

A disparity in income does not, in fact, mean that because one party makes more than the other party that she or he should automatically pay alimony to the other. The court must look at the practicality of such. The reality is that just because there is a disparity in income does not necessarily mean that one party is in need or the other has the ability to make both houses equal financially. Financial equality sustained by one income for two households runs quite a risk for the paying party because often, that individual also takes more of the debts from the marriage. In a recent appellate opinion, Walker v. Walker, 1D11-2869 (Fla. 1st DCA April 12, 2012). , the court quoted the following, “Simple disparity in income will not support an award of permanent periodic alimony: ‘the purpose of permanent periodic alimony is not to divide future income to establish financial equality.’ See Rosen v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003)(citing Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998); Langevin v. Langevin, 698 So.2d 601 (Fla. 4th DCA 1997); Wright v. Wright, 613 So.2d 1330 (Fla. 4th DCA 1993).” This basically establishes that alimony should be awarded to assist the needing party in the future, not just to establish an equal financial footing of both spouses.

Why Do I Have to Provide Bank Statements in My Florida Divorce?

Fri, 20 Apr 2012 12:15:00 -0500

Written by: Lenorae Atter, Attorney at Law

Filing for a divorce in Florida opens up your financial world to the court and the other party. In a Florida divorce, each party is required to submit documents of their paycheck stubs, bank statements (checking and savings), retirement account information, mortgage documents, and the like. Florida divorces or actions involving family matters like paternity cases are governed by the Florida Family Law Rules of Procedures. These rules layout the groundwork for what documents must be provided in order to be in full compliance with the court. So, how does this information help if you are divorcing someone?

As a Jacksonville family law attorney, I believe that these documents, especially bank statements, can reveal more about the other party than any other document provided or required to be provided. Often in cases, both parties claim not to have the financial ability to most anything, including paying attorney’s fees, paying for their home, etc. However, the truth of the claim, in my experience, rests in what is contained in the records.

Alimony is based on an ability to pay and a need for alimony. Both of these things can be proven by go through the bank statements of the individuals, the retirement accounts, and the like. While talking to my client or the other party is beneficial, and sometimes crucial, it is these documents that will tell me more than anyone party can or will. In a world where cash has become almost obsolete, most of us use our debit cards, check cards or credit cards to pay for everything from groceries to utilities. These transactions show-up on our bank statements every month as a reminder of where our money is going. In a divorce case, it is evidence of how money is actually being used in the household. If the parties have different accounts, then it is also evidence of how the household bills were historically divided during the marriage. Using these tools can help establish a need and ability for purposes of alimony.

Child support is based on the incomes of the parties. Sometimes, an individual has one main job and does additional side-work of some kind. When asked on a financial affidavit, required in the case, what the party’s income is she or he will typically put the income earned from the main job and exclude the other one. However, deposits show up on bank statements, so incomes can actually be based on the available funds each party has on a monthly basis, as may be shown on their bank statements.

In going through a divorce, the benefit of hiring a divorce lawyer is that you are paying for us to do this type of research. The research can be time intensive and going it on your own can be more time consuming than you may imagine. The benefit of having this information is so that you have a better understanding of your own finances during the marriage and post divorce as well. An attorney should be able to help explain how these things will come up in your divorce whether at trial or in mediation.

After My Florida Divorce, Am I Required to Make All Repairs to a Home?

Wed, 18 Apr 2012 09:15:22 -0500

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, the parties often have a marital home that has to be divided by the parties regarding either the asset value or the debt owed. However, sometimes the house may simply shift ownership per a divorce agreement by the parties, especially when the home is underwater like most are in today’s economy. The shift normally occurs because the party that stayed in the home at the time of separation cannot afford to maintain the home after the divorce is final, but the other party can. As a Jacksonville divorce lawyer, I often receive questions from clients regarding what the home must be in at the time of transfer.

