Jupiter Divorce – Frequently Asked Questions
Alimony
QUESTION
After being together for 12 years (married for 5), am I entitled to alimony? We have 3 kids: one of them is my stepson (not adopted) and the twins which are mine and his. We own a home and have a new vehicle loan, no outstanding debts.
ANSWER
The simple answer is “maybe.” There are several types of alimony, but each one is very dependent on the facts of each case. I would have to know how old you are, your work experience, your training, your last earnings and many other factors as well as your husband’s work, his earnings and again, many other factors to answer this question. There is always a good chance of being awarded “rehabilitative” alimony; however, this is always based on a plan of rehab (i.e., a design to get you back into the workplace and self supportive). There are cases of relatively short term marriages where permanent alimony is awarded, but they are few and far between. Usually in marriages over 17 years, it is likely to be awarded, but in marriages of less than 7 years, unlikely. Between 7 and 17, there are many factors the court must consider.
QUESTION
I live in Orange County, FL and divorce is filed in same. What does this circuit/district require with regard to alimony for a marriage of 13 years and 11 months at separation? Husband makes 6-figure income, wife has been homemaker all years of marriage but holds a masters degree with income potential at $40,000. Two middle school aged children.
ANSWER
There is no requirement for an award of alimony based upon your county or circuit. Each case is viewed on its own merit. There are several types of alimony considered by Florida courts. Permanent Periodic Alimony is awarded in an appropriate case for a duration of the first to die of the wife or husband, or remarriage of the spouse who receives it. It is payable “periodically”, i.e., monthly, quarterly, annually, etc. It can be modified by the court at any time, unless specifically agreed by the parties to be “non-modifiable”. It may be error of the court to fail to award it in a marriage of over 17 years. Marriages of 7-17 years are in the “gray area” for an award; nonetheless, a complete review of all the facts and circumstances must be undertaken to determine a proper award and the amount. The basis is the needs of one spouse and the ability to pay of the other.
There is also Rehabilitative Alimony, which may be awarded to permit a spouse to become educated and re-enter the work force, based upon a plan of rehabilitation, and Durational Alimony, which is for a set time following a marriage of short or moderate duration.
Finally, there is “Bridge the Gap” which is sometimes awarded to carry a spouse until they can return to the workforce and earn sufficient monies to support themselves.
Divorce – Name Change
QUESTION
Can a divorced man make his ex-wife change her last name back to her maiden name?
I have been divorced for several years and remarried, yet my ex-wife still calls herself Mrs. _________. Can I do anything to make her change it? It is embarrassing!
ANSWER
In most states the answer is no – there is nothing that can be done.
Remarriage Without Divorce
QUESTION
My ex-husband is saying our divorce wasn’t finalized and I am remarried. If this is true, what would that mean for me?
ANSWER
If your divorce was not finalized then you are still married to your first husband. If you were married at the time of your application for your second marriage license, you were not eligible to be remarried and the marriage is what we call “void ab initio” or “it never was”. You need to get an attorney quickly, get the divorce finalized as soon as possible, and then decide if you are going to get married again. You are NOT legally married to the second husband.
Right to House
QUESTION
I was divorced in November of 2009 and in the divorce I was allowed to keep my house. As part of the settlement I have to refinance the house by Nov. of 2010. The problem is my credit is awful. I am in the process of paying a lawyer to start bankruptcy. I will be done paying him in Nov. of 2010 and then we should start the bankruptcy process. Needless to say my credit will be bad and it will be hard to refinance the house in my name. Can the courts kick me out of this house if I cannot get it refinanced by the Nov. deadline? I’m not including the house in the bankruptcy; I haven’t missed a payment. I have been here for 2 years. I live in Florida.
ANSWER
I will assume that your final judgment of dissolution requires that you refinance within a certain time period and that the court has retained jurisdiction to enforce the final judgment. The court is NOT going to monitor you, but your former husband may do so. If you do not refinance, the point being that your ex-husband is removed from the note, then your ex has the right to motion the court to compel you to do as you were ordered. It is most likely not contemptible, but it is enforceable. Your ex-husband would set a hearing and you would be compelled to admit you have not complied with the final judgment. The court would then “specifically” order you to do so. If you cannot, the court cannot hold you in contempt for failing to do the impossible. However, the court is not powerless.
Upon your ex’s further motion, the court could order the house sold and name a broker to do so. The court has the power to issue an order transferring the house or compelling you to do so. Once sold or transferred by court order, the court has the inherent power to order you out and to give possession to another person, so YES, you can be forced out.
