Jacksonville Divorce Attorney Blog

January 11, 2021

Will A Step Parent Adoption Help My Family?

Jacksonville Adoption Attorney, Neil Weinreb helps clients understand what is an adoption under Florida Law?

In Florida an adoption is a process whereby an individual can become the legal parent of a child. It can result in a greater level of fulfillment to the lives of adoptive parents. It can also provide a loving and stable home to a child suffering from poverty or neglect.

What types of adoption are available in Florida?

There are three (3) categories of adoption.

There are non-relative adoptions,
there are adoptions that occur as a result of a dependency case, and
there are step parent adoptions.

December 29, 2020

Creating a Long-Distance Timesharing Plan for your Children in Jacksonville Florida

by B. Elaine Jones

Can I modify time-sharing for my children in Florida?

In Florida, it is the public policy of the state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys of childrearing. We live in a pretty mobile society and oftentimes when divorce or separation occurs one of the parents is in another state or even another country. When that occurs, it is important that Jacksonville parents keep the child’s best interest at the forefront of their minds, taking that into consideration in fostering the parent-child relationship with the non-custodial parent. The parents and your Jacksonville divorce attorney need to get creative in crafting a Parenting Plan that will both work for the parents and foster the relationship between the child and the non-custodial parent.

How to Communicate better with long-distance time-sharing in Florida.

December 29, 2020

DISESTABLISHING PATERNITY AND TERMINATING CHILD SUPPORT

by Neil Weinreb

Few people want to accept responsibility for a lifelong obligation that they were not responsible for. There is more than one way under Florida law to create a parental relationship with a child. Not all relationships in today’s society follow the model that involved a two parent family whereby the husband was the bread winner and the wife was a stay at home mother. Today, the norm has changed, and single parent households are much more commonplace than they were traditionally.

There are a number of ways that paternity can be established. When a woman is married and she becomes pregnant, there is a legal presumption that the husband is the father. This is true even where the husband could not physically have impregnated the wife. Section 742.10 of the Florida Statutes covers all of the ways that paternity of a child can be established. In short, paternity can be established when a married woman has a child, by consent, by court order, or by the legal father signing the birth certificate and notarized documents admitting paternity.

When a woman has a child out of wedlock and applies for governmental assistance, she may find that the agency or agencies she is applying through will require her to participate in a legal proceeding to establish the paternity of the child. In part, this is because the government wants to make the father responsible for supporting the child. Both parents are responsible for their child and a father or mother can be required to support their child until they reach majority. In some rare cases, they may have legal responsibility beyond the age of majority. The author of this article has handled numerous child support cases over the last 16 years and he has seen some people have their lives wrecked after they were required to pay child support (an Obligor). When an Obligor discovers that the child they are supporting is not theirs, disestablishing paternity may be an option for them. Although disestablishing paternity will terminate an ongoing support obligation, it will not extinguish any child support obligation which has accrued. Even when disestablishing paternity is successful, an otherwise Obligor may still have to pay a large arrearage.

December 22, 2020

Modifying your child’s Time-Sharing During COVID

by B. Elaine Jones

Can I modify my child’s time-sharing because of COVID?

Many parents in Jacksonville are in a dilemma about what to do about time-sharing during the COVID-19 Pandemic. What do you do if the other parent is positive for COVID-19 and they insist on exercising their time-sharing rights? What do you do if the primary residential parent tests positive for COVID-19? What do you do about time-sharing if the minor child tests positive for COVID-19?

Under Florida statute 61.13 (2)(c ) the basic premise of family law is that the Court will look at what is in the “best interest” of the minor child(ren). As a Jacksonville Divorce Attorney, we must also look at how this conforms with the public policy of the state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights, responsibilities, and joys of childrearing. See 61.13 (2)(c ) (1)

June 30, 2020

Do You Need A Prenuptial Agreement?

by Neil Weinreb

There may be some negative stereotypes that are associated with Prenuptial Agreements. Typically, neither party wants to detract from the blissful atmosphere typical prior to a wedding. However, a Prenuptial Agreement can also help preserve a marriage. This is because there is certainty as to how things will terminate should the marriage not last.

The thought alone of creating a prenuptial agreement can cast a negative light upon a wedding. To some, the contemplation of a prenuptial places a negative light upon wedding preparations and the future of the relationship. Having to plan for divorce is an admission that a relationship is not permanent. That said, it is far better to deal with the details of how a relationship is going to end (should it end) while a couple is reasonable and loving compared with being negatively affected by the hostilities and uncertainties of divorce.

