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Florida Family Law Financial Affidavits and Alimony

November 3rd, 2014 Comments off

In Florida Family Law Cases we always file a Family Law Financial Affidavit (for the short form affidavit: http://www.flcourts.org/core/fileparse.php/293/urlt/902b.pdf and for the long form affidavit: http://www.flcourts.org/core/fileparse.php/293/urlt/902c.pdf). These affidavits are very useful in determining the marital estate to be divided in equitable distribution and for determining the need and ability to pay for alimony purposes.

Florida Family Law Financial  Affidavits are very important and should be taken very seriously by the parties.  In one recent Second District Court of Appeal case the Appellate Court relied on the Husband’s financial affidavit in reversing the trial Court’s approval of alimony.

The Appellate Court found that based on the the Husband’s financial affidavit he had a deficit and therefore did not have the ability to pay the alimony awarded by the trial court.  In that case the Husband had a net monthly income of $3,380.41 with a deficit of almost $500.00 per month and pursuant to her financial affidavit the Wife had a net income of $1,245.00 per month and a deficit of almost $2,000 per month.  The Court also found that the parties lived beyond their means as evidenced by credit card debt and that both parties had a monthly deficiency.

In the same case, the Appellate Court also reversed the trial court’s failure to order holiday time sharing.

Where visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary to to deny it requires factual findings justifying that decision.” Todd v. Guillaume-Todd, 972 So. 2d 1003, 1006 (Fla. 4th DCA 2008).

Whenever there are alimony or child issues in a family law case it is highly advisable to obtain the assistance of a licensed family law attorney.

See, Mills v. Johnson, 39 Fla. L. Weekly D1569 (Fla. 2nd DCA 2014).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law, Civil Litigation, and Estate Planning.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Right to Access of the Court System

September 19th, 2014 Comments off

The vast majority of family law matters, whether a dissolution of marriage (divorce) or child related (paternity), cases resolve in a settlement.   This means that the parties can avoid going to Court and having a Judge determine their fates.   Sometimes the parties cannot amicably resolve their case and must go before a Judge.  It is your right to have your case decided by the Judge.

 

The Judicial system must balance crowded dockets with the citizen’s right to have “access to the courts,” that is to say your right to have your case decided by the Judge.  Often Judges will put time pressures on cases to clear up their docket.  In one recent case from Miami, the Judge did not provide the Wife with adequate time to present her case.  Specifically, telling her counsel that he needed to wrap up her testimony in fifteen (15) minutes.  The appellate court found this to be a violation of the Wife’s right to due process and remanded the case to the trial court.

 

Specifically, the appellate court stated

[w]hile courts have broad authority to control their dockets, trial judges must use this authority to ‘manage their courtrooms so that he people’s business may be conducted fairly, efficiently, and expeditiously.’ Smith v. Smith, 964 So. 2d 217, 218 (Fla. 2d DCA 2007)(quoting McCrae v. State, 908 So. 2d 1095, 1096 (Fla. 1st DCA 2005)).  We recognize the difficulty of balancing the desires of parties to ‘have their day in court’ with the necessity of the courts to keep to a schedule and accommodate the similar desire of other parties and that this becomes even more difficult when ‘day in court’ unexpectedly becomes a ‘day and a half.”… In the instant case, despite the trial court’s efforts to push the parties to complete the case within the scheduled timeframe, when 5:15 p.m. came, one party (the Wife) had not been afforded her ‘fair share of the court’s time.’ Id. at 219.” Julia v. Julia, 39 Fla. L. Weekly D1792 (Fla. 4th DCA 2014).

 

While it is often in the parties’ best interest to control their own destinony and settle a case, it is absolutely your right to present your case to the Judge and have the Court decide your family law matter.

Certain Issues in Equitable Distribution of Property

September 5th, 2014 Comments off

In a dissolution of marriage involving property, the trial court must determine what asset is marital versus non-marital, what is the value of each asset, and decide how to split the assets. The date of determining the existence of marital versus non-marital assets is the date of filing of the petition. Because cases can take several months or even years to conclude, an asset may exit at the date of filing but not exist, or its value may substantially decrease, by the date of trial. A perfect example is a bank account. In this situation, what is a court to do?

In a recent case in Ballard v. Ballard, 39 Fla. L. Weekly 1670c (Fla. 1st DCA, 2014), the parties owned a bank account that was significantly diminished by the Husband during the dependency of the case. At the date of filing, the bank account had $42,012; by the trial date, the account had no funds. The Husband testified that he used some of the money to pay his attorney’s fees. The trial court did not find any misconduct on the part of the Husband but nonetheless included the $42,012 in the equitable distribution scheme.

