Board Certified in Marital & Family Law
Board Certified in Marital & Family Law
Board Certified in Marital & Family Law
Board Certified in Marital & Family Law
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holiday treeIt is once again fast approaching the “Holiday Season” time of year. For many people, especially those with children, that can mean hosting family from out of town or making travel arrangements to visit faraway relatives. For some families, though, the holidays are more complicated. For divorced parents with minor children, reaching a workable solution for the holidays can be challenging and, sometimes, may even require the involvement of the courts, as one recent South Florida case exemplified. If your holiday visitation situation has become so complex that it seems like it may require litigation, you should make sure you have skilled Florida child custody counsel on your side.

One important thing to remember if you are going through a paternity case or a divorce case is that Florida law clearly states that both parents should receive shared parental responsibility unless the judge makes a finding “that shared parental responsibility would be detrimental to the child.” In the majority of cases, the judge is not going to make such a finding and is going to order shared parental responsibility for the child.

Additionally, courts have wide latitude when it comes to timesharing orders. A court can even order that one parent receive no visitation with a child. However, that occurs only in a small fraction of cases. In the large majority in which visitation is awarded, the non-custodial parent has certain rights when it comes to getting the children (or child) over the holidays.

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insuranceWhen a court makes a determination that an award of alimony is appropriate in a divorce case, one of the things with which the court may concern itself is taking steps to ensure the obligation is met. To do that, the law allows courts to demand that supporting spouses purchase life insurance to secure the award. Florida law also, however, dictates some clear hurdles that must be cleared in order for such an order to be allowed. Two cases from this year show this aspect of alimony cases in action. A knowledgeable Florida alimony attorney can help you in an alimony case that involves the mandatory purchase of life insurance.

The more recent of the two cases was a Fifth District Court of Appeal opinion that reversed an alimony award in favor of a husband. As part of this ruling in a divorce case that originated in Seminole County, the appeals court overturned the trial judge’s order that required the wife to maintain a $500,000 life insurance policy as security for the alimony obligation that she owed.

Florida law permits courts to order supporting spouses to purchase and maintain life insurance as security for alimony obligations. However, the law also places some clear boundaries regarding when such an obligation can be demanded. In order for a supporting spouse to be legally obliged to maintain life insurance for this reason, the trial court must first make several specific factual findings. The court must make determinations about insurability, about the cost of the policy, and about the ability of the supporting spouse to afford the insurance, as well as the impact on the supporting spouse of ordering such an insurance policy purchase requirement.

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Treasury checkWhen you make a claim for alimony, there are multiple hurdles you’ll need to clear. You’ll need to prove that you have a financial need. You’ll need to prove that your ex-spouse has the ability to pay. You may also have to overcome arguments from your ex-spouse that seek to impute income to you. All of these are areas in which the knowledge and skill of an experienced Florida alimony attorney can provide a major benefit.

The key issue in the divorce case of Carlos and Anemey was alimony. In making the necessary findings regarding the husband’s ability to pay and the wife’s need, the court must make income determinations for each spouse. Additionally, the court may impute income to either spouse if the judge concludes that that spouse is voluntarily unemployed or underemployed. In this case, it was the imputation of income that sent the case all the way to the Fourth District Court of Appeal.

Anemey was a stay-at-home parent during most of the couple’s marriage. By the time the couple began going through the divorce process, Anemey was a 62-year-old with a GED and minimal work experience. She last worked for a cosmetics company in California, making $12 per hour. She testified that she intended to work full-time, but she had received no replies to any of the job applications she submitted. Nevertheless, the court concluded that she should be capable of landing a 40-hour-per-week job that paid $10 per hour, so it imputed income to her in the amount of $400 per week.

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world mapIn any divorce or child custody case, one of the most important preliminary decisions that must be made is choosing where to file the action. If you attempt to bring your case in a court that does not have what’s called “jurisdiction,” you may face many possible negative outcomes, including not having your case heard (and having it thrown out instead) or having your successful outcome reversed on appeal. Either way, you won’t get the relief you need if the court doesn’t have jurisdiction. When the time comes to choose the right court to pursue your case, talk to a knowledgeable Florida child custody attorney who can help you make the right selection.

