Archive for May, 2009


Adultery

Adultery is probably the issue that causes emotions to rise more than any others in a divorce case.

Because Florida is a no-fault state, the mere fact that a party has committed adultery is usually not a factor considered by the court.

Although the alimony statute references that the court can consider a party’s adultery in determining the alimony issue, the case law which has evolved does not really support that notion.

If a party has committed adultery and dissipated (wasted) marital assets in the process (such as buying the third person jewelry or plane tickets to travel), then the court can determine the amount and the party who has been cheated on can ask that their share of the wasted money be reimbursed from the assets of the other party.

If the parties have minor children, a party’s adultery can be considered by the court in deciding which party should have the majority of overnights with the children. However, in practice. if the adultery has not somehow directly affected the children or a party’s ability to raise their children, then the adultery will usually not be a major factor in the court’s decision.

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Grounds for Divorce

In past times, Florida law required that a party show some type of grounds for divorce, such as adultery or physical abuse.

This led to some abuses of the system and required some parties to remain married even when they were unhappy. As a result, the law was changed.

For many years now, Florida has been a no fault state. If one of the parties wants a divorce then it will be granted if the party can show that their marriage is irretrievably broken.

In practice this is a very low burden to overcome and there is not a necessity of showing that someone had an affair or was a victim of physical abuse.

Basically, if a party wants a divorce in Florida then they will get it.

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Residency Requirements

Section 61.021 of the Florida Statutes sets forth as follows: “To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.”

Showing proof of residency is required prior to the court signing the Final Judgment of Dissolution. A valid driver’s license will suffice, as long as it was issued at least 6 months prior to the filing of the Petition for Dissolution of Marriage.

In the alternative, a witness can swear by notarized affidavit (or testify live) as to their knowledge of one or both of the parties being a resident of the State of Florida for at least 6 months prior to the filing of the Petition for Dissolution of Marriage.

When appropriate, the court will allow exceptions to a party having actually resided in the state for 6 months. Examples are when a party is in the military or is working out of the country. In these cases, the party must show the court that they would be “residing” in Florida, but for their service or work assignment.

Copyright © 2009 Steven A. Leitman*
Original posting on 904Divorce.com
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*no copyright is asserted as to any
portion of the Florida Statutes

 

 


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Imputed Income – general information

In some divorce cases a party will voluntarily quit their job to avoid having to pay alimony and/or child support. Florida law recognizes a concept known as imputed income to deal with this situation.

If the court finds that a party voluntarily quit their job, then the court can choose to base that party’s alimony and/or child support obligation based on the party’s past income as opposed to using no (or lower) income. The court must consider several factors prior to imputing income.

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Domestic Violence – general information

Although many divorce cases involve hurt feelings, the majority of cases do not involve actual domestic violence.

In cases where there has been actual domestic violence (or a party believes they are in imminent danger of becoming a victim of domestic violence), the victimized party has the option of filing an Injunction for Protection against the other party.

The process is started by the filing of a Petition for Injunction for Protection. As part of the Petition, the Petitioner fills out a standardized form which includes a section asking for details as to any past violence (and/or an explanation of why the Petitioner believes they are in danger).The Petitioner signs the Petition before a notary of public.

The Petition is then given to the court for review. If the court believes there is adequate cause to grant the injunction then a Temporary Injunction for Protection is entered.

The Temporary Injunction is then given to the Sheriff’s Office (Police Department) for service on the other party who is called the Respondent.

A hearing is then held approximately 15 days thereafter at which time the Respondent can defend against the allegations and he/she can ask that the Injunction be dismissed.

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Parent Education – general information

Protecting the best interest of children is the court’s number one priority. The breakup of the family can have a tremendous impact on the parties and their children.

Florida law requires that parties with children attend a parent education class to learn about the do’s and dont’s of how to interact with each other and what steps can be taken to protect their children from the fallout of the divorce.

In Duval County, each party is required to attend the Children First in Divorce course. To register, call (904) 356-5100, Ext. 241. You will need to provide your case number to register.

Although there is a parent education course online, the court (at least in Duval County) usually only allow this option when a party resides outside of the jurisdiction.

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Marriage Counseling – general information

Marriage counseling can sometimes save a marriage. There are a number of parties that attend counseling prior to the divorce case being filed.

Usually once a divorce case has been filed it is too late to save the marriage, but it does happen.

Florida law allows a party to request counseling after the divorce case has been filed. This request is typically in conjunction with a request for an abatement (delay) of the the divorce case.

Florida is a no fault state, therefore if one party wants a divorce then the court usually does not order counseling.

On the other hand, If one party wants counseling and the other party is “on the fence”, then the court is more likely to order counseling (and put the case on hold when appropriate).

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Retirement Benefits – general information

The term retirement benefits includes, but is not limited to, 401K’s, 403B’s, IRA’s, Roth IRA’s, pensions and profit sharing plans. The division of retirement benefits is part of the equitable distribution of assets and liabilities.

In most cases, the portion of the retirement benefits to be equitably distributed is the portion earned during the marriage, not the entire retirement benefit.

There are times when a party has earned retirement benefits prior to the marriage and those benefits are typically classified as that party’s non-marital asset.

The appreciation of the non-martial portion can sometimes be classified as a marital asset, but I will have to save discussion on that issue for a separate post.

If both parties have earned retirement benefits during the marriage and they are of similar type and value, then it usually makes sense for each party to keep their own retirement.

When there is a disparity in the values of the parties retirement benefits or when only one party has retirement benefits then a portion of one of the party’s retirement benefits may be transferred to the other party.

To avoid tax consequences, the transfer is sometimes accomplished by way of a Qualified Domestic Relations Order (QDRO).

The parties are free to negotiate a settlement where one party waives their right to the other party’s retirement benefits or otherwise trades other assets in lieu of taking a portion of the other party’s retirement benefits.

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Marital Home – general information

In many divorce cases the parties own a marital home. Often times, the home represents the most substantial asset owned by the parties.

If there are no minor children, then the court will likely order that the home be sold so that each party can receive their share of the equity in the home and be free of any outstanding mortgages.

Certainly the parties are free to negotiate a settlement where one party stays in the home. This is sometimes accomplished by one party refinancing the outstanding mortgage (and paying the other party a lump sum payment when circumstances call for it).

There are other times when the parties agree that one party will have ownership of the marital home and the other party will receive a retirement fund or other asset free and clear of any claim from the other party.

When there are minor children, the party who has the majority of overnights with the children will sometimes ask for exclusive, use and possession of the home. When granted, this allows the party in possession to remain in the home until the youngest child reaches the age of 18 (or graduates from high school) and is usally conditioned on the party in possession being unmarried.

Upon the termination of exclusive use and possession, the home is sold and the parties distribute the net proceeds per their prior agreement or per the court’s order.

Copyright © 2009 Steven A. Leitman
Original posting on 904Divorce.com
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Timesharing – general information

Florida now uses the term time-sharing instead of custody and visitation to explain the time that each parent will have with their child(ren).

Prior to this legislative change, the Florida Statutes used the term primary physical residence to describe the parent who had the children in their home the majority of time. Now that parent is classified as the majority time-sharing parent.

The typical case in Florida is not settled with each parent getting 50/50 time with the children (although this can and does occur).

However the parent who may have had only every other weekend in years past, now has a better chance of getting more time.

Copyright © 2009 to 2012 Steven A. Leitman
Original posting on 904Divorce.com
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