Articles Posted in Equitable Distribution

The question as to whether or not an individual needs an attorney to divorce in Florida is simple if we review the question literally.  You can get a divorce in Florida without an attorney.  However, it may be unwise to attempt to be divorced without an attorney.

Why Should I Use an Attorney?

The author believes that an attorney is essential if you are attempting to obtain a divorce.  This may sound like a self serving statement, but the author thinks there are numerous reasons that one should use an attorney to guide them through the process.  The author feels that having an attorney keeps otherwise Pro Se (self represented) clients forging ahead and not getting side tracked by discovery issues and other procedural problems regularly encountered and routinely dealt with by attorneys.

The marital home is frequently the largest asset between the parties to be divided in a divorce. When and how the marital home was acquired will be a major factor in determining who gets the marital home temporarily and permanently.

What is Exclusive Use and Possession?

Exclusive use and possession refers to one party receiving permission to use the home for their own purposes. Conditions are frequently provided for, as well. A frequent condition to receiving exclusive use and possession of a home is typically connected with paying the mortgage or other household bills.  This sometimes occurs initially after holding a temporary needs hearing or a domestic violence injunction hearing.  The most expedient, but not necessarily recommended way that a spouse can obtain exclusive use and possession of a home is through a domestic violence case. Using a domestic violence case to obtain exclusive use and possession should only be pursued when it involves a Petitioner that has been the victim of domestic violence. In other words, a petition for injunction should only be filed when actually necessary to stop or prevent violence. Where domestic violence is not an issue, a temporary needs hearing would be the best vehicle to obtain a temporary order to decide who stays in the home temporarily. The author has seen a number of occasions where both parties shared the home while they waited for a final hearing because neither party had a good option to leave.  This is not recommended, as it is natural for hostility to build between two partis going through a divorce.

Many pet owners treat their pets as if they are their own children, whether it be a dog, cat, turtle, or gerbil.  For these owners, the pet is an integral part of the family.  Unfortunately, in a Florida divorce, pets are not considered part of the family.  Rather, they are considered property.  That means that when the divorce process is complete, only one spouse will own the pet and the other will not be able to see the animal.  Divorcing couples can choose to agree to another arrangement, but the Court will only award pets to one spouse in a divorce.  Your Jacksonville family attorney can assist you with this emotional issue of pet custody.

How Florida’s Equitable Distribution Laws Apply to Pets

Florida follows equitable distribution laws when it comes to property division, which means property is divided fairly, although not necessarily equally.  When the case is taken to Court, the outcome will depend heavily on the facts of your case.  While the best interests of the pet are not taken into consideration in the same way as when child custody decisions are being made.  The Court will consider several factors when deciding on which party can keep the pets.  These factors include:  1)  If one spouse owned the pet before the marriage, the pet will typically remain with that spouse when the marriage is dissolved; 2) Which party spent the most time and effort caring for the pet?; 3) Which party took the pet to vet appointments and otherwise tended to its needs?;  4) Which party is financially capable of caring for the pet?;  5) Which party is in the best health to care for the pet?; 6)    What is the value of the pet?; 7) If a couple has children, the pets will go where the children go to prevent any further loss, pain, or heartache; 8) Finally, if there is a prenuptial agreement, and it addresses the issue of who gets the pet in the event of a divorce, then there is no argument as to who the pet is going home with.

Mediation is an alternative dispute resolution that is mandatory in a Florida divorce, paternity, or modification case, but many people do not see the process as the benefit it is.  During mediation, the two parties will meet with a mediator who is an unbiased and uninterested person in the case.  The mediator will try and help the parties resolve all disputes related to the family law case.  If an agreement is reached, it is drafted and submitted to the Court for approval so the case can be closed.  While the process is straightforward, there are still many myths related to the process.  Your Jacksonville family attorney can assist you in understanding the mediation process.  Below are the biggest myths about family law mediation in Florida, and the truth behind them.

The Mediator Will Make All the Decisions

This is simply untrue.  Mediators do not make any of the decisions when they meet with parties going through a divorce, paternity, or modification case.  They cannot force either party to do, or not do, anything.  Instead, they are only there to help you and facilitate you and your spouse, ex-spouse, or co-parent to reach an agreement.  If you cannot reach an agreement and your case requires litigation, it is the Judge that will make all the decisions.  Your Jacksonville family attorney is here to assist you in mediation and to represent you in any litigation should you not reach agreement.

It is no secret that going through a divorce is expensive.  Although there is very little that you can do about certain costs of your divorce, such as what you may or may not lose during property division hearings, there is one area of expenses you can control.  That is your legal fees and costs.  All divorce attorneys in Jacksonville will charge something to legally represent you during the process, and the advice and counsel they bring to your case is invaluable.  Still, there are some ways that you can keep the legal costs down, so you do not face unexpected charges in the future.  Your Jacksonville divorce lawyer can explain to you in your initial consultation how to keep your legal costs down but here are some basic tips.

