Florida Family Lawyer Blog

Christy Brinkley aside, it is no doubt that the rich and famous continuously seek privacy when going through a divorce. In Florida, however, the rich and famous are not the only people who want to seal their court records during a divorce proceeding. Because Florida is subject to “sunshine laws,” all civil court documents are generally made public absent extraordinary circumstances. The Florida Supreme Court has stated that parties seeking dissolution of their marriage are not entitled to a private court proceeding because they are required to use the judicial system. See Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113, 119 (Fla. 1988). However, the Court has carved out some noticeable exceptions.

Not all family law proceedings are made public. Florida, as a matter of public policy, has certainly made specific civil proceedings confidential, such as adoptions, actions to determine paternity, and juvenile proceedings. And while some states, like California, have taken the extra step to limit public access to divorce proceedings, Florida has not taken that stance finding that a presumption of openness must apply to dissolution proceedings in the same way it applies to other civil proceedings. Furthermore, if you find yourself going through a public divorce, even an agreement between you and your soon-to-be ex-spouse to keep the records private cannot overcome this presumption because parties seeking dissolution of marriage are simply not entitled to private proceedings.

I know what you’re thinking – is it impossible to have my divorce proceeding records sealed? Although it may seem that way, the Florida Supreme Court has stated that closure of court records may occur when it is absolutely necessary to comply with well established public policy that has been laid out in the Florida Constitution, statutes, rules, and case law. As it pertains to dissolution proceedings in Florida, sealing such court records have been necessary to avoid substantial injury to innocent third parties, oftentimes children, when substantial compelling circumstances have been demonstrated. It is intended that this exception be applied to protect the interest of minor children from offensive testimony and to protect children in a divorce proceeding, in general. The party wishing to seal the records has the burden to demonstrate that closure is needed to protect the child.

If you wish to seal your dissolution records, you have to make a request to the circuit court in the form of a written motion, such as a “Motion to Make Court Records Confidential.” This motion must: (1) identify the exact records you wish to make confidential without revealing the confidential information and (2) explain your basis for making these records private. In Florida, any court record that is subject to this motion will be treated as confidential until a ruling by the court has been made. It should be noted, however, that keeping your public dissolution proceedings private in Florida is an extremely difficult burden to overcome and judges have discretion in their decision to grant confidentiality. If you feel you have a strong reason to seal your records, consult with an attorney to discuss your full options.

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

Posted In: Divorce , Divorce Records

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Does Florida even allow custody and visitation rights for a dog, a cat or other pet? The short answer to that question is no (see Bennett v. Bennett below); family pets are treated as property, which taken together with other marital assets, must be divided equally (Florida is an equitable distribution state). For instance:

It was your fifth year as a married couple, and to your surprise, your husband brought home a puppy named Spot. Over the next several years, both you and your husband walked the dog, fed him, and played with him. In return, Spot provided both of you with love and affection, and even protected you on the mean streets of Miami. In fact, you all grew quite attached to one another. However, you and your husband are now going through a divorce and you have moved to Fort Lauderdale. In addition to asking the Court to divide the marital assets, you also want the court to determine who gets custody of and/or visitation with Spot. Is there any fair way to do this when both of Spot’s owners are going their separate ways?

It was Florida’s landmark decision in Bennett v. Bennett, which held that although “a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property.” 655 So. 2d 109, 111 (Fla. 1st DCA 1995). In that case, the trial court awarded “custody” or the parties’ dog to the husband and gave visitation rights to the wife. After the judgment was rendered, the wife filed a motion for a change in custody, arguing that her ex-husband was interfering with her visitation rights. And although the trial court granted the wife’s motion, effectively giving her visitation with the dog every other month, Florida’s First District Court of Appeal reversed it in Bennett v. Bennett. This decision put a “nail in the coffin” to the idea that a family pet could garner custody and visitation rights (like a child) after its owners’ divorce. In line with this decision, because a dog is personal property, a Court must award possession of the animal pursuant to the dictates of Florida’s equitable distribution statute. The Bennett court reasoned that this is the appropriate outcome because no authority in Florida case or statutory law enables a trial court to grant custody or visitation pertaining to personal property.

