Florida Family Lawyer Blog

No one wants to believe that their marriage will end in divorce, but unfortunately over fifty percent of marriages do. Prenuptial agreements are designed to designate what will happen to the marital assets and debts if the marriage does end in divorce. Under Florida law a prenuptial agreement will be presumptively enforceable so long as there is full disclosure of all assets by both parties to the agreement and both parties signed voluntarily.

Prenuptial agreements are most often used when one or both spouses have separate and significant assets. One spouse may have a large home in Boca Raton, while the other has property in Sunny Isles. Additionally, one spouse might own a family business, be the recipient of a large inheritance or have children from a prior marriage. An enforceable prenuptial agreement works to ensure that certain property and money remain with that spouse, such as their prior home and/or businesses, rather than being split among the parties.

As discussed above, it takes proper disclosure of all parties’ finances to have a valid and enforceable prenuptial agreement. Additionally, for the agreement to further stand up to enforceability, both parties must have signed it voluntarily. No member of the engaged couple should be under duress or coercion by their fiancé at the time of signing. A prenuptial agreement signed on the day of the wedding may not be enforceable as it may appear more likely that one party was pressured to sign.

A premarital agreement only becomes effective and enforceable upon the marriage of the parties. Yet even minor non-disclosure or slight pressure by one party may deem a prenuptial agreement unenforceable. If you or someone you know lives in the West Palm, Fort Lauderdale or Miami-Dade area and believes they entered into an unenforceable prenuptial agreement, the team at Koch & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

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

Posted In: Prenuptial Agreements

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Dependency proceedings are designed to help children escape unsafe home environments. If you live in Miami, Fort Lauderdale, Palm Beach or anywhere in South Florida and you believe that a parent or legal custodian has abused, neglected, or abandoned their child, you can initiate a dependency hearing by reporting the abuse, neglect, or abandonment to the Department of Children and Families (DCF) or by filing a dependency action directly with the court.
For dependency purposes, “abuse” is a willful or threatened act that results in physical, mental, or sexual harm that causes or is likely to significantly impair the child's physical, mental, or emotional health. “Neglect” occurs when a parent or legal custodian deprives their child of necessary food, clothing, shelter, or medical treatment, causing significant harm or a risk of significant harm to the child's physical, mental, or emotional health. A parent or legal custodian that is able to provide support for and communicate with their child “abandons” their child by failing to provide for the child’s support and making no effort to communicate with the child.
If you file a report with DCF, then DCF will investigate the allegations to determine whether it is necessary to take the child out of the home. If DCF determines that the child’s safety is at risk, DCF will remove the child from the home immediately and place the child in temporary custody.
Within 24 hours after DCF removes the child from the home, the court will hold a shelter hearing to determine where to place the child. The parties at a shelter hearing are a DCF attorney, the parent or guardian, the parent or guardian’s attorney, and sometimes a Guardian Ad Litem representing the child’s best interests. At the shelter hearing, the judge may decide to place the child with a relative, non-relative, or in a DCF licensed home.
If you believe that a parent or legal custodian has abused, neglected, or abandoned their child, it is essential that you take the steps necessary to ensure the child’s safety. The experienced attorneys at Koch and Trushin can help you get started with this process. Please feel free to contact us for an initial consultation.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Dependency