An example of how this process can go wrong played out recently in a Second District Court of Appeal case. Rahul, a commercial airline pilot, and a husband and father of three, filed for divorce in Collier County in southwest Florida. Whenever you file for divorce, you have to make certain declarations in your petition in order to establish that the court has jurisdiction. One of these is that you have lived here for at least six months, which would make you a Florida resident for the purposes of a divorce.

The husband made such a declaration in his case. The wife, in her response, “admitted” everything in the husband’s petition, meaning that she acknowledged as correct all of the points in the husband’s filing, including the item of residency. She also consented to the entry of a marital settlement agreement and parenting plan that the couple had previously worked out.

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checkbookIn many divorce cases, one of the key areas to resolve is equitable distribution. In some marriages, the couple may have a mixture of marital assets, non-marital assets, and maybe non-marital assets that were improved or acquired in part by using marital funds. Reaching a conclusion on equitable distribution can be very complex and is yet another example of where the experience of knowledgeable Florida divorce attorneys can help. One Tampa-area case involved just such a complication when the couple had used marital funds to pay the mortgage on a non-marital asset.

In this case, the wife, Bridgett, owned one-half of a duplex. That asset was the wife’s non-marital property. During the marriage, the couple paid $350 of marital funds toward the duplex’s mortgage from November 2004 until the wife’s half of the duplex was destroyed by fire in November 2006.

Sometime later, Bridgett and her husband, Ricky, divorced. During the divorce hearing, the husband sought credit for the duplex mortgage payments in calculating the couple’s equitable distribution. The trial judge agreed with the husband and gave him dollar-for-dollar credit for the full amount of the 24 mortgage payments made on the duplex during the marriage.

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dollarsIn any divorce case that involves minor children, the issues of child custody and child support are likely to be important elements of the case. Sometimes, if your spouse is determined by the court to be voluntarily underemployed or unemployed, you may be entitled to a larger child support payment (if you’re the recipient parent) or a smaller child support obligation (if you’re the supporting parent) based upon what’s known as imputing income to your spouse. Making a successful argument for the imputation of income often requires very detailed knowledge of both the facts and the law and can be a place where a knowledgeable South Florida child support attorney can help you. A recent case originally from Miami-Dade County demonstrates how you can succeed, even if your spouse claims to be disabled.

The case involved Michelle and Charles, a couple who married in 1992 and remained that way for 22 years. They had four children. The couple’s divorce trial focused on, among other things, the amount of child support the wife should receive. The husband was a fishing guide who made more than $80,000 per year. The wife, who had earned $20 per hour in the past as a bookkeeper, suffered from chronic fatigue syndrome and was unemployed at the time of the divorce.

When the trial court calculated child support, it set the husband’s income as $84,427. On the wife’s side, it counted as income several monthly payments she regularly received, and the trial judge also imputed income to the wife in the amount of $487 per month. Based on these numbers, the court ordered the husband to pay $799 per month in child support. The wife appealed this ruling but decided to go forward in her appellate case without an attorney. One of the issues she argued in her appeal was the trial judge’s decision to impute a part-time income to her in calculating child support.

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father and sonNot everyone’s family is destined to look like a “traditional family” from a 1950s “sit-com.” Some fathers will find themselves in the position of having children with women who are not their wives. These fathers may, like any other fathers, still desire a close relationship with their children. The level of complexity of Florida paternity cases may vary, depending on the circumstances, but all can benefit from the input of knowledgeable Florida family law counsel. One situation that can add extra layers of complexity occurs when the mother of your child is still married to someone else at the time of your child’s birth. A recent case from Broward County outlines some of the legal rights alleged fathers have in these situations.

In the case, a woman (“T.S.”) gave birth to a child in February 2013. The mother did not provide paternal information in the child’s birth certificate but did give the child a last name that did not match hers or her husband’s. Eventually, DNA tests showed that “C.P.,” the man whose last name matched the child’s, was the child’s father.

Two years later, the biological father filed a court action seeking a determination of paternity and child support, among other things. The mother argued that the trial court should throw the case out. Her argument stated that, when she gave birth to the child, she was married to another man (“S.F.”). This meant that the child was the product of an intact marriage and was presumed to be the legal child of S.F., and C.P. had no legal right to bring a court action for paternity.