The court found error to include the bank account as an existing asset to be divided parties, holding that

“[s]ums that have been diminished during dissolution proceedings for purposes reasonably related to the marriage, such as attorney’s fees for the dissolution, should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage.”

In the Ballard case, the court also considered an issue of whether equity acquired in a pre-marital house due to mortgage payments made during the marriage is a martial asset. The court answered this in the affirmative holding that

“increase in equity resulting from paying down the mortgage with marital funds constitutes a marital asset subject to equitable distribution.”

For more information see Ballard v. Ballard, 39 Fla. L. Weekly 1670c (Fla. 1st DCA, 2014). Liridona Sinani is an Attorney with Martin Law Firm, P.L. who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She primarily practices in Lee County and Collier County Florida in Cape Coral, Fort Myers, and Naples.

What is durational alimony?

August 27th, 2014 Comments off

There are several different types of alimony within Florida Law including permanent periodic alimony, rehabilitative alimony, bridge the gap alimony, and durational alimony.

Durational alimony is alimony for a set period of time.

The length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.”  Cooley v Cooley, 106 So. 3d 17, 17 (Fla. 2d DCA 2013).

 

In one recent Second District Court of Appeal case, the trial court ordered durational alimony for a period of fifteen (15) years.  However, the length of the marriage was only fourteen years and ten months.  The appellate court found it error to order alimony for a period of time in excess of the length of the marriage and remanded the matter to the trial court.

 

See, Egle v. Krinsk, 39 Fla. L. Weekly D1450 (Fla. 2nd DCA 2014).

 

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law, Civil Litigation, and Estate Planning.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Causes of Neck Injuries

August 16th, 2014 Comments off

Neck injuries are most commonly caused in four different ways. These are described by doctors as flexion, hyperextension, vertical compression and rotation injuries. So what does each of these mean to you as an injured person? An understanding of the nature of these injuries may be useful while you focus on the healing process. The most important thing for you to consider as an accident victim is that your body was not designed for the forces involved in auto accidents or similar incidents. Even mild impacts can have serious consequences to your long term health and wellness.

 

A flexion injury is caused when your neck bends forward too much or too fast or even both which is frequently what happens in an auto accident. Flexion injuries range from mild to severe and the injuries to you muscles, ligaments and spinal cord range accordingly. Considering that even a mild flexion injury can cause a fracture of the anterior portion of the vertebral body (the front part of your vertebrate), a severe flexion injury can cause a dislocation of vertebrae resulting in very serious spinal cord damage. Mild to severe flexion injuries can easily occur in a car accident including a “rear ender.” A hyperextension injury is the reverse of a flexion injury. Here your head and neck move backwards too fast and too much. Again, these injuries can range from mild to severe with similar consequences.

 

Vertical Compression injuries are typically caused by a blow or strike to your head. A compression injury can cause a fracture to your vertebrae. Vertebral compression fractures are classified as Types I through IV. Type III or IV fractures can insert bone fragments or push a vertebral disc into the spinal canal with serious consequences. A severe compression fracture in your cervical area can cause quadriplegia or death.

 

The point here is that any injury to your neck in an auto accident is serious business causing permanent and long lasting damage to yourself. Always consult with a physician as soon as possible after any accident.

Our law practice helps injured people. If you need help, please call us now.

If I am relocating, can I seek to modify the time-sharing agreement of my minor child?

January 16th, 2014 Comments off

It is important to note that any modification to a determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be achieved without a showing of a substantial, material, and unanticipated change in circumstances. In addition, the modification must be in the best interests of the child. In a recent case in Moore v. Mcintosh, 39 Fla. L. Weekly 78a (Fla. 1St DCA 2014), the 1st DCA held that relocation does not itself constitute a substantial change in circumstances to warrant modification of a time-sharing agreement. The court cited several cases in which relocation did not constitute a substantial change in circumstances.

In Moore, the parties had entered into a marital settlement agreement which specifically stated that the parties anticipated to reside in close proximity to one another and in the same school district. Then, both parties relocated to different cities. The Court held that

although this expresses a hope that the parties would remain in close proximity to each other, the possibility of relocation is expressly contemplated.

In sum, if one party is seeking to relocate, he or she must still show a substantial change in circumstances to justify the relocation and the change in the time-sharing agreement. This hurdle may be avoided with proper drafting of your time-sharing agreement.