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Imagine that a Jewish father and a Christian mother divorce and the father wants to ensure that their child will be raised in the Jewish tradition. The father may petition for full custody of the child, or he may seek to enjoin the mother from exposing the child to Christianity. In South Florida’s increasingly multicultural community, this scenario is quite common.
Florida judges typically take a hands-off approach to religion in child custody cases because they believe a child’s religion is a private family issue, and is not for the courts to decide. Generally, parents must take “shared parental responsibility,” meaning they must confer on all major decisions, including religious matters, affecting their child’s welfare (Fla. Stat. § 61.13 (2) (b) (2) (a)). In fact, in Sotnick v. Sotnick, Florida courts are so hesitant to decide on religious issues in child custody cases that they will not enforce a signed contract in which both parents agreed to raise their child in a certain religious tradition.
However, courts may consider the desires of each parent when ordering “shared parental responsibility.” This is especially true when evidence suggests that a child’s well-being is at stake. In Vasquez v. Vasquez, the Fourth District Court of Appeals affirmed a trial court’s decision to require a mother to keep her children in Catholic school. Because the children were already attending the Catholic school, it would have been detrimental to their well-being to disrupt their education. Thus, the fact the school was a religious school was not the important factor, it was the fact that the court did not want to disrupt the children’s routine.
Moreover, in rare cases, courts may consider a parent’s religious beliefs as one of the factors in determining the child custody arrangement that is in the child’s best interests. For example, in Mendez v. Mendez, the Third District Court of Appeals affirmed a Florida trial court’s decision to award primary custody to a father because evidence suggested that the conflicting religious beliefs of the mother and father would make shared custody detrimental to the child’s well-being.
However, Florida law distinguishes between considering a parent’s religious beliefs in a child custody decision and conditioning a child custody award on a parent’s religious beliefs. Courts may not condition a parent’s child custody award on abstention from certain religious practices because this would violate the parent’s constitutional right to free exercise of religion. In Rogers v. Rogers, the trial court awarded child custody to a mother on the condition that she cut off all ties with a religious organization known as The Way International. Even though evidence suggested this organization brainwashed the mother, the First District Court of Appeals held that this conditional custody violated her constitutional right to free exercise of religion.
Because the issue of religion in child custody is so legally complicated, it is important to hire an experienced family law attorney to represent your interests. If you live in the West Palm Beach, Fort Lauderdale, or Miami area and are currently in the process of divorce, the experienced family law attorneys at Koch and Trushin can help you with this process. Please feel free to contact us for an initial consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Custody

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The economy may be turning around, but many people are still filing for bankruptcy. A current concern for many former-spouses and parents centers around what happens to their support payments if their ex-spouse files for bankruptcy. These concerned former spouses should be reassured that in Florida a parent or former spouse cannot use bankruptcy as a shield to avoid child support and alimony.

Imagine the scenario where Mother has been collecting alimony and child support from Father for the past 3 years. Father has suffered from huge debt since the divorce and decided that it may be time to start anew and file for bankruptcy. When Father misses an alimony and child support payment, Mother demands that he produce the support as ordered by the court in their divorce decree. Father, in response, states that he has filed for bankruptcy and he is not obligated to pay Mother anymore.

Father will soon find out that this is not the case. Instead of going to family court to enforce the order, it is important for Mother to bring this matter before the bankruptcy court. It is recommended that someone in this situation files a “non-dischargeability complaint” with the Bankruptcy Court which is resolving the matter in order to protect and preserve all rights to that support.

Not only will Father’s support payment not be discharged in bankruptcy, but any arrearages in support payments will be paid before any other creditor receives a dime. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 modifies several portions of the Bankruptcy Code, including adding this provision, for the purpose of placing financial support for ex-spouses at high importance.

Even though bankruptcy proceedings will not have an effect on the receipt of alimony and support, a debtor in bankruptcy can use this status as evidence of a substantial change in circumstances to attempt to reduce support and alimony payments in family law court.

A Bankruptcy trustee is required by law to notify any former spouse or support holder when the debtor files a bankruptcy petition. If you receive a notice that your former spouse or the parent of your child has filed for bankruptcy, consult a lawyer so you can preserve your rights in bankruptcy court and make sure your support gets paid first.

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

Posted In: Alimony , Child Support , Finances

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Alternative dispute resolution (ADR), which includes both arbitration and mediation, can provide avenues for divorce that are both more efficient and cost-effective than the standard divorce process involving the courts. In addition, ADR methods put more of the decision making in your hands rather than the judge. Trained ADR professionals are located throughout Florida, including Palm Beach, Broward and Miami-Dade County.

