The Florida legislature passed Senate Bill 718 which aimed to drastically overhaul Florida family laws.  In summary the bill made two major changes.  First, it completely changed the alimony laws in Florida.  It eliminated what is known as “permanent periodic alimony.”  Permanent periodic alimony is rarely ordered under current law, as the Court must find that no other alimony is appropriate prior to ordering permanent periodic alimony.  In the cases where permanent periodic alimony is ordered the marriage is almost always one of “long duration,” or over seventeen years.  There must also be a need by one spouse and the ability to pay by the other spouse. The bill made other changes to alimony in cases of short and moderate duration marriages.  Primarily establishing alimony guidelines, similar to the Florida child support guidelines. This bill would have applied retroactively, meaning, final judgments and even agreements previously reached would be affected.

The other major proposed change was to child time-sharing.  The legislation would have created a presumption for equal time sharing.   Under current law most family attorneys and judges strive for an equal time-sharing plan.  However, there are certain factors the Court must consider before ordering timesharing.  The overriding concern for the family court judge in any child case is the best interest of the child.  The proposed legislation essentially mandated that equal time-sharing was in the best interest of the child absent a showing otherwise.

Below is the letter that Governor Scott wrote explaining his reasons for the veto.

The First District Court of Appeal recently addressed what must be proven to receive a modification of child support.  In this case, the Father alleged that he was paying child support in excess of the statutory guidelines and that the reduction in support would be in the best interests of the minor child.  However, the Father DID NOT allege that there was an involuntary and permanent change in circumstances.

Florida Statute § 61.14 addresses what must be proven to modify child support.

the circumstances or the financial ability of either party changes or the child who is a beneficiary of an agreement or court order… reaches majority after the execution of the agreement or the rendition of the order…” Fla. Stat. § 61.14

Failure to allege that the child has reached majority or that there has been a change in circumstances can result in your case being dismissed.  Given that the Court can only modify the child support back to the date of filing, a dismissal could cost you months of paying an increased child support.  Therefore it is very important that matters be properly plead when attempting a modification in child support.

See, VanLooven v. VanLooven, 37 Fla. L. Weekly D2385a (Fla. 1d DCA 2012).

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.

Currently Florida’s alimony laws are governed primarily by Florida Statute § 61.08 and the relevant caselaw surrounding alimony.  Florida Statutes were heavily revised in 2009 codifying much of the preceding caselaw.  In Florida there are four types of alimony, bridge-the-gap, rehabilitative, durational, or permanent.  The type and duration of alimony is based on the length of the marriage, need of the recipient spouse, and ability to pay of the payor spouse.

Marriages lasting less than seven years are considered short term marriages.  Permanent alimony is rare for marriages of this length.  However, bridge-the-gap, rehabilitative, or durational alimony may be appropriate if there exists need and ability to pay.  Marriages of seven to seventeen years are considered moderate duration marriages.  For moderate duration marriages alimony is more likely to be awarded; however, it is still unlikely that the court will award permanent alimony absent clear and convincing evidence of need and ability to pay.  Marriages exceeding a length of seventeen years are the most likely to have permanent alimony awarded when there exists need and ability to pay.

When determining whether alimony is appropriate the Court is guided to look at several statutory factors, including:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The 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.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.”

Fla. Stat. §61.08(2)(a-j).

The Florida House of Representatives is currently considering House Bill 231 which would dramatically change Florida’s alimony laws.  Among the major changes the bill would eliminate permanent alimony.  It would also eliminate much of the discretion our trial judges currently possess in determining need and ability to pay.  The new language would provide stringent guidelines for the percentage of the payor’s income which may be awarded for alimony and for the duration a party may receive the alimony.

For more information about the current alimony laws please visit: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.08.html

For more information about the current proposed alimony revisions: http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0231__.docx&DocumentType=Bill&BillNumber=0231&Session=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 Lee County Florida in Cape Coral and Fort Myers, Florida.

Generally arrearages which have already vested cannot be modified upon filing a supplemental petition to modify child support.  When one has experienced a substantial change in circumstances which justifies child support to be modified by at least 15% or $50, whichever is more, the Court may modify the child support.  However, modification can only occur upon the filing of a supplemental petition.  Once child support payments become due the support becomes a vested right and generally cannot be modified retroactively.  There are a few exceptions to this rule when compelling circumstances and proper pleadings justify a modification of the arrearages.  Primarily, the exception is limited to cases where a party is incarcerated preventing them from filing the modification and the compelling reason is proper plead in the pleadings.

However, even within this narrow exception, the Court may still deny the modification of vested arrearages.  For example, in a recent case out of the Fifth District Court of Appeal, the Court found it improper to modify the child support arrearages even when the subject children had already reached adulthood.  The Court found that the father should have filed a supplemental petition to modify child support upon his incarceration and not after his release.  Further the Court cited numerous cases standing for the principle that child support rights vest at the time the payments are due. 

Thus accrued child support, or child support in arrears, become vested rights of the payee and vested obligations of the payor that are not subject to retroactive modifications.” Puglia v. Puglia, 600 So. 2d 484, 485 (Fla. 3d DCA 1993).