If possible, you want the divorce agreement or order to actually define the condition of the home and what necessary repairs must be done. It does not make sense that the party is returning the home in a better condition than how it was during the marriage, but it also should not be in worse condition. If the party with present possession does not have the ability to maintain the home, then it is unreasonable to expect the spouse to have the ability to fix in and all issues that were present during the marriage. Things such as lawn maintenance that was in place during the marriage should also be kept up. However, completely re-landscaping the yard to make it better looking is not a reasonable cost expectation.

The issues that typically arise in cases are where a spouse is upset about having to move out and then actually depletes the marital value of the home by destroying the property. Destruction of property is not reasonable wear and tear, but actually done to impact the value of the home and the ability for the other spouse to live in it. These actions can actually be brought up to a judge in a contempt and enforcement situation. The offending party may be responsible for all necessary repairs of the damage done and responsible for the attorney’s fees for the other party. Destruction of the home is more common than most people would like and is something seen not only in divorces, but in foreclosure cases as well. Understanding that the damage may come back as a cost to you can be a deterrent.

Also, in a divorce proceeding and contempt of the order, the judge can go so far as requiring the offending party to go to jail and give a purge amount of the cost for all repairs. The reason is that a violation of a court order is actually a legal violation that is punishable with time in jail. In a destruction of property action, the contempt may not be the only legal violation, but criminally, there may be action that the police can take for vandalism and intentional destruction of property, if the spouse is caught.

If you have a home that has been or will be divided in a Florida divorce, then you should speak with an attorney about your rights and options. If your home was to be transferred and the other party failed to do something or is trying to impose additional responsibilities, then you may need to file the proper action with the court.

Levi Johnston, a Father, Again: Dealing with Paternity and Visitation Issues in Florida

Mon, 16 Apr 2012 09:00:42 -0500

Written by: Lenorae Atter, Attorney at Law

Bristol Palin’s ex-boyfriend, Levy Johnson, is now going to father another child, according to recent stories. Recent news reports indicate that the former Wasilla mayoral candidate is expecting a child with his present girlfriend, Sunny Ogelsby. Again, entering into a paternity issue since he is unmarried to this mother-to-be. Contrary to popular belief, at least in Florida, paternity of a child born out of wedlock is not determined by a birth certificate or DNA, but by actually being established by the court. Therefore, Levy Johnson will most likely find himself in another courtroom to decide the fate of another child and the child support he will have to pay.

According to Levy Johnson, when questioned about his relationship with the child he shares with Bristol Palin, he has not been much of a father. He has told reporters, recently, “The Insider,” that he has not been able to exercise any visitation or time-sharing with the child due to Bristol Palin and her family denying him any visitation. This time, he has said he anticipates being involved with the child that was recently conceived after the couple, Johnson and Ogelsby, forgot to take birth control with them on a romantic getaway.

The legal issue with Johnson’s story regarding his child with Palin, is that typically a court order for visitation/time-sharing can be enforced by the court. In his situation with Bristol Palin, there is presently a court ordered time-sharing schedule that, according to the Palins’ attorney, he has not exercised. When a child is involved and there is a court order regarding matters such as child support, visitation and the like, anything in that order that is not followed by one party can be enforced by the court, IF the other party brings an action in court. Not playing a role in a child’s life, once the visitation schedule has been established, is a choice and not due to the actions of just one parent.

In Florida, to enforce an order with the court, the non-offending party must file a Motion of Contempt or Enforcement with the Court. Since the other party is refusing to follow a court order, then that parent may be held in contempt of court, and depending on the severity of such contempt, can be placed in jail for a period of time. This type of actions allows the parents to have some control over the relationship of the parent and child, but also is a way to enforce monetary requirements of child support. In most states, by not paying child support, the offending party may be placed in jail, have his or her drivers license suspended, professional license suspended, have his or her tax returns seized, and much more. For issues of time-sharing, however, the court may enforce the other party to allow visitation, but typically it cannot require a parent to actually see the child. That enforcement is a little more challenging if the parent does not have an interest in developing a relationship with the child.

