Category: Florida Law Blog

Motion for Clarification Florida

Motion for Clarification Florida

When should you file a motion for clarification Florida? Consider the following situation: You have a parenting plan with your ex. You had a lawyer, and the other side had a lawyer. The lawyers made a parenting plan and the court ordered it. Now it is two years later. The parenting plan is confusing and ambiguous. You do not know 100% what your obligations are and what your ex is supposed to do. This is the time for you to make a motion for clarification Florida. An Orlando divorce lawyer can help you make the decision to file or negotiate.

Why do I need a Motion for Clarification?

Let’s be more specific about the scenario presented above. You have a parenting plan and you are reading it over. It says that you are entitled to “Reasonable Communication” with your daughter. Yet, when your ex is with your daughter, you are lucky to get 10 minutes on the phone during the other side’s timesharing. You are truly upset and want to know your daughter is safe, happy, and cared for. BUT, you cannot get your ex to give you more time with her and the parenting plan does not specify just what reasonable communication is. Make a motion for clarification and bring your issue before the judge.

What does a Motion for Clarification Florida Achieve?

If the court hears your motion for clarification Florida, you are asking the judge to hear your perspective on what reasonable communication (or any other part of your parenting plan) means. For instance, to you, reasonable may mean three 15 minute FaceTime or Skype talks while your child is with your ex. Or it might mean unlimited texting. Reasonable is not the easiest word to interpret and it is not specific. Therefore, a motion for clarification as asking the court to decide what the ambiguous or confusing parts of your parenting plan mean. The court will then order its interpretation to become part of your parenting plan to solve your lack of understanding.

Divorce Parenting Plan and Paternity Parenting Plan

A motion for clarification Florida can provide you with the relief your need in your child custody/timesharing case. Many parenting plans are too non-specific and cause a lot of confusion. Living with uncertainty when it involves your children can be emotionally and psychologically stressful and it is not great for anyone involved.

Jonathan Jacobs us a divorce attorney in Orlando and a divorce attorney in Clermont Florida who practices same sex divorce and relocation with minor children law. Call us today 407-310-5636.

Emergency Child Pick Up Order Florida

Emergency Child Pick Up Order Florida

An Emergency Motion for Child Pick Up Order must be verified (the person asking the court for the return of her children must have the papers notarized under oath). If an Emergency Child Pick Up Order Florida is granted, the Court will direct law enforcement to remove the minor child from the other party’s residence and deliver the child to the other parent’s home.

There is a major requirement the family law Court mandates before the party filing for this order may have standing. The party asking for the order must have a legal right to timesharing with the child through a court-ordered parenting plan or that party may be the biological mother of the child and there has been no court case adjudicating the matter.

When filing an Emergency Motion for Child Pick Up Order there are additional documents/papers that must be filed for the Court to hear your case. First, a UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act Affidavit) must be filed. The UCCJEA is a statement under oath alleging that the child lives with you. If there is a court-ratified parenting plan demonstrating your child custody/timesharing, it should be filed with your motion. For the Court to grant your Emergency Child Pick Up Order Florida, you may also need to provide a copy of the child’s birth certificate if paternity has not been established by the Court.

In the Emergency Motion for Child Pick Up Order you will need to allege the child’s name, gender, birth date, race, and provide a physical description. It may be helpful for you to identify the reasons why the child is in imminent danger with the other party, and state why and how the child has been wrongfully removed from your residence. Call the Jacobs Law Firm, divorce and family law lawyer.

An Emergency Motion for Child Pick Up Order means you are asking the Court to hold a hearing at the soonest possible time because the situation is urgent and the threat of harm to your child is serious. The Court has the authority to grant a hearing if it deems the circumstances are exigent.

Emergency Motion for Child Pick Up Order

Emergency Motion for Child Pick Up Order

In a recent Fifth District Court of Appeals case, Gimonge v. Gimonge, 239 So. 3d 1275, 1277 (Fla. 5th DCA 2018), the Father of a minor child filed an ex parte (where only one party appears before the judge) emergency motion for contempt/enforcement and child pick-up. Father told the Court that the Mother had refused to abide by the terms of their agreed-upon summer visitation (the parties had come to a temporary agreement by stipulating while the court was deciding their relocation case).

On the one hand, the court awarded Father thirty days of make-up timesharing because Mother had denied his timesharing, but Father filed an emergency motion for an injunction asking the Court to prevent the removal of their child from Florida and the Court ruled (at least temporarily) in favor of Mother. Father argued that Mother should have filed a petition to relocate with the child pursuant to Florida’s Relocation Statute, and was in fact acting in contempt of court by seeking to take their child from Florida without his consent. This prompted Mother to file an Emergency Motion for Child Pick Up Order, alleging that Father refused to return the child following his timesharing pursuant to the court ordered make-up visitation. The trial court ruled in favor of Mother because it felt that the situation would best be addressed at trial to allow for a final judgment to control the parties’ timesharing. Frankly, the parties were left in limbo as neither the Emergency Child Pick Up Order Florida nor the proper residence of the child was decided with semi-permanence.