It is true that several other states have given family pets a “special status” within divorce proceedings; the Bennett court believed this course was “unwise.” According to the Bennett court, in Florida, the courts are already overwhelmed with pending family law matters involving humans (custody, visitation, child support, etc.), doing so with animals will prove even more burdensome by adding to the already overworked and understaffed court system.

To go back to our hypothetical from the introduction, it would be wise to circumvent the court when establishing custody rights to your pet. To be safe, before the conclusion of your divorce trial, create a written agreement laying out custody of and visitation with Spot. If you leave the matter in the hands of the court, Spot will just be considered another piece of property that needs to be divided.

If you are going through a divorce and are concerned about the custody of your pet, consult an attorney to consider your options.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Pet Custody

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In a previous post we discussed formulating an agreement between you and your ex-spouse when you want to move your minor child more than 50 miles away after residency has been determined in dissolution of marriage proceeding (your divorce). In that example, we said that the primary residential parent is living in Fort Lauderdale, and she wanted to move with her child to northern Florida. Let’s use that same example. However, instead of formulating an agreement, mom realizes she will never be able to come to a complete, written agreement with her ex-spouse concerning the relocation of her child. Rest assured, there is another avenue at her disposal affording her the opportunity to legally relocate to northern Florida with her child.

In Florida, unless there is a written agreement between the parents concerning the relocation of their minor child, a mother who is entitled to primary residency of this child is permitted to take other steps to ensure her notification to the father is proper. Mom’s first step must be to notify the other parent of the proposed relocation of the child’s principal residence by preparing a Notice of Intent to Relocate. Here is a sample one.. Such notices must conform to the Florida Statutes, therefore, please look to the our sample to ensure proper compliance with Florida laws.

To encourage resolution without court involvement, Florida provides that the mother should first serve the notice upon the former husband. The mother should only file with the court if her ex-husband objects. When first serving it upon the father, her official notice should include a Certificate of Filing Notice of Intent to Relocate, which certifies the date it was served. And finally, absent a pending court action, the mom can serve this notice via certified mail, restricted delivery, with a return receipt requested.

After your notice has been served, the non-residential parent has 30 days to object. If the non-residential parent fails to object within this time-frame, the relocation is permissible. However, if the non-residential parent, the father in this case, does object within the 30 days, he must state the specific reasons to deny the relocation, which must include the amount of involvement he has in the child’s life. It is at this point, the court must get involved. If the father files an objection, the mother now must rely on the court, and she has the burden to initiate court proceedings to obtain the court’s permission to relocate the child.

If you are thinking about relocating your child more than fifty miles away after a dissolution, please contact an attorney to consider all your options.

Posted by Douglas S. Schapiro | Permalink | Email This Post

Posted In: Child Custody , Divorce

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If you watch television, pick up a newspaper, or listen to the radio, you have heard at least one reference to the divorce between Alex “A-Rod” Rodriguez and his estranged wife, Cynthia. As their divorce plays out in the public eye, the real battle is taking place in the Miami-Dade Circuit Courts. Cynthia filed her petition for dissolution of marriage from A-Rod in state court in Miami. She is seeking “equitable distribution” of all assets acquired during the marriage. This sum adds up to around half of the $120 million A-Rod earned during the five and a half years of their marriage. And because Florida is an equitable distribution state, she just may be entitled to half of all assets obtained during the marriage. However, there is one glaring problem – Cynthia signed a prenuptial, or antenuptial, agreement one month before their wedding. If valid, Cynthia may only be entitled to the terms of that agreement, which are still unknown.

This case suggests that Cynthia will probably seek to invalidate the prenuptial agreement in order to get as much money as she can – the same way Ivanna Trump did in her divorce against Donald Trump in 1990. To invalidate this agreement, the Miami court will focus on whether the prenuptial agreement was a valid contract. This includes determining if both parties honestly divulged all of their assets that they brought into the marriage, if both parties entered into the agreement with full knowledge of the terms of the prenup and signed it on their own volition, and if the agreement was signed well in advance of the wedding. The reason to penetrate this agreement is simple. When and if invalidated, Florida allows Cynthia entitlement to half of the marital assets via Florida’s equitable distribution statute, which we can assume is much more than the prenuptial agreement will provide.

