March 1, 2013

Florida Alimony and Proposed Legislative Changes for 2013

th.jpgFlorida marriages lasting longer than sixteen (16) years may result in an award of permanent alimony if the spouses decide to divorce. Over recent years the debate of alimony in Florida has been at the forefront of legislative session. The Florida legislature along with special interest groups and the Florida Bar have thrown their hats into the rings of discussion creating some reform with things like new parameters for determining the length of alimony. In the 2013 legislative session a new bill has been proposed that has thus far passed in the Civil Justice Committee and is making its way through the House of Representatives. Its companion, Senate Bill 718 is not ripe for voting yet.

Mainly special interest groups like “Florida Alimony Reform,” who has presented prior bills and led demonstrations at the Florida State Capitol, have headed the proposed changes to alimony. The House Bill 231 makes the following proposed changes to the present Alimony law §61.08, Florida Statutes(2012) are summarized as follows:

1. Revision of factors considered in determining alimony;
2. Automatically terminates alimony upon certain factors being met;
3. Puts the burden of proof for need of alimony and ability to pay on the party seeking to the award of alimony;
4. Provides specific guidelines to use when determining the type and amount of alimony;
5. Changes the present provisions for awarding durational alimony (i.e. alimony that is awarded for a specific period of time.);
6. Establishes presumptions regarding awards that are based on the length of the marriage, both for and against;
7. Provides for the court to impute income to a party under certain circumstances;
8. Revises awards of alimony by allowing the court to consider set-offs that may result through equitable distribution or child support in some circumstances (these factors are not presently considered the majority of the time because child support is normally determined based on incomes and alimony is considered income);
9. Makes modification of alimony available when there is clear and convincing evidence of a substantial change in circumstance;
10. Provides that an increase in the paying party’s income may not be considered a permanent change until the level of income is maintained for a certain length of time;
11. Establishes the receiving party to pay attorney fees & costs if she/he unnecessarily or unreasonably litigates petition for modification or termination;
12. Changes the effect of a supportive relationship on alimony; p
13. Establishes that attaining the age of retirement is a substantial change inc circumstance for purposes of modification;

The proposed changes will drastically change the alimony present alimony provisions by making it harder for individuals to qualify for such things as permanent alimony. When determining that an imputation of income may be imposed on either party, the parties will each have a burden of showing their work history, historical earnings and contributions to the marriage. If a party has been at home for 15 years caring for the children, then it should not be expected that she/he may go into the workplace earning $100,000 per year. However, there may be an argument to whether she/he could get a job making minimum wage.

Over the next few months the questions will start to be weeded out more and more as each committee studies and changes the proposed bills. There is also a question of whether such a change will impact prior cases that are due for modification or if the changes will only apply to cases filed after a certain date. Only time will tell, but the debate continues in Tallahassee and many family law attorneys and spouses will be keeping tabs on the progress.

If you are going through a divorce or thinking of divorce, then it is best to understand your rights and options by speaking with an experienced family law attorney. Many times, the individuals in Florida that feel that their alimony is too high or for too long actually reached agreements outside of the Court and ultimately have to live with the consequences. In an effort to save a dollar on attorneys you may end up losing more in the end, whether you are in need of alimony or the one paying alimony.

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February 26, 2013

What Is the Harm in Doing Your Own Divorce in Florida?

alimony.jpgThe world of, "do it yourself," has become far easier over the years with the invention of the internet. People now walk into doctors' offices and tell the doctor what their diagnosis is and what medication to prescribe. The same is true for divorces, wills and the like. In a Florida divorce there can be many moving parts to figure out, for example, whether alimony should be paid; how long it should be paid; who will take what bank accounts and debts; etc. The reality is that dealing with a divorce is similar to a company dissolving and if each item is not accounted for, then the consequences to each party can be expensive and financially devastating.

