Florida Family Lawyer Blog

Credit Card Debt and Your Divorce Settlement

2010-01-26T15:20:17Z

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.

Relocating your Child Outside of Florida

2009-11-06T21:44:12Z

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.

Are Pension Funds and Retirement Accounts Marital Property under Florida Law?

2009-09-16T13:42:57Z

Many of the clients of our Fort Lauderdale and Miami divorce attorneys are shocked to learn that their soon to be ex-spouse may be entitled to a portion of their retirement or pension fund. In Florida, pension and retirement funds that accrue during the marriage must be treated as marital property and are generally shared equally. However, there are exceptions and modifications to this rule that may help you protect all or part of your retirement savings.
Florida law holds that all vested and non-vested benefits, rights, and funds that accrue during the marriage are marital assets subject to equitable distribution during a divorce. This law applies to any 401(k), pension, Individual Retirement Account (IRA), annuity, or Deferred Retirement Option Program right (DROP) that is acquired or accrues during the course of the marriage. If the court determines a pension or retirement fund is a marital asset, they will issue a Qualified Domestic Relations Order (QDRO) that instructs the plan administrator to divide the fund according to the divorce decree. The non-employee spouse is usually entitled to the same rights under the plan as the employee spouse, such as cost-of-living adjustments and early withdrawal options, and is eligible to receive his or her share of the ex-spouse's benefits when the ex-spouse is entitled to receive them.

If a party has not contributed to their retirement account since the day they were married, the account will not be considered a marital asset. Likewise, contributions made to a retirement account both before the marriage occurred and after it dissolved are the separate property of the employee who made the contributions and are not considered marital property. When determining what portion, if any, of a retirement account is not a marital asset, the courts will consider the length of any marital separation and whether marital “efforts” or earnings were use to acquire the benefits. If a party argues that all or part of his or her retirement account should not be considered marital property, they will have the burden of proving when the retirement benefits accrued.

On the other hand, if a spouse is retired and dependent on a retirement account for income, the funds may be considered income instead of assets. In this situation, the retirement account will be considered in alimony and child support decisions, but will not be divided as marital property.

The divorce attorneys in our Fort Lauderdale and Miami offices can evaluate the complexities of Florida law and help you reach the best possible outcome in the division of your retirement or pension funds during your divorce. Please feel free to contact us for a free initial consultation.

How can a mother obtain child support when the parents are not married?

2009-08-17T13:10:47Z

Many children in the Miami, Fort Lauderdale and Palm Beach areas are raised by single mothers and many of these children’s parents were never married. Florida law requires both parents to financially support their children, and unmarried mothers and fathers who are custodial parents are entitled to financial support from the other parent.

If you are an unmarried custodial parent in South Florida, you can obtain child support through a Judicial Court Order or an Administrative Order. These orders can be obtained through the assistance of a family law attorney or via assistance from the Florida Department of Revenue’s Office of Child Support Enforcement. In many cases, you will need to establish paternity if the non-custodial parent is the child’s father. This can be accomplished in many ways: by producing the child’s birth certificate listing the father as the biological father of the child, a registration on the Florida Putative Father’s Registry, a signed affidavit of both parents or a judicial or administrative order declaring who the father of the child is. In a disputed paternity case, the court may require genetic testing.

Section 61.30 of the Florida Statutes sets out guidelines for the calculation of child support. The amount of child support awarded is based on the number of children in question and the combined net income of the parents. The child support obligation is then divided between the parents in direct proportion to their income or earning capacity. The parent with whom the child lives most of the time (the "custodial" parent) is paid support by the other parent (the "non-custodial" parent).

For example, if Jane Doe of Fort Lauderdale and John Smith of Aventura have a child outside of marriage and the child lives with Jane in Broward County, Jane’s attorney can petition the court for an order granting her child support. The judge who determines the amount of child support will add Jane and John’s income together to determine the amount of total financial support the chills is entitled to. If Jane makes $30,000 and John makes $70,000 a year, the judge will rule that John must provide 70% of the child’s financial support. If, for instance, the judge rules the child is entitled to a total of $2,000.00 in support per month, John must pay Jane a total of $1,400.00 a month in child support.

If you are an unmarried mother in the Miami, Broward or Palm Beach area, you are entitled to receive financial support from your child’s father. The family law attorneys at Koch & Trushin can help you navigate this process and protect your child’s financial rights. Please feel free to contact us for a free initial consultation.

CHILDREN OUT OF WEDLOCK:Does signing a birth certificate give a father parental rights?

2009-07-30T16:28:32Z

Many children in South Florida are born out of wedlock, and it is important for unmarried mothers and fathers to protect their legal rights. In this series of blog posts, we will explain the legal problems that unmarried mothers and fathers in Miami and Fort Lauderdale face everyday. Specifically, these blogs will cover: (1) how an unmarried father can obtain legal parental rights, (2) how a father can establish paternity and prevent the unmarried mother from placing the child up for adoption, (3) how a mother can obtain child support from the father when the parents are not married, and (4) what a man should do if a default support judgment is entered against him and he believes he is not the child’s biological father.

