Jacksonville Divorce Attorney Blog

February 23, 2017

Child Support, Gross Income Matters

Money and finances in divorce and related cases are rarely, if ever, at the very top of a judge’s list of important issues, but child support calculations are important. For the most part, calculating child support is a simple as running the numbers through a formula set out by Florida law. Where child support calculations can be tricky is when there is a dispute over what numbers are to be used in the child support calculation. In general, child support is determined by taking each side’s gross income (monthly), then subtracting certain allowable deductions to reach the net monthly income. The net monthly income is then used to calculate child support based on the number of children and other factors.

Gross Income

Clearly, getting each party’s income correct is an important first step. Chapter 61 says income is “any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and reemployment assistance or unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.”

Recently, the Third District Court of Appeals, in the case of Schafstall v. Schafstall, affirmed a trial judge’s decision to include in kind payments as gross income. Specifically, the court included, as gross income for the Former Wife, $1300 that the Former Husband paid toward her mortgage and $250 her mother paid toward her phone bill each month. The Former Wife argued that neither should have been included in the trial court’s calculation. However, the appellate court pointed out that F.S. 61.30 mandates that reimbursed expenses or in kind payments be included if they reduce living expenses. Any payments that come from any person will typically be included as gross income. In the Schaftall, case the appellate court pointed out that the evidence the trial court considered was enough to support the decisions that were made regarding income used to calculate child support. Continue reading

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.

July 15, 2016

Parental Rights, Sex Crimes

by David M. Goldman

In 2009, a 14 year old girl was raped in Massachusetts and became pregnant. Her attacker, Jaime Melendez, pled guilty to rape charges and was sentenced to 16 years probation. He was also brought into family court and ordered to pay $110 per week in child support, according to a paper published by the American Bar Association. It was bad enough that the sentence was only 16 years probation. Later, Melendez sued the victim in order to have visitation with the victim’s child since his parental rights were still intact. Melendez felt that if he was going to pay child support, he should be allowed to spend time with the child.

Many states have laws that restrict the rights of a father that produces children as a result of a sexual assault. Of these states, nearly none terminate the rights of the rapist outright without the victim making some sort of effort. Parental Rights termination is something that should be considered carefully, but this is probably an instance where termination of parental rights should be simple and easy to accomplish.

There is a list of things under Florida law that can result in termination of parental rights. Chapter 39 authorizes the termination of parental rights if clear and convincing evidence shows that the child was conceived as a result of a sexual battery. See F.S. 39.806. According to Florida law, “[i]t is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery.” A conviction, or a guilty plea being entered, is enough proof to satisfy the statute. Having to share parental rights with a person that violated you, only serves to continue the agony of the victim. At the Law Office of David M. Goldman, PLLC, we have experienced Jacksonville family lawyers that can help you terminate the parental rights of your attacker, and help reclaim your peace of mind.

June 30, 2016

Secret Call Recording

by David M. Goldman

Have you ever had the urge to be sneaky and record a phone call or a conversation between yourself and another person? You just want to prove that the other person is a liar or otherwise full of it, and you decided that recording the call is the best way to get that done. It is a perfectly normal and human thing to want to do. Well, doing that could get you into trouble in Florida and other states, if you do not let the other person know that you’re recording. As a Jacksonville divorce lawyer, I have on occasion enlightened clients that wanted to gain evidence against a spouse during divorce proceedings that this is not a good idea.

Have you ever wondered why the first thing you hear when you call a 1-800 number is, “This call may be recorded for training and quality assurance purpose.”? Some states, such as Florida, have laws that make it a crime to record a conversation without the knowledge and consent of the people taking part in the conversation. When you are told that the phone call is being recorded, but continue the call, you are consenting to being recorded. The rule against recording or “intercepting” communication applies to live conversations in person and conversations transmitted by wire or electronic means, basically over pretty all of the ways people communicate. Continue reading

May 16, 2016

Injunction to Protect Child

by David M. Goldman

An injunction (or protective order) can be a good way for there to be an immediate response when children need to be protected from any person, including a parent. Many times, injunctions will come after the police and the Department of Children and Families are involved. The injunction process is typically the quickest way for there to be court intervention, especially if the incident that necessitates the need of a protective doesn’t not lead to an arrest of anyone. There could be many reasons to seek an injunction for protection on behalf of a minor child. This article will focus on abuse allegations.

