Articles Posted in Property Division

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.

Your domicile is the place upon which an individual has voluntarily decided to reside permanently.  In the ordinary sense, a persons domicile is the place where he lives and where he has his or her home.  However, the legal definition is more specific.  The plan in which a person has his or her permanent home and principal establishment upon which he intends to return whenever he is absent would fit the legal definition of domicile.

Why is it Important to Determine Domicile?

The domicile that one chooses has legal consequences. One’s domicile determines which state can probate a will.  It also determines which state can collect estate taxes when someone dies.  One’s domicile establishes where an individual may exercise certain legal rights and privileges.  Where one has the privilege to vote is determined by domicile.

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.

If Your License is suspended for Child Support Obligations, What Can You Do?

Florida law allows one’s driver’s license to be suspended when they fail to meet their support obligation.  If your license is suspended as a result of child support obligations that are not satisfied, you should understand the law.  If one truly cannot pay their obligation because they simply do not have the financial resources to do so, your license cannot be suspended, but you must act promptly.

Your License Can Be Suspended for Child Support Failures

“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.

Why Timesharing is Important?

A dissolution can be a very emotional experience for some.  This is especially true when a divorce involves children.  The current rules require that when parties have children, a parenting plan must be developed.  The parenting plan details parental responsibility, timesharing (formally referred to as visitation), and child support.  It may also include additional details unique to a particular child or children, or it may address a unique family situation.  Although the Court system attempts to equalize timesharing between parents, this is not always possible.  Parents may work or live so far apart that a 50% timesharing schedule would be impractical.

What Are the Different Types of Timesharing?

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?

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. 

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.

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