FAQ’s – Divorce

FAQ: Divorce

The team at Jupiter Legal Advocates has put together this divorce faq list that may help answer questions you have about divorce issues you may be facing or considering.

If you don’t see your question answered here – please email us at info@jla.legal so we can help you.

Divorce FAQ

Am I entitled to Alimony?

After being together 12 years married 5, am I entitled to alimony?

We have 3 kids – one of them his – my stepson (not adopted) and the twins, which are mine and his. We own a home and have a new vehicle loan but no outstanding debts?


The simple answer to this divorce faq is “maybe”.

FAQ: Divorce


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 20 years, it is likely to be awarded, but in marriages of less than 10 years, unlikely.

Between 10 and 20, there are many factors that the court must consider.

Can a divorced man make his ex change her last name back to her maiden name?

I have been divorced for several years and remarried, yet my miserable ex still calls herself Mrs. _________.

Can I do anything to make her change it? It is embarrassing!


In most states the answer is no – there is nothing that can be done.

Some states would permit you to have petitioned at the time of the divorce, but it would seem that almost all states would limit the amendment and re-opening of your prior divorce, absent fraud or some criminality, to a very short period of time, i.e., 30 days or so.

My ex-husband is saying our divorce wasn’t finalized and I’m re married if this is true what would that mean 4 me?

Although I am a Florida attorney, I believe the laws of any state would be the same for this divorce faq.

If your divorce was not finalized, then you are still married to the first husband.

If you were married at the time of your application for your second marriage license, you were not eligible to be re-married and the marriage is what we call “void ab initio” or “it never was”.

You need to get to any 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.

Can the court kick me out of my house in the divorce?

I was divorced in November of 2009 and in the divorce, I was allowed to keep my house as part of the settlement. I would have to refinance the house by November 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 November of 2010 and then we should start the bankruptcy process.

So, 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 can’t get it refinanced by the 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.


For this divorce faq, 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 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.

There is a better way to handle this.

Contact your ex and get his consent to your continuing in possession and not requiring a refinance. Get it IN WRITING! Then submit this to the court as a modification of the final judgment. Any self-help center in any of the courts can help with this.

divorce faq
Can I be forced to leave my home?

My Husband wants to file for divorce.

He is the only financial provider, and he wants me to leave our home! I have no money. Can he legally make me leave in the divorce?


Do not leave the home so long as you are safe and secure there.

I must warn you that 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, then 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 some support required.

I don’t know if there are children, but they are certainly entitled to remain in the marital home. You may want to call legal aid if you have no funds. They will review your financial situation and may provide an attorney at little to no charge.

Can my Florida divorce filing be dismissed if my out-of-state ex doesn’t respond?

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?


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.

Assuming that you, your Husband and the children were residing within Florida as husband and wife, and that at least one of you is 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, then once twenty 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 that your husband will be deemed to have admitted the allegations in your petition. Keep in mind that although your husband has been 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.

What am I allowed to include in a child custody parenting plan?

I am trying to obtain custody of my daughter – there is presently no order regarding her other than a child support order. Her father has moved a girl into his home only knowing this woman for a week. I do not feel it is safe nor unreasonable for my request that my child not be around this woman until he gets to know her.

I believe that it is confusing her. Can you place a stipulation in your parenting plan to address this situation from occurring regarding both parties?


Simply stated “yes” you can, but it is very very hard 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 certainly agree that you must jointly agree on who will care for the child in the absence of both parents, i.e., a babysitter who is agreed to mutually.

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 now 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’s 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 may be ludicrous and without merit.

What are the legal implications of an ex spouse continuing to use health plan without notifying employer they were divorced?

If the ex-spouse continues to use the health insurance because the employer never notified the employer of the divorce, what can happen?

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 that they may adjust the policy and provide the terminated former spouse with their rights under the contract.

Can someone be deported as part of a divorce? What if there are children involved?

My friend wants to divorce her husband who is a permanent resident in the US. he emotionally abuses her and treats her terrible and cheats on her and he is fed up. She, however, is illegally in the US (overstay 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 yr). She really doesn’t want to lose her kids.

Any suggestion?


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.

My wife left me – can I change the locks legally?

My wife left me two days ago. She is staying with her parents in the same city as me. Can I change the locks legally?


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.

Change Locks FAQ

I have had this happen too many times for it to be funny. I also think it 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 involved the eventual removal of goods and possessions from the home without agreement of both parties.

I have had clients take their things and put them in storage unit for safe keeping, but make sure you videotape the possessions and have a trustworthy friend assist so there is not accusation that you have hidden or stolen the marital goods.

Keeping them safe is ok, while 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, get into mediation and settle these silly property issues asap.

What are the requirements of alimony?