For more information, see Moore v. Mcintosh, 39 Fla. L. Weekly 78a (Fla. 1St DCA 2014). Liridona Sinani is an Attorney with Martin Law Firm, P.L. who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She primarily practices in Lee County and Collier County Florida in Cape Coral, Fort Myers, and Naples.

If my ex-spouse is currently in a supportive relationship, can I seek to reduce or terminate my alimony obligation?

January 13th, 2014 Comments off

Pursuant to Florida statutes, alimony may be awarded when one spouse has a need for financial assistance and the other spouse has the ability to pay. If a court awards alimony, then the obligor may later seek to modify or terminate the alimony obligation if there is a substantial change in circumstances or if the obligee has entered into a supportive relationship. Pursuant to Florida statutes, the court has discretion to reduce or terminate an award of alimony if the court finds that since the granting of the divorce decree, a supportive relationship has existed between the obligee and a person with whom the obligee resides (“cohabitant”).

The burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists. In a recent case, Gregory v. Gregory, 39 Fla. Weekly D1A (Fla. 5th DCA 2014), the 5th DCA held that once the court finds that a supportive relationship exists, the burden of proof shifts to the obligee to prove that he or she has a continued need for the financial support. In that case, the Husband sought to reduce or terminate his alimony obligation based on the wife’s supportive relationship. Ultimately, the court held that the  wife was living in a supportive relationship and she failed to prove that she had the continued need for alimony.

Some of the facts on which the court relied included former wife’s inheritance of $370,000 from her mother, wife’s ability to make substantial gifts to her son and cohabitant, and the cohabitant’s valuable non-economical assistance to the wife. Further, evidence showed that the wife supported her cohabitant to a certain extent. In response to this, the 5th DCA stated “the former husband is under no obligation to help support the former wife’s cohabitant.” While these factors were particular to this case, they are not exclusive and each individual case is unique.

For more information, see Gregory v. Gregory, 39 Fla. Weekly D1A (Fla. 5th DCA 2014). Liridona Sinani is an Attorney with Martin Law Firm, P.L. who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She primarily practices in Lee County and Collier County Florida in Cape Coral, Fort Myers, and Naples.

Does Florida have jurisdiction over my child support case?

November 18th, 2013 Comments off

In order to prevent jurisdictional disputes with courts in other states on matters relating to child support and time sharing, Florida has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Pursuant to the UCCJEA, the exercise of jurisdiction in making an initial custody determination lies with the child’s home state. “Home state” is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a proceeding involving a child.

Many jurisdictional disputes arise when one parent decides to remove the child from Florida and move to another state with the child. Then, either one or both parents will file a petition seeking establishment of timesharing and child support in their respective states. In this instance, the courts will have to decide whether Florida or the other state has jurisdiction to preside over the case.

In the recent case of Barnes v. Barnes, 38 Fla. L. Weekly D2255 (Fla. 4Th DCA 2013), the mother and father moved with their children to Florida in October 2010. On August 24, 2011, the mother and the children moved to Colorado. On December 8, 2011, the father filed a petition in Florida for a parenting plan, child support, and timesharing. The Mother also filed a petition for dissolution of marriage in Colorado.

In Barnes, the issue was whether Florida or Colorado was the home state. The trial court declined to exercise jurisdiction because it determined that Colorado was the home state. In overturning the trial court’s decision, the 4th DCA relied on a previous case decided by the 2nd DCA, M.A.C. v. M.D.H., 88 So. 3D 1050 (Fla. 2d DCA 2012). In M.A.C., the court looked at the time period between six months prior to the filing of the petition and the date of the filing of the petition to determine if Florida qualified as the home state at any time in between.

In Barnes, because the Father filed his petition on December 8, 2011, the court looked at the time period of June 8, 2011 and December 8, 2011 to determine if Florida qualified as the home state at any time in between. The court found that as of June 8, 2011 the children had been living in Florida for eight months. Therefore, the court held that Florida was the home state.

Jurisdictional disputes can be complex. If a case is improperly filed, it may lead to additional time and expense. It is important to contact an attorney before you file your case to determine if Florida has jurisdiction. You may always contact Martin Law Firm for a free consultation.

For more information, see Barnes v. Barnes, 38 Fla. L. Weekly D2255 (Fla. 4Th DCA 2013). Liridona Sinani is an Attorney with Martin Law Firm, P.L. who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She primarily practices in Lee County and Collier County Florida in Cape Coral, Fort Myers, and Naples, Florida.