Possession of Car
QUESTION
I am going through a divorce and live in a different state than my soon-to-be ex-husband. We owned a car that was only in my name. I think he is still using the car, with my tags on it, and without insurance because I had it cut off when we separated. He refuses to give me money for it – I told him I would transfer the title to him if he did. How do I get my car back from him?
I do not want him using the car if it is still in my name, especially without insurance. He will not tell me if he still has it, and is giving me the run-around.
ANSWER
If the court awarded the car to your husband or if you have agreed in a settlement agreement to give him the car, then you must resort to the court for assistance by filing a motion to compel compliance and/or a motion to permit you to have possession of the car as a result of your husband’s failure to comply. If there is no order or agreement and your husband is not going along with your verbal agreement, you may want to consider a “self-help” repossession of the car in a civil and peaceful manner. If the title is in your name and you are going to drive the car, it MUST be insured before you put the key in the ignition. Give the local police notice of what you have done after you do it, so your husband does not report the car stolen.
Leaving the Marital Home
QUESTION
My husband wants to file for divorce. He is the only financial provider. He wants me to leave our home, but I have no money.
ANSWER
Do not leave the home as long as you are safe and secure there. You are entitled to remain in the home with the children. You may need to stay in a separate room, however. If there is any threat of violence at all, please leave the home immediately. Your safety comes first. If he wants to file for divorce, let him pay the filing fees and have you served. I do not have enough information to know if you are entitled to support, but my instincts tell me there may be some support required.
Changing Locks on House
QUESTION
My wife left me two days ago. She is staying with her parents in the same city. Can I legally change the locks?
ANSWER
If the house is in both your name and hers, you are certainly within your legal rights to change the locks and I am sure any local locksmith will be happy to assist you for a fee. However, if the next day your wife wants to come home and finds the home locked, she can also call a locksmith and have the locks changed again, preventing you from getting into the house and requiring you to call your locksmith back to let you in, and so on and so forth. I have had this happen too many times for it to be funny.
I also think it is best to advise the local police or sheriff of what you are doing, and to let your wife know as well. Notification won’t keep her out, but maybe she will not be upset at finding out the hard way.
Unfortunately, these types of disputes usually involve the eventual removal of goods and possessions from the home without the agreement of both parties. I have had clients take their things and put them in a storage unit for safe keeping, but make sure you videotape the possessions and have a trustworthy friend assist so there is no accusation that you have hidden or stolen the marital goods. Keeping them safe is ok, but hiding the possessions is improper. Maintaining proof of what you have done is very important so you do not face an accusation that you “took her stuff.” The best thing to do is to hire a competent attorney and settle these property issues as soon as possible.
Child Support
QUESTION
My brother returned home from Iraq with an injury last June. He is only receiving workman’s comp benefits and cannot return to his field. He gave his wife $4500+ per month support while he was away. She moved a 23-yr-old into their bed and kicked 3 children out (16,17,18). They live with me. She lied to the sheriff and he helped her file a restraining order. She was a no-show at court but managed to get the RO continued for 6 mos. Now he has to pay his eldest daughter $20 gas money each way to pick up his kids (5 miles drive) so he can have visitation [now called timesharing]. His lawyer has been prepaid and doesn’t seem to be doing much. Mediation is scheduled for tomorrow. She is on SSI and applied for Welfare and lied on the Financial Affidavit.
ANSWER
Since the gentlemen has an attorney, his lawyer needs to properly represent him. If the wife lied under oath, the attorney should consider taking her deposition (a sworn oral statement before a court reporter) to flush out the mistrust. Certainly, if there is proof of the lie, a hearing should be requested so that the court may consider sanctions against the spouse for perjury, if the statement was made in court or in a document presented to the court under oath.
Custody (Parenting Plans)
QUESTION
I am trying to obtain custody of my daughter. There is presently no order regarding her other than a child support order [now called a parenting plan]. Her father has moved a woman into his home, only knowing her for a week. I do not feel it is safe nor unreasonable to request that my child not be around this woman until my ex gets to know her better. I believe that it is confusing my daughter. Can we place a stipulation in our parenting plan to address this situation?