If you believe you need an Emergency Child Pick Up Order Florida call the Jacobs Law Firm for immediate help with obtaining an Emergency Motion for Child Pick Up Order for the return of your child. Divorce and family law are challenging fields of law because they involve the people most important to you.

Name Change in Florida After Divorce

Name Change Florida | Name Change in Florida after Divorce

Clients often contact us to ask about a name change Florida, or about a name change in Florida after divorce. Generally, the first step to changing your name is to file a petition for name change in Florida with your family law court. Since we primarily practice in Orange County, let’s discuss a name change in Orange County Florida as our example.

Two parties are getting a divorce in Orange County Florida. As part of the marital settlement agreement reached at mediation, the Wife is asking the court to restore her maiden/former/premarital name. This should ordinarily be asked for in the petition for dissolution of marriage or in the counterpetition. If a name change was not plead for originally, the pleadings may need to be amended. If the case is resolved without a trial, the party asking for a name change in Florida after divorce will generally appear before the court to confirm the request for her name change.

Hot to Obtain a Name Change in Florida After Divorce

If the matter is going to a family law trial before the judge, the pretrial statement should indicate the party’s desire to restore their former name or undergo a name change to something different. If it is a minor child seeking to undergo a name change, there is a more complex process that needs to be followed and will be addressed in a separate article. As part of the trial, the moving party (the party asking for the name change) will likely take a few moments of testimony on the subject to alert the court as to her request.

name change florida

Name Change Florida

Provided the court grants your name change in Florida after divorce, the process does not necessarily end with the judgment. Rather, the process will likely continue as you change your name in official government records. Having a certified copy of your final judgment demonstrating the court’s approval of your name change Florida will be a prerequisite for the DMV, Bureau of Vital Statistics, and other governmental agencies to officially change your name on everyday documents.

A divorce decree from the local clerk’s office will cost a fair amount of money. You may wish to obtain several copies and store one copy in a safety deposit box or home safe or otherwise.

If you need to hire an attorney to obtain a name change in Florida after divorce, call the Jacobs Law Firm, divorce attorney Orlando, divorce attorney Clermont Florida.

Florida 50/50 Parenting Plan

Florida 50/50 Parenting Plan | 50/50 Custody and Child Support

A Florida 50/50 Parenting Plan is not required by law. Neither case law nor statutory law (the rules may change based on several legislative initiatives before the Florida Legislature). However, barring any incidents of child abuse, molestation, or long periods of absences from the children’s lives, courts generally steer litigants in the direction of a Florida 50/50 parenting plan. In this article we will answer the question, “Do you have to pay child support if you have 50/50 custody in Florida?” and cover topics such as what a 50/50 custody schedule looks like, and what the impact of 50/50 custody and child support is in our state.

If you are a reasonable parent and have attended mediation, it is likely a mediator has mentioned to you that a Florida 50/50 parenting plan is ideal for you and your spouse. You may not be crazy about the idea, and your attorney may rightfully disagree with equal timesharing, but it probably has been a topic of discussion in your mediation. Many times, litigants will elect to go to trial to have the court determine timesharing. It is not uncommon for judges to decide that a Florida 50/50 parenting plan is appropriate for the parties.

Do You Have to Pay Child Support If You Have 50/50 Custody In Florida? 50/50 Custody and Child Support

Child support is based largely on Florida statutory law. According to Florida Statute 61.30, child support guidelines are heavily influenced by the parties’ net income after allowable deductions and the number of overnights each party enjoys with the kids. A 50/50 custody / timesharing arrangement does not eliminate a child support obligation. Let’s look at a 50/50 custody and child support example. If Husband/Father earns $100,000 per year, and Wife/Mother earns $65,000 per year, and the parties have equal timesharing, Husband/Father will likely be ordered to pay child support. The simple answer to “do you have to pay child support if you have 50/50 custody in Florida” is yes you do unless the child support guidelines determine the obligation is de minimis and is waived by both parties. 50/50 custody and child support is a sort of default position. Faced with the specter of one party paying more, or the other party receiving more in child support, legal fights often escalate. “An order for equal time-sharing for a minor child does not preclude the court from entering an order for child support of the child.” § 61.13, Fla. Stat.

50/50 Custody and Child Support

50/50 Custody Schedule

A 50/50 custody schedule does not have to be 3.5 days a week per parent. Recently, as new trend has emerged to create frequency of parenting and continuity for families. Wife will have the kids for 2 overnights, then Husband for 3 overnights, then Wife for 3 overnights, then Husband for 2 overnights, and so on  and so forth. This prevents either parent from being absent in their children’s lives for an extended period of time. When there are young children, a week-on, week-ff schedule is often arranged. Also, a 50/50 custody schedule can be done with one parent having 4 weekday overnights, one parent having 3 weekend overnights and extra time with the kids during summer or other vacation times. There is no one-size-fits-all timesharing schedule, but parents do what works for their families.

