Florida Family Lawyer Blog

Many couples going through divorce find solace in playing the blame game—“I am getting a divorce because my spouse did this, that, and the other!” But just how far can that get you? In Florida, it probably won’t get you that far, and placing blame on your spouse, who is a party to your divorce proceeding, simply may not be relevant. That is because in cities like Fort Lauderdale, Florida, and in the state of Florida in general, divorces are based on a “no fault” premise. The Florida legislature, like in many states through the country, has essentially made the “fault” inquiry during a divorce proceeding obsolete because it allows either party to seek divorce without a showing of cause. In Florida, the magic words to plead in your petition for divorce are that the marriage is “irretrievably broken.” Pleading “my husband cheated on me (adultery)” will likely get you nowhere!

That being said, conduct such as adultery, which may in fact “cause” one party to initiate a divorce, can impact other determinations raised during the divorce proceeding itself. Easily stated, fault may not be grounds for divorce in Florida, but it may be relevant to other determinations the court may be forced to make. Specifically, in Florida, one party’s adultery may have significant implications for divorces that include child custody battles, equitable division of marital assets, and distribution of alimony. In our next blog entry (Part II), we will discuss how fault may affect the latter two categories. But for now, we will address how a party’s “fault” may impact child custody battles that increasingly occur during dissolution proceedings.

In child custody battles throughout Florida, before the court determines which parent should obtain custody of the child, the court must consider the “moral fitness” of a parent and what is in “the child’s best interests.” For this step, the court may consider both parent’s sexual conduct and whether the conduct had or is reasonably likely to have an adverse impact on the child. If adultery or marital misconduct is likely to have an negative effect on a child’s best interests, that court may take it into consideration when making its decision. Please notice the limitations of this standard, however. While the court is allowed to consider a party’s adultery or marital misconduct, such conduct will not necessarily establish that a parent is unfit to obtain custody. While other factors may be considered, and the determination of custody is within the sole discretion of the court, the scales may tip against an adulterer if adultery has a negative effect on the child. But even if the court determines that a parent’s adultery has had an adverse effect on the child, other factors, such as, cruelty, neglect and parental unfitness exhibited by the other parent may be present to tip scales back in favor of award of custody to the adulterous parent.

As Florida’s case law makes emphatically clear, what is in “the child’s best interests” is an extremely fact-sensitive inquiry. If the court does decide to base its decision to award child custody to one parent and not the other due to a party’s marital misconduct or adultery, that finding must be thoroughly explained on the record. If you are going through a divorce due to your spouse’s marital misconduct, and you believe that it has negatively affected your child, remember, the best advice would be to consult you divorce lawyer to discuss how to properly obtain custody. Please stay tuned for our next blog entry which will discuss how a spouse’s marital misconduct may affect the equitable distribution of assets and alimony awards.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Child Support , Equitable Distribution , No Fault Divorce

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As discussed in previous blog entries, Florida is an equitable distribution state. More specifically, the Court will divide the marital assets between the divorcing parties based upon all the facts of the case. The court begins its division analysis with a presumption that the marital assets and liabilities incurred by the parties during the marriage should be split equally, however surrounding facts and circumstances in a given divorce may alter the percentage each party receives. Assuming the marital assets are divided equally, another important issue to address is whether the definition of marital assets encompasses one spouse’s retirement accounts, IRAs, and 401k plans. The short answer is—it depends! How much of these accounts remains susceptible to equitable distribution in divorce depends largely on when they were created.

It is easy to see why division of martial property is one of the more challenging processes when going through divorce. In Florida, marital property includes any asset acquired during marriage by either spouse’s efforts. Additionally, Florida Statutes requires that a married couple’s vested and nonvested benefits, rights, and funds accrued during marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are all “marital assets” subject to equitable distribution. Therefore, all of a spouse’s retirement accounts, IRAs, and 401k plans are susceptible to equitable distribution even if they do not vest until after the parties separate. However, one important caveat stated within the Statutes itself, is that division of those assets will only result from a spouse’s employment time after the marriage but before the commencement of a dissolution proceeding (i.e., the duration of the marriage) because that is when the benefits accrue. For example, a pension plan balance prior to marriage and an increased value in the same plan subsequent to a dissolution proceeding cannot be subject to the equitable distribution of marital assets in the state of Florida. In this example, the pension owner would have the burden of establishing whether some portion of the pension benefits accrued prior to marriage.

