Ocala Divorce Lawyer Blog

Aside from providing love and regular attention after a divorce or paternity case, parents have no higher obligation than to provide financially for their children after the divorce. Child Support is more important than any other debt or financial obligation, but most people do not know what level of support will be required. But the payment of Child Support also the one of most contentious issues in Divorce and Paternity cases.

When dealing with Florida child support issues, you are always better off having an experienced attorney to help you with this issue. You will want to be sure you get as much "credit" as possible in the calculations. But there are also some things you need to know about how child support is calculated in Florida, and more specifically about the Florida child support laws. While many people don't realize it, Florida child support numbers are fairly fixed, it is a straight mathematical calculation that does not take into account many of the parent's actual expenses.

The Florida Statute that governs child support is Florida Statute 61.30. Florida Child Support laws look at only a few factors when calculating child support. They are as follows: The child support laws of most states look at only a few factors, and you may find that your Florida child support award takes into account only:
- How much you earn (before taxes)
- How much the other parent earns (before taxes)
- How many children you have; and
- What percentage of time the children are under each parent have with the children.

Continue reading "Florida Child Support: How is it Calculated and Who Pays?" »

The most common acronym we use is the divorce process is P-E-A-C-E. It is how divorce is arranged from most important to less important (not least important but just "less"). If the case cannot be settled by negotiation or by mediation, then the Court would address the parties divorce issues in this order. So what does the alphabet soup mean?

P= Parenting Plan. We don't have visitation or custody in our Statutes anymore. We have 2 parents and children. We have Parenting plans that divide up the time that each parent can spend with the child. These time sharing arrangements are called Parenting Plans. They are extremely detailed documents that tell the court and the parties who is going to be responsible for what with regards to the children.

E= Equitable Distribution. Once we have divided up the children's time we now have to divide up the parties assets and debts. This is often more complicated than it seems. There could be houses, cars, credit card debts, loans to parents or other family members, student loans, retirement accounts. Regardless, any asset or any debt that was acquired during the marriage (regardless of whose name it's in) is going to be divided. That means that the $10,000 of credit debt, the student loans, the notes on the cars are going to be divided regardless of whose name in on loan. Then there are pre-marial assets that are generally not divided. But there are exceptions to this as well. Equitable Distribution is not always equal, so it's very important to speak to a lawyer about your rights and obligations.

A= Alimony. Alimony is not a hard-fast formula It is governed by Florida Statute 61.08 Most commonly, Alimony is awarded in long-term marriages where there is income disparity between the spouses. Long-term marriages have been defined by being married (not just "living together") for more than 15 years. But there are other kinds of alimony available to help get one spouse back on his/her feet for a short period of time. Some typical types of alimony include bridge-the-gap, rehabilitative, and short term alimony. Spousal support is often times appropriate during the beginning stages of the divorce until the end. We can usually get some temporary relief in the form of temporary alimony going from the beginning of the case.

C=Child Support. Child support, unlike Alimony, is a fairly straight forward mathematical calculation based on the combined income of both parents. One of the most important factors in determining child support is the time-sharing of parents. The more equal the time-sharing the less child support one parent will pay to the other. Generally, over 40% overnights, will greatly reduce the amount of child support paid.

E= Everything else. The issues that don't fall neatly into these other categories are placed in this "catch all" category. Those issues could include pre-marital property or investments, 401K/retirement accounts, gifts from parents or family members, inheritances and lastly attorneys fees.

It is important to preserve and know your rights during the divorce process. Most people do not realize that a divorce is still very important civil litigation. To understand your right and what you are entitled to and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

I am a dog lover and found an interesting article that I wanted to share on my blog. I have had clients agonizing over which spouse was going to get the dog. It's sad when both want the dog and fight like crazy over Fido (but working in Pet Rescue groups it's even sadder when no one wants the pet after divorce).

But when it comes to visitation schedules for Fido, unfortunately, Florida already has case law that makes "pet custody" issues void and unenforceable. If anyone is interested in reading the case law, it can be found using this citation: Bennett v. Bennett, 655 So.2d 109 (Fla 1st DCA, 1995), holding that Pets were subject to Equitable Distribution (like tangible personal property) and not subject to visitation schedules.

Looks like New Jersey is taking a different route!

Here is the article from the ABA Journal

Legal Bills in Pet Pug Custody Case Top $40K as Judge Mulls 'Subjective Value'

Posted Jul 30, 2009, 01:06 pm CDT
By Martha Neil

When Eric Dare and Doreen Houseman first asked a New Jersey judge to determine which of the two would get custody of their pet pug, Dexter, he treated the toy dog as if it were simply another item of property to be apportioned as part of the break-up of their relationship. He gave Dare the dog, because he already had possession, and awarded Houseman the $1,500 for which Dexter had been purchased.