If you and your spouse are getting a divorce or if you have filed a paternity case and would like to consider a Florida 50/50 parenting plan, or if you have questions about 50/50 custody and child support, call the Jacobs Law Firm, divorce attorney in Orlando and divorce attorney in Clermont Florida. If your case is in a state of emergency, you may need to call us to ask about an emergency child pick up order.

premarital agreement in Florida

Premarital Agreement in Florida | Florida Prenuptial Agreement

A premarital agreement in Florida is also known as a prenuptial agreement, or as an antenuptial agreement. A Florida prenuptial agreement is difficult to draft and for good reason. The finished product is often complex because of the preparation and disclosures involved. Clients want a premarital agreement to protect themselves from financial battles in case of divorce. To ensure your prenup is enforceable, call the Jacobs Law Firm to speak with an Orlando prenuptial agreement attorney today.

Florida Prenuptial Agreement Statute

Florida Prenuptial agreement law, specifically, Florida premarital agreement Statute 61.079, is known broadly as the “Uniform Premarital Agreement Act.” Under the Statute, a premarital agreement in Florida is defined as an agreement that is entered into by prospective spouses (this applies to heterosexual and homosexual marriages) in contemplation of marriage. A contract requires there to be an offer, acceptance of that offer, and valid consideration. The consideration for a prenup is the marriage itself.

Florida Prenuptial Agreement

The plain language version of the Florida Prenuptial Statute is as follows: Two people want to get married. Both parties want to protect their assets in case of a future divorce. They both agree to enter into a prenuptial agreement in Florida in order to have some security during and after their marriage. The process begins, and it is advisable that both parties hire A Florida prenuptial agreement is effective only once the parties tie the knot. This is fairly obvious, but it needs to be spelled out just in case there is a misunderstanding. The Statute lays out the process and the requirements for entering into a prenup.

The Statute tells us that a valid and enforceable prenup may include current, or future, (vested or contingent) interests in property. This includes real property such as houses, condos, office spaces, plots of land, tangible property such as jewelry or cars, and all sources of income and earnings. The Statute importantly clarifies that a prenuptial agreement covers both passive and active income. A source of active income is the paycheck you earn on a regular and consistent basis. An example of passive income is the money that may trickle in from investments you have made such as owning an office space and accepting rent from your tenants.

To be enforceable, a Florida premarital agreement must be signed by both parties and should be notarized for authentication and verification.

What is in a Florida Premarital Agreement? Orlando Prenuptial Agreement Attorney

The Statute defines what may go into a premarital agreement in Florida, and in a sense directs us as to what may be excluded. First, the agreement must identify the rights and obligations of each of the parties in any property that they own (pardon the redundancy, but this again refers to cars, plots of land, houses, office buildings, intellectual property rights, etc.). When property interests are involved, the parties should specify what their rights and obligations are concerning the sale, use, transfer, lease and assignation of those interests.

Probate attorneys that deal with the disposition of property upon death appreciate that Florida premarital agreements often particularize how property will be distributed on the death of a spouse that was a signatory to an enforceable prenup. More importantly for our discussion, is that a prenuptial contract will specify how property will be divided and distributed upon divorce or permanent separation.

Premarital Agreements and Alimony

Let’s face it, if you are getting married, it is probably you have searched for this article to find out how premarital agreements and alimony work in Florida. One of the most frequent reasons a couple seeks the advice of an Orlando prenuptial agreement attorney, is to determine what is fair and equitable for an award of alimony upon dissolution of marriage. A Florida prenup can cover a lot of ground with alimony. For instance, the parties may choose to make alimony for a certain period of time at a certain amount that is non-modifiable. Alternatively, the parties must choose to allow for alimony to be modified if one spouse reaches a certain income threshold (i.e. Wife becomes a doctor and triples her salary, or Husband secures a max NBA contract). The parties to a prenuptial agreement in Florida may also select to eliminate spousal support. This is the beauty of a prenuptial agreement, the freedom of choice within reason.

florida prenuptial agreement statute

Perhaps you have heard of public policy. Public policy and law have enjoyed a long-standing relationship. Provisions in prenuptials can violate public policy and be rendered unenforceable. For instance, if husband is a millionaire and specifies that his wife (who is unemployed for purposes of this example) will receive no alimony, no property, and no support of any kind, this may run contrary to Florida divorce statutes and could be considered in violation of public policy.

Premarital Agreements and Child Support

The Florida Prenuptial Statute makes it clear that premarital agreements in Florida may not eliminate a party’s child support obligation(s). Child support is for the best interest of the child and is intended to safeguard children. A clause in a prenup that seeks to eliminate child support will be unenforceable. This will not render the entire agreement null and void, but it may cast a shadow over any other provision that is questionable.

Is Your Prenuptial Agreement Enforceable or Invalid?