In a Florida divorce, alimony is based on a number of factors, including but not limited to, length of the marriage, contribution of each spouse to the marriage, the standard of living of the parties, the needs of the requesting spouse (i.e. whether she/he has earning potential), and the ability for a spouse to pay alimony. Understanding these factors can be complicated because instead of looking at a need as a monthly amount we have a tendency to think through our bills and say, "You pay x, y and z bills." In a divorce involving alimony, having a spouse pay such bills can be a challenge financially to the party receiving the benefit and the party paying. Alimony is income for tax purposes to the receiving party and a deduction for the party paying, not knowing the amount paid can be detrimental to filing taxes correctly.

Also, not knowing how long alimony should last can cause future complications if the parties reach an agreement, without legal help, and agree that the alimony is going to be non-modifiable over time. Non-modifiable alimony actually means that neither party can ask for more money or to pay less money each month. And often, when I see parties have reached their own agreement, this is a factor that they put into the agreement. The downfall, if the paying party wants to retire s/he must do so with a continued ability to provide alimony for whatever duration was agreed upon by the parties.

The other difficulty is that if the parties reach an agreement, then they cannot go back later to the court and state that s/he was not treated fairly if both parties provided financial disclosure. The only time that the court may hear a case to the contrary would be if it can be shown that a party withheld financial information from the other that may have made a difference to the outcome of the agreement. For example, if there is an account with $100,000 that's owned by the party requesting alimony.

The challenge is, when you take on your divorce case by yourself you risk many things coming back to haunt you. Ultimately, the money you spend trying to correct the mistakes may be much greater than what you would have spent in the original divorce had you hired someone to do it correctly.

If you are going through a divorce, you should speak with an experienced divorce attorney to find out your rights and options. Understanding the challenges in your case is vital to any outcome that you may have.

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February 22, 2013

Establishing Paternity of a Child in Florida: Establishing Parental Rights and Visitation

1198667_dad_day.jpgIn recent years, the rules and laws regarding paternity actions in Florida have changed. Paternity cases generally establishes a father’s parental rights to a child in Florida; however, if the paternity case is brought by the Florida Department of Revenue those rights are limited to, basically, paying child support. In prior years, fathers were able to file a counter-petition in the Department of Revenue case and request time-sharing/visitation and even custody, and request to have parental rights shared by the mother and father to make decisions regarding the child’s life. Filing a counter-petition basically saved the father money because the filing fee is less and it consolidated the cases into one so as not to have to attend multiple hearings on the same issue. Recently, the ability to file a counter-petition in a Florida Department of Revenue case against a putative father was banned. So, how do you establish your parental rights when the State of Florida is only filing an action to establish your child support obligation?

To give some background, signing a birth certificate as the “father,” does not automatically give that person parental rights to the child, if the mother and father are not married when the child is born. Signing a birth certificate gives the presumption that the person that signed is, in fact, the father. However, the rights to the child have to be established by a court. If the father does not do that, and later the mother files for any type of government assistance, then the State of Florida may file an action to establish paternity and child support for the benefit of the child.

The State of Florida’s interest in filing an action to establish paternity is based on a financial need of the State and not public policy for children to have a father. If a mother is requesting government assistance, like Medicaid for the child, then the State has a right to look at whether another person has a financial obligation to the child and possibly has an ability to provide health insurance for the child. Therefore, the State will request that the mother give a list of all possible fathers of the child. After that application is completed, the State of Florida on behalf of itself and the mother, will file a paternity action against the possible fathers. A DNA test will then be requested to establish the biological father. The case will then move forward with regards to that one individual and the State will only request child support be established.

If the father wants to be part of the child’s life, he must file a Petition to Establish Time-Sharing, a Parenting Plan and Other Relief. An additional case is then opened with the court to establish the visitation schedule and provide the father with some parental responsibility to the child. Simply going through the State’s case will not establish these issues. In addition, child support will initially be determined without giving any credit to time-sharing, unless and order is in place establishing a time-sharing/visitation schedule between the parents. Therefore, the father will be paying more in child support initially because the child support calculation will not use any days or overnights as credit to the father until there is a court order granting such visitation.

