Divorce

May 9, 2020

WHAT SHOULD AN UNWED FATHER KNOW ABOUT OBTAINING CUSTODY?

Unwed fathers may believe that it is unlikely or impossible to gain custody of their child when they were never married to the child’s mother. Fathers with this attitude should think again, as the courts and society have realized that fathers can be every bit as responsible as mothers in rearing a child. The court system may still have a few vestiges of what was known as “The tender years doctrine”. Such is the idea that a young child should primarily be cared for by their mother. However, most judges today that I have encountered no longer display any indication that this philosophy still exists. The reality is that a caring father can be every bit as nurturing and responsible as a caring mother.

In Florida, paternity is established by filing an action in the Circuit Court. The action is known as a paternity action. The petition should be titled a Petition for Paternity and Related Relief or a similar name. There is no legal presumption for or against a father obtaining what used to be called primary custody. The court’s have changed from using the term custody to using the term timesharing. It is supposed to promote the idea of the children being shared between parents. I personally do not believe that much has changed because of the change in terminology. That said, the law has changed regarding child support in that the non primary residential parent (the parent that has minority timesharing) can now receive a reduction in child support if he or she has the child for at least 20 percent of the overnights. The prior rule required the non majority parent to exercise at least 40 percent of the overnights to get a reduction in child support.

In a paternity suit, a father attempting to obtain timesharing must request either shared parental responsibility or sole parental responsibility. Sole parental responsibility is exactly what it sounds like and so is shared parental responsibility. Even people with serious criminal histories frequently are awarded shared parental responsibility. Florida has enumerated the factors that it considers important and that a judge must take into account in deciding custody issues between parents. They can be found in Chapter 61 of the Florida Statutes. In short, they equate to the best interests of the child.

May 6, 2020

Is Adultery a Factor in a Florida Divorce?

by Neil Weinreb

Adultery can certainly be a factor in a divorce. However, adultery is only relevant for limited purposes. Florida is sometimes referred to as a no-fault divorce state. This only means that proving fault is not required to obtain a divorce. There are only two reasons that are acceptable in Florida to obtain a divorce. The most common reason is that the parties have irreconcilable differences. The other is that a spouse is mentally incompetent.

A Court can consider adultery from either spouse, as well as the circumstances involved in making a determination concerning alimony. A considerable amount of discretion is placed in a judge’s hands in determining if alimony should be paid and if so, how much should be paid. F.S. 61.13(3)(f).

Although technically, adultery is not a factor that the court considers in making custody (now know as timesharing) decisions, adultery can be a factor regarding custody issues. The Florida Statutes do allow the court to consider the moral fitness of a party in making a custody determination. F.S. 61.13(3)(f). If a parent can show the court that a parent’s adultery will affect the child, the trier of the fact can consider whether a party’s adultery impacts the best interest of the child or children. In the case Jacoby v. Jacoby, the court determined that the mere possibility of adultery having a negative impact regarding timesharing is not sufficient to make the adultery a consideration. Packard v. Packard, 697 So.2d 1292 (1^st DCA 1997). The important dynamic is whether a party’s adultery will have a direct effect on the welfare of a child. Dinkel v. Dinkel, 322 So.2d (Fla. 1975).

April 19, 2020

Will the Coronavirus Affect Your Children’s Custody?

by Neil Weinreb

Can Child Custody be modified because of COVID-19?

What temporary and permanent changes are inevitable?

With the outbreak of the Coronavirus, life has changed. Some changes are temporary, and some may be permanent. Almost every American’s travel plans have been affected by limitations placed on travel, shopping, and many other aspects of our lives. In addition to all of life’s other complications, many of us share custody of children. I have been practicing in the area of family law in North Florida for over 17 years. A thorough parenting plan will account for numerous contingencies. To date, I have yet to see a parenting plan that addresses custodial complications parents are likely to experience during the current pandemic. I find that the two most litigated issues in family law are:

April 7, 2020

Should Children be Allowed to Testify in a Florida Divorce Case?

by Neil Weinreb

SHOULD CHILDREN BE PERMITTED TO TESTIFY IN A CUSTODY CASE?