Florida’s Prenuptial Statute guides litigants in determining if their prenuptial agreement is enforceable. A prenuptial agreement in Florida is unenforceable if:

1. One of the parties to the agreement did not execute the agreement voluntarily;

2. The prenup was the product of “fraud, duress, coercion, or overreaching; or

3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (making proper disclosures is vital to the enforceability of a prenuptial agreement, and this can be done if both parties voluntarily waive disclosure in writing after careful consideration)

b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (This is a sort of escape-valve. If spouse A could not reasonably have foreseen that spouse B would earn 50 million dollars two years later, perhaps the court will allow spouse A to sue for spousal support even if the agreement provided to the contrary)

(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.” (To allow one party to a divorce to be prosperous financially and the other party to be forced to register for public assistance would be unconscionable).

Jonathan Jacobs is an Orlando prenuptial agreement attorney that absolutely loves working with clients to plan for their financial future. Drafting and enforcing a premarital agreement in Florida may protect clients from financial battles in case they ever get divorced. To ensure your prenup is enforceable, call the Jacobs Law Firm to speak with a divorce attorney in Orlando and Winter Park, or a divorce attorney in Clermont, to find out if a Florida prenuptial agreement is appropriate for you.

collaborative divorce attorney

Collaborative Divorce Attorney

Are you looking to hire a collaborative divorce attorney in Orlando or anywhere in Central Florida? If you prefer to resolve your dissolution of marriage case outside of the courtroom, and without an intrusion into your finances, family life, and personal affairs, hiring a collaborative divorce lawyer to orchestrate your dissolution of marriage may be the right decision for you and your family.

The Florida Collaborative Divorce Statute 61.56 section 4 defines the collaborative legal process as “intended to resolve a collaborative matter without intervention by a tribunal and in which persons sign a collaborative law participation agreement and are represented by collaborative attorneys.” Without a tribunal indicates that the case will not be decided by the court. Rather, the parties, their attorneys, and all of the support team assembled (accountants, psychologists, and other trusted advisers) will assist the parties in resolving their case outside of court. Florida Statute 61.57 makes it clear that the parties must enter into a collaborative law agreement on their own accord. The court cannot order spouses to collaborative divorce. This is further reinforcement that collaborative divorce in Florida is entirely voluntary. Collaborative divorce is technically a form of uncontested divorce in Orlando.

Collaborative Divorce in Florida is Expensive

Collaborative divorce in Florida is expensive. So is paying attorneys multiple retainer fees to litigate a substantial family law case involving life-altering issues such as child custody, child support, the equitable distribution of marital assets, and alimony. The primary difference is a collaborative divorce attorney is trained to help you and your spouse be the decision-makers in your divorce rather than the judge. Literally, the choice is yours. Collaborative divorce can be done in same sex divorce cases as well.

Jonathan Jacobs is a divorce attorney in Orlando and a divorce attorney in Clermont Florida. If you would like to learn more about collaborative divorce in Florida, please call us at (407) 310-5636. We will be happy to hear from you!

 

It is contemplated in collaborative divorce in Florida that there do not need to be discovery requests. There should be no hidden documents and the parties are not supposed to fear openness. The point of the collaborative divorce process is that the parties are preventing the ugliness of a courtroom battle over every last dollar.

collaborative divorce process

Collaborative Divorce Attorney in Florida

The Florida Collaborative Divorce Statute 61.56 section 4 defines the collaborative legal process as “intended to resolve a collaborative matter without intervention by a tribunal and in which persons sign a collaborative law participation agreement and are represented by collaborative attorneys.” Without a tribunal indicates that the case will not be decided by the court. Rather, the parties, their attorneys, and all of the support team assembled (accountants, psychologists, and other trusted advisers) will assist the parties in resolving their case outside of court. Florida Statute 61.57 makes it clear that the parties must enter into a collaborative law agreement on their own accord. The court cannot order spouses to collaborative divorce. This is further reinforcement that collaborative divorce in Florida is entirely voluntary. Collaborative divorce is technically a form of uncontested divorce in Orlando.

Collaborative Divorce in Florida is Expensive

Collaborative divorce in Florida is expensive. So is paying attorneys multiple retainer fees to litigate a substantial family law case involving life-altering issues such as child custody, child support, the equitable distribution of marital assets, and alimony. The primary difference is a collaborative divorce attorney is trained to help you and your spouse be the decision-makers in your divorce rather than the judge. Literally, the choice is yours. Collaborative divorce can be done in same sex divorce cases as well.

Jonathan Jacobs is a divorce attorney in Orlando and a divorce attorney in Clermont Florida. If you would like to learn more about collaborative divorce in Florida, please call us at (407) 310-5636. We will be happy to hear from you!

 

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It is contemplated in collaborative divorce in Florida that there do not need to be discovery requests. There should be no hidden documents and the parties are not supposed to fear openness. The point of the collaborative divorce process is that the parties are preventing the ugliness of a courtroom battle over every last dollar.

collaborative divorce process

Collaborative Divorce Attorney in Florida

The Florida Collaborative Divorce Statute 61.56 section 4 defines the collaborative legal process as “intended to resolve a collaborative matter without intervention by a tribunal and in which persons sign a collaborative law participation agreement and are represented by collaborative attorneys.” Without a tribunal indicates that the case will not be decided by the court. Rather, the parties, their attorneys, and all of the support team assembled (accountants, psychologists, and other trusted advisers) will assist the parties in resolving their case outside of court. Florida Statute 61.57 makes it clear that the parties must enter into a collaborative law agreement on their own accord. The court cannot order spouses to collaborative divorce. This is further reinforcement that collaborative divorce in Florida is entirely voluntary. Collaborative divorce is technically a form of uncontested divorce in Orlando.