If you have a child with someone outside of marriage, then it is important to establish your rights through the court. Even if a mother and father get along in the beginning and try to work things out on their own, get it put into a court order so that rights are actually established. Far too often parents have fights and one parent tries to keep the other from seeing the child. Establishing your rights and visitation, and yes, even child support, can be beneficial in the long run for both mother and father, but more importantly, for the child.

To better understand your rights and options regarding a Florida paternity case, you should speak with an experienced family law attorney in your area.

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February 19, 2013

In Florida, Why Your Case May Be Heard By a Magistrate When Dealing With a Divorce, Modification or Paternity Case?

282848_law_library-1.jpgIn a Florida divorce, post divorce or paternity case, there may be times the case is referred to a general magistrate instead of the judge. Often, a general magistrate's calendar is more accessible than the judge's calendar due to volume of cases. The magistrates have the power to listen to cases and make a ruling based on the evidence presented, which then must be provided to the judge before being entered as a court order. Therefore, the judge still has control over the case, but the magistrate is helping move the cases along.

A referral to a magistrate is generally done for temporary needs hearings, which is when a party is requesting a temporary order be entered with the court until the final hearing so that each party has what s/he may need to get to a final hearing, like child support, alimony, or use of the home. The reason is that the judge may not be able to get the parties in for a longer period of time and the magistrate can generally see them in a couple of months. It is also common for the case to be referred to the magistrate when a lawyer does not represent one or both parties.

How does a case get referred to a general magistrate? When certain documents or motions are filed with the court, the court may tag them to be referred to the magistrate instead. For example, when a party files a Motion for Temporary Needs, the judge may sign an order referring the case to the magistrate's office. When that happens, both parties receive a copy of the order and have ten (10) days to object to the transfer. In Florida, use of a magistrate has to be by consent, so if one party objects, then it will not go to the magistrate but must be heard by the judge instead. This may mean that the hearing is postponed for a time to correspond with the judge's calendar.

Another way the case may be referred to the magistrate is if one party files on his or her own, the legal term is "pro se." When that happens, the case is typically managed by the family court services and is tracked through the magistrate's office. This allows the court services to oversee a little more of the case to make certain that requirements have been met by both parties, for example, mandatory disclosure (e.g. financial affidavit is filed with the court).

Once a magistrate hears the case, the magistrate then drafts a report and recommended order to the judge. The report and order are sent to both parties and they have the right to object or file for exceptions to the report. This may be done if the report and evidence do not match, or if the magistrate's order is in conflict with the evidence provided. This may happen if a father provides evidence that mother has a severe alcohol and drug issue and mother does not have evidence showing otherwise, but the child is placed in mother's care. If that occurs, both parties have ten (10) days to file their exceptions with the court and ask for a hearing with the judge. Whichever party files is required to get a transcript of the original hearing to be provided to the judge and other party before the hearing on the exceptions.

Florida family law courts are generally at capacity, so the use of magistrates is helpful to having your case heard in a timely manner. However, since there are so many caveats, like both parties agreeing, it is wise not to bank on the hearing being held as quickly as you may hope. In dealing with such cases it is important to breathe through the delays, they will happen and managing the stress where you can may be your saving grace through the process. To better understand your rights, options and what to expect, you should speak with an experienced family law attorney in your area.

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February 12, 2013

Where Do I File for Divorce, Custody, Timesharing, and/or Child Support in Florida?

As a Jacksonville, Florida family law attorney, I often get questions from clients as to where their case should be handled if two parents and/or spouses live in two different cities. The question is one that does not always have an easy answer, as there are Florida family law rules governing, Florida statutes establishing the correct place to file a case, and there is also Florida case law that is down from the courts on the subject. Therefore, like many things in family law matters, it depends on the circumstances. To best answer this question, examples can be quite useful.

Example 1: Marie and Hank are married and spend the bulk of their marriage in Jacksonville, Florida where they purchase a home. After eight years of marriage, Marie and Hank decide to separate and Hank takes a job in Atlanta, Georgia. After a year of separation they would like to get a divorce realizing that reconciling is not an option.