Call and Email Only When You Have To

            Most divorce lawyers in Jacksonville will charge you for every time they devote to answering your phone calls and emails.  However, you likely want them to spend this time preparing for your trial, mediation, or other aspects of your case.  You will have may questions during the divorce process, and you deserve to have them answered.  Instead of incurring fees every time you have a question, prepare a list of questions, and ask them all at once.  Your Jacksonville divorce lawyer will still charge you, but you will likely incur fewer legal fees.

Do You Know Your Rights in Child Support Court?

In a child support case, one cannot be incarcerated if they do not have the present ability to pay.  Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985).  Although this case is binding on Florida courts, the author believes that self represented individuals do not get the benefit of legal protections against incarceration or cancellation of a driver’s license or professional license.  The author believes that one reason for this is because laymen tend to believe that an administrative agency must take a neutral position (similar to a judge).  This is not the case when it comes to collection of child support by the Florida Department of Revenue.  The author, in the next paragraph is going to summarize the case of Bowen v. Bowen to give readers a clearer understanding of child support issues when the Florida Department of Revenue is involved.

The Case of Bowen v. Bowen.

It is not uncommon in a divorce case for one of the spouse’s not to want to end the marriage.  One partner may think that there is a chance of working things out and resolving their differences, or they may not want to legally dissolve the marriage for other reasons.  If your spouse has started divorce proceedings, and you really don’t want a divorce, your options may be limited but there is something you can do.  Florida is one of seventeen states that follow No-Fault laws in divorce cases.  The Petitioner only has to allege that the marriage is irretrievably broken. If you really do not want a divorce you should answer the Petition for Dissolution by alleging you do not believe the marriage is irretrievably broken.  Florida Statute §61.052(2)(b)1 allows you to request the Court to Order you and your spouse to marriage counseling.  It is rarely done and there are specific requirements that must be met.  Your Jacksonville Family Lawyer can assist you in understanding this law and representing you in Court.

In order for a spouse to utilize this statute, the parties must have a child together.  If the Court grants the request for marriage counseling, psychiatrist, priest, minister, rabbi, or any other professional the divorce will be placed on hold for approximately three months to allow the counseling to take place.  Florida Statute §61.052(2)(b)2 allows the Court to continue the proceedings for a reasonable length of time not to exceed 3 months, to enable the parties themselves to effect a reconciliation.  During any period of continuance, the Court has jurisdiction to make appropriate orders for the support and alimony of the parties; a parenting plan, support, maintenance, and education of any minor children of the marriage; attorney’s fees; and the preservation of the property of the parties.  Consult your Jacksonville Family Lawyer for assistance with your case.

As previously stated, the above statute is rarely used.  This is because if one person wants to end the marriage, counseling is usually not effective.  By the time a person has made the decision to start the divorce process, they have usually given it a lot of thought and intend to go through with it.

“I signed a Quitclaim deed so I’m not responsible for the mortgage anymore”.  That  statement is one of the most common mistakes that people make when it comes to Real Estate transactions.  Quitclaim deeds are used most often between family members such as an owner of property adding their spouse to property after marriage or transferring property in a dissolution of marriage.  Many people think that signing a quitclaim deed relinquishes them from any obligation regarding the property that is the subject of the quitclaim deed.  A quitclaim deed can quickly remove you from a property’s title and terminate your ownership interests. A quitclaim does not however, remove you from the mortgage or the responsibility to make payments.  Your Jacksonville Family law attorney can assist you with understanding and preparing the correct deed.

Another common mistake is that the Grantee of a quitclaim deed gets a right to the property when they really do not have any guarantee that he/she actually has an interest in anything.  A person that transfers property by quitclaim deed makes no promises that he or she owns or has clear title to the property. So the drawback, quite simply, is that quitclaim deeds offer the grantee/recipient no protection or guarantees whatsoever about the property or their ownership of it. Maybe the grantor did not own the property at all, or maybe they only had partial ownership.  A quitclaim deed transfers title but makes no promises at all about the owner’s title. It essentially says that I am transferring whatever interest I have in the property described to whoever is the Grantee.   A person who signs a quitclaim deed to transfer property they do not own, results in no title at all being transferred since there is no actual ownership interest. The quitclaim deed only transfers the type of title you own.  A property search can be done to determine what ownership interest the grantor of a Quitclaim deed actually has in the property.  Your Jacksonville Family law attorney can assist you with the research regarding the property and drafting the appropriate deed.

Quitclaim deeds are also utilized as an estate planning tool instead of leaving property to family members through a Will or other estate document.  Instead, the property owner simply signs a Quitclaim deed, which must be notarized and recorded with the county recorder. Quitclaim deeds are not taxable when they transfer ownership to a spouse or a qualifying charity. Other transactions may be liable to property and gift taxes. Once the quitclaim deed is signed and notarized, it is a valid legal document.  The Grantee must also have the quitclaim deed recorded in the county recorder’s office or with the county clerk in order for the document to take full legal effect and notify the public of the transfer of interest in the property.  If you want to make sure that you have the appropriate deed and it is filed correctly, call your Jacksonville Family law attorney to assist you.

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?

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?

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