How will the court determine the value of these accounts and what is the method of distribution? One Florida District Court of Appeal has explained that this determination generally requires complicated calculations in addition to expert testimony based on competent and substantial evidence. The preferable approach to such calculations includes reducing the fund’s present value by factoring in the contingencies of vesting, maturity, and the pension holder’s mortality. Once a final value is reached, it will then be equitably divided. In dividing a marital asset pension, however, courts have the following two options: (1) reduce the pension benefits to their present value (as previously discussed) and then order a lump sum distribution of the amount to the recipient spouse; or (2) direct that a portion of each pension payment be paid to the recipient spouse at the time of each payment. Because some pension plans may require an early withdrawal penalty, the second options appears to be more reasonable. However, some courts have chosen instead to apply the first option and simply reduce the pension holder’s interest in another piece of marital property and distribute that interest to the recipient spouse. Therefore, no early withdrawal penalties are implicated with either option.

If you are going through a divorce and have obtained many of these funds during the course of your employment, consult an attorney to consider your options.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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By now, many have heard a story that made national news just last month concerning a husband who while divorcing his wife demanded that she either return the kidney he donated to her or pay him $1.5 million dollars for its value. You can read more about the story here. In 1990, Dr. Richard Batista and his wife got married. In 2001, Dr. Batista donated his kidney to her. However, in 2005, Batista’s wife filed for divorce, and the proceeding is still ongoing. While Dr. Batista’s lawyer argues that her client wants the value of the kidney he donated to his wife, this issue raises a broader question concerning the division of marital assets and turns on whether a kidney should be classified as something other than marital property. Many divorce lawyers have stated that a donated organ is not a marital asset to be divided, but what exactly does that mean, and would this reasoning carry over in the state of Florida?

Like many states around the nation, Florida is an equitable distribution state, requiring that upon a dissolution of marriage proceeding, the court will distribute the marital assets and liabilities between the parties equally. As this policy suggests, this equitable division relies on the court’s determination of what may be considered marital property. In Florida, marital assets and liabilities include the following: (1) assets acquired and liabilities incurred during the marriage by either spouse; (2) enhancement in value of nonmarital assets resulting from efforts of either spouse during the marriage; (3) interspousal gifts during marriage; and (4) and benefits, rights, and funds accrued during the marriage. Florida law dictates the trial court must separately classify property as marital or nonmarital where it is not included in the 4-factor list previous mentioned. Where exactly does a donated organ fit in this scheme? If classified as marital property, then its “value” will get divided. If classified as nonmarital property, then the donated organ’s value will not get factored into any divorce settlement that is reached. Because it does not neatly fit into any one of the four categories, it is likely the trial court judge would make the ultimate classification.

The Florida courts have never faced such a tough and unique situation. If it ever does, perhaps it will follow what the New York State Supreme Court, New York’s trial court, has ultimately concluded. Just two days ago, the New York State Supreme Court marital referee Jeffrey Grob stated that it was not legal to place a monetary value on a human organ. The court held that human organs were not pieces of property to be divided like other marital property during divorce. Dr. Batista has appealed this decision.

What is to be learned from this case and its implications? Before going through a divorce, know what property is subject to equitable distribution. If you have any questions concerning what property will be divided between you and your spouse upon divorce, its best to simply consult an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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In Florida, paternity may be established through statutory action governed by the Florida Family Law Rules. Pursuant to Florida Statute, any woman who has a child out-of-wedlock may bring proceedings against an alleged biological father in one of Florida’s circuit courts to establish paternity. In this action, the mother must assert facts demonstrating paternity. Chapter 742 of the Florida Statutes dictates that paternity must be established by clear and convincing evidence either through the father’s open acknowledgement via sworn affidavit or through scientific tests that are generally acceptable within the scientific community to show a probability of paternity. If the mother successfully alleges facts establishing paternity, and the circuit court determines that alleged biological father is, in fact, the real father of the child, upon its discretion, the court may order the father to pay child support. In such a situation, the mother most likely will demand retroactive child support—that is, monetary support owed for previous years of unpaid child support. While the state of Florida allows the courts to award retroactive child support, the Legislature has placed severe limitations on just how far back the court is allowed to go when granting such an award.

