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.

What is formerly known as “custody” is currently referred to as “time sharing” in Florida Statutes. When parties in a dissolution of marriage case have a minor child in common, there is a need to establish parental responsibility for the minor child. The parties will strive to agree on a parenting plan, including a a time-sharing schedule, which governs each parent’s relationship with his or her minor child.

For purposes of establishing parental responsibility and creating, developing, or approving a parenting plan, the court must decide all such matters in accordance with the best interests of the child. However, 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 modified without a showing of a substantial, material, and unanticipated change in circumstances in addition to a determination that the modification is in the best interests of the child.

What may seem as an emergency to you that warrants a modification of an existing time-sharing schedule may not persuade the judge if he or she does not consider it a substantial change in circumstances. For example, in a recent opinion by the First District Court of Appeals, the former husband and wife had time-sharing of their minor child, when the former husband sought to modify it on an emergency basis because his cancer was no longer in remission and his health was deteriorating. The trial court granted the former husband’s motion and modified, on a temporary basis, the final order establishing time-sharing, notwithstanding the fact that the basis supporting the modification was not unanticipated and the court had taken into consideration the former husband’s health when it first issued the final order.

The 1^st DCA overruled the trial court’s decision on this point, holding:

“in order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child … Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.”

Here, because the trial court acknowledged that it had taken the former husband’s health into consideration when it issued the final order, it was without power to grant a modification of such order.

Dissolution of marriage can be an emotional process, especially when children are involved. You want to ensure that you secure the best possible outcome for you and your children. That is why it is important to seek the advice of counsel from the inception of your dissolution of marriage case. If you currently have time-sharing of your minor child or children and are experiencing a change in circumstances that you feel warrants a modification of your existing order, make sure you speak to an attorney so that you are adequately prepared to meet your burden of proof to get a modification granted.

See Langdon v. Langdon, 37 Fla. L. Weekly D2061 (Fla. 1^st 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.

In Florida, for an adoption to be valid, the parental rights of the biological parents must first be terminated. For those rights to be terminated, voluntary or involuntary termination of rights must occur. When rights are involuntarily terminated, it is usually through a dependency case or child abuse. Parental rights may be terminated after a full evidentiary hearing and a determination by clear and convincing evidence that each person required to give consent, among other things, has been properly served notice of the proceedings and has been determined to have abandoned the child, or failed to either file a written answer or appear at the hearing.

But, what happens when one spouse tries to give the child up for adoption without the consent of the other spouse? What procedure must the trial court follow in a petition for termination of parental rights? This similar fact pattern appeared in a recent opinion by the 5^th District Court of Appeals where the mother tried to give the child to an Adoption Agency without telling the father or getting the father’s consent, and lying to the Adoption Agency about it. The adoptive parents filed a petition to adopt the child, alleging that the father had abandoned the child. At the hearing, the trial court found that the father had not abandoned the child and no other evidence existed to terminate his parental rights. However, the trial court proceeded to adjudicate the child dependent and ordered the father to pay child support, have visitation with the child, and enter into a case plan. The appellate court affirmed the trial court’s decision denying adoptive parents’ petition to terminate father’s parental rights but reversed the trial court’s order adjudicating the child dependent and ordering the father to pay child support, have visitation with the child, and creating a case plan, finding that the trial court should have dismissed the petition to terminate parental rights entirely.

According to Florida Statute 63.089(5),

[i]f the court does not find by clear and convincing evidence that parental rights of a parent should be terminated pending adoption, the court must dismiss the petition [and] [f]urther proceedings … must be brought in a separate … dependency action.

The appellate court noted that after the trial court found that there was insufficient evidence to support termination of father’s parental rights, the court had no choice but to dismiss the petition. According to the appellate court,

[t]he statute is clear that any dependency proceedings would have to be filed separately in a dependency action pursuant to chapter 39.

See V.M. v. Home at Last Adoption Agency, 37 Fla. L. Weekly D1733 (Fla. 5^th DCA 2012).

Termination of Parental Rights is a serious issue in Florida Law. The Department of Children and Family Services often becomes involved in situations where a child’s welfare is in danger. Many times extended family members may be concerned about the parenting style or neglect by the child’s parents. If this becomes an issue, or if abuse is a concern, the Department of Children and Family Services will often take part in the case.

In temporary situations where children need to be provided care, family members may apply for Temporary Custody by and Extended Family Member, by petitioning the Court for an order allowing them to temporarily care for the children at issue. Many times this is a better situation for everyone involved, because the children are then able to be cared for in a familiar environment, and the Court is able to monitor the situation first hand.

See In the Interest of N.F., a child N.F., Appellant v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees, 37 Fla. L. Weekly D654.

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 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.

Many family law cases are able to be resolved at mediation, which keeps the parties from having to go before a judge to further litigate their case. Mediation is a beneficial way to work out parenting plans, child support, and even alimony arrangements between parents.

Mediated agreements can be as detailed as the parties choose for them to be. Some spouses prefer this option, so that if they other party does not comply, there is a clear course to enforce the agreement. Either party may file for contempt with the court, and the non-complying party will be forced to either comply with the agreement, or show the court why they are unable to do so.

When the court finds that one party is able to comply, but is willfully choosing not to do so, the court may find that party in contempt. At that point, it is up to each individual court to decide what sanctions to impose. Many times this may be a payment, or a “purge” amount to bring the non-compliance current, or it may be other sanctions that the court finds are proper to award the other spouse.

It is important to note that even attorney’s fees may be awarded to the spouse who files for contempt if the court finds that the non-complying party is actually in contempt. It is usually best to try to communicate and work out any differences prior to taking court action. Even if this is unsuccessful, the court will at least be impressed to know that you did try to work out the problem prior to coming into the courtroom.

See Norberg v. Norberg, 37 Fla. L. Weekly D415.

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.

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.