But after a landmark ruling by a state appeals court determined that he should also have considered Dexter's "subjective value" to the parties, Salem County Superior Judge John Tomasello took a different approach, reports the Philadelphia Inquirer. After hearing additional testimony,Tomasello determined yesterday that the pug is joint property, because the two shared his care while they lived together. He also found, however, that Houseman didn't prove her claim that Dare gave Dexter to her when they split, the Inquirer reports.

That still leaves undecided, however, who should get custody of Dexter. So Tomasello asked lawyers for both sides to submit briefs with their suggestions. So far, Dare and Housman tell the newspaper, each has spent more than $20,000 on legal bills pursuing the pet pug custody case. In their mid-thirties, they work as a police officer and a customer service manager, respectively. The two considered the pug their son, she testified.

Although animal rights groups have been pushing in recent years for more recognition that animals are not simply property, attorney James Carter, who represents Dare, isn't convinced that judges should be diverted from child-custody issues by pet custody issues.

"As far as the legal community goes, many attorneys realize this would be the first step down a slippery slope," he has said.

If you are thinking about divorce and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

How Long Will this Take and How Much Will It Cost?

When talking to prospective client, the number one question I'm asked is, "How long will this take and how much will it cost?" People want to know how long will they be tied up in the divorce process, and when it's all over what are going to be the financial ramifications. The reason they are generally asking is because they want to know when can they get on with their lives and what financial resources will be left to use. Like so many things were the legal process is concerned, there are no clear answers.

My answer is almost always the same, "it depends on the two of you." What do I mean by that? Well, are the divorcing parties going to behave like they are auditioning to appear on "the Jerry Springer show"? Will they file frivolous/false Domestic Violence Injunctions against each other? Will one parent attempt to prevent the other parent from seeing the children? Will one the spouses wipe out the bank account, leaving the other spouse penniless? If the answer is "yes" to just one or all of the above then we will certainly end up in court. Each and every time we have to go to court, it will generally cost approximately $500 to $800 to draft the pleadings, call the court and get a hearing time, send out the notices of hearing, prep the client for court, attend the hearing and then doing the Order. Going to court is not cheap. Having the Judge make a decision means that parties lose control over their own case. And if you have to do this 3 or 4 times, the initial retainer will be depleted. The more the parties engage in bad behavior the more expensive the case will become. The flip-side of this is, if the parties can get past some of the anger and pain to work on divorcing each other, the less it will cost and the less emotional wear-and-tear will be taken on the divorcing couple.

Continue reading "How Long Will this Take and How Much Will It Cost?" »

A very common question that I often hear from my divorcing clients is, "Is my Spouse entitled to half of my 401K Plan, Pension Funds, or Retirement Account?"

There seems to be much confusion as to this area of divorce. Equitable Distribution in Florida allow for the division of property and assets acquired during marriage to be divided when the parties divorce. It comes as quite a surprise to my clients to learn that their soon-to-be former spouse is entitled to a portion up to one-half of any pension or retirement savings that was accrued during the marriage. In Florida, pension and retirement funds that accrue during the marriage are treated as marital property and are generally split equally between the parties. However, like with any rule, there are exceptions and modifications that may allow a client protect all or part of his/her retirement savings.

Florida Statute 61.076 Distribution of Retirement Plans Upon Dissolution of Marriage governs how the court should distribute these assets. The Statute holds that all vested and non-vested benefits, rights, and funds that accrue during the marriage are marital assets subject to equitable distribution during a divorce. This Statute applies to a plethora of Retirement/Pension plans including: 401(k), Pension Plans, Individual Retirement Account (IRA), Annuity, Deferred Retirement Option Program right (DROP), Thrift Savings Plans, and CSRS/FERS (Retirement plans through the Federal Government) that is acquired or accrues during the course of the marriage. It even applies to accrued sick-time that has monetary value if it was acquired during the marriage.

If the court determines a pension or retirement fund is a marital asset, they will issue a Qualified Domestic Relations Order (QDRO) that directs the plan administrator to divide the fund according to the Final Judgment of Dissolution of Marriage. We do not do QDRO's at our office but can direct clients to attorneys that specialize in this field of law. Once the court has determined that the pension, plan or fund is to be divided, the non-employee spouse is usually entitled to the same rights under the plan as the employee spouse, such as cost-of-living adjustments and early withdrawal options.

There are a few choices when it comes to how the money is to be received by the recipient-spouse, either that spouse is eligible to receive his or her share of the ex-spouse's benefits when the ex-spouse is entitled to receive them. Or that recipient-spouse might want to have it reduced to "present value" and cash out the money out of the plan/fund along with having to pay the penalties.