While it is true that Florida courts have adhered to the proposition that passage of time excuses a parent from child support obligations, with Florida Statutes § 61.30(17), the Florida Legislature makes clear the court can only exercise its discretion to award retroactive child support for up to 24 months (2 years) prior to the date of a mother’s petition for paternity, child support, or both—abrogating the common law right that a child was entitled to support retroactive to the date of birth! Therefore, the maximum amount of back pay that a father will be required to pay in child support, assuming paternity is established, is a 24-month value of child support. Furthermore, retroactive child support, in every case, is computed pursuant to the traditional child support guidelines as applied to the parents’ actual incomes during the retroactive period. Additionally, the court should consider an installment payment plan for the payment of retroactive support.

Consider the following situation: Man and Woman met in 2004, had a very brief relationship that lasted several weeks, and they never spoke again. In 2008, Woman comes knocking on Man’s door, informing him that when they were together 4 years before, she got pregnant and had a child. Soon thereafter, Woman initiates an action in circuit court to establish Man’s paternity of the child. As it turns out, Man is the father and the court orders him to pay child support. In this situation, it is important to realize that child support is a right which belongs to the child, and that support is a dual obligation by both biological parents. That being said, the court, in its discretion, is only allowed to award retrospective child support for up to 24 months before Woman initiated her paternity action. Therefore, in this example, Man would only be responsible for the past 24 months of child support and for future child support, which is determined by the parents’ actual incomes during that period of time.

If you have questions concerning your duties as a biological parent for payment of retroactive child support, consult an attorney for additional advice.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Support , Establishing Paternity

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The economy is bad, the employment rate is plunging, and life just doesn’t seem to be getting any easier. An important issue that many recently unemployed white-collar workers may be facing is whether their current alimony payments to their ex-spouse should remain at the same rate. It’s not hard to imagine a scenario that when Husband and Wife were going through a divorce 3 years ago, Husband worked a management level position at a Finance Corporation in Boca Raton, was getting paid a high salary, and his wife was a stay-at-home mother living at the couple’s home in Fort Lauderdale. When Husband and Wife got divorced, Husband was required to pay alimony to Wife, the terms of which were set in accordance with Husband’s high-paying job at the time. But, now it’s 2009, Husband has lost his job, and because of the downturn in the economy, Husband has no employment prospects in the near future. Husband’s savings are declining at a rapid pace, and he can no longer pay the required alimony payments dictated by a three-year-old divorce settlement agreement.

At the time of divorce, the parties’ needs and abilities to pay are settled by a final judgment awarding alimony. However, a final judgment requiring one party to pay the other alimony may be modified or even temporarily suspended. A party may petition the court to modify alimony, but the moving party must show: (1) a substantial change in circumstances has occurred; (2) that the change in circumstances was not contemplated at the time the divorce settlement was reached; and (3) that the change in circumstances is sufficient, material, involuntary, and permanent in nature. In the fact situation described above, the first two requirements are easily met. Husband has lost his job and cannot find a new job, severely reducing his income – no doubt a substantial change. Furthermore, this change could not have been contemplated 3 years ago when Husband was gainfully employed. The real issue in this situation is whether the change in Husband’s circumstances is permanent enough to warrant a reduction, or at least a temporary reduction or suspension, in his alimony payments to his Wife.

Florida law dictates that a showing of substantial change in circumstances is sufficiently “permanent” when the conditions exist for one year or more. However, an important caveat to this general rule is that not all circumstances must adhere to this standard. In fact, there may be fact situations where the permanence of a situation can be proved right away. Could this just be one of those situations that warrant such treatment? A recent article made an interesting argument that with the downsize of the financial sector, it should be easier for unemployed and underemployed professionals to minimize alimony by arguing “their plunge in fortunes isn’t short-lived” and is most likely permanent in nature. That argument aside, in Florida, a temporary modification in alimony is appropriate where the court determines that Husband has suffered a reduction in income without deliberately seeking to avoid paying alimony and is acting in good faith to return his income to its previous level. In fact, when such a situation arises, the Husband’s alimony obligation should be reduced to be more commensurate with his current ability to pay. Also, a court may even suspend payments temporarily if such inability to pay arises. It’s important that in these uncertain times to take advantage of what Florida courts allow.