Although the court in Miami will ultimately decide the outcome of this case, the public will soon be able to make their own conclusions when and if the documents are made public record. Florida is subject to “sunshine laws,” which means that all court documents should be made public absent extraordinary circumstances. This may be another point of contention in the divorce, as well. The thing to take away from this divorce is this: if you decide to enter into a prenuptial agreement, prenuptial agreements can be invalidated unless they are executed properly.

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

Posted In: Divorce , Prenuptial Agreements

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When you are divorced in Florida and you are the primary residential parent to a child and your ex-spouse has visitation rights, relocating your child to a new principal residence more than 50 miles away from your previous residence has many implications for you and every other person entitled to visitation with your child. Failure to comply may lead to adverse results. Take, for example, this scenario:

You have been divorced for 3 years, you have a minor child, and you are the primary residential parent by court designation. Since the divorce, you have lived in the same house in Fort Lauderdale, Florida, but now you feel it’s time to move. Whether moving for a new job, a new location, or a better investment opportunity, you have decided to pick up and move you and your child to northern Florida. How do you go about relocating with your child without running afoul of the law? One of the most efficient ways of handling relocation is crafting a relocation agreement with the secondary residential parent.

Create a relocation agreement. The primary residential parent, and the secondary residential parent may enter into a written agreement before moving more than 50 miles away. However, the agreement must: (1) consent to the relocation; (2) define visitation rights for the non-relocating parent; and (3) describe any transportation arrangements that may be necessary for proper visitation. If you have an existing court order that relates to the child’s primary residence or visitation, you must seek ratification of the agreement by court order, which will evaluate the best interest of the child. Furthermore, a relocation agreement may address the added cost to the non-relocating secondary residential parent for travel expenses related to visitation with the child.

While there are other avenues to follow when relocating more than 50 miles from Fort Lauderdale, or any other Florida town, a relocation agreement may be the best method for resolving a potentially thorny matter.

For more information about relocation agreements, or if you need assistance drafting one, please contact an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Child Custody , Divorce

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In Florida, both parents have a legal duty to support their child, before and after divorce. However, when a marriage ends in divorce and children are involved, child support issues may arise. For whatever reason, whether it be out of spite, economic hardship, or ignorance of the child support order, there exists a real possibility that child support may not be timely and adequately paid. If your former spouse has failed to pay child support, there are a variety of enforcement mechanisms available to you.

Any time a former spouse has failed to pay child support, the first thing you want to do is notify the former spouse in writing as to their failure to pay. If the former spouse continues to be delinquent in their payment of child support the next step is to contact the Florida Department of Revenue at State of Florida Child Support Enforcement Website. They have numerous methods to enforce payment of court ordered child support including the following:

Suspension of Licenses: A teaching certificate or professional license may be suspended or denied because of a delinquent child support obligation. Other licenses or registrations, like fishing, driving, and hunting licenses may also be suspended or denied because of a delinquent child support obligation. If this remedy is employed, the license may only be reinstated when the delinquency is paid, a written agreement is reached, or a court grants relief.

Liens: Noncustodial parents who owe past-due support may have liens placed on their property by the Department of Revenue. If the past-due support is over $600 a lien may be placed on the obligor’s motor vehicle.

Intercept/Seize Assets: Unemployment compensation benefits may be intercepted to collect delinquent child support being enforced by the Department of Revenue. The Department may also intercept federal income tax refunds to obtain payment of past due child support. Furthermore, a Florida lottery prize of more than $600 can be transmitted to the Department when outstanding child support is due.

Contempt of Court: If a noncustodial parent does not pay his or her support on time, it violates the court’s support order issued after the dissolution of the marriage, and a judge can find the noncustodial parent in contempt of court. The judge may require that parent to pay the money owed. If he or she still fails to pay, the noncustodial parent may go to jail.