If you have fathered a child, then you need to have your parental rights properly established with the court to guarantee your visitation rights to the child. However, please be aware that by doing so you open yourself up for being court ordered to pay child support. Also, if the court has already established paternity, but there are issues with the time-sharing or visitation plan due to being cut-out of the child’s life, then you should file the proper action with the court to enforce the prior order.

Military Divorce and Deployment: An Unexpected Twist is Shown in a Recent Study

Thu, 12 Apr 2012 08:35:05 -0500

Florida divorces can be complicated for many reasons, and in Jacksonville, where there is a heavy military presence; divorces can be even more complicated. When a military couple divorces, the process is often more complex than when a civilian couple divorces. There are a number of additional factors to consider, especially when it comes to issues such as equitable distribution and child custody, since there are often multiple retirement accounts, savings accounts, issues of deployment and the like.

In a military divorce, often factors come up involving the divided household due to the service-member’s military responsibilities. These are also factors that are part of the every-day life of military families, so the issues are not necessarily new to the spouses while they deal with a pending divorce. Also, military divorces are not always for the reasons society seems to think, such as long deployments, uncertainty in war-times, possible moves, etc. Many people think that deployment of one military spouse would increase the risk of divorce. It is easy to assume that the risk of divorce increases when a military couple is separated for a period of time and the deployed spouse is faced with a number of stresses. But a recent study has debated whether deployment is related to an increase risk for divorce.

A new study conducted by Benjamin Karney (UCLA) and John Crown (RAND Corp), looked at whether the amount of time a person is deployed has an effect on the risk of divorce and what that effect could be. The study surveyed over one –half million service members who were married after 9/11 and who served between 2002 and 2005. The study included all branches of the service and reserves, and collected data about gender, race and presence of children among the couples.

Contrary to most expectations, longer deployment was associated with a lower risk of divorce. According to the authors of the study, ‘For the vast majority of the U.S. military--the longer that a service member was deployed while married, the lower the subsequent risk of marital dissolution.... Deployment appears to enhance the stability of marriage, the longer the deployment, the greater the benefit.’ In twenty (20) different tests, the authors found that only active duty officers and enlisted Air Force personnel were at more risk of divorce due to deployment.

The results of this new study are different from the usual reports in the press that think about deployment as a crisis similar to an illness or a natural disaster. Rather, this new study showed that deployment is a normative event for military families; it is a challenge to be dealt with but not a crisis. For more information on this topic, see Does Demployment Cuase Military Families to Divorce?

If you are in the bracket that is considering divorce, then you should speak with a family law attorney in your area to find out what factors need to be considered and what your rights and options are as you move forward.

In a Florida Divorce, Can an IRA or Investment Be Considered in Determining Alimony?

Wed, 11 Apr 2012 09:45:10 -0500

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, alimony may be awarded to one of the parties based on the circumstances surrounding the marriage. As a Jacksonville divorce lawyer, I typically tell clients that alimony is based on the need of the party and the ability of the party to pay alimony. As an example, if the Wife makes $30,000 per year and the Husband makes $100,000 per year and their expenses are not so vast as to create a vacuum in which the Husband cannot pay alimony, then most likely the Wife will be awarded alimony depending on her own monthly needs, expenses, debts and the like.
However, in determining alimony, the court must look to the available money of the parties. This means not just money available through employment, but any money that is accessible to either party, including possible monthly payouts from retirement accounts, investments or annuities, like an IRA. Therefore, in assessing whether alimony should be awarded and how much should be awarded, the courts can impute income that could be received from annuities and IRAs, even if the spouse is not yet 59 ½ for purposes of IRA withdrawals. Niederman v. Neiderman, 36 FLW D927 (Fla. 4th DCA May 4, 2011). And obviously, this would apply to wives over 59 1/2.