If you are currently paying alimony payments to your ex-spouse and have lost your job and do not see any hopeful employment prospects in the future, the best advice would be to consult a lawyer concerning your ability to either temporarily or permanently reduce your alimony payments.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Alimony , Divorce

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In the state of Florida, including the city of Palm Beach Gardens, an alimony agreement reached as part of a divorce settlement acts as a binding contract on the parties involved. An example of such an agreement would be where one spouse agrees to pay the other spouse $2000 a month in alimony for a certain period of time or until that spouse remarries. When parties enter into such an agreement in connection with a divorce, and the circumstances or the financial ability of either party substantially changes, either party may apply to the circuit court for an order to increase or decrease the alimony amount. However, it is well-established that the statutory right to petition for modification of an alimony award may be intentionally or impliedly waived. This waiver to modify alimony terms may be expressed within the agreement or through interpretation of the agreement as a whole.

Last month, the Palm Beach Post included an editorial “Divorced from reality,” discussing a 4th District Court of Appeal case, Craissati v. Craissati, that applied modification and waiver of alimony law to reach an absurd result. In 2001, a husband and wife divorced with a final judgment for dissolution of marriage, which incorporated the parties’ marital settlement agreement, including a provision for alimony. Pursuant to the terms of that agreement, the former husband agreed to provide 8 years of alimony in the amount of $2000 a month to his former wife. However, the agreement contained a clause providing for termination of alimony. That clause explicitly stated that any “future alimony payments owed to the Wife ends upon the death of either party, remarriage, or cohabitation with another person other than the parties’ child. ‘Cohabitation’ shall be defined as the Wife living with another person (not including the parties’ child) for a period of 3 (three) consecutive months or more.” The agreement then contained a waiver clause, stating that the terms and nature of alimony could not be modified by either party for any other reason except for the husband’s proven decline in financial condition.

In 2005, the former wife was sentenced to 9 years in prison in connection with criminal convictions for driving under the influence, leaving the scene of an accident and causing serious bodily injury. Thereafter, the former husband filed a petition for modification of alimony. Because the husband could only modify the terms of the agreement under the conditions previously mentioned, his lawyers got creative – and the 4th DCA bought their argument. To get around his agreement’s modification waiver, the former husband argued that the incarcerated wife was cohabitating with her cell mate, and during an evidentiary hearing, the wife stipulated that her cell lifestyle met the alimony agreement’s definition of “cohabitation.” The court agreed with the husband’s argument, and the wife’s alimony was cut off! To read the full case, click here.

What should we take away from this absurd result? Perhaps this case stresses the importance of proper drafting of settlement agreements. If you are going through a divorce, consult an attorney for advice about your settlement agreement.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Alimony

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In these uncertain financial times, the specific terms of a child support agreement within a divorce settlement has become even more important than before. One important factor that parties to a divorce may forget, or may not even think to mention, is payment of their child’s college education. In today’s society, undoubtedly driven by education, a college degree has become the pinnacle of entering Florida’s workforce. Recognizing this, many Floridians decide to help pay for their child’s college education upon graduation from high school. However, when a child’s parents are going through a divorce, and child support obligations are being mentioned by both parties, the question of who must pay for a child’s college education is a matter that should be discussed.

Florida statute mandates that a parent is not legally obligated to support his or her child beyond the age of 18, the age of majority, unless the parent agrees to get around this by signing a binding contract or unless some type of statutory exception applies pertaining to a child’s disability or dependency. With the statutory exceptions, a parent may be required to support a dependent child where: (1) dependency is caused by mental or physical incapacity which occurred before the child reached 18; or (2) the child is “dependent in fact,” meaning that he or she is between the ages of 18 and 19, is currently enrolled in high school, and has a reasonable expectation of graduating before 19. Absent a court order, binding contract, or these two statutory exceptions, the obligation to pay the current child support for a child, including payment for secondary education upon completion of high school, is terminated when the child reaches the age of 18.