ANSWER
Simply stated, yes you can, but it is very difficult to actually enforce this. In a parenting plan the parents may agree to most reasonable matters involving the care and control of their mutual child. You can decide that you must jointly agree on who will care for the child in the absence of both parents, such as a babysitter. Unfortunately, it is very hard in practice to enforce an agreement that provides that an entire class of people cannot be around the child, and in this instance, the class would be “all women entering the father’s life who have known him less than two weeks.” That may not be reasonable and it is probably totally unenforceable. You could effectively stipulate that certain people cannot be around the child, or that the father would not permit his girlfriend certain contact with the child, but again, the issue is not “can you write it down” but can you actually enforce it. Enforcement of these provisions is extraordinarily difficult and the courts have little to no patience for what it may consider to be without merit.
QUESTION
I am representing myself in a custody case [now called parenting plans]. My ex-husband claims that I have violated our divorce contract when I have not. But he has fabricated allegations against my new husband and me in order to give me only supervised visitation with my daughter. He has violated our divorce contract on many different counts. We have a trial date set for next month and he has said he hopes to cut me out of our daughter’s life. In trial can I bring up his violations of our divorce and custody agreement? I want to shed some light on what he has done, but I’m not sure if I can do that at the trial.
ANSWER
This is a tough one to answer as courts are generally only able to hear matters that are properly filed and noticed to be heard, and there are many complex rules of procedure and evidence to ensure that people get fair hearings. If the issue is custody (now called parenting plans), then it would seem that almost anything that would lend itself to the main issues would be allowed.
The main issue in a modification is always whether or not there has been a “Substantial Change of Circumstance.” This is a very tough issue to prove. If a party can show this, then as a second issue they have to demonstrate to the court whether the change in custody (now called parenting plans) will be “In the Best Interests of the Child(ren).” Neither of these is easy. Without knowing exactly what you intend to show as to violations of the divorce agreement, it is impossible for me to say whether or not these matters should be allowed in court.
QUESTION
My children are now 14 and 16. A few years ago I dropped my son off to his grandparents’ house and he raised a fuss, saying he didn’t want to live with his mom and he was coming home with me. Well now he and his sister live full time with the grandparents and mommy still receives the child support. My daughter has heard the grandparents complain that if they approach mommy for money then mommy threatens to take the kids back. Now I love my kids and cannot understand why I cannot just walk in and take them. I supposedly have joint custody with mommy being the custodial parent. I pay a large amount of support and am not able to hire an attorney. Would use tax return but mommy gets that also and she claims both children. I am not looking for a handout, just a way that I can afford to do this.
ANSWER
Since your wife is the primary custodial parent, you should not just walk in and take the kids. You need to file a petition for modification asking that you be named as primary. Unfortunately, as soon as you file, you will find that the kids are again living with mom and everyone says you are not telling the truth about the kids living with the grandparents. I think you need to go to legal aide and ask for assistance. These cases are complex on a good day and without the help of an attorney, you may be lost. Certainly a guardian ad litem could be appointed to discern the children’s desires as to who they wish to live with.
QUESTION
I was with my daughter’s father for 6 yrs. We had a child out of wedlock. For the last 4 years I’ve lived in Florida with my child. Her father is not current on his child support payments. I have not been to custody court and he lives in Georgia. He doesn’t send her anything, doesn’t call often, and when he does call she does not want to speak to him. I try to make her but then she cries. He lies and says that I talk bad about him to her when I don’t. I’m so confused because I don’t know what rights I have. If nothing has been sent to child custody court and I don’t want my daughter to be without me, what are my rights as a mother? Even though my daughter has his last name can the courts take her from me and give my daughter to her father? She has always been with me.
ANSWER
To begin, Florida sounds like the legal “home state” of the child. If child support has been established, it sounds like a court has determined that he is the father and you are the mother. If the child were to be removed from the state by the father without your agreement, it is very likely that he could be charged with kidnapping. However, you MUST go to court, file the appropriate petition to establish parental control and time sharing by working out a “parenting plan.” In the parenting plan, his contact with the child will be spelled out in a detailed manner, so if the father should do something outside the plan, he could be legally stopped. I think the easiest way to start the process is to contact the father and hire a mediator to conduct a mediation by phone conference in an attempt to work out an agreement, which can then be filed with the court.
Health Insurance
QUESTION
What are the legal implications of an ex-spouse continuing to use a health plan without notifying the employer they were divorced?
ANSWER
This is an incredibly DANGEROUS situation. Failing to notify the employer in a timely manner of the dissolution, which would trigger the removal of the spouse from the insurance policy is tantamount to insurance fraud. At the least, the company may terminate coverage and refuse to pay benefits as well as refuse to issue COBRA rights. In the event the spouse should be ill, or worse, have a serious medical condition, they might have no coverage for it. At its worst, the carrier could turn the matter over to its fraud unit and charges could be brought. The carrier MUST be notified immediately so they may adjust the policy and provide the terminated former spouse with their rights under the contract.