Collaborative Divorce in Florida is Expensive

Collaborative divorce in Florida is expensive. So is paying attorneys multiple retainer fees to litigate a substantial family law case involving life-altering issues such as child custody, child support, the equitable distribution of marital assets, and alimony. The primary difference is a collaborative divorce attorney is trained to help you and your spouse be the decision-makers in your divorce rather than the judge. Literally, the choice is yours. Collaborative divorce can be done in same sex divorce cases as well.

Jonathan Jacobs is a divorce attorney in Orlando and a divorce attorney in Clermont Florida. If you would like to learn more about collaborative divorce in Florida, please call us at (407) 310-5636. We will be happy to hear from you!

 

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Generally, if the parties bring an action before the court and cannot reach an agreement on their own through mediation or settlement, a judge (who is for all intents and purposes a virtual stranger) will decide the outcome of all aspects their case upon the presentation of evidence. Family law trials are contentious and can cause resentment. If the courtroom is not appropriate for you, there is a way that you and your spouse can work out the details of your divorce without the need for a judge wrest control from your hands. Let’s talk about the collaborative divorce process. Jonathan Jacobs is a divorce attorney in Orlando and a divorce attorney in Clermont Florida.

The Collaborative Divorce Process

Envision a lovely conference room where you are with your collaborative divorce lawyer as well as your spouse and his/her attorney. Also present are a mental health professional and a financial expert (the parties may choose to hire additional professionals to ensure the success of the proceedings). These trained professionals have come together to give you and your spouse the opportunity to resolve all of your issues on your own terms in the safety and security of a confidential and comforting environment. In this collaborative divorce process, the mental health professional acts as a neutral party whose role is to ensure both parties are calm, and making rational decisions without interrupting the process. These are among the most educated and level-headed people that are assembled to help you when you need them the most. Collaborative divorce may be particularly helpful in three situations: 1. when the parties need to organize same sex divorce with an adoption, 2. when the parties have an upper-tier income threshold, and/or 3. when the parties want to relocate with a minor child.


Collaborative divorce affords the parties the opportunity to have a Certified Public Accountant and or a financial planner to provide them with the knowledge that in equitably distributing their assets, they are making the best decision for everyone involved and doing so lawfully. Knowing about tax consequences ahead of time can be a major benefit to the parties. In the collaborative divorce process, the backdrop is that the process will be open, and the parties will work together to preserve their assets, and ensure the best financial future for everyone involved.

It is contemplated in collaborative divorce in Florida that there do not need to be discovery requests. There should be no hidden documents and the parties are not supposed to fear openness. The point of the collaborative divorce process is that the parties are preventing the ugliness of a courtroom battle over every last dollar.

collaborative divorce process

Collaborative Divorce Attorney in Florida

The Florida Collaborative Divorce Statute 61.56 section 4 defines the collaborative legal process as “intended to resolve a collaborative matter without intervention by a tribunal and in which persons sign a collaborative law participation agreement and are represented by collaborative attorneys.” Without a tribunal indicates that the case will not be decided by the court. Rather, the parties, their attorneys, and all of the support team assembled (accountants, psychologists, and other trusted advisers) will assist the parties in resolving their case outside of court. Florida Statute 61.57 makes it clear that the parties must enter into a collaborative law agreement on their own accord. The court cannot order spouses to collaborative divorce. This is further reinforcement that collaborative divorce in Florida is entirely voluntary. Collaborative divorce is technically a form of uncontested divorce in Orlando.

Collaborative Divorce in Florida is Expensive

Collaborative divorce in Florida is expensive. So is paying attorneys multiple retainer fees to litigate a substantial family law case involving life-altering issues such as child custody, child support, the equitable distribution of marital assets, and alimony. The primary difference is a collaborative divorce attorney is trained to help you and your spouse be the decision-makers in your divorce rather than the judge. Literally, the choice is yours. Collaborative divorce can be done in same sex divorce cases as well.

Jonathan Jacobs is a divorce attorney in Orlando and a divorce attorney in Clermont Florida. If you would like to learn more about collaborative divorce in Florida, please call us at (407) 310-5636. We will be happy to hear from you!

 

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Divorce in Orlando

Divorce in Orlando, Filing For Divorce in Orlando

You have reached a decision to get a divorce in Orlando. You are filing for divorce in Orlando and have many questions about how to do it. What is the process? How much does it cost? Filing for divorce in Orlando is similar to filing for dissolution of marriage other jurisdictions, and the pricing is comparable or the same. The primary difference is the way the court in your jurisdiction handles the divorce process. Orange County Florida has its own unique policies and procedures because each judge runs her courtroom differently. The same is true for Osceola, Lake, Seminole and Hernando County. Whether you need to hire a divorce attorney in Orlando, or just want some general guidance on filing for divorce in Orlando, call the Jacobs Law Firm, we will be happy to speak with you.

