Divorcing a husband you can’t find or a wife you can’t find can be challenging.  It is a maze that requires you to know where to start before you can get through it.  As a Jacksonville divorce lawyer, I sometimes have people that come to our firm wanting a divorce, but he or she has no idea of where the husband or wife is located. In some instances, the spouse he or she desires to divorce is believed to be somewhere in the State of Florida. Jacksonville divorce lawyers can find the average person inside the State of Florida. Even finding someone outside the State and extending the search nationwide is normally doable. However, finding a person suspected of being outside the United States is another question.

Divorce when your spouse cannot be foundStarting with a person’s last know address: A person filing a Florida divorce must start with the last know address of his or her spouse.  Assuming that the spouse to be served with divorce papers cannot be found at his or her last known address, there must be a diligent search to ensure that he or she receives notice regarding the case. Florida law sets out certain efforts that have to be made when trying to find your spouse in order to serve him or her.  Once a diligent search has been completed, you may serve your spouse by publishing notice of the divorce in the local paper in the areas where your spouse may be living.  This is called service by publication.  It is also referred to as constructive service.  Trustify.info suggests eight steps when trying to find a missing person in their article, “How to Find a Missing Person: 8 Critical Steps.  This could be helpful in trying to locate your spouse.

If the proper diligent search is not performed, service by publication can be invalidated.  The reason for this is that “due process” requires that a genuine good-faith attempt is made to give your spouse an opportunity to be heard on the issues surrounding the case.  Due process is a major part of justice in the United States and in Florida divorce cases.  A Jacksonville family lawyer or jacksonville divorce lawyer can help you make sure that your case moves forward properly.  At the Law Office of David M. Goldman, PLLC, our experienced Jacksonville divorce lawyers have dealt with these types of issues and can help guide you.  Call us today to schedule a free thirty minute consultation!  We will help you find the best solution for you and your circumstances.

As a Jacksonville divorce attorney, I understand that attorney fees in divorce cases is an issue that comes up in every case. Whether each person will pay his or her own attorney fees, or whether the other side will be forced to contribute must be decided in every case. This can be done by agreement or a judge will decide.  Payment of attorney fees in divorces cases is primarily controlled by Florida Statute 61.16.   F.S. 61.16 in its simplest form bases attorney fees on one person’s need and the other person’s ability to pay. The court has the ability to assess fees on a temporary basis, at the end of the case, and even on to an appeal.

attorney feesThe purpose behind F.S. 61.16 in granting attorney fees in some situations, is to level the playing field. The courts would rather family law cases be resolved on the merits of the case rather than based on who has the most money to fight. There are circumstances where a court can order attorney fees based on other considerations that go past ability to pay. For example, the inequitable conduct doctrine can be used to punish an individual who as acted in bad faith throughout the case. Simply refusing to settle a case by itself cannot be considered egregious conduct or bad faith. In cases where one person purposefully frustrates the legal process throughout the case, or intentionally goes against a court’s prior ruling, the inequitable conduct doctrine can be used. Appellate courts have ruled that it should be reserved for the most egregious of cases.

Recently, in the case of Myrick v. Myrick, Florida’s Second District Court of Appeals reversed a judge’s ruling that granted nearly a six-figure attorney fee award to the former husband. The former wife refused to settle the case and apparently gave the former husband a hard time in certain aspects of the case. The second DCA stated that her conduct was not enough to justify the award of attorney fees.

Child Support Contempt is a common issue with Jacksonville Family law and divorce cases. When it comes to child support, often child support contempt motions are part of the norm.  As a Jacksonville child support attorney and family attorney, I have found that frustrations regarding child support are present on both sides. Parents that receive child support are often bothered when the paying parent fails to make child support payments. The parent required to pay child support is often frustrated when he or she can’t afford to make the payments. Child support contempt proceedings usually come up at some point in these situations.

