In a dissolution of marriage case, there are generally five major issues, which we identify according to the PEACE acronym. Those are: Parenting, Equitable distribution, Alimony, Child support, and Everything else. What you can expect is that many dissolution of marriage cases get resolved prior to going to trial, either at mediation or by entering into a Marital Settlement Agreement.

If the parties are splitting assets or money, it is important to keep in mind that the way those items are characterized can have consequences on whether they are enforceable by contempt. For example, if one party agrees to give to the other spouse a particular property or a sum of money, whether it is characterized as alimony, child support, or equitable distribution is very important. An obligation of support, such as alimony and child support, is enforceable by the Court through its contempt powers. However, failure to abide by an agreement which calls for a specific equitable distribution scheme is not enforceable by contempt.

But what happens if the agreement between the parties, or the final judgment adopting the same, does not specify whether a particular obligation is in the nature of support or part of equitable distribution? The court in Morrel v Morrel, 38 Fla. L. Weekly D22a (4th DCA 2013), was recently faced with this question. There, the former husband was required to maintain life insurance pursuant to a settlement agreement. When the former husband failed to do as he agreed, the former wife attempted to enforce the agreement through a contempt proceeding. The final judgment did not provide for alimony or other support for the wife. Because of this, but to no avail, the former husband argued that the life insurance was part of equitable distribution of property and therefore not enforceable by contempt. Due to evidence presented, the trial court agreed with the former wife that the life insurance was in the nature of support, and the 4th DCA affirmed. The result was that the husband was ordered “either to secure the insurance or to deposit cash of an equivalent amount in an account for the former wife’s benefit, should he predecease her.”

As you can see from the Morrel case, one way to avoid these situations is to understand the consequences of any provisions in the agreement, which you agree to sign. If you would like to avoid any ambiguity, be as precise and as clear as possible.

For more information, see Morrel v Morrel, 38 Fla. L. Weekly D22a (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. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

If you are seeking a court order to modify time-sharing or custody determination provisions set forth in your mediated settlement agreement, you must prove to the court either that (1) there are facts concerning the welfare of the child that the court did not know at the time that it entered its original order or (2) that there has been a substantial change in circumstances. If you are relying on the second test, you must not only show that the circumstances substantially and materially changed since the original order but also that the requested change in time sharing or custody determination is in the best interests of the child. Your burden of proof is to provide competent substantial evidence in support of your position.

In a recent case decided by the Third District Court of Appeal (3rd DCA), the husband and wife had entered into a mediated agreement whereby the parties agreed to have shared parental responsibility of their minor children and the mother’s residence was designated as the primary residence for the children. About five years after the court entered its final judgment adopting the mediated agreement, the father sought to change the final judgment, particularly the provisions relating to time-sharing and primary residence of the minor children. The father’s arguments for substantial change in circumstances were “parental alienation” by the mother. The crux of the father’s argument was that the older child, as allowed by the mother, had such control over the younger siblings that it detrimentally interfered with the father’s relationship with the younger children.

Relying on the testimony of a clinical psychologist, the trial court held that the father’s allegations of “parental alienation” were “confirmed by [the psychologist].” Due to this, the trial court ordered that the younger children immediately be transferred to the father’s residence and awarded sole parental responsibility of the younger children to the father. The 3rd DCA did not find this ruling to be supported by competent substantial evidence. Upon its own review of the psychologist’s testimony, the 3rd DCA found that that although the older child made every attempt to impair the younger siblings’ relationship with their father, the mother would in fact encourage a relationship between the children and the father. Additionally, the 3rd DCA did not find that the immediate transition of the younger children’s residence from the mother to the father, as ordered by the trial court, was in the best interests of the minor children.

Therefore, it is important to keep in mind that if you are seeking a post-judgment modification of a time-sharing or custody provision in a mediated agreement, you must not only prove a substantial change in circumstances, but also that the requested relief is in the best interest of the child(ren).

For more information, see Sueiro v. Gallardo, 38 Fla. L. Weekly D63 (Fla. 3rd DCA, 2012).

Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law. She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

With the new year come new Family Law Rules of Procedure. In a recent Florida Supreme Court opinion, Florida Family Law Rule of Procedure 12.740(f), which provided for a ten day review period for counsel who was not present when a mediation agreement is reached, was deleted. The rule previously stated that if counsel of record for any party was not present at mediation when an agreement was reached, such counsel has ten days from the service of the copy of the agreement to serve written objections on the mediator, unrepresented parties, and counsel. However, beginning January 1st, 2013, this provision is no longer available.

What exactly does this mean and how does it impact you? Admittedly, mediation can be a costly event. As such, parties under dire financial circumstances may choose to forgo having representation at mediation and instead opt for their attorney to review the agreement and file any objections later. With this new opinion, parties no longer have that 10 day safety net provided by Rule12.740(f). What this means is that in order to ensure that are fully advised of your rights prior to reaching any binding agreements it is best to have counsel present at mediation. However, if your financial circumstances forbid you from doing so, then make sure to incorporate a provision in your mediation agreement allowing for attorney review before you sign the agreement.

For more information, see Supreme Court of Florida Case No. SC11-1454.

Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law.  She is admitted to practice law in the State of Florida. She primarily practices in Lee County, Florida in Cape Coral and Fort Myers, Florida.

Florida Statute 61.14(1)(b), sometimes referred to as “the cohabitation statute,” states that b(1)
[t]he court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderence of the evidence that a supportive relationship exists. (2) In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question….

The Second District Court of Appeals recently explained that to determine whether a supportive relationship exists, the circuit court must employ an analysis of four steps: First, the circuit court must elicit the nature and extent of the relationship in question. Second, the court must determine whether the facts establish a supportive relationship. Third, if a supportive relationship is found to exist, the court must consider the relevant economic factors for determining an award of separate maintenance or alimony outlined in section 61.08(2). Fourth, after evaluating all relevant economic factors, the court must must decide whether to reduce or terminate the alimony obligation.

If a payor is able to prove that the recipient of alimony is in a supportive relationship, the court may reduce or terminate any alimony order currently in place. These are important factors to consider when deciding whether to attempt to modify any previous alimony orders in your case.
See King v. King, 37 Fla. L. Weekly D552.

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.

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.

Florida Statute § 88.6041 explains how out of state support orders are to be enforced in Florida.  It provides:

(1) The law of the issuing state governs the nature, extent, amount and duration of current payments and other obligations of support and the payment of arrearages under the order

(2) In a proceeding for arrearages, the statute of limitations under the laws of this state or of the issuing state, whichever is longer, applies.”

Fla. Stat. § 88.6041 (2010).  In summary, the order from the issuing state will govern the details of the support.  However, as to how long the payee has to enforce the order, the state’s law which provides the longer time period for enforcement will govern.  Support orders include child support and spousal support which is commonly referred to as alimony.

Florida allows the payee an unlimited amount of time to enforce a support order.  Thus when an out of state support order is being enforced in Florida, it may be enforced at any time, up to and including against the estate of a deceased payor.  There are affirmative defenses to enforcing an out of state order which may be relied on by the payor; however, these defenses will require an evidentiary hearing based on the conduct of the parties and not simply the passage of time.

See Jackmore v. Jackmore, 36 Fla. L. Weekly D2217 (Fla. 1st 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.

As far as a technical definition it is likely nonmarital; however, any increase in value is likely considered a marital asset.

Earlier this year the Second District Court of Appeal, which is the appeals court for our local courts in Fort Myers and Naples, decided a case involving a family business started prior the marriage.  Specifically, the Husband started a corporation which he was the sole shareholder prior to his marriage.  After marrying, he moved to Florida and reincorporated the business.  The trial court found this action made the corporation marital property.  However, the Second District Court of Appeal, relying on previous precedent, found it was nonmarital property.  

The court found that under Florida Statue § 61.075 the property was acquired from assets held prior to marriage.  Thus the business was properly considered nonmarital property. The Husband had transferred a percentage of this company to his Wife during the marriage.  This transfer was properly considered marital property under Florida Statue § 61.075.  Additionally, because marital labor and resources were put into the business, any increase in value was properly considered marital property subject to equitable distribution.