In Florida, there are several types of alimony that courts may consider. There are factors that affect the amount of alimony that can be provided for such as, length of a marriage, the equality of earning ability between the spouses, and the assets that a court must divide. Florida law creates a rebuttable presumption against permanent alimony when a marriage is 7 years or less, which under the Florida Statutes is defined as a short term marriage. However, there is a rebuttable presumption for permanent alimony awards in marriages that are long term (greater than 17 years). Moderate term marriages are defined as between 7 and 17 years and no presumption exists.

June 22, 2020

Litigation After Divorce. Do You Know Your Rights?

by Neil Weinreb

It is important to know your rights following a divorce. The final judgment of dissolution and the parenting plan determine the legal playing field for the future. However, most issues are dynamic. Children get older and their schools change and sometimes their relationship with parents change. Incomes change, which can directly impact child support and people sometimes desire to relocate where child custody can be an issue. There are a myriad of circumstances that should be re-evaluated following divorce.

In Florida, the standard used to file an action to modify a final judgment is that a substantial change in circumstances occurred that was not anticipated at the time of entry of the final judgment. It does not always make practical sense to file an action to modify a final judgment just because a party can do so. The relationship that a party has with a former spouse is important, especially where children are involved. Every time a party considers filing a supplemental petition (this is the instrument filed requesting modification of a final judgment), one should consider how such will impact their relationship with their former spouse and other legal consequences. I frequently have parties coming to me that wish to file for a modification. I typically find that they have only evaluated a part of the effect of seeking a modification. For this reason, it is imperative that one review the ramifications of an action for modification with an experienced family law attorney.

Although a divorce is designed to deal with all of the legal issues concerning dissolution, the reality is that there are sometimes issues that are left unresolved. On occasion there are assets that neither party put on their financial affidavits that require addressing post dissolution. One example of such an issue involved a divorce of a long time married couple in which neither party included the child’s prepaid college fund account on their financial affidavit. The fund was cashed out by the Father/Former Husband after the divorce without permission from the court or the Mother/Former Wife. Since the asset was not listed on either party’s financial affidavit, the judge considered the asset marital property and ordered the Former Husband to pay back one half of the funds post dissolution.

June 14, 2020

Is An Uncontested Divorce In Your Best Interest?

by Neil Weinreb

An uncontested divorce is a proceeding to return two married persons to the status of being single in which all of the details of the divorce are reached with an out of court agreement. As a practicing family law attorney for more than 15 years, it is my opinion that overly optimistic litigants frequently find that an uncontested divorce may be more difficult to achieve than first thought. Sometimes both spouses agree that a divorce is the correct thing to do in their circumstances. If a couple contemplating a divorce can agree on all of the important issues then an uncontested divorce will typically benefit the family. The critical issues that people spend the most effort fighting about are child custody, child support, spousal support, and property distribution.

Litigants sometimes find that dealing with the mechanics of settlement are challenging when they attempt to memorialize their intentions in writing. The process of getting to a consented to outcome involves some negotiation in most cases. A self-represented individual will benefit substantially by consulting with a qualified family law attorney prior to signing a marital settlement agreement or a consented to final judgment. This author believes that people are much more likely to honor orders created by negotiation, as opposed to orders emanating from a contested final hearing before a judge. A litigant that is being guided by qualified counsel is more likely to negotiate a favorable outcome over a Pro Se Litigant, since an understanding of the legal issues is necessary to negotiate knowledgeably.

Many of the issues that one has to deal with during a divorce are complex when dealing with custody and financial issues. Parties that are able to amicably settle their divorce in writing typically have fewer post judgment problems. Prior to negotiating a marital settlement agreement, it is important to consult with an experienced family law attorney to help draft the legal documents required to accurately reflect the agreement.

June 5, 2020

In Florida, When Does Child Support End?

by Neil Weinreb

For some, child support is an ongoing obligation that holds no light at the end of a long tunnel that can extend over 18 years. Every situation is different and the answer as to when child support will end depends on your individual situation. An experienced North Florida Family Law Attorney can review your circumstances and help you obtain the best result for you under the law.