It is very important that when a substantial change in circumstances has occurred justifying a modification of child support that the supplemental petition for modification be filed immediately.  Once the payment has become due, it is highly unlikely the Court will modify the arrearage.

See, Cortina v. Lorie, 37 Fla. L. Weekly D2037 (Fla. 5th 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.

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 today’s economy parties to a divorce often agree to sell the marital home in their marital settlement agreements.  Often the sale of the marital home takes considerable time following settlement to accomplish and the parties must make arrangements for payment of maintenance expenses pending the sale.  It is important to be very careful when making these estimations because both parties will be bound to the literal marital settlement agreement, even if certain events are not anticipated at execution.  For example, in one recent case the parties agreed to split prepayment penalties, real estate taxes, assessment, association fees, and insurance until the home was sold.  They also agreed to resolve a dispute with the roofing company at closing.  Ultimately, the Wife in this case resolved the dispute without input of the Husband.  The Husband argued that since he was not involved in the resolution of the dispute he should not be liable for half of the cost.  The Fourth District Court of Appeal found

[t]he MSA [marital settlement agreement] required that the dispute between the parties and the roofer be resolved, not that they both make the decision to resolve the dispute.” Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th DCA 2012).

The marital settlement agreement further provided that the Husband pay the Wife $15,177 from his share of the proceeds of the sale of the home for equitable distribution resulting from the distribution of retirement accounts to the Husband.  Unfortunately, there were no proceeds from the sale of the home and thus the Husband argued he should not be liable for that payment.  The appellate court again found for the Wife stating

[p]ayment from the closing proceeds is not a conditions precedent, only a source for the payment.” Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th DCA 2012).

When drafting a marital settlement agreement it is very important that you consider the implications and consequences of even simple clauses in the agreement.  If you are signing a marital settlement agreement it is imperative that you seek legal counsel.

See, Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th 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.

When scheduling a hearing the attorneys attempt to estimate to the best of their ability the amount of time necessary for a given hearing.  Sometimes, this estimate is inaccurate. Due process requires that both sides be given an approximately equal amount of time to present their evidence and argument.  If there is not enough time to present evidence for one side it may be necessary to continue the hearing.  Unfortunately, this may result in a delay in receiving an order but is the proper procedure.

In one recent Second District Court of Appeal case the trial court was hearing the issue of attorney’s fees and costs.  The Wife was not able to complete the presentation of evidence for her case.  The Husband was not given an opportunity to present any evidence.  The trial court continued the hearing; however, prior to the scheduled hearing the trial court denied the motion for attorney’s fees in favor of the Husband.  Even though the Wife had some opportunity to present evidence and the court ruled in favor of the Husband, it was still error to rule prior to allowing both sides to present evidence. 

A trial court’s failure to allow a party to present evidence to be heard on the issues pending before the court constitutes a denial of due process.”

See, Farrell v. Farrell, 37 Fla. L. Weekly D882 (Fla. 2nd 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.

Unfortunately sometimes one spouse won’t follow the agreement they entered into.  This occurs for a variety of reasons, for example sometimes things have changed, sometimes they didn’t like one portion of the agreement all along, and sometimes they are just being difficult.

Regardless of the reason for the change it is important to follow the proper procedure.  If one spouse desires a change in the agreement it is necessary to file a Motion to Modify the agreement or to come to a written modification between the parties.  If your spouse does not file a Motion to Modify the agreement but unilaterally modifies the agreement it is necessary to file either a Motion for Contempt of Court or a Motion to Enforce. 

In one recent case the parties had agreed that the Husband would pay one half of their eldest child’s college expenses at a Florida University.  However, the son elected to attend an out of state school.  The mother desired that the Father pay one half of this expense.  However, the Court was without jurisdiction to order this because the mother did not modify the valid agreement. The Appellate Court held

absent a pending motion to modify, the trial court lacked authority to modify the terms of the marital settlement agreement by order that the former husband be required to reimburse the former wife for only one-half of the cost of the oldest son’s college education, based on what the cost would have been if the child had attended a state university in Florida on his Bright Futures scholarship.”   

See, Hartman v. Hartman, 37 Fla. L. Weekly D785 (Fla. 4th 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.

Often one of the last things Courts want to deal with at trial is all of the personal property in the home.  This is one of the areas of the divorce which parties should make a concerted effort to resolve amongst themselves.  However, sometimes it cannot be accomplished and the matter must be tried before the Court with other property.   In a recent case, at trial, the Judge ordered the parties to attend mediation to resolve the issue of dividing the contents of the home after the trial.  The appellate court reversed citing McAvoy v. McAvoy, 662 So. 2d 744,745 (Fla. 5^th DCA 1995) (“the parties are entitled to a final distribution of their assets and liabilities at the time of dissolution”).

This case also held that when the Husband consolidated investments into one investment after filing the entire appreciation of the asset was marital and subject to divide.

See, Kumar v. Kumar, 37 Fla. L. Weekly D725 (Fla. 2nd 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.