In addition, for more direct and timely action without having to deal with the sometimes slow bureaucracy of government, you can hire an attorney and they can file a Motion for Contempt/Enforcement of Child Support Order.

For whatever course you deem appropriate, it is recommended you attain a family law case history of your matter. This will detail the terms of the child support order and the payment history for your case. To attain a family law case history, simply contact the clerk of the court for your county, ask for the family law division, and request a family law case history.

For more information about enforcing your spouse’s delinquent child support payments, contact an attorney.

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

Posted In: Child Support , Divorce

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After a divorce, the parent (father or mother) who is not living with the child is the noncustodial parent. Both parents, however, have a legal responsibility to financial care for the child. The custodial parent is the father or mother or caretaker with whom the child lives and is responsible for the child's basic needs.

Posted by Koch & Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce , Glossary of Terms

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The payment of child support in Florida and the right to visitation of your children are not reciprocal rights, just because a spouse fails to pay court-ordered child support does not mean the spouse with primary custodial rights can simply withhold visitation as a punishment for the other spouse’s failure to pay child support. In Florida, parents must comply with court ordered visitations.

Picture this – you are a divorced woman, you have a son who is 10 years old, you collect child support and alimony from your former husband whom you share visitation rights with. One day, your spouse decides to stop paying child support. What do you do? I know your first instinct may be to withhold visitation rights until he pays up, right? WRONG! Although this may seem perfectly logical and may actually induce payment in some situations, in Florida, this is strictly prohibited. Don’t fall into the trap, or the court may order the custodial parent to pay reasonable court costs and attorney's fees incurred by the noncustodial parent to enforce their visitation rights or make up improperly denied visitation.

Other sanctions the court may impose on a custodial parent for failing to abide by a court-ordered visitation schedule includes: 1) You may be ordered to attend parenting classes; 2) You may be required to conduct community service; 3) You may be ordered to pay the travel costs of the non-custodial parent if they reside further than 60 miles away; 4) The court may alter the custody arrangement changing rotating custody, the primary residence of the child, and even alter primary custody of the child upon a petition by the noncustodial parent, only if such a ruling is in the best interests of the child; or 5) You may be ordered by the court to undertake some other type of sanction left to the discretion of the judge.

The lesson to be learned is, don’t upset the apple cart! In Florida, by withholding visitation from a non-custodial parent, even if that parent has failed to pay child support, you are exposing yourself to a number of potential sanctions that will cost you more money, may result in spending more of your time, and may also result in a reduction in your own child visitation rights.

I know what your thinking – HOW UNFAIR! And you may be right, but there are numerous remedies in Florida for deadbeat parents. We will discuss such remedies in our next entry. Stay tuned!

For more advice on the appropriate steps to take consult with an attorney.

Posted by Douglas S. Schapiro | Permalink | Email This Post

Posted In: Child Custody , Divorce

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In today’s society, prenuptial agreements get a bad rap. When we hear “pre-nup,” we think “Oh no! Another celebrity marriage is ending.” However, prenuptial agreements, also known as antenuptial agreements, may be a useful way to establish the rights and liabilities upon the termination of a marriage by death or dissolution. Here is a sample prenuptial agreement. A dilemma arises because of the implicit question of distrust which may be aroused by entering into an agreement contingent upon the break-up of the marriage. This dilemma is made even worse when typically, a prenuptial agreement is made at a time in a relationship where a couple is at their happiest and most blissful stage of their relationship, right before the wedding.

Given this dilemma, how does one bring it up without causing your spouse to starting questioning the strength of your relationship? Even though it may be difficult to approach the subject it may be very necessary to do so. There are circumstances in which prenuptial agreements are critical, for instance, when the rights of children from a prior marriage are at stake or when there is a vast disparity in the financial resources of parties.

In crafting a prenuptial agreement there are certain consideration to keep in mind:
The right circumstances. The facts and circumstances surrounding the execution of a premarital agreement may compel a court to set it aside. An example of this includes if it was executed days or hours before the wedding, after all the wedding and honeymoon plans have been made. The court may construe such circumstances as coercive and later invalidate the prenuptial agreement.