The trial court ordered that my spouse pay my attorney’s fees, but my spouse refuses, can I enforce the order?

October 21st, 2013 Comments off

Florida Statute § 61.16 provides for attorney’s fees to be paid by a more financially abled party in Dissolution of Marriage cases. Florida Statute  § 61.16  provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals,”

Fla Stat. § 61.16 (2013). This is not to say that the other spouse always has to pay attorney’s fees in divorce cases, but rather that both parties are entitled to be on “equal footing” within the family law courts. Therefore when there is need by one spouse and an ability to pay by the other spouse, the court may order attorney’s fees to be paid.

Unfortunately, the order to pay often occurs later in the case, after you have already paid some or all of you attorney’s fees.  Once this occurs, the money paid directly to the attorney is refunded to the client.  Therefore, you may have a strong interest in your spouse actually paying the ordered amount.

While it is well settled that the attorney who is entitled to receive the monies may bring a motion to enforce the order of attorney’s fees and costs, there was some question as to whether the actual spouse may enforce the order. The Second District Court of Appeals answered this question in a recent case.  The Former Husband brought a Motion to Enforce the Court’s order to pay attorney’s fees and costs to the court.  The trial court found that he did not have standing to bring said motion.  That is to say, that the Former Husband could not bring the motion on his own before the court.

The Second District Court of Appeal reversed and found that the order to pay attorney’s fees on behalf of of the Former Husband was an award to the Former Husband and therefore he could bring a Motion to Enforce.

Martin Law Firm, P.L. will always aggressively seek attorney’s fees when they are appropriate.  Once an order to pay them on behalf of a client is entered Martin Law Firm, P.L. will also aggressively seek collection of that order.

See, Coppola v. Coppola, 38 Fla. L. Weekly D2045 (Fla. 2nd DCA 2013).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Southwest Florida including Lee County and Collier County, Florida, Fort Myers, Cape Coral, and Naples.

Is a Court Required to Consider the Tax Implications of An Alimony Award?

September 29th, 2013 Comments off

In determining whether to award alimony, the court must first make a determination as to whether either party has an actual need for alimony and whether either party has the ability to pay alimony. If both of these questions are answered affirmatively, then in determining the proper type and amount of alimony, the court must consider all relevant factors specified in Fla. Stat. § 61.08(2). One of the enumerated factors in the statute is “[t]he tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.” Fla. Stat. § 61.08(2)(h).

In Tarkow v. Tarkow, 38 Fla. Law Weekly D1827 (2nd DCA, 2013), the parties were married for twenty-eight years and divorced in 2000. Pursuant to the final judgment, the Former Husband was required to pay the Former Wife $6000 per month in permanent periodic alimony. In 2010, the Former Husband filed a supplemental petition seeking to reduce or terminate his alimony obligation. In support of his petition, he claimed that there was a “substantial change in circumstances,” in that his income was reduced, and that the former wife was in a “supportive relationship.”

After a hearing on the issue, the presiding General Magistrate found that the wife was in a supportive relationship and that there was a substantial change in circumstances – that the change was not contemplated at the time of the final judgment, and that the change is sufficient, material, involuntary, and permanent in nature. Consequently, the General Magistrate reduced the alimony award. During the hearing, in order to determine her need, the Former Wife introduced a chart into evidence which listed her living expenses. Part of her living expenses included a $13,497 item for State and Federal income tax liabilities attendant with her investment and retirement incomes. However, in calculating the Former Wife’s need, the trial court declined to consider the income tax expenses.

In her appeal, the Former Wife argued that the circuit court erred in failing to consider the tax consequences of the reduced alimony award to the Former Wife in determining her need for continued support. The 2nd DCA agreed, concluding that

“[i]t is error for the trial court to fail to consider the tax implications of an alimony award when such evidence is presented.” (citing Farley v. Farley, 800 So. 2D 710, 712 (Fla. 2nd DCA 2001)).

In this instance, the case was reversed on this issue and the trial court was ordered to reconsider the reduction in light of the Former Wife’s income tax obligations. For more information, see Tarkow v. Tarkow, 38 Fla. Law Weekly D1827 (2nd DCA, 2013)

Liridona Sinani is an Attorney with Martin Law Firm, P.L. who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She primarily practices in Lee County and Collier County Florida in Cape Coral, Fort Myers, and Naples, Florida.