The family law attorneys in our Fort Lauderdale and Miami offices often receive calls from unmarried fathers who mistakenly believe they have parental rights because their names appear on the child’s birth certificate or because they have taken financial and emotional responsibility for their child. Florida law differentiates between paternity and parental rights—signing a birth certificate may establish paternity and the obligation to pay child support, but unmarried fathers must establish their parental rights by obtaining an adjudication of paternity from the courts.

If a father is not married to the child’s mother at the time of the child’s birth or conception, he must petition the court for an order granting parental rights. Establishing parental rights gives an unmarried father the legal right to: (1) seek a court order for visitation rights, (2) request a change or modification in custody, (3) request child support if he has custody of the child, and (4) be involved with important decisions that concern his child, including choices regarding their schooling, medical treatment and religious upbringing.

Even if an informal custody arrangement between unmarried parents works in the short term, obtaining a formal court order is in the best interests of both the father and the child. Without this type of order, the father does not have a legal right to intervene if he disagrees with the mother’s decisions. If an unmarried father is not listed on the child’s birth certificate or registered with the Florida Putative Father’s Registry, the child’s mother has the legal right to place the child up for adoption without the father’s consent.

If you are an unmarried father in the Broward, West Palm Beach or Miami-Dade area, the family law attorneys at Koch & Trushin can help you obtain parental rights over your child. Please feel free to contact us for a free initial consultation.

What do Facebook, MySpace and Twitter have to do with my divorce?

2009-07-13T19:12:58Z

Next time you update your Facebook status, post pictures on MySpace, or Twitter about your day, remember that the things you post on social networking sites might be used against you during your divorce. Facebook, MySpace, LinkedIn and Twitter are amazing tools that help us stay in touch with old friends and connect with new acquaintances, but they are also evidentiary gold mines for divorce attorneys. If you aren’t careful, your spouse, their friends, or their attorneys can comb through your networking pages and find valuable information to use against you during your divorce.

For instance, if you publish pictures of yourself after partying at a Fort Lauderdale nightspot, such photos may be used against you. Pictures of lavish vacations you have taken or gifts you have given to a new love-interest may affect the distribution of assets in a divorce. If these luxuries were purchased with marital funds, a judge may even decide that your portion of the divorce settlement should be lowered. If you utilize social networking sites, it is important for you to monitor what you post and what others post about you—your spouse’s lawyers might be searching posts made by your friends, your girlfriend, or your family members to find information they can use against you.

Child custody can also be influenced by what can be found on Facebook. Photos and posts can be offered as evidence to prove that granting custody to one parent is not in the best interests of the couple’s children. Pictures that show a parent drinking heavily, acting irresponsibly or using recreational drugs can greatly influence the judge’s decision on custody. Think twice before posting any questionable pictures online and err on the side of caution—an innocent night of adults grabbing drinks can easily portrayed as something else by your spouse’s attorney.

Websites like Facebook are extremely popular because they allow their members announce their opinions to the world. Groups like “I hate my ex-husband” are abundant and offer angry spouses a forum to vent their frustrations. There's little that you can do to stop your spouse from complaining about you online, unless there are children involved. Family-law courts routinely issue restraining orders to prevent one parent from disparaging another to a child. Because children often use the same social networking sites as their parents, courts often view public disparagement via social networking site as a violation of these orders.

Even if you block your spouse from viewing your networking pages, assume they can view your information through a mutual friend or family member. Play it safe and don’t post anything online that might hurt your chances in divorce court.

Marital Misconduct and Divorce Part I – Does Fault Matter in My South Florida Divorce?

2009-03-27T15:53:49Z

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.

Equitable Distribution Of Marital Assets – Is My Pension Fair Game?

2009-03-13T16:07:16Z

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.

Division of the Marital Assets – Does that Include a Donated Kidney?

2009-03-06T17:59:43Z

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.

Retroactive Child Support – Establishing Paternity and the 24-Month Limitation on Retroactive Child Support

2009-02-19T18:23:39Z

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.

I’ve Lost My Job, The Economy is Horrible, Do I Still Need to Pay Alimony to My Ex?

2009-01-31T12:20:09Z

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.

Modifying Alimony Agreements – A Palm Beach Gardens, Florida Bizarre Reading of a Modification Clause

2009-01-21T15:15:13Z

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.

Child Support – Who Is Paying for My Child’s College Education?

2009-01-07T18:03:30Z

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.

In Florida, how can grandparents attain the custody of a grandchild when both parents are unfit?

2008-10-24T20:37:01Z

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.

Modification of Child Support in Florida Due to Ex-Spouse’s Substantial Increase in Income

2008-10-17T14:01:05Z

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.