ADR is a very flexible way of solving disputes. It can be used to resolve every issue within the divorce, or be utilized to address only specific contested issues. As noted, there are two types of ADR methods typically utilized. First is arbitration, which closely resembles a trial process. In arbitration, each side calls witnesses and makes arguments. The ultimate decision lies with the arbitrator. The second method is mediation which leaves it up to the parties to settle each contested issue. The mediator is only there to help facilitate the process, but does not render any decision. If the parties do come to an agreement in mediation, then the terms become part of a contract which is enforceable by the court. However, with either method, there is a great deal of time and money saved by not going to court.

In addition, divorce mediation can tend to preserve important family relationships. As opposed to going to court and letting a judge make a decision on important family issues, mediation may facilitate communication and understanding between the parties. This helps to ensure that both parties are able to interact on a continuing basis with civility and respect with regard to one-another. These relationships are critical to the post-divorce process which includes carrying out the custody and visitation agreements and lessening the negative impact of a divorce on any children.

While some people choose to participate in arbitration and mediation without an attorney, it is unwise to do so. There are numerous pitfalls upon which an unrepresented individual may encounter if they do not have legal representation. For instance, an experienced attorney may be able to add important provisions in a custody or visitation agreement which could help the parties avoid going back to court six months or a year later based on an issue they did not think of when drafting the original agreement. Often times in arbitration, the parties have to provide legal arguments and defenses to the arbitrator which an experienced family law attorney may have a much better chance of success at. In the end, when dealing with issues of the custody of your children, payment of child support for years to come and deciding when and how often you may visit your children, it is critical to have an effective family law attorney in your corner. If you live in the West Palm Beach, Fort Lauderdale or Miami area and are currently in the process of divorce, the experienced family law attorneys at Koch & Trushin can help you through this process. Please feel free to contact us for a free initial consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Arbitration/Mediation

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This article follows up our March 29 entry regarding the termination of parental rights in Florida. As stated in the previous article, the termination of parental rights is a substantial act impacting fundamental rights. Our society highly values a parent’s right to raise children as they see fit. You lose your right to see them, call them or talk to them in any way. You may lose your ability to impact their medical care, their education, and raise them as you see fit. Therefore, if a judge rules that your parental rights are terminated, it becomes very important to know the proper appeals process so that you may regain those rights.

In general, to terminate parental rights, the trial court must find by clear and convincing evidence that one of the statutory grounds has been established under Florida Statute § 39.806 (discussed in prior article). Clear and convincing evidence is defined as an intermediate level of proof that court must reach to prove violations of the statutory grounds. Clear and convincing is between the lower level of preponderance of the evidence used in most civil trials and the very difficult “beyond a reasonable doubt” standard used in criminal trials. Second, the trial court considers the manifest best interests of the child by evaluating all of the relevant factors, including statutory factors referenced above.

While a trial court's decision to terminate parental rights must be based upon clear and convincing evidence, the appellate court’s review is limited to whether competent substantial evidence supports the trial court's judgment. Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). If the appellate court determines that there was substantial competent evidence to support the trial court’s decision, it will most likely affirm, or in an other words, will not overturn the trial court’s decision.

Florida Statute § 39.815 allows any child, any parent, a guardian ad litem of any child or any other party to the proceeding who is affected by the court order to appeal to the appropriate appellate court. In West Palm Beach, a parent can seek relief through the 4th District Court of Appeals, in Fort Lauderdale one would also appeal to the 4th District Court of Appeals, whereas in Miami a parent can seek relief through the 3rd District Court of Appeals.

Under Florida Rule of Appellate Procedure 9.110, you have only 30 days from the order of the trial court to file a notice of appeal with the clerk of the court.