Where exactly does that leave a child of parents going through a divorce that just graduated high school, is 18 years of age, and needs financial support from his parents to attend college in his hometown of Fort Lauderdale, Florida? As stated previously, if a child is no longer “dependent” upon his or her parents, either through age or disability, a parent simply has no absolute duty to provide a child financial support, which unfortunately includes paying or helping to pay for an adult child’s college education. If you are a parent going through a divorce, and are worried about paying for your child’s college education, the best thing to do is to bring up the topic in preliminary discussions between the parties. Although a parent is under no legal obligation to provide support a child over the age of 18, the age of most college students, it is important to note that the support agreement may require a parent to pay support beyond the age of 18. Through contract, one parent may require the other parent to pay and be solely responsible for a child’s college education, thereby obligating that parent to pay reasonable costs associated with it. The exact terms should be stipulated in the contract. If the support contract fails to address this matter explicitly, the court is unlikely to honor the request. Getting around this failure would require one parent to make a motion to the court requesting a change to the terms of the support obligations within the divorce settlement agreement to include a provision for college education support. However, the decision to grant this motion is within the court’s discretion. The wiser route would be to include such a provision within the original divorce settlement agreement binding both parties to its contractual terms.

If you are going through a divorce and are concerned about your child’s financial support for his or her college education, please consult an attorney for more information.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Support , Divorce

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Sometimes a grandparent may come to the sad conclusion their grandchild’s parent is an unfit parent. In Florida, when the court determines child custody, a nonparent, such as a grandparent, may only be awarded custody of a child when clear and convincing evidence has been presented demonstrating that the child’s mother or father, or both are unfit and threaten the welfare of the child. Why is this such a hard burden for grandparents to overcome? Courts have repeatedly determined that parents have a natural and legal right to the custody of their children which the Constitution protects. Depriving parents of their natural right to parent is a drastic measure and in such circumstances the courts often proceed with caution.

The first question which must be answered is whether grandparents have standing to bring a claim for custody when the child’s parents, although allegedly unfit to parent, have not given up their custody of the child? In Florida, although grandparents do lack standing to bring a custody action against a child’s parents where the parents have not relinquished custody, if the grandparent seeks custody of their grandchild during a divorce or dependency action, grandparents may have a right to intervene. In a divorce proceeding, a grandparent cannot institute a separate cause of action to obtain custody of the grandchild, but may only be granted a right to intervene. However, a grandparent may separately petition for primary residential custody of his or her grandchild through a dependency proceeding. In this dependency proceeding, the grandparents may only be awarded custody if the court first determines the child is, in fact, a “dependent.”

The next, and more difficult step for the grandparent, is to establish why he or she should have custody of the child rather than the natural parent. In making the determination of whether a nonparent should obtain custody of a child rather than the natural parents, the evidence must clearly and convincingly demonstrate that the parent is “unfit,” meaning they lack the adequate ability to care for their child. A court must then decide whether it is in the child’s “best interests” to remain with his or her natural parent or whether it would be better for the child to live with the grandparent. The bottom line is this – the grandparents must prove to the court that the child’s parents are unfit in some significant way! Because the right to parent a child is a fundamental right, the courts will not intervene unless there is a clear and convincing showing that significant harm to the child is threatened if the parent retains custody. In evaluating the fitness of the parent the court will look to several factors, including: (1) parent’s moral unfitness (and if this bears on the child’s welfare – including if parent’s sexual conduct has had an adverse impact on the child); (2) whether the parent has a clear pattern of irresponsibility in the parental role; (3) the parent’s health, both mental and emotional; (4) any sign of alcohol or drug abuse; and (5) adultery or marital misconduct (but it must have a direct affect on the child). It is up to the a grandparent to clearly and convincingly show evidence of the parents’ unfitness (using these factors as guidance), and both parents are found by the court to be unfit, the court will award custody to a close relative who is fit, ready, willing, and able to maintain custody of the child– which in this example, is the grandparent.

