Jacksonville Divorce Attorney Blog

March 1, 2021

What You Need to Know About Mandatory Disclosure in Florida

How do you and your spouse share the finances?

Most married couples have their finances mixed together. For instance, it is not unusual for a married couple to share credit cards, savings and checking accounts, real estate, and other property. When parties go through a dissolution, these finances must be untangled. The process of distributing assets to each party is known as equitable distribution. The process of exchanging financial information with the opposing party is known as mandatory disclosure. The Family Law Rule of Procedure, Rule 12.285 details what information must be disclosed as well as the time periods for disclosure.

What forms do you need to complete?

February 22, 2021

Florida Guardianship – What is it? Do I need one?

by B. Elaine Jones

Florida Guardianship is a legal process used to protect individuals who are unable to care for their own wellbeing due to the fact that they are a minor, are incapacitated or developmentally disabled. A Court will appoint a legal guardian to care for the individual, who needs special protection. The individual is known as a Ward. Legal guardians have the legal authority and fiduciary responsibility to make decisions for their Ward regarding personal and financial interests.

Florida is a state that regulates guardianships very strictly. Regulations vary from state to state regarding guardianship law, but Florida has very stringent requirements of Guardians. In fact, the basic premise in Florida regarding guardianships is that the Court is charged with making sure that the least restrictive means are utilized when dealing with an individual who is determined to be incapacitated or is developmentally disabled. Florida has a large population of elderly people and the guardianship laws are purposely strict to protect those people who are most vulnerable such as elderly people, developmentally disabled persons and minors.

There are essentially four types of Florida guardianships, they are Plenary, Limited, Advocacy and Guardianship for Minors. The Plenary guardianship is a guardianship over the person and their assets. It is a two-step process that starts with the person being determined to be incompetent or incapacitated. Once the person is determined to be incapacitated, the Court must then determine what specific rights must be removed and what rights will be retained. The specific rights that the Court addresses and determines whether the alleged incapacitated person is capable of exercising are: 1) Right to marry; 2) Right to vote; 3) Right to contract; 4) Right to travel; 5) Right to sue and defend lawsuits; 6) Right to have a driver’s license; 7) Right to determine his/her residency; 8) Right to seek or retain employment; 9) Right to consent to medical treatment; 10) Right to personally apply for government benefits; 11) Right to manage property or to make any gift or disposition of property; and finally 12) Right to make decisions about his/her social environment or other social aspects of his/her life. The guiding principle in determining what rights to take away from the incapacitated person is utilizing the least restrictive means necessary. The Limited Guardianship limits the guardian’s authority to certain areas regarding the Ward’s life such as limiting the guardian to authority over the Ward’s finances. The guardian advocacy is a guardianship that is established when a person is born developmentally disabled such as a person born with mental retardation, Autism or some other mental disease that prevents them from growing mentally. The Guardianship of a Minor is generally established when the minor receives a money settlement or has lost both parents and needs someone to look out for their health, welfare, maintenance and assets.

February 22, 2021

Do You Need a Prenuptial Agreement?

by Neil Weinreb

What is a Prenuptial Agreement?

A prenuptial agreement is a contract between two persons that are contemplating marriage that predetermines how property and other issues are to be dealt with upon divorce. Prenuptial agreements require full disclosure by both parties. This means that each party should be ready and willing to provide their present financial picture to the other. Without such disclosure, the agreement may be susceptible to legal challenge.

What are the advantages of such an agreement?

January 11, 2021

Will A Step Parent Adoption Help My Family?

by Neil Weinreb

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.