Divorce

January 4, 2018

Using Income Withholding Orders to Secure Child Support and Alimony Payments in Florida

You may be tired of receiving child support or alimony payments late or not at all, and you would like to be paid directly from the employer of your ex-spouse or child’s father/mother. Florida Statutes 61.1301 provides that an income deduction order can be entered once there is an order of alimony or child support by the court. The income deduction order must be issued by separate order.

There is a federally approved and required Income Withholding Order “IWO” that will allow you to garnish income for child support and alimony. See 42 U.S.C. 666, Social Security Act. Arrearage of child support can be withheld also and the employer/income withholder is given instructions on how much to withhold until full payment is made.

There are very clear rules about the IWO, and an IWO may be rejected and delay payment if not completed properly. The employer must reject the IWO and return to the sender if the IWO instructs the employer/income withholder to send a payment to an entity other than a state disbursement unit, which is a centralized facility for collections and disbursement of child support payments. Another reason the IWO must be rejected is if the form does not contain all the necessary information to comply with the withholding. The IWO must include a dollar amount as the amount to withhold and must include a copy of the underlying order. In addition, the correct Office of Management and Budget “OMB” approved form must be used or it will be rejected.

January 2, 2018

International Service of Process To Initiate a Florida Divorce

by David M. Goldman

What do you do when you want a divorce but your spouse has left to go to a foreign country? How do you serve your spouse with divorce papers? It can be a very complex and scary process; even to a lot of lawyers.

To commence a divorce action, there must be personal service on a spouse, meaning that a copy of the petition may be served on your spouse by sheriff or certified process server at their usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. The spouse may also be served at their employment in a private area designated by the employer after contacting the employer. Service may also be made on a spouse doing business as a sole proprietorship at their place of business by serving the person in charge of the business at the time of service if 2 attempts to serve the owner have been made at the place of business.

International service of process is governed by the Hague Convention on the Service of Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Inter-American Service Convention “IASC,” with an Additional Protocol. There are some countries who are not a part of the Hague Convention and special rules apply for these countries.

December 18, 2017

Considering Business Income in Divorce Cases in Florida for Equitable Distribution

by David M. Goldman

You may wonder how Florida courts make a decision on what is income and what is not in divorce cases. In addition, you may wonder how business income is considered in divorce cases by the courts. The case of Marchek v. Marchek, 159 So.3d 1025 (2^nd DCA 2015) gives a great example of what can be considered income, especially when it comes to business income. In this case, the husband appeals a final judgment of dissolution of marriage to his wife. The court reversed an equalizer payment of $35,777 to the wife because there was not competent, substantial evidence supporting the court’s valuation of the business income.

The husband was an electrician that owned an electrical contracting business where the wife worked handling much of the administration such as bookkeeping, payroll, and accounts receivable for a time. As of the trial date, the business had a pending job for which it billed $100,000 and accounts receivable of $40,000, some of which stemmed from the pending job.

The problem was the $100,000 for the pending job was the gross amount for the job, NOT a net amount. The $40,000 accounts receivable figure was the amount the business had already received including the $100,000 job and any others from that same year, and the figure was still only a gross amount, not a net amount.

November 27, 2017

Military Divorces in Florida: Are You Entitled to Any of Your Military Spouse’s Retirement?

by David M. Goldman

The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows Florida courts to distribute military retired pay to a spouse or former spouse and provides a method of enforcing these orders through the Department of Defense. The marriage does not need to have lasted 10 years for the spouse to acquire a share of or interest in the military spouse’s retired pay. However, the military couple must have been married to each other for 10 years or more during which to the military spouse performed at least 10 years of military service creditable towards retirement eligibility (the 10/10 Rule) to receive a direct payment from the DFAS (Defense Finance and Accounting Services).

The USFSPA does not automatically entitle a former spouse to a portion of the military spouse’s retired pay. A former spouse must have been awarded a portion of the military spouse’s retired pay as property in their final court order (which can be a final decree of divorce, dissolution, annulment, and legal separation, and court-ordered property settlements incident to such decrees). The USFSPA also provides a method of enforcing alimony and child support arrears awarded in the court order. See 10 U.S.C. § 1408. Section 1408(h) of the USFSPA provides benefits to a former spouse of a member who, as a result of the abuse of a spouse or dependent child, loses the right to retired pay after becoming retirement-eligible due to years of service. A former spouse may enforce an order dividing retired pay as property under this Section if the special requirements of Section 1408(h) are satisfied in addition to all the regular requirements of the USFSPA. The right to payments under this Section terminates upon the remarriage of the former spouse, or upon the death of either party. Section 1408(h) also provides for the enforcement of a court order awarding child support to a member’s dependent child, where the dependent child’s other parent died as a result of the member’s misconduct.