Deportation of Illegal Immigrant
QUESTION
My friend wants to divorce her husband who is a permanent resident in the U.S. He emotionally abuses her and treats her terrible and cheats on her and she is fed up. She, however, is in the U.S. illegally (she has overstayed her visa). They have 2 minor children.
Can she divorce him without being deported? What about the children – will she get them? She is not able to work legally because of her status and she has been a housewife since they have been married (3 yrs). She really doesn’t want to lose her kids.
ANSWER
First, this lady needs to consult with a qualified immigration attorney who may be able to assist her with her immigration status. It is my recollection that there are special applications available if there has been abuse. Once her status is clear, she should hire a divorce attorney to enforce her rights. I doubt any divorce judge would seek to report the lady; however, both judges and lawyers are under a duty to report crimes if they are aware of them. That is why her status needs to be cleared first.
Leaving the State
QUESTION
My husband and I moved to FL 2 ½ yrs ago. I took a vacation with my son to see my family and I want to file for divorce. I would like to stay in CO – I have been getting mail at my mother’s address for over 2 yrs and want to know if that is sufficient to be considered a resident.
ANSWER
You can get a divorce (ONLY!) in any state in which you meet the dissolution residency requirements. However, that state may NOT be able to grant any other relief as that state may not have proper jurisdiction over your husband to properly enter an award of support, property distribution and everything else, except a piece of paper which says you are divorced. I think you need to file in Florida if that is the last place you and your husband lived as husband and wife.
Infidelity
QUESTION
My husband and I have been married 23 years and I want a divorce. He has been staying out past midnight almost every night of the week for over a year. My 22-year-old daughter lives with her boyfriend most of the time and my husband has been sleeping in her room for many months. I have heard him having conversations with women on his cell phone late at night. My son is 19 and still lives at home with us; my husband ignores him as he has ignored him all his life in many ways. I’d like to know if I can just get my share of the value of the house and leave – it needs a lot of work and I have no money or job. I feel his infidelity should make him responsible for everything.
ANSWER
This is a very unfortunate situation. If you file for divorce, the first thing to discuss is usually the children; however, as the children are over 19 there is no issue involving either custody (now called parenting plans) or support. The next important issue is support for yourself, commonly referred to as alimony. This is a case in which alimony should be reviewed, as the marriage is over 20 years. You do not state enough facts for me to give an opinion on who would be paying whom.
As to property distribution (i.e., the house), if you and your husband can agree, you should retain an attorney to write your agreement and submit it to the court. If not, please note that his infidelity will NOT be a basis for anything except an accounting of any monies he has spent on his affairs with other women, if that can be proven, and if so, then a repayment of your share of what has been wasted.
Jurisdiction
QUESTION
I filed for divorce in Duval County. My ex lives in another state. I don’t expect him to respond. Both parties are required to attend children first in divorce and turn over financial affidavits. I have done all that was required. But I don’t expect him to. Will my case get dismissed if he just doesn’t respond?
ANSWER
Several important matters are missing from your inquiry. It is essential that Florida have jurisdiction over your husband for the entry of the divorce, not only to enter the actual order dissolving the matter, but for the purposes entering valid orders concerning the children and alimony. Assuming you and your husband were residing in Florida as husband and wife, along with your children, and at least one of you is a bona fide resident of the state, then it is likely that Florida has proper jurisdiction as the children’s home state, as well as to enter the dissolution and for personal jurisdiction over your husband.
The next critical issue is whether your husband was properly served the summons and petition. If so, after 20 days has passed (not including the day of service) and no response or other material has been filed with the clerk by your husband, you may apply for the entry of a “default.” If all is properly done, the clerk in your circuit should issue a “clerk’s default.” This means your husband will be deemed to have admitted the allegations in your petition. Keep in mind that although your husband has defaulted, the court will still likely allow him to argue the children’s issues and monetary issues concerning support. However, if your husband never shows up, then the court should issue a final default judgment dissolving the marriage and entering the remaining relief requested – again, provided the court has proper jurisdiction.
Venue
QUESTION
I live in Fort Lauderdale and my husband lives in Naples. Can I file for divorce in Orlando? Do I have to go to the Orange County court for the court hearing?
ANSWER
Yes – if you both agree to that venue. Otherwise venue (the counties where the case may properly filed) must be the last place you both lived as husband and wife, or where the Respondent currently resides (Naples). You can use any county you stipulate to in writing.