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grandparentsOne of the more recent issues in family law with which the courts in the various states have wrestled is the matter of grandparent visitation. In Florida, the law as announced by the Florida Supreme Court is relatively clear:  the state Constitution’s right to privacy includes a parent’s right to raise his or her child as the parent sees fit, and that means that the courts generally cannot order that grandparents receive visitation over a parent’s objection. As with almost any aspect of the area, there are a few exceptions, though, one of which was on display in a case that went before the state’s Supreme Court recently. Whether you’re a parent or a grandparent involved in a visitation dispute, an experienced Florida child custody attorney can go over with you the limits of grandparents’ rights and how Florida law would apply to your case.

In general, a parent has a very strong right to privacy when it comes to child-rearing under the Florida Constitution. Specifically, Article I, Section 23 of the Constitution says that every “natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” The Supreme Court has consistently interpreted this section to mean that forced grandparent visitation is unconstitutional and against public policy. A judge telling a parent that he or she must allow his or her child to have visitation with a grandparent is exactly the sort of government intrusion into private life that Section 23 bars, according to the court.

There are a couple of ways a grandparent might be able to obtain a court order of visitation, but they are very narrow. One is if the family was involved in visitation litigation in another state that allows enforced grandparent visitation, and a court of that state entered a valid order that required the parent(s) to allow visitation with the grandparent(s). There are very few things that can trump the Florida Constitution, but one of them is the U.S. Constitution.

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ConstitutionA lot of family law cases get resolved based upon relatively straightforward legal bases – things like, “What do the Child Support Guidelines indicate is the proper amount of child support?” or “What custody arrangement does the judge conclude represents the best interest of the child?” Occasionally, though, some family law cases involve more expansive issues like Florida public policy or the U.S. Constitution. Regardless of whether your case involves litigating something related to the Child Support Guidelines or the U.S. Constitution, your case needs an experienced Florida child support attorney who is well-versed in all of the laws and knows how to apply them to your case.

One recent case in which the U.S. Constitution played an integral role in deciding the outcome was a child support dispute from Gainesville. The parents’ divorce was finalized in 2007 in Michigan. The couple’s Michigan final judgment included a mediation agreement that the couple had worked out. One of the provisions within that mediation agreement stated that the father had the option to prepay his child support for the couple’s two children and that, if he did so, he was entitled to “interest at the rate of one and a quarter percent per month on any amount of prepaid child support.” The agreement also stated that the father would not receive any payments of interest but would instead receive his interest in the form of credits against his future child support obligations.

The agreement additionally called for the couple to go through an annual process of calculating how much interest the father had earned that year. This last part led the couple back to court, with the father alleging that the mother had refused to participate in the mandatory annual accounting process. The mother, in opposition, argued that her participation (or lack thereof) was immaterial. The court was required to dismiss the father’s case, she maintained, since enforcing the interest-and-credit provision would leave the children without child support, and that made it contrary to Florida public policy.

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old cell phoneBeing accused of being voluntarily underemployed or voluntarily unemployed can be potentially very problematic in any Florida alimony or child support case. This is true whether you are the supported spouse/parent or the supporting spouse/parent. If you are the spouse paying support, and the court rules against you, you could end up paying an amount of support based on an amount that’s far in excess of the actual amount of income you make. If you are the parent receiving the support payments, a ruling that you are voluntarily underemployed may substantially cut into the necessary support money you would have otherwise received. Regardless of whether you are in a child support or alimony case, and whether you are the supported spouse/parent or the supporting spouse/parent, you should contact a skilled Florida child support attorney promptly to help you defend your rights.

One recent case in which such an issue arose was the divorce of Joseph and Andrea, a couple who were married for 12 years until the husband filed for divorce in Palm Beach County. The couple had one child together. Both the husband and the wife were accomplished professionals. The wife had a communications degree from a university in Los Angeles, and the husband had an engineering degree from the University of Florida.

As with many parents, the couple decided to make career changes in order to address the needs of their child, with one parent transitioning from a “traditional” job to a home-based, self-employed position. This allowed for the continuation of work and income while also addressing the day-to-day needs of the child. In this family, though, that parent was the father, rather than the mother.