A property award of retired pay must be expressed as a fixed dollar amount or a percentage of disposable retired pay (gross retired pay less allowable deductions). If the parties are divorced while the member is still on active duty, the former spouse’s award may be expressed by an acceptable formula or hypothetical retired pay award. An award of a percentage of a member’s retired pay is automatically construed under the USFSPA as a percentage of disposable retired pay. A Qualified Domestic Relations Order is not required to divide retired pay as long as the former spouse’s award is set forth in the pertinent court order. The National Defense Authorization Act (NDAA) of 2017, in Section 641, signed by the President on December 23, 2016, amended the definition of disposable pay in the USFSPA, 10 U.S.C. § 1408. For Divorces entered after December 23, 2016, (in a case where the order becomes final prior to the member’s retirement) the military member’s disposable income is limited to “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order” and increased by the cost-of-living amounts granted to military retirees from the time of the divorce to the date the member retires.

September 7, 2017

Divorce: Can’t Find Spouse

by David M. Goldman

Divorcing a husband you can’t find or a wife you can’t find can be challenging. It is a maze that requires you to know where to start before you can get through it. As a Jacksonville divorce lawyer, I sometimes have people that come to our firm wanting a divorce, but he or she has no idea of where the husband or wife is located. In some instances, the spouse he or she desires to divorce is believed to be somewhere in the State of Florida. Jacksonville divorce lawyers can find the average person inside the State of Florida. Even finding someone outside the State and extending the search nationwide is normally doable. However, finding a person suspected of being outside the United States is another question.

Starting with a person’s last know address: A person filing a Florida divorce must start with the last know address of his or her spouse. Assuming that the spouse to be served with divorce papers cannot be found at his or her last known address, there must be a diligent search to ensure that he or she receives notice regarding the case. Florida law sets out certain efforts that have to be made when trying to find your spouse in order to serve him or her. Once a diligent search has been completed, you may serve your spouse by publishing notice of the divorce in the local paper in the areas where your spouse may be living. This is called service by publication. It is also referred to as constructive service. Trustify.info suggests eight steps when trying to find a missing person in their article, “How to Find a Missing Person: 8 Critical Steps. This could be helpful in trying to locate your spouse.

If the proper diligent search is not performed, service by publication can be invalidated. The reason for this is that “due process” requires that a genuine good-faith attempt is made to give your spouse an opportunity to be heard on the issues surrounding the case. Due process is a major part of justice in the United States and in Florida divorce cases. A Jacksonville family lawyer or jacksonville divorce lawyer can help you make sure that your case moves forward properly. At the Law Office of David M. Goldman, PLLC, our experienced Jacksonville divorce lawyers have dealt with these types of issues and can help guide you. Call us today to schedule a free thirty minute consultation! We will help you find the best solution for you and your circumstances.

April 26, 2017

Attorney Fees, Divorces

by David M. Goldman

As a Jacksonville divorce attorney, I understand that attorney fees in divorce cases is an issue that comes up in every case. Whether each person will pay his or her own attorney fees, or whether the other side will be forced to contribute must be decided in every case. This can be done by agreement or a judge will decide. Payment of attorney fees in divorces cases is primarily controlled by Florida Statute 61.16. F.S. 61.16 in its simplest form bases attorney fees on one person’s need and the other person’s ability to pay. The court has the ability to assess fees on a temporary basis, at the end of the case, and even on to an appeal.

The purpose behind F.S. 61.16 in granting attorney fees in some situations, is to level the playing field. The courts would rather family law cases be resolved on the merits of the case rather than based on who has the most money to fight. There are circumstances where a court can order attorney fees based on other considerations that go past ability to pay. For example, the inequitable conduct doctrine can be used to punish an individual who as acted in bad faith throughout the case. Simply refusing to settle a case by itself cannot be considered egregious conduct or bad faith. In cases where one person purposefully frustrates the legal process throughout the case, or intentionally goes against a court’s prior ruling, the inequitable conduct doctrine can be used. Appellate courts have ruled that it should be reserved for the most egregious of cases.

