Spousal Support

June 30, 2020

Do You Need A Prenuptial Agreement?

There may be some negative stereotypes that are associated with Prenuptial Agreements. Typically, neither party wants to detract from the blissful atmosphere typical prior to a wedding. However, a Prenuptial Agreement can also help preserve a marriage. This is because there is certainty as to how things will terminate should the marriage not last.

The thought alone of creating a prenuptial agreement can cast a negative light upon a wedding. To some, the contemplation of a prenuptial places a negative light upon wedding preparations and the future of the relationship. Having to plan for divorce is an admission that a relationship is not permanent. That said, it is far better to deal with the details of how a relationship is going to end (should it end) while a couple is reasonable and loving compared with being negatively affected by the hostilities and uncertainties of divorce.

In Florida, there are several types of alimony that courts may consider. There are factors that affect the amount of alimony that can be provided for such as, length of a marriage, the equality of earning ability between the spouses, and the assets that a court must divide. Florida law creates a rebuttable presumption against permanent alimony when a marriage is 7 years or less, which under the Florida Statutes is defined as a short term marriage. However, there is a rebuttable presumption for permanent alimony awards in marriages that are long term (greater than 17 years). Moderate term marriages are defined as between 7 and 17 years and no presumption exists.

June 22, 2020

Litigation After Divorce. Do You Know Your Rights?

by Neil Weinreb

It is important to know your rights following a divorce. The final judgment of dissolution and the parenting plan determine the legal playing field for the future. However, most issues are dynamic. Children get older and their schools change and sometimes their relationship with parents change. Incomes change, which can directly impact child support and people sometimes desire to relocate where child custody can be an issue. There are a myriad of circumstances that should be re-evaluated following divorce.

In Florida, the standard used to file an action to modify a final judgment is that a substantial change in circumstances occurred that was not anticipated at the time of entry of the final judgment. It does not always make practical sense to file an action to modify a final judgment just because a party can do so. The relationship that a party has with a former spouse is important, especially where children are involved. Every time a party considers filing a supplemental petition (this is the instrument filed requesting modification of a final judgment), one should consider how such will impact their relationship with their former spouse and other legal consequences. I frequently have parties coming to me that wish to file for a modification. I typically find that they have only evaluated a part of the effect of seeking a modification. For this reason, it is imperative that one review the ramifications of an action for modification with an experienced family law attorney.

Although a divorce is designed to deal with all of the legal issues concerning dissolution, the reality is that there are sometimes issues that are left unresolved. On occasion there are assets that neither party put on their financial affidavits that require addressing post dissolution. One example of such an issue involved a divorce of a long time married couple in which neither party included the child’s prepaid college fund account on their financial affidavit. The fund was cashed out by the Father/Former Husband after the divorce without permission from the court or the Mother/Former Wife. Since the asset was not listed on either party’s financial affidavit, the judge considered the asset marital property and ordered the Former Husband to pay back one half of the funds post dissolution.

June 14, 2020

Is An Uncontested Divorce In Your Best Interest?

by Neil Weinreb

An uncontested divorce is a proceeding to return two married persons to the status of being single in which all of the details of the divorce are reached with an out of court agreement. As a practicing family law attorney for more than 15 years, it is my opinion that overly optimistic litigants frequently find that an uncontested divorce may be more difficult to achieve than first thought. Sometimes both spouses agree that a divorce is the correct thing to do in their circumstances. If a couple contemplating a divorce can agree on all of the important issues then an uncontested divorce will typically benefit the family. The critical issues that people spend the most effort fighting about are child custody, child support, spousal support, and property distribution.

Litigants sometimes find that dealing with the mechanics of settlement are challenging when they attempt to memorialize their intentions in writing. The process of getting to a consented to outcome involves some negotiation in most cases. A self-represented individual will benefit substantially by consulting with a qualified family law attorney prior to signing a marital settlement agreement or a consented to final judgment. This author believes that people are much more likely to honor orders created by negotiation, as opposed to orders emanating from a contested final hearing before a judge. A litigant that is being guided by qualified counsel is more likely to negotiate a favorable outcome over a Pro Se Litigant, since an understanding of the legal issues is necessary to negotiate knowledgeably.