Even though Hank is now a resident of Georgia and could technically file for divorce in Georgia, there is an issue of Georgia having control over the property of the marital home. Therefore, in order to make the divorce as clean as possible, Marie and Hank would most likely need to file for divorce in Jacksonville, Florida where the marital home is located. If they decide to file in Georgia, then Marie and/or Hank may have to take extra steps to enforce any court orders regarding the marital home.

Example 2: Maggie and Fred have a child, Calvin, together. They reside as husband and wife in Orlando, Florida for five years and then decide to separate. Fred and Maggie agree that given the demands of Maggie's job, Fred could have majority time-sharing with Calvin. Fred and Calvin then move to be closer to Fred's parents in Jacksonville, Florida. After seven months of living separately, Maggie decides to file for divorce in Orlando, Florida. Fred contests that Jacksonville is the proper place for the case since that is where he and Calvin live.

In this scenario, according the UCCJEA, which establishes jurisdiction of a child for court purposes, the child's residence for the six month before filing for divorce is in Jacksonville, so Fred could and should move the case to Jacksonville.

Example 3: Martha and Henry have a child, Charlie. They divorce in Pensacola, Florida in 2010. In 2011, Martha and Charlie move to Jacksonville and Henry moves to Miami, Florida. In 2012 Martha wants to get a modification of child support and Henry wants to modify his time-sharing schedule. Neither party is sure where to file.

This issue arises often in family law cases. In this type of case, the case law and Florida Statutes indicate that the case is still in Pensacola, Florida unless and until that court relinquishes jurisdiction (i.e. the courts are held in different jurisdictions, Duval County is the 4th judicial circuit) to another court. Either party may request that the court in Pensacola relinquish its hold of the case so that the parties may go to court in a more convenient location. If both parties are requesting the change, then Martha would win for the case to be moved to Jacksonville over Miami since it is where Charlie resided for at least six (6) months.

Dealing with these issues in a family law case can be challenging. If you are going through a divorce or need to modify a prior order, then you should speak with an experienced family law attorney to find out your rights and options.

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February 11, 2013

Florida Child Custody Changes and Understanding the Custody Battle of 2013

589668_suspended_2.jpgCustody of a child has changed significantly over the last few years in Florida. Custody implies that one person has more control over a child than another, and the Florida legislature, along with members of the Florida family law division of the Florida Bar worked to make changes that no longer implied one parent being greater than another. While the changes started a few years back, the general public is still in need of education on the topic so that, hopefully over time, the the correct terminology will be used on a day-to-day basis and the animosity that generally follows with a divorce involving children or a paternity action will slowly wind down. While not an easy feat, we can at least make strides to make that happen with continuing to change laws and hopefully open up more communication between parents.

What are these changes? Historically, in Florida family law there was a presumption that one parent, typically the woman in many respects, was going to have "custody" of the children when there is a divorce or paternity case. Any case involving children had a certain spin to it in society where it was believed that women were more nurturing than men and therefore should have the kids. Laws, over time, have changed and the Florida judicial system started to recognize that life is not normally cut and dry in most family dynamics and there may be a need to change from the earlier presumptions of women over men. It is not to imply that the laws changed in order for men to be given preference over women, but that laws evolved to recognize that the court needs to look at the mother and father, their individual relationships with the children, and ultimately decide what is in the best interest of the child.

What took time to reach and is slowly becoming more recognized is that the alternating weekends and one evening per week may not always be the best situation for children of a broken home. The term custody was completely thrown out by the legislature in hopes of getting the parents on the same page and to help determine what type of visitation or time-sharing schedule is best for the children. The legislature's hope in making this change was to get parents to communicate more openly and hopefully, over time, take away some of the animosity that is created through a divorce or paternity case and ultimately can lead to long, tiresome and often hurtful litigation between parents and the children suffering through the fight.

