Jacksonville Divorce Attorney Blog

October 8, 2011

What is Required to Obtain an Injunction/Restraining Order Against Someone?

I have written about Injunctions on numerous occasions throughout this blog. I’ve described the types of injunctions in Florida, the definition of domestic violence, and firearm rights and the relation to injunctions in Florida, among many other things. However, I recently realized I have not blogged about the legal standard required to obtain an Injunction against an individual.

The case of Oettmeier v. Oettmeier, 960 So. 2d 902, (Fla. §2d DCA 2007), speaks directly on this topic. In this case the wife sought a domestic violence injunction against her husband. Said injunction was granted by the Circuit Court. The husband appealed and the Second District Court of Appeals held that competent, substantial evidence did not support the finding that the wife had an “objectively reasonable fear of imminent domestic violence”. The case holds that if fear alone is the “reasonable cause” alleged to support the injunction, then not only must the danger feared be imminent but the rational for the fear must be objectively reasonable as well; absent this objective reasonableness, the Petitioner’s belief is unsubstantiated speculation that does not support the entry of an injunction.

If you’re seeking to obtain an injunction contact a Jacksonville Domestic Violence Lawyer today to schedule a free consultation. Night and weekend appointments available.

October 7, 2011

Child Custody: 50/50 Custody

by David M. Goldman

As a Jacksonville Beach Child Custody Lawyer, I will, on occasion, have clients ask whether the Judge overseeing their divorce will likely grant them and their soon-to-be ex-spouse 50/50 timesharing (commonly known as custody). The law surrounding this question is convoluted at best.

Basically, Florida law has established a presumption against ordering rotating or 50/50 timesharing. With this presumption Florida courts have traditionally not ordered 50/50 timesharing unless the court can find that exceptional circumstances exist which make such a timesharing arrangement in the best interests of the child.

However, in 1997 the Florida Legislature enacted section 61.121, Florida Statutes, which states as follows: “The court may order rotating custody if the court finds that rotating custody is in the best interests of the child.” And looking just at the plain language of this Statute it appears as though there is no presumption against 50/50 timesharing.

October 6, 2011

How Can I Hire an Attorney When My Spouse Has All the Money?

by David M. Goldman

When a family is going through a divorce it can be one of the toughest times in a person’s life. Concerns range from child support, alimony, and distribution of assets and liabilities. Many people find themselves so caught up in the emotion of their case that they can overlook very important considerations. That being said, let’s look at a specific example of oversight that could potentially cost a person thousands of dollars.

Say husband and wife are getting a divorce, and at issue is the support due wife after the dissolution. Wife, in her settlement agreement, gets husband to agree to give her a portion of his 401(k), let’s say $50,000, and in turn waives her right to any alimony that she could potentially qualify for. Unfortunately, wife’s attorney forgets to account for taxes inherent in 401(k)’s, and instead of negotiating the taxes into the agreement, the wife ends up paying nearly 30% in tax on the settlement, $15,000. With careful negotiation the husband might have agreed to account for those taxes, thus giving the wife the full value of her settlement.

Issues like the one seen above can be avoided by carefully choosing a Florida Divorce Lawyer who will represent you. An experienced Florida Divorce Lawyer is sure to take the important tax implications into consideration before presenting a proposed final agreement. Contact a Jacksonville Divorce Lawyer to discuss the facts surrounding your case today.

October 5, 2011

Divorce Mediation

by David M. Goldman

In the vast majority of divorce cases (and all family law cases for that matter) in Duval County, Family Law Judges order parties to attend Mediation prior to trial. As a Jacksonville Divorce Lawyer, I know that the majority of these cases can be settled at Mediation.

What exactly happens at Mediation? Well, in Mediation, a neutral third party (the mediator) helps negotiate a marital settlement agreement between the divorcing couple. However, it is important to know, the mediator cannot force either party to agree to anything. The decision-making is truly left up to both parties, which is of course completely opposite then if the parties were to go before a Judge. The mediator can meet with the parties together and/or separately to see if a compromise can be reached, which tends to be far more relaxed and informal then trial.

If an agreement is reached during the mediation, it is immediately reduced to writing. Which then, basically becomes the final divorce decree, and is legally binding. After an agreement is made and reduced to writing at mediation all that is left to do is have the Judge sign the agreement and thus make the divorce final.

October 4, 2011

Mexico City Proposes Law that Would Require Marrying Couples to Estimate How Long Marriage Will Last.

by David M. Goldman

Mexico City legislators have recently proposed a new bill that would require all marrying couples to sign a prenuptial agreement indicating how they plan to handle certain issues that may arise in the event of a divorce. The proposed bill would also require couples to estimate how long they expect to be married.

Sponsors of the bill suggest that the bill’s purpose is to cut down on the lengthy and often hostile divorce proceedings that are currently clogging the court’s docket. Sponsor’s believe that requiring couples to agree on divorce terms prior to the end of the marriage will directly benefit the court’s docket.