The Issue if Non-Payment and What to Do About It

Child SupportFailure to pay child support gets the receiving parent charged up. This often leads to motions for child support contempt. Once the motion for child support contempt has been filed and scheduled for a hearing, the filer has to prove two things at the hearing. First, he or she must prove that there is a valid order from the court requiring the other parent to pay. Next, he or she must prove that the other person has failed to pay as required in the child support order while having ability to pay.   Ordinarily, these two things are easy to prove.  The court’s records will, of course, contain proof that there is a valid child support order. Next, the child support payment history will show a lack of payment.

gross income, child supportMoney and finances in divorce and related cases are rarely, if ever, at the very top of a judge’s list of important issues, but child support calculations are important.   For the most part, calculating child support is a simple as running the numbers through a formula set out by Florida law. Where child support calculations can be tricky is when there is a dispute over what numbers are to be used in the child support calculation. In general, child support is determined by taking each side’s gross income (monthly), then subtracting certain allowable deductions to reach the net monthly income. The net monthly income is then used to calculate child support based on the number of children and other factors.

 

Gross Income

Clearly, getting each party’s income correct is an important first step. Chapter 61 says income is “any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and reemployment assistance or unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.”

Recently, the Third District Court of Appeals, in the case of Schafstall v. Schafstall, affirmed a trial judge’s decision to include in kind payments as gross income. Specifically, the court included, as gross income for the Former Wife, $1300 that the Former Husband paid toward her mortgage and $250 her mother paid toward her phone bill each month.  The Former Wife argued that neither should have been included in the trial court’s calculation. However, the appellate court pointed out that F.S. 61.30 mandates that reimbursed expenses or in kind payments be included if they reduce living expenses. Any payments that come from any person will typically be included as gross income. In the Schaftall, case the appellate court pointed out that the evidence the trial court considered was enough to support the decisions that were made regarding income used to calculate child support. Continue reading

imagesStudies show that a divorce is often one of the most stressful times in a person’s life. Its stressful due to the former spouses fighting over issues such as child custody, child support, alimony, and deciding which person gets marital property. New law referred to as the Collaborative Law Process Act aims to make the divorce process less stressful by creating a legal method for couples to divorce that is more civil and less contentious.

Florida is the fifteenth state to adopt a version of The Collaborative Law Process Act. It allows the roles of the parties in a divorce to stay the same for the most part. This new law makes the process easier by allowing both parties to hire a mental health professional. The mental health professional’s job is to guide the two former spouses toward an outcome that avoids as much emotional trauma as possible.

The two parties to the divorce may also need to hire financial advisers if the divorce raises any financial issues. Most likely the two parties will retain separate financial advisers so there is no conflict of interest. The new law allows all of the people involved in the divorce to sit down and go through the important issues with the divorce. This would mean the divorce attorneys, the financial advisers, the two spouses, and the mental health profession would all sit together to try and work through any barriers to a settlement.

When the parties to a marriage believe that a marriage is over or “irretrievably broken”, there is no issue as to whether the divorce should take place.  Irretrievably broken means that there is no hope of fixing the marriage.  As long as one party to the marriage believes it is broken beyond repair, a dissolution of the marriage will ultimately happen.   A broken marriage, however, CAN be fixed by a divorce, it seems.  Well technically, the relationship is fixed, but the marriage will have  ended.  I recently came across an article about couples remarrying after divorce.  You can read the article, (“Why Do Divorced Couple Remarry” by clicking here.)  There are no available statistics that explain the exact number, but it does happen.  The article generally credits remarriage of divorced couples to the healing power of time apart.  People have the chance to forgive, to try new things or relationships, and also realize that the problems were not necessarily the people themselves—marriage is simply hard.  I personally know of a woman whose parents were married to each other on three separate occasions.

divorceA divorce does not have to go through completely before any benefit can be gained from filing for dissolution.   As a Jacksonville divorce lawyer, I have come across several cases where the filing of the divorce paperwork itself helps to save a marriage.  Mostly, it is the wife that will file for divorce and have it act as a huge wake-up call for the husband.  Although, I have seen it go both ways, however.  I imagine that the filing of the divorce petition shows the other spouse that there is a serious problem that needs addressing. Continue reading

Changing Venue: Moving  Family Law Cases

One question we often receive from our family law clients is if they can change courts, also known as venue, when they move to a new area in Florida from the court where the marriage dissolution proceedings originally occurred to a more nearby court.

venue changeThe short answer to this question is yes. In family law, the courts in Florida always try to act in “best interests of the child.” This standard will be explained further in this article, but first lets explain exactly how the change in venue process would potentially work.

