The Florida Department of Revenue may intervene in child support cases to ensure that a minor child is receiving the care and support he or she is entitled to by law. Paternity is presumed when a husband and wife have a child within the bonds of marriage. However, if the parents are not married, the Department of Revenue may still collect child support from a father who may or may not be the actual biological father of a child.

A father may contest paternity, but the courts will always look to what is in the best interests of the child “[T]he courts require a determination of the child’s best interests. Some circumstances require specific procedures to be followed in evaluating a child’s best interests. For example, if paternity is contested, the child’s legitimacy is at issue, and the legal father has not had notice or an opportunity to be heard, the trial court is required to appoint a guardian ad litem and hear from the guardian and all the parties before proceeding.”

“A trial court may consider the child’s need for support. If the court determines that there is no compelling interest in overcoming the presumption, it must dismiss the paternity action against the putative father.”

The state has an interest in preserving parental rights, but also in ensuring that children are supported. Because of this, the court will look to the best interest of the children in any case involving minor children and family law.

See Dept. of Revenue on behalf of Garcia v. Iglesias & Garcia, 37 Fla. L. Weekly D160.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

In a typical divorce one of the major issues is “equitable distribution.” In Florida equity generally means a 50/50 split.  Although the courts do not have to evenly divide the property, the court must have legal justification for deviating from this standard. 

In a recent case the Husband had used an investment account worth approximately $50,000 to live on during the divorce case.  By the end of the case the account had no money left in it.  In ordering the equitable distribution the trial court ordered that account credited to the Husband.  However, the court did not make any provision for the fact that the Husband has literally spent the wife’s half of that account. The appellate court reversed the trial court stating:

the trial court’s attempt to offset Dan’s unauthorized expenditure by awarding him the worthless account was insufficient because Dan spent Ava’s half of the TD Ameritrade proceeds.”

Absent specific statutory reasons to deviate from an equitable distribution the trial court must order a near even split of the assets and liabilities.

See, Bryne v. Bryne, 37 Fla. L. Weekly D190 (Fla. 3rd DCA 2012).

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 Lee County Florida in Cape Coral and Fort Myers, Florida.

More than likely yes, however the language in the agreement will be very important.  Florida’s Constitution provides for significant protections to homestead property provided certain requirements are met.  This protection extends to the sale of the home to purchase a new home.  However, in the case of a divorce, sometimes the parties agree to sell the marital home and divide the funds. 

Language in this agreement can be very important.  In a 1996 Fourth District Court of Appeal Case the husband agreed:

Judgments, Liens, and Lawsuits Satisfied: The Husband shall satisfy any and all outstanding judgments pending against him from his share of the proceeds received from the sale of the marital property.  Husband shall further be responsible for any and all potential claims, lawsuits, or judgments pending against him individually or in connection with his profession.”

Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996).  In that case the Court found that the Husband’s share of the proceeds were subject to claim by third party creditors.  However in a recent case out of the Third District Court of Appeal, the Court found different language to provide protection from creditors, specifically, from a previous marriage’s child support claim. In that case the parties agreed:

The parties agree that any lien or encumbrances on the marital home not specifically listed in the parties’ Marital Settlement Agreement or Addendum thereto as liens or encumbrances to be paid shall be the sole responsibility of the Husband and shall be paid from his share of the proceeds.  This shall include, but not be limited to, lien(s) from the Husband’s attorney and any loans taken by the Husband except those listed in the Marital Settlement Agreement and Addendums thereto.”

Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). In Kerzner, the Husband, once the liens were satisfied, intended to reinvest his share of the funds into a new home.  The Court found the lack of the language “any and all outstanding judgments pending against,” from the Myers, case made it distinguishable and Husband’s share was protected from creditors other than creditors of the marital home. 

As previously mentioned, the specific creditor at issue here was his previous Wife claiming past due child support.  This is an important secondary point from this case that even child support claims are unable to collect on Florida Homestead. . 

See, Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). See also, Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996). 

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 Lee County Florida in Cape Coral and Fort Myers, Florida.

Usually, the court will impute an income to the non-working spouse. This means that in cases where child support, alimony, and equitable distribution of assets and debts are at issue, the court will decide a wage that should be attributed to the non-working spouse. This imputed income amount will serve as the amount the spouse should be making if they were working, and most calculations throughout the case will be made using this imputed income.

As a matter of law, trial courts should consider the non-working spouse’s work history, occupational qualifications, and the prevailing earnings in the community for that class of available jobs when finding an amount of imputed income. Evidence may be presented that the non-working spouse had earned the same amount prior to quitting a previous job, that the non-working spouse is capable of working, and that the non-working spouse has options to do so.

See Middleton v. Middleton, 37 Fla. L. Weekly D105.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

In Divorce actions, the Final Judgment is the document identifying the final order of the court in your case. Until the final judgment is entered, the court may may temporary decisions regarding issues that need to be determined during the pendency of your divorce, but the final judgment will address all issues in your case.

If the final judgment does not dispose of all integrally related matters at issue in the case, the final judgment is not necessarily the final order in the case. If the court reserves on any issues, the judgment may not be final. Once there is a final order in the case, either party may still have cause appeal the court’s decision, but the appeals court will not have jurisdiction to appeal a final judgment unless it is in fact the final order in the case, and it addresses all integrally related issues in the case.

See El Gohary v. El Gohary, 36 Fla. L. Weekly D2754.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

One of the most common issues for long duration marriages in Florida is the spouse who has a college degree and can work but who has not worked recently in the marriage.  For example, the parties may agree for one spouse to stay at home while the children are younger but agree that the spouse will return to work as the children grow up. As it becomes time for the spouse to return to work the marriage breaks down and at the time of divorce the stay at home spouse is alleging need of permanent alimony. 