Whenever a child is subjected to intentional infliction of physical or emotional harm, child abuse has occurred, as defined by Florida Statute 827.03. This issue comes up sometimes after divorces or in paternity cases where children go between mom’s house and dad’s house. Of course, physical discipline is allowed, but going too far becomes a crime, and can also be the basis for having an injunction put into place. Florida Statute 741.30 allows for injunctions in domestic violence situations; child abuse qualifies as domestic violence.

If one parent files for an injunction to get protection for their children, if granted, the injunction can control time-sharing and visitation until a family court can hear the case and determine what is best for the children. An injunction court may limit the visits to supervised visits, or the court may stop visitation all together.

May 2, 2016

Co-Parenting Tip: Attitude is Everything

by David M. Goldman

Much that happens in life depends on the attitude that we have about things. Co-parenting and raising children properly after divorce or a relationship with the other parent has ended is no exception. Having the right attitude is key. I’ll share a brief example using my son.

My 15 year old is genuinely a good kid. He’s silly and acts very much like a teenager, but inexplicably woven into the fabric of who he is lies a level of maturity that is beyond his age. My son loves football and plays running back. A few weeks ago, I don’t remember the reason why, but he missed practice twice during the week, including the last day of practice before the game on the following Saturday. As a result, the coach put him on the line to block rather than allowing him to play his normal position. Now, he was upset about it, but you would never have known by watching him block with all his might, which is what he did all game long. He played his part for the day, even though it wasn’t his normal position or one he was happy with. What mattered most to him was winning. He and his teammates still had a common goal, no matter what position he played that day.

The coach commended him after the game for having the heart that he does, and also explained why he did what he had done by putting my son on the offensive line. The following week, he was back to scoring touchdowns as running back. (His team won the championship in their division by the way.) Way too often parents lose sight of the overall goal—happy, healthy children. They are petty and resentful, and don’t work together to ensure the success of their children. As co-parents, you must see the other parent as a teammate. You cannot continue to hold grudges and view them as an enemy. Having that attitude will hinder the team’s performance and make winning nearly impossible.

April 29, 2016

Child Support in Florida

by David M. Goldman

Child support is a major issue in family law. Child support is part of divorce cases and paternity cases. Even dependency cases can have child support issues involved. As a Jacksonville child support lawyer, I have handled many cases involving support from both sides. The person receiving child support and the person paying child support typically just want an amount that is fair. Child support cannot be bargained away by the parents, as Florida law is clear that the right to child support belongs to the child and not the parents.

One child support issue that comes up sometimes is created by the scenario where the parent that has the child the majority of the time is not working. This issue comes up a lot more in paternity cases, but can be present in a divorce case, as well. Chapter 61, Florida Statutes and case law control how child support is handled. Florida law allows for income to be imputed to a person that doesn’t have a job or other source of income. The person paying support often is bothered that he or she is required to work and pay child support, while the recipient of child support sits at home and does nothing. In this situation, the court will sometimes treat the non-working parent as if he or she was working and use money that could be earned working 40 hours per week at minimum wage. Income can also be imputed to the person required to pay child support, even if he or she has no actual income.

Child support is based on a formula where each person’s earnings are used to produce an appropriate child support amount. So a parent without employment will be treated as if he or she is earning approximately $1300 per month in net income, rather than using $0 as his or her monthly income. Normally, this will decrease the amount of support due from the person paying child support. However, Florida law also allows the court that is imputing income to a non-working parent to consider what, if any, amount child care would cost in order for the person to work full time. The cost of childcare is high, and it will increase the overall child support number.

March 3, 2016

Prenuptial Agreements, Wills in Marriage

by David M. Goldman

Planning for the future in any given situation will produce a better outcome than not having a plan. Marriage and divorce are no exception. Having a plan is important for people of all ages, but people who marry later in life normally have more reason to plan properly. Those entering into marriage later in life are normally more financially equipped than their younger counter parts and often have children already. This is important, because leaving property behind for your children could be affected by a subsequent marriage and/or divorce. There are many planning documents that are helpful to have. Two documents that will help make things a bit simpler later down the line for married couples are: (1) a prenuptial (or premarital) agreement and (2) a will.

Prenuptial agreements can be used to lay out the understanding between couples on how things will go during the marriage, as well as what happens in the event of a divorce between the parties. Examples of topics to include would be how the couple will handle joint bills and other liabilities. A common method is for the parties to establish a joint checking account that each will contribute to for the purpose of paying household expenses. All issues that may come about during a divorce proceeding can’t be addressed. Things like child support and time-sharing (visitation) can’t be controlled completely by a prenuptial agreement, but it makes sense to have as many issues as possible ironed out. Property rights absolutely can be determined by a prenuptial agreement, and parties should consider having one in place. Continue reading