There are two important caveats a grandparent of a child whose parents are unfit must recognize. First, where children are of sufficient age and intelligence, Florida courts have given credence to the child’s own preference in its determination of whether to place the child with his or her natural parents or a nonparent, like the child’s grandparent. But it is important to realize that this is just one factor the court will look to, and in no way controls that court’s final decision. And second, a court has the option to only award a grandparent temporary custody until the parent can establish that they are “fit” to parent their child.

Therefore, if you are a grandparent who believes that you should have custody of your grandchild due to unfit parents, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody

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It’s a simple fact that after divorce, circumstances between parties tend to change. A former husband and wife who have a 10-year old child together and went through a divorce 3 years ago, and obtained a child support order at the conclusion of their dissolution proceeding are in a different place in their lives and might even be earning substantially more or less money years later. This exact situation calls into question the appropriateness of a child support award that was based on parental income from three years ago. One of the most common issues family law practitioners deal with is the modification of child support orders. When awarding child support, Florida courts follow rigid guidelines to determine the income of each parent, how much each party can contribute, and allocating a support award based on total income, the proportional contribution of each parent to that income and the number of children the parties have together. Here is Florida’s Child Support Guideline Worksheet to get a clearer picture. However, because years may pass, and circumstances may change, Florida courts allow a party to petition for a modification of child support, but to do so that parent must plead that there have been substantial changes in circumstances in the payor parent’s income after the original order of child support was awarded.

The first step in a petition to modify a child support order based on a significant change in circumstances is to file a supplemental Petition for Modification of Child Support with the same court that entered your original child support order. A sample can be found here. The Florida Child Support Guideline Worksheet provides an exact estimate of monthly support a parent must pay depending on total income of parents, the proportional contribution of each parent to that income, the number of children they have together, and other individual circumstances. Information you will need to complete this form includes but is not limited to proof of monthly incomes, insurance information, proof of expenses and child care information. A situation warranting a modification of child support obligations may be the result of one party’s significant change in income. For example, if a non-custodial father in Fort Lauderdale, who was previously ordered to pay his ex-wife a specified amount of child support as per the Florida guidelines, incurs a dramatic increase to his income, the ex-wife may petition the court for a modification of child support because total parental income is the primary factor utilized by the Court when determining the amount of child support required. Therefore, the father’s significant increase in income has thereby increased the total income of the parents.

At the outset of this petition, it is important to note that the court will limit its ability to modify your child support order. This limitation is based on total parental income and significant changes that have been made thereto. A substantial change in circumstances based on change of income may be demonstrated where the party seeking the modification is able to prove the other parent’s income increased to such a degree where the difference between the existing monthly obligation and the amount provided for under the guidelines has changed by at least 15% or $50, whichever of the two is greater. If this qualification is not met, a change in income will not be proof of a substantial change in circumstances.

In modifying the child support obligation, the court will continue to use the child support guidelines to determine the new amount that should be awarded. Because the amount of monthly financial need is based on Florida statutes, the court will still take into account the total financial income of the parents and the number of children to reach the figure. If you wish to modify your spouse’s child support obligations due to his or her substantial increase in income, please consult an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Support

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In the previous post, we discussed that Florida law allows a party to a divorce proceeding to make a claim for attorney’s fees from the opposing party. More specifically, if one party makes such a request, the court will primarily consider the financial resources of both parties to make an order for one party to pay a reasonable amount to the other party for attorney’s fees, suit money, and costs. Because the relative financial resources of both parties to a divorce proceeding is the principal criterion the court examines in making this determination, I believe it is essential explore the concept of relative financial positions more fully.

Florida courts have repeatedly stated that when looking to the relative financial position of the parties, the first two questions which must be answered are: (1) does one party need attorney’s fees from the opposing party to pursue this divorce?; and (2) does the other party have the ability to pay for the other’s attorney’s fees? To make this determination, the court will require each party make an evidentiary showing of their respective assets and liabilities and make a comparison of each party’s independent financial resources. Recall from the last post that this comparison will not take into account money that a party’s family and friends are willing to share as aid. Also recall that it is not necessary that one party be completely unable to pay attorney’s fees in order for the other party to pay for them; it is only necessary that the party requesting attorney’s fees be in a substantially inferior financial position. A calculation of each party’s independent financial resources takes into account all circumstances and resources, including benefits that significantly enhance one party’s financial position, net income (and income-earning abilities), and the extent of their financial liquidity (like if the party’s assets are readily available).