Appealing the termination of parental rights in Florida is a difficult process. If you live in the Palm Beach, Fort Lauderdale or Miami area and seek to appeal an order terminating your parental rights, you must do so within a limited window of time. The experienced family law attorneys at Koch and Trushin can help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation

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

Posted In: Parental Rights

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During the long and drawn out divorce process, parents may feel that they cannot by themselves ensure that both the judicial system and their ex-spouse act in the best interest of the child(ren). The parents can easily be so wrapped up in their own problems or needs that they fail to see the situation from the perspective of the child. To address this type of situation, Florida statute 61.401 grants a court the power to appoint a guardian ad litem during dissolution of marriage to solve that issue. This individual is appointed to represent the best interests of a minor in the divorce process.

Under Florida law, either party in a family law proceeding can file a motion for appointment of guardian ad litem with the clerk of the circuit court. The proper form to be used is Florida Family Law Form 12.942(a). The guardian ad litem would then be appointed by the proper county court where the case was filed, whether it was in Palm Beach, Broward or Miami-Dade county.

A guardian ad litem may either be a volunteer who has been trained and certified by the State of Florida Guardian ad Litem Program or an attorney who is a member in good standing with The Florida Bar. Guardians ad litem are professionals and therefore must observe all rules and regulations concerning confidentiality while also being objective in their investigation and recommendation for the child. Guardians ad litem represent the best interests of children involved in court proceedings. They report directly to the judge.

If you live in the West Palm Beach, Fort Lauderdale or Miami area and are currently in the process of divorce, the experienced family law attorneys at Koch & Trushin can help you navigate this process to ensure the proper protections for both you and your child(ren). Please feel free to contact us for a free initial consultation.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Guardian Ad Litem

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Under Florida law, the court determines all matters relating to the custody of children based on what is in the best interests of each child. The public policy of Florida stresses that minor children should have frequent and continuing contact with their parents after a divorce. Therefore, the court will order shared parental responsibility for each child, after a divorce, unless they find that allowing this would be detrimental to the child. Because the parents are equally responsible for sharing in the upbringing of each child, if one parent must relocate and wants to take the child with them, this creates the problem of removing the child from the jurisdiction.

Under Florida statute 63.13001, relocation is defined as moving at least 50 miles from your current place of principle residence. Thus, a move from Miami to West Palm Beach would qualify as relocation. If you relocate more than 50 miles and take your child with you, then you are removing the child from the jurisdiction. Both parents may voluntarily enter into an agreement by themselves which allows for relocation of one parent from the jurisdiction and taking the child with them. If this is not feasible, then the court is allowed to grant permission for removal of a child from the current jurisdiction. Under the Florida Statutes, in making a determination as to whether the primary residential parent may relocate with a child, the court must consider the following factors:

• Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
• The reasons each parent is seeking or opposing relocation.
• The extent to which visitation rights have been allowed and exercised.
• Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
• Whether the substitute visitation will be adequate to foster a feasible and continuing meaningful relationship between the child and the secondary residential parent.
• Whether the non-custodial parent has been highly involved in the child’s life.
• Whether the cost of transportation is financially affordable by one or both parents.
• Whether the move is in the best interests of the child.

Under Florida law, removing a child from a jurisdiction is very fact sensitive and dealt with by the courts on a case-by-case basis. If you need to relocate to another jurisdiction and want to take your child with you or you want to fight for your child to remain in their current jurisdiction, the experienced family law attorneys at Koch and Trushin can help you with this process. Please feel free to contact us for an initial first consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Relocation of Child After Divorce

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Termination of parental rights is a court order severing the rights, powers, privileges, immunities, duties, and obligations between a parent and child. This termination may be voluntary or involuntary and can sever the rights of one parent without affecting the rights of another. The laws concerning the termination of parental rights in Florida are found in the Florida Statutes chapter 39. Specifically, Florida Statute 39.806 lists non-exclusive grounds for termination of parental rights:

- Abandonment or Extreme Parent Disinterest
- Abuse/Neglect
- Incarceration of Parent/Felony Conviction
- Sexual Abuse
- Child Judged in Need of Services/Dependent
- Extreme Alcohol or Drug use by Parent
- Felony assault of child or sibling
- Murder/Manslaughter of sibling child

