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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gavelIn a recent child custody and timesharing case, the mother, who had lost in the trial court, lost again on appeal. The First District Court of Appeal did not conclude that the mother was blatantly or egregiously wrong in her arguments; instead, the appeals court simply concluded that the mother did not prove that the trial judge abused his discretion, so the appeals court had no basis for reversing the lower court’s ruling. The outcome in this matter highlights an important truth about any Florida family law matter, which is the difficulty appellants often face in winning on appeal and, as a related element, the importance of making your strongest possible presentation in the trial court.

The spouses, Kemberly and Mark, were a Union County couple who were in a situation that faces many married couples:  they were divorcing. What’s more, they were going through divorce not just as spouses but as parents of a six-year-old daughter. Also like many couples, the parents couldn’t agree on the issue of custody and timesharing, so they litigated that matter before a judge.

At the custody trial, the wife presented evidence that she was the one who had served as the daughter’s primary caregiver during the couple’s separation, which had gone on for a considerable length of time. The mother allegedly was also the parent who always took the child to school during the marriage. Based upon these and other factors, the mother argued that she should receive a majority of the time in any custody and timesharing order.

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signatureThe law gives parties wide latitude in how they structure the terms of their contractual agreements. The same is generally true when it comes to spouses and the terms of their prenuptial agreements. For example, one Florida couple entered into a prenuptial agreement that waived all rights to future alimony claims but permitted the wife to receive a “salary” for two years after a divorce. According to a recent Fourth District Court of Appeal ruling, that agreement was valid and meant that the courts could not order an award of alimony and couldn’t use contempt powers if the husband didn’t pay the salary.

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Dollar BillsIn any child support case, there are several factors to balance. The central goal, of course, is to ensure that the child receives the support that they need and deserve. It is, however, also important to ensure that the obligor parent is not assigned a child support obligation that is too great, both to serve the interests of fairness and due to the negative impact excessive financial obligations could have on the parent-child relationship. In one recent South Florida divorce case, the trial court’s imposition of child support was overturned by the Fourth District Court of Appeal because there wasn’t sufficient “competent substantial evidence” to back up the court’s assessment of the husband’s income. The case is a reminder of what is and is not sufficient to establish income on the part of an obligor parent.

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moving boxesIn any family law case, it is important to know what proof you will need in order to succeed before you arrive in court. For example, in cases in which one spouse wants to relocate with the children, the law places certain proof obligations on each parent. In a recent case involving a Palm Beach County family, the Fourth District Court of Appeal reversed a trial judge’s decision to deny the mother’s request to relocate. The mother had adequate proof that the move was in the best interests of the children, while the father had, on his side, only promises to change his ways and be a better parent in the future. Promises of future changes were not sufficient, the appeals court stated in its ruling.

The parents, Robert and Melanie, had lived in Virginia for 15 years before relocating to South Florida in 2012. Two years later, the wife filed for divorce. As part of that legal action, the wife asked for court permission to relocate, along with the couple’s two elementary school-aged children, back to Virginia. This move would benefit the children, she argued, since it would eliminate her need to travel for work, which was extensive as long as she lived in Florida.

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gavelThere is a natural tendency to take certain legal proceedings more seriously than others. Some types of major criminal matters or high-dollar civil cases likely would motivate a person to retain counsel to defend them, whereas in other matters, like perhaps cases involving injunctions against violence or stalking, people make the judgment that they can go it alone. This tendency is often misguided. Any matter, including a stalking injunction case, can have very serious consequences for you if the injunction is issued. You should take all of the necessary steps to make certain that, when you get to court, you have everything you need for your defense.

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calendarA well-worn catch-phrase opines that “timing is everything.” In the law, timing isn’t necessarily everything, but sometimes it can be the only thing that matters. Failing to follow precisely the rules of procedure and the time limits they impose upon you can have dire consequences. A South Florida case involving a couple of Ecuadorean citizens, who lived most of their married life in that country, provides a prime example of this concept.

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women fightingA South Florida wife and her husband’s alleged lover had a contentious and sometimes violent relationship with each other. That hostile relationship led each woman to seek and obtain injunctions against repeat violence against the other. The wife, however, got the injunction against her thrown out on appeal. The problem with that injunction was one of proof and statutory requirements. Specifically, the single incident of the wife battering the other woman and the single incident of following the other woman weren’t enough, under the statute’s requirements, to warrant an injunction. While this was a case related to an injunction against repeat violence, the lesson from this case (namely, the importance of challenging injunctions when the evidence doesn’t meet the statutory requirements) applies equally well to injunctions against domestic violence.

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shell gameAn ex-wife secured an important victory in the Fourth District Court of Appeal, with that court ruling that she could pursue the ex-husband’s insurance assets and homestead property if she could establish that the ex-husband engaged in fraud. The ruling was a significant one in that it rejected the notion that “homestead property and insurance policies are always exempt from the contempt powers of the court regardless of fraud.”

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cash in handIn divorce cases in which issues related to minor children do not play a role, the biggest issue facing many spouses is that of the division of assets. For many of those couples, the largest single asset with which they must deal is the marital home. Frequently, one spouse will receive the marital home, but that distribution will require the recipient spouse to make a cash payment (or payments) to the other spouse in order to achieve a truly equitable distribution. In a recent case involving a Palm Beach County couple, the Fourth District Court of Appeal ruled on what the law demands in terms of signing a deed on the house, the submission of an equalizing payment, and the timing of each.

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Bank statementIn a divorce case in which equitable distribution is an issue, there are many details that can substantially alter the result in your case. For example, the decision regarding which date to use for assessing the value of an asset can make thousands of dollars of difference, as was demonstrated in a recent First District Court of Appeal case. In that dispute, the First DCA ruled that a husband shouldn’t be punished in the equitable distribution process for depleting thousands of dollars of assets by paying for his living expenses and the expenses associated with the marital home.

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