Imagine a common situation in many states, including Florida. A husband and wife had been married in Fort Lauderdale for 19 years. During their marriage, the husband worked full-time making a great yearly salary while his wife remained unemployed to take care of the family. On their 19th year of marriage, husband and wife decided to get a divorce. That same year, the husband received a $100,000 bonus at work. Realizing the disparity in income between both parties and her inability to afford counsel, the wife requested attorney’s fees from her husband during the dissolution proceeding. In a similar case decided in Florida, the husband was required to pay all of the wife’s attorney’s fees and costs in the dissolution proceeding.

In another scenario, Florida courts have been reluctant to deny attorney’s fees to a requesting party simply because he or she has assets (because those assets are not necessarily readily available). For example, attorney’s fees were awarded to a former wife who was in an inferior financial position to her husband, and who would have to invade her assets to pay attorney’s fees for a dissolution proceeding. Similarly, in another case, a former wife was entitled to attorney’s fees and costs, even when all marital assets were equally distributed and the wife was awarded permanent period alimony. That court awarded the former wife attorney’s fees rather than having her invade her capital assets to pay the litigation costs because it would decrease her income. Furthermore, the husband was in a position to pay for all his fees and her fees combined out of his current income without digging into any of his own assets or investments.

It becomes clear that income-earning abilities appear to be of primary concern when making a financial comparison of the parties when one party requests attorney’s fees from the other party in a divorce proceeding. If you are going through a divorce and are a party that is in a substantially inferior financial position, it would be wise to discuss making a request for attorney’s fees with your attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Attorney's Fees , Divorce

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Pursuant to Florida statute, the court in a dissolution, child custody, or child support proceeding may order one party to pay a reasonable amount for the other party’s attorney’s fees. Furthermore, these fees may even include a party’s costs to maintain or defend any one of these proceedings, including enforcement or modification of support, custody or visitation. But in Florida, how does the court decide to award attorney’s fees and in what situations is it appropriate?

Awarding attorney’s fees is at the sole discretion of the judge, and in determining whether to award these fees to a party, the judge may consider the earning ability of the parties, the marital assets and liabilities each party obtained through the divorce proceeding, and those assets’ liquidity. It is important to note that in Florida applying for an award of attorney’s fees, suit money, or costs does not require additional support through corroborating expert testimony. Florida courts, through an order of attorney’s fees, ensure that both parties to a dissolution proceeding have the ability to be represented by competent counsel.

Although a judge looks to several factors when considering a motion for attorney’s fees or litigation expenses, the principal issue considered by the judge is the respective financial resources of each party. The primary elements of that issue include the requesting party’s inability to afford an attorney and the other party’s ability to pay for competent legal counsel. In Florida, courts will not order one party to pay the other party’s attorney’s fees in a divorce proceeding when both are on significantly equal footing with regard to their ability to pay their own legal expenses. This calculation does not include financial assistance that may be provided by family members or friends. However, it is not necessary that one spouse be totally unable to pay for legal expenses for the judge to require the other spouse to pay them. Furthermore, the determination of ordering one party to pay for the other’s legal expenses may also be made after the court considers the relative financial status of each party at the conclusion of a dissolution proceeding. Therefore, a spouse may not be entitled to legal fees where the “spouse in need’s” financial position was made equal to the other spouse through the award of alimony and equitable distribution of marital assets. The Florida statute which allows for the award of attorney’s fees in proceedings for dissolution of marriage, support, or child custody also requires the judge to consider other relevant factors in making his or her determination to order this award, including: (1) scope and history of litigation; (2) the proceeding’s duration; (3) each party’s merit in presenting their arguments; and (4) whether the litigation is being used as a means to harass the other party.

Other Considerations: Please keep in mind that there are several other factors the court will not look at in this determination for attorney’s fees. For example, it does not matter if one party prevails in the proceeding or if the party is to blame for the failure of the marriage (i.e., through adultery), the court will not consider these subjective factors in making its determination for attorney’s fees.