Many of the issues that one has to deal with during a divorce are complex when dealing with custody and financial issues. Parties that are able to amicably settle their divorce in writing typically have fewer post judgment problems. Prior to negotiating a marital settlement agreement, it is important to consult with an experienced family law attorney to help draft the legal documents required to accurately reflect the agreement.

May 29, 2020

Cam Unemployment Lower Your Child Support?

by Neil Weinreb

There are cases where a non-custodial parent is unemployed and has little or no income. Even a person with little or no income can still have an obligation to pay child support. This is because a parent’s child support obligation can be calculated based upon his or her imputed income, as opposed to actual income. Imputed income is income that the court determines an individual should be making with a reasonable effort.

When child support is calculated a number of factors are used to determine each party’s obligation. The parents’ income, the number of children, and insurance expenses are the major elements in determining one’s obligation. It is not infrequent that a parent will manipulate the system in an attempt to lower his or her income which is aimed at reducing that parent’s child support obligation. This is accomplished in a number of ways. People that own their own business have found numerous ways to receive what would otherwise be income through creative accounting. One way that the court system counter’s this is through the use of imputed income. Sometimes this involves imputing minimum wage. Other times, it is much more complicated and a vocational evaluator may be used.

Although unemployment can no doubt affect one’s income adversely, it may not necessarily affect his or her child support obligation. The courts do not always use imputed income to determine one’s child support obligation. Most situations where it is used involve a parent that is unemployed or underemployed voluntarily. In my practice, I have primarily seen imputed income used where a parent is unemployed and the court will impute minimum wage. There are situations in which much higher income has been attempted to be imputed. In one divorce case with no children that I handled, a Wife of an attorney, requested a vocational evaluation to determine the attorney’s true earning capabilities. A court will usually inquire as to why a parent is unemployed or underemployed and whether or not there is justification for it. A case in which unemployment is caused by an accidental injury would be a likely example of one that may be justifiable. A layoff or company downsizing could also account for why an Obligor is unemployed. Trying to prove that someone is underemployed can be difficult and expensive. One has to prove that there is work available and that the Obligor turned it down. Most of the cases I have handled involving the Dept. of Revenue are examples of situations where it is impractical or not economically feasible for the Dept. of Revenue to pay to have a vocational evaluation. One example of a recent case I came across where there is little doubt that a father has a legitimate excuse (arguably) for not working is where a father must stay home to care for a young child with Cerebral Palsy.

May 15, 2020

HOW IS CHILD SUPPORT TIED TO TIMESHARING?

by Neil Weinreb

Child support is essentially a payment from the higher income parent to the lower income parent. Child support and timesharing have an interesting relationship. The law values the child and parent relationship. A parent’s right to timesharing is not dependent upon being current in child support. It is a frequent mistake among individuals to assume that timesharing can be denied if an Obligor parent fails to keep up with his or her child support. Such has no such relationship to Florida law.

Another misconception is that child support must go to the child specifically. However, it is a general purpose reimbursement which covers the cost of living in a household with children. The amount of child support paid by each parent is dependent upon the amount the Florida child support guidelines determine. The number of overnights the child or children spend with each parent is one of the factors used to decide a parent’s child support under Florida’s guidelines. There is a chart that is published within the Florida Statutes that shows the amount of child support a child is entitled to.

Florida law requires that generally, where there are minor children then child support should be paid. The principle behind this general rule is that entitlement to support belongs to the children and parents cannot decide not to pay support. There are situations in which a parent does not have a child support obligation. In Florida, this must either be because the amount of support owed is very minimal, as determined by the guidelines, or the specific reasons must be enumerated in the child support order. The law allows up to a 5% deviation from the guidelines without further enumeration. Florida has a form known as a Child Support Guideline Worksheet which is required to be filed in every divorce and paternity case where child support is determined. The guidelines account for some of the specific costs of supporting a child, such as health insurance and uncovered medical expenses. As long as a parent is awarded at least 20 percent of the overnights, overnights are a specific factor used to determine a parent’s support. Items like rent, electricity, water, and food are essential items that are not specifically accounted for in the guidelines. Other items that are specifically accounted for under the guidelines are taxes, daycare, and medical costs.