Recently, in the case of Myrick v. Myrick, Florida’s Second District Court of Appeals reversed a judge’s ruling that granted nearly a six-figure attorney fee award to the former husband. The former wife refused to settle the case and apparently gave the former husband a hard time in certain aspects of the case. The second DCA stated that her conduct was not enough to justify the award of attorney fees.

April 13, 2017

Child Support Contempt

by David M. Goldman

Child Support Contempt is a common issue with Jacksonville Family law and divorce cases. When it comes to child support, often child support contempt motions are part of the norm. As a Jacksonville child support attorney and family attorney, I have found that frustrations regarding child support are present on both sides. Parents that receive child support are often bothered when the paying parent fails to make child support payments. The parent required to pay child support is often frustrated when he or she can’t afford to make the payments. Child support contempt proceedings usually come up at some point in these situations.

The Issue if Non-Payment and What to Do About It

Failure to pay child support gets the receiving parent charged up. This often leads to motions for child support contempt. Once the motion for child support contempt has been filed and scheduled for a hearing, the filer has to prove two things at the hearing. First, he or she must prove that there is a valid order from the court requiring the other parent to pay. Next, he or she must prove that the other person has failed to pay as required in the child support order while having ability to pay. Ordinarily, these two things are easy to prove. The court’s records will, of course, contain proof that there is a valid child support order. Next, the child support payment history will show a lack of payment.

December 9, 2016

Collaborative Law to Change Divorces?

by David M. Goldman

Studies show that a divorce is often one of the most stressful times in a person’s life. Its stressful due to the former spouses fighting over issues such as child custody, child support, alimony, and deciding which person gets marital property. New law referred to as the Collaborative Law Process Act aims to make the divorce process less stressful by creating a legal method for couples to divorce that is more civil and less contentious.

Florida is the fifteenth state to adopt a version of The Collaborative Law Process Act. It allows the roles of the parties in a divorce to stay the same for the most part. This new law makes the process easier by allowing both parties to hire a mental health professional. The mental health professional’s job is to guide the two former spouses toward an outcome that avoids as much emotional trauma as possible.

The two parties to the divorce may also need to hire financial advisers if the divorce raises any financial issues. Most likely the two parties will retain separate financial advisers so there is no conflict of interest. The new law allows all of the people involved in the divorce to sit down and go through the important issues with the divorce. This would mean the divorce attorneys, the financial advisers, the two spouses, and the mental health profession would all sit together to try and work through any barriers to a settlement.

October 11, 2016

Divorce, Remarriage

by David M. Goldman

When the parties to a marriage believe that a marriage is over or “irretrievably broken”, there is no issue as to whether the divorce should take place. Irretrievably broken means that there is no hope of fixing the marriage. As long as one party to the marriage believes it is broken beyond repair, a dissolution of the marriage will ultimately happen. A broken marriage, however, CAN be fixed by a divorce, it seems. Well technically, the relationship is fixed, but the marriage will have ended. I recently came across an article about couples remarrying after divorce. You can read the article, (“Why Do Divorced Couple Remarry” by clicking here.) There are no available statistics that explain the exact number, but it does happen. The article generally credits remarriage of divorced couples to the healing power of time apart. People have the chance to forgive, to try new things or relationships, and also realize that the problems were not necessarily the people themselves—marriage is simply hard. I personally know of a woman whose parents were married to each other on three separate occasions.

A divorce does not have to go through completely before any benefit can be gained from filing for dissolution. As a Jacksonville divorce lawyer, I have come across several cases where the filing of the divorce paperwork itself helps to save a marriage. Mostly, it is the wife that will file for divorce and have it act as a huge wake-up call for the husband. Although, I have seen it go both ways, however. I imagine that the filing of the divorce petition shows the other spouse that there is a serious problem that needs addressing. Continue reading

August 25, 2016

Venue Change

by David M. Goldman

Changing Venue: Moving Family Law Cases

One question we often receive from our family law clients is if they can change courts, also known as venue, when they move to a new area in Florida from the court where the marriage dissolution proceedings originally occurred to a more nearby court.

The short answer to this question is yes. In family law, the courts in Florida always try to act in “best interests of the child.” This standard will be explained further in this article, but first lets explain exactly how the change in venue process would potentially work.

Before a spouse can change venue, it is important to understand where a family law proceeding can actually be brought. According to the Florida Statute 61.13, a family law case may be brought in “the circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered…” This usually means that venue will start in the court where the divorce was filed, and stay in this court for all related matters such as equitable distribution, alimony, parenting responsibility, child support, and all modifications.