The right agreement. If you want to enter into a prenuptial agreement, the best plan of action would be to diligently disclose all your assets and liabilities as part of any agreement. This would mean attaching a schedule that disclosed all your assets. Florida statutes do not require you to disclose your assets if you enter into this agreement before you get married, but divorce courts will not enforce premarital agreements when there is no financial disclosure.

Guidelines for your agreement. Things to ask yourself: Is the agreement fair and reasonable in consideration of the relevant factors at the time the agreement was executed? Was there full and frank disclosure of all assets, or at least a general approximate knowledge of the extent of the property ownership? Was the agreement entered into voluntarily (each party should have independent counsel to help support their considerations and avoid conflict of interest)? A waiver of alimony cannot be modified. A husband cannot be released from his obligation to support his wife as long as the marital relationship exists. Child support usually cannot be waived by either spouse. Make sure it’s a valid agreement: it must be written, signed, and acknowledged before two witnesses.

If you have any concerns about drafting a prenuptial agreement or your prenuptial agreement, please contact an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Prenuptial Agreements

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Most divorces tend to focus on the “blame game.” For example, “My spouse cheated on me!” or “My spouse has deserted me!” All you have to do is look at the headlines in the newspaper. Most stories focus on the adulterous affairs of a celebrity spouse. Does Christie Brinkley or A-Rod ring a bell? Yet, is the question of which spouse had the affair relevant for the purposes of filing for divorce?

In some states, there must be a legitimate reason to file for divorce. Florida takes a different route, neither spouse needs to be at fault for a dissolution of marriage proceeding to be initiated. Florida is a no-fault state, and unlike other states, in Florida there is no waiting period to initiate proceedings when fault is absent.

As long ago as 1948, the Florida Supreme Court recognized the wisdom of divorcing husbands and wives who no longer wished to remain married to each other, regardless of fault. In Florida, if you want a no-fault divorce, you must assert that it is “irretrievably broken” and the to test is determine whether the marriage is irretrievably broken, for whatever reason or cause – no matter who is “at-fault” – is whether the marriage relationship is no longer viable.

The court will also look at other factors. Is reconciliation impossible? Whether as a matter of fact, has the marriage ceased to exist? If you want a divorce in Florida, the court considers your state of mind above all else. Common reasons that have been accepted by the court include: no love, no companionship and no home life which have caused parties to drift apart or simply make the couple unsuitable for each other. In fact, stating “I don’t love him or her anymore and I don’t want to stay married” should be enough evidence for the court.

But beware! Although fault of one party is not needed for the dissolution of the marriage itself, it is a factor the court may consider in determining alimony, equitably distributing marital assets and liabilities, determining parental responsibility, and awarding attorney’s fees. So, although fault isn’t important to start a divorce proceeding, it may be important when the marriage is over.

For more advice on filing for divorce, or divorce in general, please contact an attorney.

Posted by Douglas S. Schapiro | Permalink | Email This Post

Posted In: Divorce

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A recent article has stated:

“When couples undo their "I do's" and go their separate ways, women who took their husband's name when they married may find themselves with complex decisions to make. These involve children, parents, careers -- and a sense of identity.”

Marilyn Gardner, Christian Science Monitor, Friday, June 13, 2008. See the article "After Divorce, A New Name Symbolizes a New Life." During a divorce, the last thing a wife may think about is her maiden name. But when it’s over, it’s one of the first!

In Florida, a wife may seek a restoration of her maiden name or a former married name in a dissolution of marriage proceeding. The request for change of name must be alleged in the wife's pleadings. If the wife fails to make the allegations, she must seek leave of court to amend her pleadings, which in Florida, is liberally granted.

The easiest and most time-saving way for a wife to change her name is to include it with a divorce. It not only saves time, but it also saves money if she wishes to restore her former name. Because a wife takes the husband’s name, she is the only party in a divorce who can request that her maiden name be restored. However, there is no reason why a woman’s failure to assert the right upon her marriage would prevent her from doing so later.

For more information on restoring your maiden name during a divorce, contact an attorney.

Posted by Koch & Trushin | Permalink | Email This Post

Posted In: Divorce

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