Since the change to time-sharing and the concept of actually sharing your child is becoming better understood, I have noticed a slight change with my clients. Once the word "custody" is thrown out of the talks it becomes a little easier to swallow that you ultimately have to come up with a schedule for your kids to see both parents. Time-sharing does not always mean that the parties are going to have equal time with the children, but it does mean that you can think through a schedule that makes sense for the children and the parents.

If you are going through a divorce or paternity case, then you should speak with an experienced family law attorney to better understand your rights and options. Knowing the process can be beneficial in moving the case forward because you can better comprehend what intentions the court may have if you were to go trial.

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January 22, 2013

Can Florida Alimony Payments Be Changed?

911121_hot_type.jpg
Divorce laws change from state to state regarding such things as alimony. Couples that have divorced and have either moved to Florida or were divorced in Florida and have changes in their lifestyle and circumstance that warrant a modification of alimony may need to know whether a change to alimony is possible. Florida does allow for a party to file for an increase, decrease or termination of alimony in certain circumstances. Understanding your rights and options in an alimony modification case can be beneficial to you in protecting your rights and interests.

In order to have access to the court for a modification there must be a substantial change in circumstance. For example, if you were awarded alimony based on the fact that you can hold a job, but that your income is less than your ex-spouse, then you may need to seek an increase in alimony if you become disabled and unable to work. Alimony in Florida is typically awarded to a party if she/he is in need of financial assistance from the other party and the other spouse has a financial ability to pay alimony. However, the amount is based on the need of the individual as well. So, if that person’s needs change, not due to voluntary action of that party (i.e. quitting his/her job), then alimony may need to be modified accordingly.

The same is true of a downward modification of alimony, meaning a decrease in the amount of alimony to be paid. For example, Hank has an annual income of $350,0000 and Mildred has an annual income of $30,000. In this case, Hank most likely would be ordered to pay Mildred alimony. However, Hank suffers an eye injury and can no longer work in his job and is placed on disability. Hank’s income decreased due to an involuntary occurrence, meaning he most likely did not intentionally go on disability; therefore, his ability to pay alimony at the same amount is limited. Hank may be given a decrease in the alimony he is to pay Mildred or it may deemed that he can no longer pay.

In another scenario, Hank is still working at the same rate and Mildred is still making $30,000. However, Mildred decides to remarry. Once Mildred remarries, Hank may ask for a termination of his alimony obligation because Mildred is in a different, supportive relationship. Hank may ask the court to stop his alimony payments to Mildred based on this change in circumstance. The same is true if Mildred decided to move-in with someone without actually getting married. The alimony may be terminated or suspended based on that change in circumstance.

To modify alimony in Florida there must be a showing that a substantial change in circumstance has occurred. The normal threshold for such a change is a substantial increase or decrease of income, but obviously other factors, such as illness, injury, etc. can be grounds for such a modification.

If you are in need of modifying your alimony award or obligation, then you should speak with a Florida family law attorney to better understand your rights and options as they relate to your facts and situation.

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December 17, 2012

In a Florida Divorce What Documents Do I Have to Provide for Accounts and Retirement

Written by: Lenorae Atter, Attorney


1071930_check_book_and_statement.jpgWhen you file for divorce in Florida you should expect to release your financial information to your spouse. Even if you have kept your finances separate during the marriage, most likely you are going to have to provide him/her with information about your bank accounts, retirement accounts, investments, etc. In a Florida divorce, both parties are required to provide documentation of their paystubs, bank statements, and other financial accounting information. Florida Family Law Rules of Procedures govern the requirements of what parties have to do in their court action.

As a Jacksonville family law attorney, I often tell clients that the release of information is helpful to both parties because it lays out a detail of all items to be equally divided by the court. Also, if you reach an agreement before going to trial, and both parties have provided the documents, then neither party can later claim that she/he did not know about certain assets. The bank statements can also be the truth tellers when it comes to cases involving alimony requests, asset hiding, etc. The reason is that most of us no longer use cash to make purchases and that bankcard is a great indicator of where money is being spent on a monthly basis.