 

Filing for Divorce in Orlando, What Do You Need?

Choosing the right paperwork to file in your Orlando divorce case is not easy. This is because there are different kinds of divorce. There is simplified dissolution of marriage, dissolution of marriage, dissolution of marriage with minor children, dissolution of marriage with relocation, and the list could go on. It is generally true that if you file the wrong paperwork, the case could be dismissed and you may need to refile. This sort of mistake can can get expensive!

If you hire Attorney Jacobs when you are filing for Divorce in Orlando, he will ask you questions about your marriage, assets, liabilities, kids, and expectations for how your case will be resolved. Many of these questions are intended to help Attorney Jacobs decide what type of divorce you need to file for. If you are doing this by yourself as a “pro se” litigant, it is important to read the directions on the Florida Supreme Court approved forms. There are certain checklists of documents you may need, and there are directions you may follow. Face it, this is not an easy process, and that is why there are experienced legal professionals that are ready to help.

Filing for divorce in orlando

 

 

Service of Process

The Florida Family Law Rules of Procedure and Florida Statutory law require the petitioner (the first to file) to serve the other party with process. This means due process. Due process refers back to our constitutional right of notice and an opportunity to be heard. Florida is a no fault divorce state, meaning you have an absolute right to get a divorce with certain minor exceptions, BUT, there are procedural requirements, and service of process is mandatory unless waived. Filing For Divorce in Orlando means you may not serve the other party exclusively by certified mail or by regular mail, by FedEx or UPS. Rather, you must hire a process server and obtain an affidavit of service to indicate to the court that you have made diligent efforts to alert the respondent to the existence of the petition for dissolution.

Mandatory Disclosure in Divorce in Orlando

A primary issue in Filing For Divorce in Orlando is that both parties must provide certain financial and other related documents to the other party. This is called mandatory disclosure. When you are in the process of deciding whether your divorce will be contested or uncontested, you may want to consider how much you and your spouse want to quarrel over the distribution of your property (marital and non-marital). Mandatory disclosure typically includes bank statements, credit card statements, loan statements, financial affidavits, and other important documents.

Uncontested Divorce v. Contested Divorce

Many couples choose to obtain an uncontested divorce in Orlando. This is because a contested divorce can take longer, cost more in legal fees, and involve a lot of legal battles that can impact all parties involved. For instance, filing for a divorce with relocation with a minor child can be expensive. An uncontested divorce in Orlando means you and your spouse have agreed on all issues and are ready for Filing For Divorce in Orlando so you may also proceed to the final stages of your dissolution. In contested divorce cases, it is likely you will attend hearings, mediations, possibly some depositions, and in some cases, a trial.

 

Mediation for Divorce in Orlando

Although technically not an absolute requirement in all counties, in Orange County Florida, mediation is ordered in a majority of cases. Judges here in Orlando generally believe the parties should have the right of self-determination when filing for divorce in Orlando. Litigants should have a proverbial “bite at the apple” to resolve their case on their own terms before the judge becomes heavily involved in the case.

This is a good time to answer a common question clients have when filing for divorce. “How do we choose a judge in my case?” Judges are assigned based on availability and dockets, not based on the unique preferences of the litigants.

Orlando divorce lawyer Jonathan Jacobs is the managing partner with the Jacobs Law Firm, PLLC. When you are seeking a divorce in Orlando, call us for the information you need and the help you require.

 

Passive Appreciation of Marital Property in Florida

Passive Appreciation of Marital Property in Florida, Active Appreciation of Marital Property in Florida

A major issue in dissolution of marriage cases in Florida is whether a property will be categorized by the court as “marital.” If the property was purchased by one spouse before the marriage, using his/her own money, what can happen during the marriage to cause the passive appreciation of marital property in Florida to subject the property to equitable distribution in divorce? What can happen to cause the active appreciation of marital property in Florida that would make it subject to equitable distribution? Let’s look to Florida statutory and case law to find out the answer.

Definitions and Examples of Passive Appreciation of Marital Property in Florida, and Active Appreciation of Marital Property in Florida

Let’s define passive appreciation in practical terms to make it understandable. Passive appreciation of marital property in Florida occurs during the marriage. Passive means that there are no significant improvements or contributions made to the appreciation (increase in its value) of the property by the non-owning spouse, and any value enhancement is due exclusively to market factors, timing, or other independent events/trends. Timing is critical in real estate. In this article, we will also contrast passive appreciation with active appreciation of marital property in Florida.

Active appreciation of marital property in Florida occurs when the spouse who did not own the property before marriage, makes labor and/or financial contributions that cause the increase in the value of the property.