Before a spouse can change venue, it is important to understand where a family law proceeding can actually be brought. According to the Florida Statute 61.13, a family law case may be brought in “the circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered…” This usually means that venue will start in the court where the divorce was filed, and stay in this court for all related matters such as equitable distribution, alimony, parenting responsibility, child support, and all modifications.

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In 2009, a 14 year old girl was raped in Massachusetts and became pregnant.  Her attacker, Jaime Melendez, pled guilty to rape charges and was sentenced to 16 years probation.  He was also brought into family court and ordered to pay $110 per week in child support, according to a paper published by the American Bar Association.  It was bad enough that the sentence was only 16 years probation.  Later, Melendez sued the victim in order to have visitation with the victim’s child since his parental rights were still intact.  Melendez felt that if he was going to pay child support, he should be allowed to spend time with the child.

parental rightsMany states have laws that restrict the rights of a father that produces children as a result of a sexual assault.  Of these states, nearly none terminate the rights of the rapist outright without the victim making some sort of effort.  Parental Rights termination is something that should be considered carefully, but this is probably an instance where termination of parental rights should be simple and easy to accomplish.

There is a list of things under Florida law that can result in termination of parental rights.  Chapter 39 authorizes the termination of parental rights if clear and convincing evidence shows that the child was conceived as a result of a sexual battery.  See F.S. 39.806.  According to Florida law, “[i]t is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery.”  A conviction, or a guilty plea being entered, is enough proof to satisfy the statute.  Having to share parental rights with a person that violated you, only serves to continue the agony of the victim.  At the Law Office of David M. Goldman, PLLC, we have experienced Jacksonville family lawyers that can help you terminate the parental rights of your attacker, and help reclaim your peace of mind.

Have you ever had the urge to be sneaky and record a phone call or a conversation between yourself and another person?  You just want to prove that the other person is a liar or otherwise full of it, and you decided that recording the call is the best way to get that done.  It is a perfectly normal and human thing to want to do. Well, doing that could get you into trouble in Florida and other states, if you do not let the other person know that you’re recording.  As a Jacksonville divorce lawyer, I have on occasion enlightened clients that wanted to gain evidence against a spouse during divorce proceedings that this is not a good idea.

recording callsHave you ever wondered why the first thing you hear when you call a 1-800 number is, “This call may be recorded for training and quality assurance purpose.”?  Some states, such as Florida, have laws that make it a crime to record a conversation without the knowledge and consent of the people taking part in the conversation.  When you are told that the phone call is being recorded, but continue the call, you are consenting to being recorded.  The rule against recording or “intercepting” communication  applies to live conversations in person and conversations transmitted by wire or electronic means, basically over pretty all of the ways people communicate. Continue reading

An injunction (or protective order) can be a good way for there to be an immediate response when children need to be protected from any person, including a parent.  Many times, injunctions will come after the police and the Department of Children and Families are involved.  The injunction process is typically the quickest way for there to be court intervention, especially if the incident that necessitates the need of a protective doesn’t not lead to an arrest of anyone.  There could be many reasons to seek an injunction for protection on behalf of a minor child.  This article will focus on abuse allegations.

InjunctionWhenever a child is subjected to intentional infliction of physical or emotional harm, child abuse has occurred, as defined by Florida Statute 827.03.  This issue comes up sometimes after divorces or in paternity cases where children go between mom’s house and dad’s house.  Of course, physical discipline is allowed, but going too far becomes a crime, and can also be the basis for having an injunction put into place.  Florida Statute 741.30 allows for injunctions in domestic violence situations; child abuse qualifies as domestic violence.

If one parent files for an injunction to get protection for their children, if granted, the injunction can control time-sharing and visitation until a family court can hear the case and determine what is best for the children.  An injunction court may limit the visits to supervised visits, or the court may stop visitation all together.

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