In Florida, alimony is based on a person’s need and the other party’s ability to pay. If a party is claiming a need for alimony, but using funds to pay for overly expensive haircuts, clothing, or even things like alcohol on a regular basis, then that need may be reduced significantly. Alimony is designed to help with living expenses, not unnecessary expenses. Obviously lifestyle of the parties is taken into consideration so if a party historically had a haircut in the higher range, they will not be expected to start getting their haircut for $10. The bank statements can help show both sides of the can and really paint a picture what “needs” are for each party.

Florida child support calculations are based on the incomes of both parties. IN some cases, a party may have one main job, but does side work, which can be difficult to prove. In addition to providing bank statement information, both parties are required to file financial affidavits with the court, which provide details of income information and monthly living expenses. The financial affidavit is a sworn document, so it’s truthfulness is important. However, many times when a party has more than one income she/he does not list that on the financial affidavit. So, if that party does not provide banks statement information it will be much harder to prove to the court that, in fact, she/he does have another source of income. That is one reason why the State of Florida requires the exchange of documents.

When going through a divorce, an additional benefit of hiring a lawyer, other than having someone to fight for you, is that a good lawyer will take the time to sift through the financial information. It’s a tedious job that many people would not think to do on their own, so when you hire a lawyer it is one less thing on your ‘to do” list before going to a hearing, mediation or trial.

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December 11, 2012

Military and Time-Sharing/Visitation Issues in Florida

Written by: Lenorae Atter, Attorney

1344775_south_african_navy_helicopter_.jpgAs a Jacksonville, Florida divorce lawyer, I have many clients that have military ties. When there are military components to the case, often there are things that need to be considered dealing with time-sharing and relocation that do not come up as often in other divorce and paternity case. Time-sharing and relocation issues are often questioned by those going through the divorce or paternity proceedings in Florida because people are used to dealing with terms like visitation and custody, especially when it comes down to which parent is going to spend the majority of time with the child and whether that parent will have the ability to move somewhere else, if the issue arises.

In a military family, deployment and/or moving are often the concerns of the parents. The parents want to make certain that certain provisions are provided for so that there are not unanswered questions when the military calls with orders. Preparing for these changes can be difficult when the family is intact and can cause a riff when they family is separated through divorce or simply never actually lived together. In dealing with these issues the court has had to consider the factors of life for both parents. The truth is that regardless of which parent has majority time-sharing, the realities of military life will impact the separate families.

When determining a parenting and time-sharing plan, as recommended and required by Florida Statute, the truth is that military service can be considered. Florida law provides for time-sharing instead of custody as a way for parents to put the needs of the children first. In order to do that, often it is important to understand the lifestyle of both parents and to accommodate the children’s needs through those lifestyles. A time-sharing plan helps to think through the issues that may arise for visitation, such as holidays, weekends, summer breaks, etc. However, it is also designed so that parents can think through their visitation in the realities of their lives, like military duty. In establishing a time-sharing plan, parents can actually contemplate what may arise in their lives.

For example, a military family with children may consider a 50/50 time-sharing plan if they feel it’s in the best interest of the child. However, there also have to provisions for what to do if/when a parent is transferred to a different base.

Just as the parents can come up with these plans, they can put in provisions for relocation. The parents may agree, through the parenting plan, what the provisions will be for relocation since there may not be enough notice to a parent to provide the notice required under Florida Statute 61.13001.

The idea behind the time-sharing plan is to help parents communicate more effectively regarding the children. To think through things that may arise leads less to the courts and puts more control in the hands of the parties. This can be helpful in raising children because the idea is to co-parent. As long as both parents work together with the common goal of the best interest of the children the more likely they are to promote a balanced relationship for the child with both parents.

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December 3, 2012

In Florida, When Can a Child Testify in a Family Law Case or Custody Battle?

