Articles Posted in Marriage

What is Domestic Violence?

Under the Florida Statutes, Domestic Violence is defines as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offenses resulting in physical injury or death of one family or household member by another family or household member.” F.S. 741.28.

Is Domestic Violence Criminal?

What is Support without Dissolution?

Section 61.09 allows a married individual to file for support (child support and alimony) where a person does not seek a dissolution.  This statute allows a party to seek alimony or child support.  However, that party may or may not request the entry of a parenting plan.  A final judgment of support does not include distribution of marital assets.  This type of action is sometimes referred to as separate maintenance.

“If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.”  F.S. 61.09.

“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?

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.

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.

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 19th 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). 

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. 

Child support is essentially a payment from the higher income parent to the lower income parent.  Child support and timesharing have an interesting relationship.  The law values the child and parent relationship.  A parent’s right to timesharing is not dependent upon being current in child support.  It is a frequent mistake among individuals to assume that timesharing can be denied if an Obligor parent fails to keep up with his or her child support.  Such has no such relationship to Florida law.

Another misconception is that child support must go to the child specifically.  However, it is a general purpose reimbursement which covers the cost of living in a household with children.  The amount of child support paid by each parent is dependent upon the amount the Florida child support guidelines determine.  The number of overnights the child or children spend with each parent is one of the factors used to decide a parent’s child support under Florida’s guidelines.  There is a chart that is published within the Florida Statutes that shows the amount of child support a child is entitled to.

Florida law requires that generally, where there are minor children then child support should be paid.  The principle behind this general rule is that entitlement to support belongs to the children and parents cannot decide not to pay support.  There are situations in which a parent does not have a child support obligation.  In Florida, this must either be because the amount of support owed is very minimal, as determined by the guidelines, or the specific reasons must be enumerated in the child support order.  The law allows up to a 5% deviation from the guidelines without further enumeration.  Florida has a form known as a Child Support Guideline Worksheet which is required to be filed in every divorce and paternity case where child support is determined.  The guidelines account for some of the specific costs of supporting a child, such as health insurance and uncovered medical expenses.  As long as a parent is awarded at least 20 percent of the overnights, overnights are a specific factor used to determine a parent’s support.  Items like rent, electricity, water, and food are essential items that are not specifically accounted for in the guidelines.  Other items that are specifically accounted for under the guidelines are taxes, daycare, and medical costs.

Contact Information