One of the most common questions we get is if children can or should be allowed to testify in a divorce or child custody case. Self-represented litigants in Florida occasionally come to court with a child in anticipation that the child will testify for them. However, there are specific prerequisites that must be followed under the Florida Family Law Rules of Procedure before a party is permitted to bring a child to court to testify. Often clients ask “At what age can my child testify in a Florida divorce case?’ Why maturity can be an issue, age itself is not the main factor use to determine if a child can testify in a divorce case. It is not prudent for a party to bring a child to court unless authorized previously by court order. Florida Family Law Rule of Procedure 12.407 applies to the testimony of children in Family Law Cases. It reads as follows:

(a) Prohibition. Unless otherwise provided by law or another rule of procedure, children who are witnesses, potential witnesses, or related to a family law case, are prohibited from being deposed or brought to a deposition, from being Family Law Rules of Procedure August 28, 2019 99 subpoenaed to appear at any family law proceeding, or from attending any family law proceedings without prior order of the court based on good cause shown.

(b) Related Proceedings. In a family law proceeding held concurrently with a proceeding governed by the Florida Rules of Juvenile Procedure, the Florida Rules of Juvenile Procedure govern as to the child’s appearance in court.

(c) Uncontested Adoption. This rule does not apply to uncontested adoption proceedings. Florida Family Rules of Procedure 12.407.

June 14, 2019

Florida Divorces: QDRO Tips and Tools

by David M. Goldman

Family law clients always ask me, “What is a QDRO?” (pronounced informally “Quad-Row”) QDRO is an acronym for Qualified Domestic Relations Order, which is a court order that grants a party a right to a portion of the retirement benefits his or her former spouse has earned through participation in an employer-sponsored retirement plan. Federal law states that a retirement benefit can only be divided between former spouses if there is a QDRO. Retirement plans can be a huge asset in a marriage that may be forgotten in a divorce, so its key for clients to educate themselves on division of this marital asset.

In a divorce, a family law attorney needs to determine what retirement plan each party owns through mandatory disclosure by the formal, legal plan name. It is important to know the value of each plan, the valuation date used to value the plan, what ancillary benefits are associated with the plan (for example, market fluctuations, survivor benefits, subsidies/supplements, and interest credits), the correct method of division for the plan, and will the retirement plan accept a QDRO. Disclosure is important in obtaining this information and the plan’s summary description. It is also important to obtain the plan’s divorce transfer and QDRO guidelines, if available. Obtaining a statement for the plan as of your desired valuation date will assist you in a smooth QDRO process. For federal government employees, retirement plans are divided by a COAP, which stands for Court Order Acceptable for Processing.

Your divorce decree will not be enough to divide a retirement benefit in most cases. A QDRO is a separate document from the divorce decree. It is always better to file a QDRO with the retirement plan as soon as possible. If the former spouse retires after the divorce is final, and the QDRO has not been filed with the plan, the plan will begin paying out the benefit to the former spouse and only future payments will be affected.

November 7, 2018

Alimony and Child Support In Florida

by David M. Goldman

That dreaded word in a divorce: Alimony. Alimony is determined by the court after looking at one party’s actual need versus one party’s ability to pay. After equitable distribution is determined, the court reviews what money is left over, if anything, and considers the parties’ circumstances to come up with a fair award. Some questions to answer:

Length of the marriage
Standard of living the parties are accustomed to

November 7, 2018

What to Consider Regarding Equitable Distribution in Florida

by David M. Goldman

Divorces in Florida typically split the parties’ assets and liabilities down the middle as much as possible. Determining what is a marital asset or liability or a non-marital asset or liability can be key to whether an asset or liability will be considered in the calculations. Before filing for divorce, you should consider the following items when thinking about equitable distribution:

Previous Inheritance
Marital Home

November 7, 2018

Parenting Plans in Florida: What Do They Include?

by David M. Goldman

In Florida, divorces with children involved primarily focus on the parenting plan first. The parenting plan determines numerous factors in raising your children and will be the document most referred to after the divorce is finalized. It is important that the plan is tailored to you and your children and accounts for the best interest of the children. Before filing for divorce, you should consider whether you would like to request one of the following:

Shared Parental Responsibility: Both parents confer and jointly make all major decisions affecting the welfare of the children, such as education, healthcare, etc.
Shared Parental Responsibility with Decision Making Authority: Both parents attempt to agree on major decisions, but one parent will have the ultimate decision-making authority.