Written by: Lenorae Atter, Attorney


388623_justice.jpgIn the Jacksonville, Florida family law courts there is a debate as to when a child is old enough to provide relevant testimony in a divorce or custody proceeding. Many of my clients often want their child to testify as to what their wishes are, regardless of the child’s age. However, the courts value the testimony of the children, but also believe, and rightfully so, that the child should be of an age of maturity to fully understand what she or he is testifying to and that would be difficult to do if the child is under a certain age. The majority of judges feel that a child’s testimony should be elicited at no sooner than 13 years of age. The Florida legislature has not provided a specific age-range to judges, so the discretion really rests with the court to decide.

Florida Statute 92.55 provides for the use of witnesses for children that are under 16 years of age and for witnesses that suffer from a mental handicap or have other special needs. In order for a child to testify, the party requesting such testimony must submit a motion to the court asking for permission for the child to testify. Normally, in a family law proceeding, the request is for the child’s testimony outside of the presence of either parent and his/her attorneys, also known as “in camera testimony.”

In determining whether a child should provide testimony to the court, Florida Statute 92.55(2) provides guidelines for eh Judge to consider. Those guidelines include the following determinations:

(a) The actual age of the child, the nature of the court action, the child’s relationship to the parties (i.e. child of the parents going through the court system), the possible trauma that would result to the child if testimony is or is not given, and any other factors deemed relevant by the court; or

(b) When dealing with an individual that has a mental or functional limitation, the same factors are considered, including the age, functional capacity of the person, the type of case for which she/he will provide testimony, the trauma that may result from providing or not providing testimony and another factors the court deems necessary for review.

When asking the court to take the testimony of a child or individual that is mentally handicapped, the party making the request should factor these provisions into the decision. It is important to provide sound testimony to the court and if it is believed that a child has reached a conclusion under duress by another party, then the testimony will not hold much weight and the experience may be detrimental to the welfare of the child.

Not all cases involving custody disputes should have the child testify. However, sometimes it is vital for the child to feel as if she/he had a voice in the proceedings that impact his/her life and well-being. In many divorce cases involving teenagers the children feel that their voice should be heard equal to that of their parents. Ultimately that decision is up to the court, but the request should be made if the facts warrant such testimony.

As a family law attorney, I try to keep children out of the court proceedings unless it is vital to the case or the child has a true interest in being part of the proceedings. It is a delicate balance, but one that must be weighed by the parties, the attorneys and the court. Ultimately, I think the best form of such testimony and the least path of resistance is to have the child testify outside the presence of either parent so that the child does not feel as if she/ he is choosing sides or will be punished later for expressing an opinions and/or facts.

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November 28, 2012

What Is Considered Income in Determining Florida Child Support?

Written by: Lenorae Atter, Attorney

641084_money.jpgAs a Jacksonville, Florida divorce and family law attorney I often have clients that are going through a divorce or paternity case with children. In handling such cases, I believe it is important to educate my clients on child support; it’s use and how it is calculated in Florida. Child support is not simply a magic number than a judge or attorney comes up with, but a guideline calculation based on Florida Statute 61.30. The first step in determining child support is to know the incomes of both parents. The child support calculation is based on the monthly income available to each parent.

In order to calculate guideline child support it is important to know what “income” actually is. While some people work for a company and earn an hourly wage, others work on a salary, while others may work on commission or have their own business. So, how does Florida define income for purposes of calculating child support? Florida Statute 61.30(2)(a) provides a list of what gross income is, but does not limit the income to the following:

1. Salary or wages. This is either the salaried amount of an employee or the wages earned, such as hourly wages gained on a weekly/monthly basis.

2. Bonuses, commissions, allowances, overtime, tips, and other similar payments. In determining the monthly amount for the employee the court and/or attorneys often due an averaging calculation. Since bonuses, overtime, tips, etc. are normally not the same month-to-month it is better to take earning samples from approximately one year if not longer. In order to do this, the parties are required to provide tax returns, paycheck stubs and other documentation to show their earnings. The average of the numbers can then be used to determine the actual monthly income of a party.

An example is if Frank works on a salary of $50,000 per year and has bonuses each year that total $50,000. Then, Frank’s monthly income is actually based on $100,000 divided by 12 months.