Let’s use a hypothetical example for this to make sense. Here is an example of passive appreciation of marital property in Florida:

  • Party A buys a condo in downtown Orlando in 2011. Party A meets Party B in 2012, and in 2013 after a lovely courtship, they get married.
  • The spouses separate in December 2018 as their marriage is irretrievably broken.
  • During their marriage, the value of Party A’s condo increased because the housing market has been on fire.
  • No major improvements were made to the property, and Party A simply sat back and collected rent from the property prior to the date of their marital separation.

Is this condo subject to being categorized as “marital property due” to the passive appreciation of marital property in Florida? Case law and Statutory law provide that “passive appreciation on nonmarital assets as a result of market forces, such as inflation, is not subject to division.” We can add other facts, such as the commingling of the proceeds in a joint marital bank account, but for our basic example, there is likely no creation of marital property here.

Active appreciation of marital property in Florida, as discussed above, occurs when the spouse that does not own the nonmarital property, actively takes steps to increase the value of the property. Here is another hypothetical that can help clarify how active appreciation works.

  • Party A buys a condo in downtown Orlando, and it has a great view of the City.
  • Party A meets Party B one year later, and they get married.
  • Market factors cause the value of the property to increase substantially.
  • During their marriage, monies from a joint bank account in the name of both parties, were used to pay down the mortgage on the Condo.
  • Party A and Party B split in January 2019, and file for dissolution of marriage.

Florida Statute §61.075(6)(a)1(b), states that marital assets include the: “enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets or both.” Contributions by either spouse to the increased value of the other spouse’s nonmarital property may create a legal right to the equitable distribution of the property in divorce. But wait, there is a catch! The Florida Supreme Court said this: “Improvements or expenditures of marital funds to a nonmarital asset does not transform the entire asset into a marital asset; rather, it is only the enhancement in value and appreciation which becomes a marital asset. F.S. § 61.075(5)(a)(2).” Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010).

Therefore, in the example above, it is likely there has been some active appreciation of marital property in Florida, but the Court will need to make a finding as to how much the property appreciated in value, and how much the non-owning spouse may be entitled to. “Appreciation caused by the expenditure of marital funds or labor during the marriage, including the parties’ management, oversight, or contribution to principal, is a marital asset subject to equitable distribution.” Here are some cases that predate Kaaa v. Kaaa, but provide a great deal of insight and guidance: Young v. Young, 606 So. 2d 1267 (Fla. 1st DCA 1992); Massis v. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989); Straley v. Frank, 612 So. 2d 610 (Fla. 2d DCA 1992); Jahnke v. Jahnke, 804 So. 2d 513 (Fla. 3d DCA 2001); and Hanks v. Hanks, 553 So. 2d 340 (Fla. 4th DCA 1989). Dyson v. Dyson, 597 So. 2d 320, 324 (Fla. 1st DCA 1992); Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003); Adkins v. Adkins, 650 So. 2d 61, 67 (Fla. 3d DCA 1994); and Cole v. Roberts, 661 So. 2d 370, 372 (Fla. 4th DCA 1995).

Case Law on Passive Appreciation of Marital Property in Florida, Active Appreciation of Marital Property in Florida

Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010). The title itself may create for good humor, but the ruling is quite serious for divorce litigants despite the negative treatment the case has received by many District Courts of Appeal. The Florida Supreme Court held in Kaaa that the Wife would be entitled to include the value of the passive appreciation of the house in the calculations for equitable distribution in order to avoid the Husband enjoying an unjust enrichment of the Wife’s contributions to the marital residence. This decision means that a non-owner spouse may recover from the equity of a home in equitable distribution. While the non-owning spouse would not be able to include the entire value of the marital residence as marital property, the Kaaa decision (as mentioned above) allows the non-owning spouse to recover a portion of their contributions to the increase in valuation of the real property during the marriage.

Jonathan Jacobs, Esq., is managing partner at the Jacobs Law Firm, PLLC. He is a divorce attorney in Orlando Florida, a divorce attorney in Clermont Florida, and a relocation attorney in Orlando. Call (407) 310-5636 with questions about your divorce case.

Florida Residency Requirements For Divorce

Florida Residency Requirements For Divorce

The Florida residency requirements for divorce is/are that a party must prove that one of the litigants (petitioner or respondent) has resided in the State of Florida for a minimum of at least six months before filing for dissolution. Florida Statute § 61.021, “Residence requirements,” provides that: “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.” This residency requirement establishes jurisdiction in a Florida family law court. Establishing jurisdiction in a Florida court enables the judge to preside over the parties’ dissolution of marriage case. If there is found to be no residency, the court will not have subject matter jurisdiction over the case. Foundationally, the courts have routinely upheld this requirement, “It is not enough for the parties to merely submit a petition requesting a dissolution of marriage, the party must establish the court’s jurisdiction over the parties. Wise v. Wise, 310 So.2d 431, 432 (Fla. 1st DCA 1975).