I live in Orange County, FL and divorce is filed in same. What does this circuit/district require, or state is alimony for marriage of 13 years and 11 months at separation? He makes 6-figure income; she has been home maker all the years but holds a master’s degree with income potential at 40,000.00. There are also 2 middle school age children.


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, husband or re-marriage of the spouse who receives it (Permanent).

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 marriage of over 20 years.

Marriage of 10-20 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 with Permanent to permit a spouse to become educated and re-enter the work force, based upon a plan of rehabilitation.

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.

What am I allowed to bring up to the judge at our custody trial?

I am representing myself in a custody case. My ex claims that I have violated our divorce contract when I have not. But he has fabricated allegation 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 in which he has said that he hopes to cut me out of our daughter’s life.

In that trial can I bring up the infractions that he has made against the divorce and custody agreement? I want to shed some light on what he has done in front of a judge, but I’m not sure if I can do that at the trial.


This is a tough one to answer as courts generally only are able to hear matters that are properly noticed to be heard, and there are many complex rules of procedure and evidence that ensures that people get fair hearings.

If the issue is custody, 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 they have to demonstrate to the court that as a second issue, whether the change is custody 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 know whether or not these matters should be allowed in court.

What’s required for residency in another state during divorce?

My husband and I moved to FL 2 ½ years ago. I took a vacation with my son to see my family and am wanting to file for divorce. I would like to stay in Colorado. I have been getting mail at my mother’s address for over 2 years and want to know if that is sufficient to be considered a resident.


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.

How does infidelity impact alimony and property in a divorce?

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 daughter is 22 and lives with her boyfriend most of the time, and so husband has been sleeping in her room for many months.

I have heard him in conversations that are obviously with women on his cell phone while he’s in my daughter’s room late at night or he goes outside to talk.

My son is 19 and still lives at home with us and he 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, but I feel his infidelity should make him responsible for everything.


This divorce faq highlights 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 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 it is more than twenty 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 same 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.

He controls our finances- how can I get access so I can leave?

I don’t have access to any of our (his) bank accounts. I don’t get an ‘allowance’. He does all shopping and anything that I would need to have money for.

What do I do so I don’t have to run away with my minor child and absolutely no resources? That is not an option.

We aren’t in any immediate danger, but I don’t know how long that will last.

He has, on several occasions, threatened to cause serious bodily harm. I don’t want to wait around for him to follow through on his threat.

I’m not able to work due to serious medical conditions that are not getting looked after (that costs money too).

As you can imagine I’m feeling like I’m stuck between a rock and a hard place with no way out.

Please help me and my son!? With all sincerity, Thank you.


You need to contact the Palm Beach County Legal Aid Office. They are in the phone book. They can evaluate your case and let you know if you are eligible for assistance from them, which could include a free attorney.

Otherwise, you need to find an attorney who is willing to wait to get paid when the court awards fees and costs. Have you considered borrowing money from a friend or a relative, or perhaps opening a charge account and paying the attorney with a charge card?

How can my injured brother get child support from his ex?

My brother returned home from Iraq with an injury last June. He is only receiving workman’s compensation benefits and cannot return to his field.

He gave her $4500+ per month support while he was away. His wife moved a 23-year-old into their bed & 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. 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.


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.

How does shared parenting affect finances and taxes?

This has been an ongoing issue, now to the point where he has helped destroy my relationship with my oldest son, who’s not his. Also, he refuses to cooperate with our child’s medical issues.

I can’t discuss any issue without a fight when it comes to our child. He refuses to believe our son has a mood disorder. He calls bipolar disorder “crazy”, claims my physical ailments are “fake”, uses intimidation tactics to get his way… it goes on and on. We have joint custody.

I have our son more than half the time. He files taxes claiming him every year, expected me to give back the stimulus payment to avoid major penalties. Since the IRS nailed him, he’s on a roll. I want peace and to focus on my son. I am disabled… not dumb. Please give me some advice. Thanks!


You need to go back to the court and ask for a money judgment.

Be prepared to list all of your goods which have disappeared as well as proof of value (receipts etc.). The court should be able to enter a final judgment for this amount.

The judgment should then be recorded with the state. Eventually she will try to get credit, buy a house or a car and run smack into your judgment and have to pay you.

Can I choose the divorce venue?

I live in Fort Lauderdale, my husband lives in Naples – can I file a divorce in Orlando where your office is? Do I have to go to the Orange County court during the Court hearing?


Yes – if you both agree to that venue.

Otherwise, venue (the counties where the case may be properly filed) must be the last where you both lived as Husband and Wife, or where the Respondent currently resides (Naples).

You can use any county you stipulate to in writing.

How do I get my car back from my ex?

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. Thank you for your help.


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 you verbal agreement, then you may wish 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.

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