October 5, 2018

Child Support in Florida: Working Overtime or Second Job

by David M. Goldman

When parties come to family court in Florida for paternity, dissolution of marriage, or child support proceedings, income of the parties can become very important in calculations and is examined closely. There may be certain situations where one parent is working overtime to make additional money, whether it be to pay support or to supplement income because of a lack of support being received. Can working overtime be a problem in your family court case?

Florida Statute § 61.30(2)(a) indicates that gross income shall include, among other things, bonuses, commissions, allowances, overtime, tips, and other similar payments. Child support will be calculated from net income, so it is important to get all allowable deductions as accurate as possible. For purposes of child support, the court must impute income to a voluntarily unemployed or underemployed parent unless the lack of employment is the result of the parent’s physical incapacity or other circumstances beyond the parent’s control. The court has to state the exact amount of gross income it is imputing to a parent. See Shrove v. Shrove, 724 So.2d 679 (Fla. 4^thDCA 1999). Regular overtime or second-job income is included unless the court specifically finds that the opportunity to earn overtime will not be available as an income source in the future. See Butler v. Brewster, 629 So.2d 1092 (Fla. 4th DCA 1994).

Therefore, it can be possible that overtime and second-job income can be used to calculate child support and the court won’t make a finding that the income source will not be available as an income source in the future, making child support higher or lower depending on the circumstances. Contact an experienced Jacksonville Family Law Attorney with the Law Office of David M. Goldman, PLLC for a consultation.

August 9, 2018

Enhancement In Value: When Can It Be A Marital Asset?

by David M. Goldman

In Florida, the enhancement of value of a nonmarital asset could be declared by a divorce court to be a marital asset. Most of the time you see this when one spouse’s nonmarital asset is alleged by the other spouse to be a marital asset. If it cannot be declared a marital asset any other way, the court may look at enhancement of value of the nonmarital asset and award the other spouse an interest of that enhancement of value. The Mitchell case illustrates this concept.

In Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2^ndDCA 2003), the husband owned a Tampa Carrollwood home prior to the marriage and kept it titled in his name so it was nonmarital property. The trial court found that the home had been enhanced due to marital funds and efforts. Typically, the enhancement in value of a nonmarital asset resulting from either party’s nonpassive efforts or the expenditure of marital funds is a marital asset. The appellate court found that such enhancement in the Mitchell case was negligible. They performed primarily cosmetic or maintenance-related improvements, such as wallpapering. The most important factor in the increase in the value of the property was passive market appreciation, about 5 to 6 % annually. This produced a market value of $185,000. The appellate court found that where the increase in market value is attributable to inflation or “fortuitous market forces,” the expenditure of marital funds on the nonmarital asset does not transform the appreciated asset into marital property. However, an increase in equity due to the use of marital funds to pay down a mortgage balance is a marital asset subject to equitable distribution. The appellate court found that the wife’s interest in the home was limited to her one-half share of the amount by which the mortgage was reduced with marital payments.

The husband in Mitchell also had 41 acres of unimproved land in North Carolina that was solely titled in his name alone throughout the marriage. The circuit court characterized the entire appreciation in the value of the nonmarital North Carolina property as a marital asset subject to equitable distribution despite the fact that the appreciation was entirely attributable to passive inflation. As in the case of the Carrollwood home, this was error according to the appellate court. It was undisputed that the property was unimproved. It had no sewer, septic, electric, or water connections. The record showed that the parties used marital funds to pay mortgage payments, taxes, and a road assessment fee. The increase in the husband’s equity due to the use of marital funds to pay down the mortgage was a marital asset to be divided between the parties. Otherwise, the North Carolina property was found to be husband’s nonmarital asset.