In a recently decided case, McNeil v. Jenkins-McNeil, the Fifth District Court of Appeals Court discussed the Florida residency requirement for divorce and implications of a party failing to meet the residency requirement. 252 So.3d 354 (Fla. 5th DCA 2018). In McNeil, the Wife filled a petition for dissolution of marriage, however, she did not allege that she was a resident of Florida. At trial, the Husband failed to appear, causing the trial court to grant the Wife’s divorce. The Husband appealed this decision. The Husband alleged that the Court failed to establish jurisdiction over him because the Wife failed to meet her burden of proving her or her husband’s residency in Florida. Establishing residency may sound procedural or trivial to someone that has lived in Florida for years, but it is mandatory and must be proven.

How To Prove Florida Residency Requirements For Divorce

According to Florida Statute § 61.052(2), the minimum Florida residency requirements for divorce can be corroborated by a “valid Florida driver license, a Florida voter’s registration card, a valid Florida identification card…or [by] the testimony or affidavit of a third party.” In the case above, the Wife failed to allege that she personally had fulfilled the Florida residency requirement, leading the Wife to shoulder the burden of proving, at trial, that her husband was a lawful resident of Florida for at least 6 months prior to her filing a petition for dissolution of marriage. However, “[t]he residency requirement may not be established by the uncorroborated testimony of one party.” McNeil (citing Lemon v. Lemon, 413 So.3d 623, 623-24 (Fla. 2d DCA 1975)).

The parties may not waive by admission in the “pleadings that the residency requirement has been met.” McNeil, (citing Grey v. Grey, 995 So.2d 623, 624 (Fla. 2d DCA 2008)). Additionally, “residence can never be assumed, nor can it be established by agreement.” McNeil, (citing Fazio v. Fazio, 66 So.2d 297, 299 (Fla. 1953). The Court in this case granted the Husband’s petition for reversal of the final decree of dissolution because the Petitioner failed to satisfy the statutory requirement for proving residency in the State of Florida. The Florida residency requirements for divorce cannot be waived or discounted by the court.

While the right to enter into marriage is a fundamental right, as is the right to obtain a divorce in Florida, that does not excuse a court from establishing the Florida residency requirements for divorce by taking jurisdiction over a party before allowing a petition for dissolution to be granted. The courts must follow the requirements set forth under Florida Statute § 61.021, and the party filing the petition for dissolution must prove that either himself/herself or the other party has satisfied the residency requirement for divorce in Florida. The Florida residency requirement also applies in relocation with minor children cases.

Jonathan Jacobs is an experienced divorce attorney in Orlando and a divorce attorney in Clermont Florida that is available to answer your questions about the Florida Residency Requirements for Divorce, and/or about divorce in Florida. We also specialize in same sex divorce.

Long Distance Parenting Plan Florida

Long Distance Parenting Plan Florida, Relocation Parenting Plan Florida

Are you looking to relocate with your minor child during or after a divorce or a family law/paternity lawsuit? If your answer is yes, you will need to draft a long distance parenting plan Florida, also known as a relocation parenting plan Florida. Attorney Jonathan Jacobs specializes in Relocation cases. Let’s go back one step to make sure you need this type of a parenting plan. Do you know what relocation with a minor child is? A long distance parenting plan for infant or toddler (with a young child) may or may not be right for you. Read the Statute below.

According to Florida Statute 61.13001, Relocation means “a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.” In the words of my brother David, “say what?” Well, the Relocation Statute is quite clear, but only if you have legal experience litigating relocation cases. If you or your former spouse or partner are moving more than 50 miles (“straight as the crow flies”) from your principal house/apartment for a period of MORE than 60 days with no intent to return there, you must obtain a court order, or mutual agreement between BOTH parents. In both instances, you will need to draft a long distance parenting plan Florida, also known as a relocation parenting plan Florida, for court approval. Simply filing a parenting plan is generally not enough. You should seek to obtain a Judge’s approval of your long distance parenting plan for infant.

Relocation Parenting Plan Florida

Tips on Long Distance Parenting Plan For Infant

Here are four tips I recommend to both clients and opposing counsel when creating a long distance parenting plan for infant (s) in Florida:

  • Be SPECIFIC. Do not leave any portion ambiguous. The parties are a long distance away and communication is vital.
  • Specify your travel arrangements and who is going to pay.
  • Make sure you specify a time when and how you will contact your child.
  • Ensure that your vacation timesharing offers both families time with the child. Be fair and reasonable.
Long Distance Parenting Plan for Infant

Relocation Parenting Plan Florida

Ultimately, when you are relocating with a minor child, a lot of changes need to be made. Adjusting to a new career and new city can be tough on a parent. Taking care of a minor child while going through so many changes is not easy. This should encourage the relocating parent to allow for timesharing with the non-relocating parent (provided the non-relocating parent wants to see the child). Children benefit from spending time with both parents, and the parents benefit just as much in so many ways.

Jonathan Jacobs is a Relocation Attorney Orlando who can help his clients create a Long Distance Parenting Plan Florida, or a Relocation Parenting Plan Florida.). When you are considering relocation with a minor child, call the Jacobs Law Firm for help.