The answer to when child support ends is far from a black and white question in Florida. Conceptually, child support is the right of each child. Therefore, courts are reluctant to enter an order that does not provide for child support. As a practicing Family Law Attorney, I have encountered many individuals that believe that parents can simply agree that child support will not be provided for in a final judgment of dissolution or paternity. In Florida, a statutory guideline exists to determine what is presumptively reasonable for a parent to pay for child support. The court can depart from the statutory amount by up to 5%, but there must be specific findings of fact enumerated in the order to justify any departure beyond the 5%, up or down.

Under current law, when two or more children are provided for in a support order, that order must include provisions detailing when the support obligation terminates for each child. There should be a modification of the income deduction order to reflect the changes. There are circumstances that allow child support to continue past the age of 18. If a child is still in high school at age 18 with a reasonable chance of graduating before age 19, child support may continue through graduation. Where a child graduates high school prior to his or her 19^th birthday, support ends at age 18. If a child becoming an adult has a disability that would result in the child continuing to be a dependent, child support could continue indefinitely. There are other less conventional reasons that child support might end, the death of a child, the emancipation of a child, or a situation where a child is earning enough money that no support is required (this would be a rare occasion, but there are numerous child stars that have earned more than their parents). Under Florida Law, the only circumstance where one would be obligated to support a healthy adult child beyond the age of 19, would be where an Obligor agrees to such a duty in a contract (i.e. marital settlement agreement).

May 29, 2020

Cam Unemployment Lower Your Child Support?

by Neil Weinreb

There are cases where a non-custodial parent is unemployed and has little or no income. Even a person with little or no income can still have an obligation to pay child support. This is because a parent’s child support obligation can be calculated based upon his or her imputed income, as opposed to actual income. Imputed income is income that the court determines an individual should be making with a reasonable effort.

When child support is calculated a number of factors are used to determine each party’s obligation. The parents’ income, the number of children, and insurance expenses are the major elements in determining one’s obligation. It is not infrequent that a parent will manipulate the system in an attempt to lower his or her income which is aimed at reducing that parent’s child support obligation. This is accomplished in a number of ways. People that own their own business have found numerous ways to receive what would otherwise be income through creative accounting. One way that the court system counter’s this is through the use of imputed income. Sometimes this involves imputing minimum wage. Other times, it is much more complicated and a vocational evaluator may be used.

Although unemployment can no doubt affect one’s income adversely, it may not necessarily affect his or her child support obligation. The courts do not always use imputed income to determine one’s child support obligation. Most situations where it is used involve a parent that is unemployed or underemployed voluntarily. In my practice, I have primarily seen imputed income used where a parent is unemployed and the court will impute minimum wage. There are situations in which much higher income has been attempted to be imputed. In one divorce case with no children that I handled, a Wife of an attorney, requested a vocational evaluation to determine the attorney’s true earning capabilities. A court will usually inquire as to why a parent is unemployed or underemployed and whether or not there is justification for it. A case in which unemployment is caused by an accidental injury would be a likely example of one that may be justifiable. A layoff or company downsizing could also account for why an Obligor is unemployed. Trying to prove that someone is underemployed can be difficult and expensive. One has to prove that there is work available and that the Obligor turned it down. Most of the cases I have handled involving the Dept. of Revenue are examples of situations where it is impractical or not economically feasible for the Dept. of Revenue to pay to have a vocational evaluation. One example of a recent case I came across where there is little doubt that a father has a legitimate excuse (arguably) for not working is where a father must stay home to care for a young child with Cerebral Palsy.

May 22, 2020

What Can Happen When a Parent Violates a Parenting Plan?

by Neil Weinreb

Florida requires parents who are divorcing or are subject to a paternity action to have a parenting plan in place. A parenting plan can be agreed to or simply entered by the court. However, once the plan is entered into the court as an order, it is enforceable through the court system. Violations of parenting plans can be insignificant, or they can lead to great interference with the rights of a parent and a child.

In Florida, timesharing is taken into account in calculating child support for a parent that exercises at least twenty percent of the overnights with a child. Florida’s child support guidelines specifically account for such. However, not every parent takes advantage of all of the overnights that they are awarded. Normally, you cannot retroactively adjust child support. However, failure for a parent to exercise substantial timesharing can have a serious economic impact on that parent, as the Florida Statutes authorize retroactive adjustments.

A parent’s failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule. F.S. 61.30(11)(C).