In the above-referenced case, the Wife was 53 at the time of the divorce and made $35,000 per year and the Husband made $500,000 per year. Once their assets were divided, the Wife received $2.7 million in IRAs and annuities. Though a typical withdrawal from an IRA before reaching 59 ½ triggers a 10% penalty, IRS regulation 72(t) can establish an equal periodic payment plan from the IRA before reaching 59 ½. This provision actually eliminates the early withdrawal penalty, if the payments are to be paid out for more than five (5) years and are based on the person’s life expectancy and reasonable rate of return. In this case, it was shown that the Wife could have such a plan that would pay out $14,500 per month. The court reduced the rate of return to make certain that the Wife’s withdrawal would not damage her rate of return and imputed $9,000 per month of income to her in determining alimony. Id.

The appellate court agreed on the imputation of income and established that the court can impute so long as there is no penalty or invasion of principal. The court also noted that in determining alimony, the court must consider all income available to the parties regardless of their interest in tapping that resource for funds. In
In reaching this decision, the court noted that all income available to the parties must be considered. The court also established that “Available” means “obtainable” or “accessible” whether the party wants to tap into or not.

While the above case dealt with an imputation of income by available funds to the Wife, the court also made it clear that this argument goes both ways. Therefore, if the Husband had available resources for monthly income, then those too would need to be imputed to him in determining the award of Wife’s alimony.

If you have a case involving alimony, then you should speak with a family law attorney in your area to better understand your rights and options.

After a Florida Divorce, What Happens If One Spouse Dies?

Mon, 09 Apr 2012 08:31:39 -0500

Written by: Lenorae Atter, Attorney at Law

Alimony and division of property are often themes in a Florida divorce. Florida allows for alimony to be awarded when a spouse shows a need for alimony and the other party has an ability to pay. Florida also provides for marital property to be divided equally by the parties during their divorce. Therefore, if the parties own property in Jacksonville and are divorced, then the both may divide the property equally, whether by money value or actual division of property. However; what happens if a spouse dies after the divorce is final, but before the property is divided? And, what happens if a spouse filed for a change in alimony prior to his/her death?

Alimony is determined by need and ability to pay. The length of alimony is determined by many factors, including the length of the marriage, contribution of the parties during the marriage, marital lifestyle, etc. Once alimony is determined and ordered by the court, it is typically modifiable by both parties if something significant were to occur, such as change in health, retirement, etc. However, alimony obligations cease to exist upon the death of either party, which is why the obligor is typically required to maintain life insurance during the pendency of the alimony obligation. So, if a party dies so does the obligation. However, in a recent Florida case, the Former Wife filed for a modification of alimony and requested attorney attorney’s fees, Estate of Reale v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). Prior to the court hearing the argument to modify alimony, the Former Wife passed away, taking with her the right to alimony. However, since she had requested attorney’s fees, the Florida appellate court determined that her estate had the right to collect attorney’s fees from the obligor. Id.

In a case involving division of marital assets, which are those assets accumulated during the marriage, the Former Husband died before property could be divided per the court order, King v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). The Former Husband’s estate attempted to have the final judgment enforced so that the estate could properly divide the Former Husband’s property accordingly. Since the property was not previously divided, the estate attempted to have the judgment enforced in the trial court that originally issued the divorce order. However, that court was not willing to hear the case and referred the estate to probate for determination. The case was brought up on appeal and the Florida appellate court determined that while the Former Husband was deceased, the right to the property was determined in the family court and enforcement of that final order had to go through the family law court. Therefore, the Former Husband’s estate sought to have the divorce order enforced by the original court. Id.

In situations of death and divorce often court action will be sought, whether through probate court or family law court. If the issue involves a prior divorce order, then most likely the issue will have to be addressed in the original family law court system. The estate, therefore, may have standing by substituting the Former spouse in the proceeding. If you are having such issues, then you should contact a family law attorney or probate attorney to assist you. At our firm, we actually have both available, which can make the process easier for clients to navigate.

Florida Child Support When the Other Parent Chooses Not to Work?