Needless to say local Catholic leaders are not that keen on this proposal. Specifically, Rev. Hugo Valdemar, spokesman for the Catholic archdiocese for Mexico City, stated, “this denigrates the concept of the family… and makes it more like a pact between friends.”

October 3, 2011

Marriage Equality Fight In New Jersey

by David M. Goldman

Florida gay and lesbian community looks to the rest of the country to track the universal fight for marriage equality. In 2006, New Jersey, enacted a civil union bill. In 2008, a legislative review commission, concluded that civil unions are insufficient and do not provide equality. This past summer a new lawsuit was filed in the Garden State again demanding marriage equality.

The LGBT community in Jacksonville and all over the Sunshine State, demands equality as well. Without marriage Florida same-sex couples are denied workplace benefits and protections equal to those accorded to married people. Florida may have a long road ahead for gay relationships and the benefits gay couples receive.

As the fight for equality continues, it is of the utmost importance for those in relationships to learn about the various ways that legal documents may protect these relationships. Whether it be the preparation of gay estate planning documents, or domestic partnership agreements, talking with a Jacksonville Attorney who focuses on LGBT issues is recommended.

October 3, 2011

Florida Putative Father Registry

by David M. Goldman

The State of Florida’s legislature, in 2003, created what is called a “Putative Father Registry.” This registry was created so unmarried “putative” fathers could register their intent to exercise parental rights to a child who the they believe may have been born by virtue of a sexual relationship they had with the child’s mother. What exactly does putative father mean? Putative father is a person who is alleged to be the father of a child or the supposed father of a child.

Florida Law states that an unmarried man, by virtue of the fact that he engaged in a sexual relationship with a woman, is deemed to be on notice that a pregnancy and an adoption proceeding regarding the child may occur and that he has a duty to protect his own rights and interest.

In order to preserve the right to notification and consent in the event of an adoption an unmarried man in the State of Florida must file a claim of Paternity with the Florida Putative Father Registry. By doing this he must confirm his inclination and intent to support the child for whom paternity is claimed. However, such a claim of paternity may not be filed after the date a Petition is filed for the Termination of Parental Rights.

October 1, 2011

Paternity: Who are the legal parents?

by David M. Goldman

As a Jacksonville Paternity Lawyer, I often have cases where the parties are not married but they have a child in common. In my experience many men falsely believe simply because their name is on the birth certificate that they are legally the fathers. In Florida this is simply not the case!

Under Florida law, until a Judge signs an Order which determines you are the father, then the child is NOT legally yours. As such, you have no legal rights to the child for timesharing or parental rights of any kind.

In order to be recognized as the legal father in Florida it is necessary to file what is called a Petition for Determination of Paternity. Paternity actions are brought before the court in order to assist a parent in acknowledging and protecting important time-sharing and child support rights and/or obligations.

September 30, 2011

How to Modify a Divorce Order?

by David M. Goldman

As a Jacksonville Family Law Attorney, I am often asked whether a child timesharing order can be modified after a divorce or paternity action in Florida. In short, the answer is yes. Parents can change their timesharing agreement, however, the standard under Florida Law if often difficult to satisfy.

In general, Florida courts require a “substantial change in circumstances” to justify a modification of a child timesharing agreement. A parent asking for the change can show a substantial change in circumstances in several ways. Some examples include a geographic move or a change in lifestyle. If a custodial parent makes a significant move, or a move will seriously disrupt the stability of a child’s life, the move may qualify as a substantial change in circumstance and warrant a modification of the timesharing agreement. Additionally, if substantial changes in a parent’s lifestyle threatens or harms a child, a modification to the timesharing agreement may be granted.

Florida courts further use the “best interests of the child” standard as a guiding principle when making timesharing decisions. This principle often trumps all other factors when making any kind of timesharing decision. A parent wishing to change the residence arrangement under a divorce decree has a heavy burden to satisfy. In these cases, it is essential to retain a knowledgeable Florida Family Law Lawyer.

September 29, 2011

What Happens if I Can’t Pay My Child Support?

by David M. Goldman

In Florida, if a parent does not pay their court ordered child support they could likely find themselves behind bars. However, it has been my experience, as a Jacksonville Child Support Lawyer, that the court sees imprisonment for non-payment of child support as the last alternative.

For instance, to put a non-paying parent in jail the court must:(1) Find that the parent is willfully failing to pay the ordered child support amounts, (2) make the affirmative finding that the non-paying parent possesses the ability to comply with the purge amount and (3) put the above two requirements in a written order.

You may ask what exactly is a purge amount. Well, A purge amount is an amount of money that must be paid toward child support arrearages in order to avoid going to jail for contempt of a support order. Because punishment is not the purpose of civil contempt proceedings, a court must allow the contemnor (person in arrears of ordered support) an opportunity to “purge” himself or herself of contempt.