The petition for termination of parental rights may be filed by one of the child’s parents, the guardian ad litem or any other person who has knowledge of the facts alleged against the parent(s) or is informed of them and believes that they are true. It is up to the judge to ultimately determine whether severing parental rights would be in the best interest of the child(ren). Once the judge hands down his or her decision, a parent or guardian may attempt to get their rights back through the standard appellate process. In West Palm Beach, a parent can seek relief through the 4th District Court of Appeals, whereas in Miami a parent can seek relief through the 3rd District Court of Appeals.

The termination of parental rights in Florida can be an emotional and complex ordeal. If you live in the Palm Beach, Fort Lauderdale or Miami area and seek to terminate someone’s parental rights or believe the your rights were improperly terminated, the experienced family law attorneys at Koch and Trushin are willing to help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Parental Rights

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The current economic condition has left many spouses in the difficult position of being forced to make their required alimony payments. If you are the spouse who must make these payments and you are making less money than you were at the time of your support determination, then you have two options. The first option is to exercise your legal grounds and petition the court for a downward modification of your alimony payment. The second option is for both parties to reach an agreement on the alimony issue and file a notarized settlement agreement with the proper court whether it be in West Palm, Fort Lauderdale or Miami.

The Florida Statutes grant grounds for modification by the court of alimony in section 61.14(1). When circumstances change, either spouse may file a request with the court for modification of alimony payments. However, the party who petitions for a modification of alimony must show that a substantial change has occurred. "Substantial" means significant, involuntary and permanent. A showing that an individual’s income has been reduced is often not enough to justify modification by the court. Additionally, the spouse who has to make the required payments must show that they have no other funds in their possession which could be used to keep current with the alimony obligation.

As to the second option, both parties can reach a settlement agreement amongst themselves regarding a modification of alimony payments. There is no actual form for this in the Florida Family Law Forms but so long as both parties sign the settlement agreement before a notary public and file it with the court, it will be valid. If both parties agree to a modification agreement, it will be necessary that the agreement details not only the percentage of downward modification but also the length of time this modification will be in effect. As to either form of modification, both parties and their attorneys must ensure that the children and the parents are financially stable after the modification.

The divorce attorneys in our Fort Lauderdale and Miami offices can evaluate the complexities of alimony modification and help you reach the best possible outcome. Please feel free to contact us for a free initial consultation.

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

Posted In: Alimony

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Credit card debt is an everyday fact of life for most Americans, but it can cause additional stress in the context of a Florida divorce. If you or your spouse have extensive amounts of credit card debt, a family law attorney can help you determine what portion of the debt, if any, is your responsibility.

Florida law requires that marital debt be distributed equitably between spouses during a divorce. This means that both parties are generally responsible for any debt accumulated during the marriage, regardless of whose name is on the charge account. However, if one spouse can prove the debt existed before the marriage, the debt should not be treated as a marital obligation, and a judge may order the original debtor to pay the entire debt. Problematically, credit card companies are not bound by court orders allocating responsibility for debt.

For example, Husband and Wife are getting a divorce and they owe $6,000 on three different credit cards. Husband has a balance of $1000 on an American Express card in his name. The American Express Card is only in Husband’s name and the entire balance existed before the marriage. The couple owes $500.00 on a joint Visa charge account used to buy groceries and household items. Additionally, Husband and Wife owe $4,500.00 for home repair items on a Home Depot credit card taken out in Wife’s name.

What is “Marital Debt”?
Under Florida law, debt incurred during a marriage is presumed to be marital debt. Likewise, debt that one party accrues individually before marriage is generally be non-marital debt. Based on the facts of this example, the $1,000 American Express balance is Husband’s non-marital debt. The Visa and Home Depot cards were used during the marriage to acquire household goods and to improve the value of the marital home, so the $5,000.00 owed on these cards is marital debt.