Thu, 05 Apr 2012 09:10:00 -0500

Written by: Lenorae Atter, Attorney at Law

In Jacksonville and throughout Florida, child support is dictated by a statutory guideline calculation. The calculation takes the income of both parents, gives credit to the parent responsible for paying for the child’s health insurance and daycare and the overnight time-sharing schedule. The calculation is meant to put the child in the same position she or he would have been in had the parents lived in the same household. However, since it is based on incomes, what happens if one of the parents doesn’t work or a parent voluntarily quits his or her job to avoid paying child support?

In Florida, income may be imputed, meaning established without actual pay, if the parent is found by the court to be voluntarily unemployed or underemployed. For example, if it can be shown that the parent has a medical degree, but is a cashier at a grocery store, then the court may conclude that the parent is voluntarily underemployed from his or her skill set. This is especially valid if the parent has been working as a doctor during the marriage, and upon divorce decided to work as a cashier. If the court determines that the parent is underemployed voluntarily, then the court may impute income to the parent equal to that of recent work history, qualifications, and the earning level for someone in a comparable position in the community.

If a parent decides not to participate in child support proceedings, then the court may impute income to the parent based on the median income of full-time, yearly workers based on the US Bureau of Census findings. However, if the Court finds that the parent needs to stay home with the child, then the court may not impute income under the following conditions defined by Florida Statute 61.30(2)(b):
a. The unemployment or underemployment is voluntary; and
b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

When income is to be imputed, the burden of proof, meaning the party responsible for proving to the court that an imputation of income is proper, falls on the requesting party. Also, all facts or evidence regarding what the income should be falls on the requesting party. What this means is that Parent X is asking the court to impute income to Parent Y, then Parent X must present evidence as to why the income of Y should be imputed, such as providing proof of the medical degree. Also, Parent X must present evidence to what amount of income should be imputed. The way to do this is to show evidence of past earnings (i.e. tax returns for the last 5 years), potential earnings in the area as a similar doctor, if available (i.e. a doctor may testify), and/or actually presenting the median income of annual full-time workers are reported by the U.S. Bureau of Census. You should speak with an family law attorney about your rights and options concerning these matters and to make certain they are presented correctly to the court.

How Is Custody Established in a Florida Divorce or Florida Paternity Case?

Mon, 02 Apr 2012 08:49:53 -0500

Written by: Lenorae Atter, Attorney at Law

Florida divorce and paternity cases often revolve around the parent-child relationship and all factors related thereto, including parental responsibility. When someone comes into our Jacksonville office regarding a divorce or paternity case, often the question is whether she or he can have sole custody. As a divorce and family attorney, I have to educate clients on multiple things, including custody and what it actually means. Custody and having sole parental responsibility are two very different things because one deals with the big decisions regarding your child and the other deals with where the child will actually, physically reside.

Child custody and visitation was changed by the Florida legislature in recent years. The change was done for a number of reasons, the main reason being the contentious actions of parents for, "custody." So, the legislature made a decision to change the concept to what is now known as, "time-sharing." No, this is not your condo at Disney, but actually the terminology used because after your case, you are actually sharing time with your child and your child is sharing time with his/her other parent. Time-sharing is basically the same idea, but instead of having the archaic, "custody," you may request majority time-sharing, meaning that you spend the majority of the time with the child. In some jurisdictions, Jacksonville not being one of them, the courts have presumed this to mean that parents should start out with equal time-sharing. However, often that concept is being overruled by the appellate courts.
When looking at which parent will have majority time-sharing, the court looks to certain factors like:

a. Which parent is more likely to help facilitate a health relationship between the child and other parent;

b. Which parent is more likely to provide a stable environment for the child;

c. What is the historical relationship of the parent and child; etc.

Once the majority time-sharing parent is decided, the court or the parents, if they negotiated an agreement, enter a time-sharing plan. The time-sharing plan defines the times the parents will each have the child, including holidays, the actual visitation schedule and the like.