But not all retirements accounts/plans are considered a martial asset. Consider this: if a spouse has not contributed to their retirement account since the day they were married, the account will not be considered a marital asset and will retain its "pre-marital status." This also holds true for contributions made to a retirement account both before the marriage occurred and after it dissolved are the separate property of that spouse who made the contributions and are not considered marital property. The problem arises when monies are either co-mingled or contributed during marriage.

When determining what portion, if any, of a retirement account is not a marital asset, the courts will consider the length of any marital separation and whether marital "labor" or earnings were use to acquire the benefits. If a spouse maintains that all or part of his or her retirement account should not be considered marital property, that spouse will have the burden of proving when the retirement benefits accrued.

On the other hand, if a spouse is retired and dependent on a retirement account for income, the funds may be considered income-stream instead of an asset. In this situation, the retirement account will be considered for the purposes of determining an alimony claim or for computing child support, but will not be divided as marital property.

Retirement accounts and pension plans are a fairly complicated area in Divorce. To learn more about the process and what you are entitled to during your divorce, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.

The following list is common issues involved in Florida Divorces. The process has specific time requirements. So if you have been served with Divorce papers, please do not wait in seeking the advice of an attorney.

The time-frame of a divorce can take anywhere from a month (for an uncontested divorce) to years if the parties are litigating issues involving large financial assets or fighting a "custody battle" for the children.

A divorce starts when one of the spouses files a a Petition for Dissolution of Marriage and is finally over when there is an entry of a Final Judgment. When one spouse serves the other (by process server) with a Petition for Dissolution of Marriage, the spouse receiving the Petition has 20 calendar days to file an Answer. If no Answer is filed, the Court may enter a default. It is crucial during this time period to consult with an attorney.

Mandatory Disclosure/Discovery: After the Petition and Answer have been filed with the court, the next period of time is for the exchange of Financial documents pursuant to Florida Rule of Family Procedure 12.285. Each spouse has the obligation to exchange all financial information to the other spouse. These documents consist of Family Law financial affidavit, monthly bills and expenses, assets and liabilities. Each party must also produce tax returns, credit card statements, bank statements, and other documents.

Informal Negotiations with the other side: If both spouses are represented, having the parties with their attorneys sit down and meet can often times resolve most if not all of the issues. It's important for the attorneys to be honest with their clients about the likely outcome of their case.

Mediation: Approximately 90% of all Divorce and Family law cases settle in Mediation. Mediation an arbitration process in which the parties and their attorneys meet and attempt to settle their case with the help of a neutral third-party (the mediator). The Mediator may be another attorney, a mental health professional or possibly even a retired Judge with family law experience. If a Mediated Settlement Agreement reached, it is signed by the parties, their attorneys and filed with the court. A Final Judgment of Dissolution is entered dissolving the marriage based on that Mediated Settlement Agreement.

Trial: Trials can be very emotionally draining and very expensive. However, a trial may be necessary if all other attempts to resolve the case are unsuccessful. At the trial, a judge will hear the evidence presented by the parties and will make a decision regarding all disputed matters. The judges' decision will be in the form of a Final Judgment of Dissolution of Marriage.

Here are some additional things to consider before a divorce is filed:

1. One party must be a Florida resident for at least the six-month period immediately preceding the filing of the divorce petition.

2. Is your spouse currently pregnant with your child or another person's child? All martial and non-marital children need to be addressed in the divorce.

3. Parenting Plan and time-sharing with the children.

4. Shared parental responsibility. Both parents are presumed to have Shared Parental Responsibility, which is the decision making for the children. Unless otherwise directed, both parents would continue to make day-to-day decisions on behalf of their children. These decisions would include school, doctors, after-school activities and religious upbringing.

5. Child support (including health insurance and day care expenses). The most important factor that relates to child support is the way the time-sharing is divided by the parents.

6. Alimony (based on need and ability to pay)

7. Division of property acquired during marriage (including pension/401k type programs, and businesses) and division of debts. Note that the assets to divide would usually not include inherited property, property brought into the marriage by one spouse, or property acquired via a gift from a third party solely to one spouse. (even if such gift is during the marriage.) But an exception to this principle may be where the property has been put into both names, or commingled into a joint account with your spouse.

8. Disposition of marital home. Do the parties want to sell the home or is one going to buy the other out of his/her interest.

9. Relocation issues - is one of the parents seeking to relocate with the minor children more than 50 miles away from the current residence.

10. Restoration of maiden name. Does the Wife wish to go back to her maiden name or leave it as her marital name. The choice is the Wife's alone.

11. Attorney fees: Issue of whether your spouse is in such superior financial shape compared to you that your attorney fees should be paid by him/her. (assuming you can't afford the fees)

If you are thinking about starting the Divorce process or have been served with Divorce papers, and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation, all of which is credited back to your account if we accept your case.