3. When a party owns his/her own business, then business income to that party is based on sources like self-employment, partnerships, independent contracts, etc. For determining actual “business income” you must take the gross receipts and subtract out necessary and ordinary business expenses
For example, Frank has a business of his own and has contracts totaling $10,000 per month. Frank has business expenses for rent, marketing, etc. of $5,000 per month. Therefore, Frank is able to pay himself a monthly income of $5,000. Or, if Frank takes distributions, then the court may look at those to determine Frank’s income.

4. Disability benefits and social security benefits. These are considered income to the party since they are designed to support the party and his/her family.

5. All workers’ compensation benefits and settlements.

6. Monies gained from unemployment or reemployment benefits.

7. Pension, retirement, or annuity payments.

8. Alimony received from either this court action or another that has been court ordered.

9. Interest and dividends received from any and all accounts.

10. Rental income, this is based on the amount taken in for rent minus legitimate, ordinary expenses associated with the property.

11. Income from royalties, trusts, or estates.

12. Reimbursed expenses or in kind payments to the extent that they reduce living expenses.

13. Gains derived from dealings in property (such as selling properties and having an independent mortgage on said properties).

If you are going through a divorce involving children or a paternity case, then you should find out your rights an options by speaking with an experienced lawyer in your area.

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November 15, 2012

How to Deal With House Debt in a Florida Divorce

1304789_flooded_house_in_moravian_city.jpgHousing issues are a problem in most Florida divorces right now because a number of homes are upside down or underwater and in Florida, properties, assets and debts are to be divided equally. The courts struggle with this situation because even if the home is underwater it must still be factored into the equal distribution process. In addition, courts are aware that many people are now walking away from their homes and surrendering them into the foreclosure world. However, as a Jacksonville divorce lawyer, I prepare my clients for the house payments and associated insurance and related expenses because it is a factor in determining the outcome of the divorce and what debts may client may assume. Many people, even today, are hesitant to walk away from a house due to the impact it will have on credit and future purchases while trying to rebuild after a divorce.

Recently, a Florida appellate court evaluated this situation in Byrne v. Byrne, 3D10-2323 (Fla. 3rd DCA January 18, 2012). In the case, the parties had a condo that was $76,000 underwater. Originally, the Wife wanted to keep the home and make payments towards the property so as not to ruin her credit. She was initially awarded the home in the divorce, but was given no consideration by the court regarding the negative equity that she was taking ($76,000 would be owed upon sale). The trial court, in its initial decision, noted that there was a presumption that the Wife would actually turn the keys over the bank in foreclosure and would subsequently not lose the $76,000.

An appeals court is where one takes his/her case if the outcome of the initial case is factually or legally incorrect based on the evidence that is presented at court. Often, a transcript of the original trial will be necessary to preserve the evidence for the appeals court because the court transcript provides a formally written account of all statements made in the courtroom. Typically, a transcript is typed by a court reporter and since all witnesses are sworn in, their statements in court are sworn to statements that can be typed up and presented to the appeals court for review of all evidence.

In this case, the third district court of appeals in Florida considered the order entered by the trial court in the divorce and ultimately found that while the court was rational in its thought that many people are walking away from their homes. However, the appellate court also determined that there still must be consideration for the debt in the equal distribution of assets and debts because the bank may still come after the Wife for a deficiency (Husband too if the mortgage still has his name on it.).

The reality is that the judges are limited in their knowledge of the case because they only get to hear what is presented at court. While the parties may negotiate outside of the court and go to mediation, those negotiations are confidential and cannot be used at trial. Therefore, the judge may hear that a party, like the Wife, wants to keep the home, while in negotiations the Wife tried to give the debt of the home to the Husband because she did not want to have to deal with the mortgage, repairs and the like on a money pit. Ultimately, the courts have a duty to err on the side of the law and in Florida the law is for equal distribution of assets and debts regardless of what the party will actually do with the debts after the divorce (e.g. bankruptcy of all credit cards).

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