While the case is obviously harder to prove because the status quo was that the spouse was not working, it is possible to decrease a spouse’s need based on their proven ability to contribute to their own support.  In a recent case from the Twentieth Judicial Circuit, which includes Fort Myers, the Wife stayed home with the children and ran a small home business.  However, she had a nursing degree and admitted she could return to work full time.  The Court found that it was reasonable that she return to work and decreased her need based on her ability to earn full time income.  In these circumstances it is required to prove actual ability to earn and not purely a speculative ability to earn. 

See, Zambuto v. Zambuto, 36 Fla. L. Weekly D2758 (Fla. 2nd DCA 2011).

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 Lee County Florida in Cape Coral and Fort Myers, Florida.

The short answer is maybe.  Prior to considering the impact of the dissipation of marital funds the Court will need to consider a couple important factors.  First, when did this dissipation occur?  For example if the gambling occurred throughout the marriage it will be less likely to be an major factor in determining the division of property. However, if it occurred immediately around separation it is more likely to result in an offset of marital property. Second the Court will determine if there was a “marital purpose” to the dissipation.  Again, for example, if one spouse gambled while entertaining business clients which contributed to marital income, the dissipation will likely not favor an unequal offset.  However, if one spouse was an addict who simply wasted marital funds on gambling it could favor an unequal distribution.

In a recent case from just north of Fort Myers, the Court found that a Husband who gambled as part of entertaining clients throughout the entire marriage was serving a marital purpose.  As such the Court found it inappropriate to penalize him at the divorce for these actions. The Court found that while the Wife may have been frustrated by these actions throughout the marriage, the actions obviously served a marital purpose. 

See, Zambuto v. Zambuto, 36 Fla. L. Weekly D2758 (Fla. 2nd DCA 2011).

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 Lee County Florida in Cape Coral and Fort Myers, Florida.

Via WINK NEWS – LEE COUNTY, Fla.- The saga surrounding Mindy McCready’s custody battle over her son, Zander McCready, continues.

Mindy McCready’s mother and stepfather, Gayle and Michael Inge, have released the following statement:

“Currently, our grandson is in foster care with strangers with the State of Arkansas. We would like to express our gratitude to the Florida Department of Children and Families for its effort in this case and also to the Arkansas foster family for their help in taking care of our grandson. We would like to plea for his return to Florida before Christmas.

The accusations made by Mindy McCready against us are false and hurtful. These accusations are the same accusations made by Mindy for the past four years and have been thoroughly investigated by the Florida Department of Children and Families and the presiding judge in our grandson’s case. We cannot get into specifics due to confidentiality in any child dependency matter.

The Arkansas Department of Human Services seems to be claiming jurisdiction over this case in violation of the UCCJEA (Unifom Child Custody Jurisdiction and Enforcement Act). Their position is in stark opposition to the basic principals outlined in the UCCJEA. We disagree with Arkansas DHS’s position as Florida has home state jurisdiction under the UCCJEA and a Florida Court has been involved in this case since 2007. In fact, there was a hearing in the Florida Court that concluded in early November for which a decision was pending at the time Mindy fled to Arkansas with the child. We are our grandson’s legal guardians.

The court in Arkansas has not yet ruled on the claims of the Arkansas DHS and has not yet ruled on the threshold issue of whether it even has jurisdiction under the UCCJEA to hear the case. It is our opinion that the State of Florida has ‘home state’ jurisdiction over this case, not the State of Arkansas. More practically speaking, having a case such as this handled in a state over a thousand miles away from our grandson’s family, doctors, teachers and classmates is an absurd and unjust result and clearly not in the best interest of our grandson. Our grandson is in the custody of strangers for the Holidays. This is the first time in his life he has been with strangers. It is hard for us as a family to see how in any way this is the best interest of our grandson. He is only a 5-year-old boy. He has been stolen by his mother, recovered from authorities hiding in a closet, then put in the care of strangers. How could this possibly be in the best interest of our grandson?

In custody and dependency matters justice delayed is often a failure of justice. Please join us in our prayers that the Arkansas court can reach its decision on the UCCJEA issue sooner rather than later so our grandson can return home to us, his family and friends in Lee County for the holidays.”

http://www.winknews.com/Local-Florida/2011-12-21/Inges-release-statement-regarding-McCready-custody-battle

LEE COUNTY, Fla. — A WINK News exclusive: The Mindy McCready custody battle heats up.  WINK News has confirmed the county singer’s son, Zander, will remain in an Arkansas foster home through Christmas.

McCready recently accused her mother of being abusive toward Zander.  Inge denies the allegations.  Ultimately a judge will have the final say on who gets custody.

http://www.winknews.com/Local-Florida/2011-12-20/WINK-ExclusiveMcCreadys-son-to-stay-in-foster-home-for-now

When parents separate by divorce, children are left in the middle of the financial separation. Even when one parent is paying child support, this may or may not be intended to cover additional medical expenses. One or both parents may be ordered to provide medical insurance for the children, but what happens with any additional medical costs?

If parties have an agreement, either party can cover the expenses, the expenses can be shared, or there may be another way to divide the uncovered expenses based on the proportion of the parents’ incomes.

Typically, courts will order both parents to equally share the burden of any uncovered medical expenses. Realistically, this may be difficult to accomplish, as one parent is usually in left in the position of having to front the bill, while waiting to collect from the other parent. This issue can be enforced by a court order should it become a problem, especially where there are excessive expenses for children. As always, it is in the best interest of the children involved for the parents to work together to support their joint children. Courts will use this standard to identify almost any issue regarding the parties’ minor children in family law cases.

See Rushetsky v. Rushetsky, 36 Fla. L. Weekly D2228.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.