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

August 9, 2018

Can Monetary Gifts From Family Be Considered Income for Alimony or Child Support Calculations in Florida?

by David M. Goldman

In some marriages, a spouse’s parents may supplement the family income with monetary gifts, which may be an issue later on if the husband and wife divorce. Can one spouse argue that the other spouse will have higher income due to the monetary gifts from family members thereby raising alimony and child support payments? According to Florida law, it depends.

In Oluwek v. Oluwek, 2 So.3d 1038 (Fla. 2^ndDCA 2009), Jonathan Oluwek, the husband, appealed an amended final judgment of dissolution of his marriage to Linda Oluwek, the wife. The trial court imputed $1500 per month contributed regularly by the husband’s parents to husband for alimony and child support. The husband argued the trial court erroneously imputed the $1500 per month as income to the husband. The record indicated his parents made regular monthly payments of $1500 over the last five years of marriage.

The Oluwek court held that as a general rule, the trial court may not consider financial assistance from family or friends in determining a party’s ability to pay alimony or child support. However, there is an exception that allows the court to impute income based on gifts “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” In Vorcheimer v. Vorcheimer, 780 So. 2d 1018 (Fla. 4^thDCA 2001), the appellate court held that the trial court erred by imputing $1500 to the husband as income where there was no evidence that the payments would continue. The $1500 payments had been made on a monthly basis for twelve years, but the husband’s father testified at trial that he had stopped making the monthly payments and would not make them in the future. The court distinguished that case from Ordini v. Ordini, 701 So.2d 663 (Fla. 4^thDCA 1997), in which regular monthly payments from the husband’s parents continued through trial and the husband’s mother testified that she would continue to make them in the future.

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.

October 21, 2015

Florida Family Law: Trusts and Support

by David M. Goldman

Trusts have long been a tool used in asset protection and estate planning to protect property and income. But what if a person seeks to use a trust as a shield to protect a trust beneficiary from making support payments in family law cases? The answer is not necessarily straight forward, but depends on the circumstances and the terms of the trust. However, Florida trust law makes it possible for a trust to be used to provide support to a trust beneficiary’s dependents. This is limited to child support or spousal support and is only considered when there are no other alternatives to receiving the support that is sought. The person seeking to attach a trust’s distributions to a beneficiary must demonstrate to the court that certain factors are present that justify going after the trust. A trust’s spendthrift provision will not defeat a garnishment for support of a dependent.

Recently, the 2nd District Court of Appeals, in Berlinger v. Casselberry, upheld a trial court’s order issuing a continuing writ of garnishment against any future disbursements from a trust for the ex-husband’s benefit after the ex-wife filed a motion for contempt and requested a writ of garnishment. In this case, the ex-husband was ordered to pay a substantial amount of alimony per month. The ex-husband stopped making the alimony payments, but lived a lavish lifestyle with his new wife. The couple lived off a trust set up for the benefit of the ex-husband, who had attempted to hide the trust. After the ex-wife discovered the trust, she requested the writ of garnishment, which the court granted.

The State of Florida holds spendthrift provisions in high regard and will respect them, generally. However, the State’s policy as it relates to a person’s obligation to support his or her dependents is of higher interest to the State of Florida. For more information on trusts or family law issues, contact the Law Office of David M. Goldman, PPLC. Initial consultations are free.

November 11, 2013

Things to Never Say to Your Divorce Attorney

by David M. Goldman

Family law can be expensive, both emotionally and financially. When clients come to see a family law attorney, rarely are they happy or in a good frame of mind. With this in mind, here are a few things that are often said to family law attorneys, that in hindsight, were better left unsaid:

1. “I don’t care what it costs, I would rather give you everything than give my wife/husband anything.”

No matter what you pay your family law attorney, you are going to give something to your spouse when the marriage is over. You may want revenge but that rarely happens in a divorce. Things said when you are angry will later be taken back, especially when the client receives my final bill for their act of “revenge.” Wouldn’t you rather spend your money on your children’s education than on legal fees?