Settlement Offers: What if one party wants to settle before the proceeding gets more expensive but the other party, who will demonstrate need for attorney’s fees, wants the proceeding to continue? Well, there is no Florida case law or statute to suggest that a court will deny attorney’s fees in dissolution cases simply because one party failed to accept an offer of settlement, even if a refusal to accept was unreasonable.

Pre-marital contracts: Contract provisions, which are typically found in prenuptial agreements, which waive the right to attorney’s fees and suit money are given consideration by the court, but are not conclusive as to how the court will decide the matter. Therefore, the court considers contractual provisions along with all other pertinent conditions affecting the party’s need and ability to pay. For example, if one spouse had the other spouse sign a prenuptial agreement (a contract) before they got married, and that contract contained a provision stating that neither party would pay the other party’s legal costs in the event of divorce, the court must consider this in making its determination. However, if enforcing this provision would lead to fundamental unfairness, the agreement may not be binding and the court may exercise its discretion to award attorney’s fees.

Please stay tuned for the next post, where we will continue this discussion of awarding for attorney’s fees in dissolution proceedings.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Attorney's Fees , Divorce

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Florida law dictates that the mother of a child born out of wedlock is automatically considered to be the legal parent who is required to provide support for her child. However, if a child’s parents are not married to each other when that child is born, Florida courts will not automatically presume a man is the biological father and thus recognize the father’s duties and financial obligations to the child unless paternity is legally established. Take, for instance, this example.

Eight months ago, Jane Smith was living with her boyfriend, John Doe. A couple of months after moving in, John was told by Jane that she was pregnant and she believed that they could raise the child together. However, one month before the baby was born, Jane and John broke up. When the baby was finally born, Jane felt she was entitled to child support from John because she believed him to be the biological father. Establishing paternity for children born out of wedlock is important to both the mother and child because it is essential for the child garnering the same rights as children born to married parents – including child support and inheritance.

For Jane and John, the easiest way to establish paternity would be to bypass a court proceeding and sign an affidavit saying the child belongs to both of them. When a mother completes the affidavit she attests that she was unwed at the time of the birth and that the man identified in the affidavit is the biological father of the child. When the man completes the affidavit of paternity, he swears he is the biological father of the child and he will be responsible for the medical and financial needs of the child until adulthood. But this is really only an option when the identity of the father is certain. This administrative procedure is most convenient because it can be performed at the birth hospital before the baby is discharged or at the local Child Support Enforcement Office. If completed at the hospital, the parents, like Jane and John, typically, do not have to pay a fee. But if done outside the hospital at the Child Support Enforcement Office, and Jane and John were from Fort Lauderdale or Miami, Florida, they could sign an affidavit at a Child Support Enforcement Office located in either Broward or Miami-Dade County.

But what if Jane was uncertain that John was actually the father because she got pregnant the month before he moved in with her, and she had also been seeing another man? She never told John about her uncertainties, but John eventually discovered these facts before the child was born. In this situation, although there is a possibility he is the father, John would most likely question whether he was the father, and signing an affidavit attesting to his paternity would probably not be in his best interest. In this situation, if Jane wants child support, she would most likely seek judicial help through the issuance of a court order to establish John’s paternity. Through judicial action, John can either sign legal documents establishing paternity or support, or both, which the court will then adopt as a stipulation, or the court may hold a hearing to establish paternity and support. If John fails to stipulate that he is the father, the court must hold a hearing to determine paternity of Jane’s child. In this hearing, the court may order genetic testing. If the court found John to be the child’s father, the court must then order support for the child.

In Florida, the child support guidelines that govern divorce proceedings also apply to determine, modify, or enforce child support for children born out of wedlock. This may include authorization of retroactive child support to the date when the parents did not live together in the same household with the child, but cannot exceed 24 months before the filing of the hearing to establish paternity. Therefore, if John failed to pay child support during the month before and the two months during the court ordered hearing to establish paternity, because the court determined John to be the child’s father, he must pay child support for those 3 months and for future child support expenditures.

If you are the mother and presumed father of a child born out of wedlock, consult an attorney to determine your child’s rights to financial and medical support.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Establishing Paternity

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