Who is responsible for paying for marital debts?
There is a general presumption that marital liabilities (and marital assets) should be distributed equally between the parties. However, Florida law requires the EQUITABLE, not equal, distribution of assets and liabilities in a divorce. To determine what constitutes an equitable distribution of marital debt, the court will consider many factors, including: each person’s contribution to the marriage, any contributions one party has made to other person’s education or career, whether either party has intentionally depleted or destroyed marital assets and other equitable factors.

Why the judicial disposition of credit card debt leaves you at risk:
A divorce decree will order the parties to pay their respective shares of the credit card debt, but this can still leave one, or both, of the parties in a precarious financial situation. Credit card companies are not required to abide by a divorce settlement and, instead, will hold whomever is listed on the account responsible for the debt. For example, if the $5,000 in marital credit card debt was divided equally between Husband and Wife in the example above, the credit card companies could hold Wife legally responsible for all of the debt! This is because one card was taken out in her name and the other card was opened by both parties. If Husband fails to make payments on his portion of the debt—or even makes one or two late payments—Wife’s credit score could be adversely affected and she might face serious financial repercussions.

How you can protect yourself:
An experienced divorce attorney can help you structure your divorce settlement in a way that prevents exposing you to these risks. For more information on reaching a divorce settlement that protects your long-term financial stability, contact one of Koch & Trushin’s family law attorneys for a free initial consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Finances

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On October 1, 2009, the Florida legislature enacted Florida Statute 61.13001, which outlines the steps parents must take before they relocate their child or to prevent their child’s relocation. If you are a parent in Fort Lauderdale, Miami or Palm Beach and you are planning to move more than 50 miles from your current home, you must obtain either: (1) written permission from the other parent or (2) a court order permitting the relocation. Likewise, if you want to prevent your child’s other parent from moving with your child out of this area, you must act carefully to protect your rights.

If parents disagree over the potential relocation of a child, the parent seeking relocation must serve a Petition to Relocate on the other parent. The petition must be signed under oath and must include specific allegations required by Florida Law. Failure to serve a petition meeting these requirements and/or relocating your child without a written agreement or a court order will be considered contempt of court and may result in: the court forbidding the relocation, a change in the standing timesharing agreement (previously referred to as custody agreement), a court order demanding the return of the child, or the relocating parent being forced to pay the other parent’s attorneys fees and all travel expenses related to visitation or the return of the child.

Once a petition to relocate is served, the other parent has 20 days to file an objection. If the other parent fails to file an objection, the court will presume the move is in the best interests of the child and enter an order allowing the relocation and adopting the timesharing and transportation arrangements contained in the petition. If the other parent objects to the relocation, the relocating parent must prove that the move is in the best interests of the child. The court must consider many factors in determining whether to allow the relocation, including:

• The nature, quality and duration of the child's relationship with both parents and with siblings, half-siblings, and other significant persons in the child's life.
• The likely impact the relocation will have on the child's physical, educational, and emotional development.
• Whether the substitute time-sharing arrangements are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent.
• The likelihood of compliance with the substitute arrangements by the relocating parent.
• The child's preference, taking into consideration the age and maturity of the child.
• Whether the relocation will enhance the general quality of life for the parent seeking the relocation and for the child.
• Each parent’s reasons for seeking or opposing the relocation.
• The current employment and economic circumstances of each parent.
• That the relocation is sought in good faith.
• Whether the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and marital property obligations.
• A history of substance abuse or domestic by either parent.
• Any other factor affecting the best interest of the child.

As demonstrated above, once you have a child with another individual you cannot simply decide to unilaterally move out of state, there is a specific procedure you must follow. If you are a parent who wishes to relocate your child or to prevent the relocation of your child, the family law attorneys at Koch & Trushin can help you present your case to the court in the best light possible. Please feel free to contact us for a free initial consultation.

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

Posted In: Relocation of Child After Divorce

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