Since the court reversed a portion of the equitable distribution award it necessitated review of the alimony and attorney’s fees award by the trial court on remand.  Alimony and attorney’s fees are based on a need by one spouse and the ability to pay by the other spouse.  If there is a substantial equitable distribution, it is possible that there will not be the need for alimony or attorney’s fees.  However, if a substantial distribution is reduced on appeal, it is likely that the alimony and attorney’s fees also be adjusted.

See Orloff v. Orloff, 36 Fla. L. Weekly D643 (Fla. 2d 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.

Generally speaking it is, IF any part of the pension was earned during the marriage.  Specifically, even if one earned only a small percentage of their pension during the marriage it is subject to equitable distribution.

A recent South Florida case dealt with this very issue.  A Husband earned the majority of his pension outside of the marriage.  However, the trial court failed to determine how much, if any, of the pension was a marital asset subject to Equitable Distribution.  Since the trial court did not make any determination as to the marital status of the pension as required by Florida Statute § 61.075(3), the Fifth District Court of Appeal found this to be reversible error. 

It is important to understand that in cases like this it is likely that only the percentage earned during the marriage would be considered a marital asset and the rest would be considered nonmarital.  Thus even though a portion was subject to equitable distribution, it is likely that the vast majority of the pension would have been considered nonmarital and not subject to divide. 

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 a 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.

Believe it or not the answer is “yes.” A recent South Florida case addressed two procedural issues in post dissolution of marriage cases.   The first issue dealt with a referral to the general magistrate for Florida Statute Section 57.105 sanctions.  The court found it did not have the jurisdiction to hear this issue.  Stating in relevant part: “Neither the possibility (or even likelihood) that a party will incur additional attorney fees and costs as a consequence of an erroneous non-final order, nor that the court will waste limited resources by proceeding, is a sufficient ground to confer jurisdiction on an appellate court to review an otherwise non-appealable, non-final order.”

The second issue dealt with reimbursement for federal income taxes paid by the wife on her post-divorce alimony.  On this issue the matter was initially heard by a magistrate. The magistrate denied the Wife’s claim, which she appealed to the Circuit court.  However, she did not do this within the 10 days required by law.  As such, the Appeals Court found that the trial court erred when it failed to adopt the magistrate’s report.  

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law, and Civil Litigation.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

See Edge v. Edge, 36 Fla. L. Weekly D1977 (Fla 3d DCA 2011).

Divorce affects every aspect of your life. The stakes are high. Your children and your financial future may be on the line. After you have made the decision to move forward with your divorce, the next step is to find the attorney who is right for you.

Like every professional, there are good and bad divorce attorneys. It is critical that you find one whom you believe will responsibly represent your interests and understands your objectives.

In your search for the right attorney, you will want to schedule consultations with several to discuss your case. Most will charge a fee for their time if you want to sit down for an in-depth consultation, but, the initial expense is worth it to determine whether you want to trust this particular professional with your divorce. Here are a few questions to ask your prospective attorney:

• Do you serve divorcing clients exclusively? If not, what percentage of your work is devoted to divorce?
• How much direct experience do you have dealing with cases like mine?
• What is your approach? This is an important question because some attorneys place greater emphasis on resolving your case quickly and amicably, while some attorneys will prefer to take a more confrontational stand. Both approaches have their merits, but one approach may not be right for you.
• Do you have any strong feelings about parenting? If you have children, you will want to ask your prospective attorney about their views on the role of parents.
• Will you keep our communications confidential?
• Can I call you between scheduled meetings? If so, do you charge for these calls?
• Do you require a retainer, and if so, what is it? Is this fee refundable?
• What is your hourly fee / payment terms?
• Approximately how much will your services cost? Your prospective attorney should be able to give some sort of estimate based on the information provided and how your spouse may act during the divorce process. If your spouse and his / her attorney file several motions and bury your attorney in paperwork, your costs will increase.
• What do you think the outcome will be? Be wary of any attorney who will paint a pretty picture and tell you everything you want to hear. You want honesty from your attorney.
• How long will this process take?
• What are my rights and obligations during this process? What happens next? Do I need to do anything? And when will I hear from you?

Your choice of a divorce attorney is an important one. Contact Martin Law Firm today to schedule a consultation and find out if our attorneys are right for you.

Michael Bradenham is an attorney practicing exclusively in the area of Family Law and Divorce. He holds a law degree from the University of Florida and a master’s degree from Harvard University.