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When it comes time for the court to determine and establish a time sharing and parenting plan between the biological parents of a minor child, the court applies the “best interests of the child” test in making its consideration.

There are numerous factors that the court will look at in making its determination as to the best interests of the child.  All of these various factors are set forth in Florida Statute 61.13.  You can review the criteria under the statute and examine the nonexclusive list of things the judge will be looking at when you go to court.

What happens in a case, however, when only one biological parent is competing with a relative, for example, a grandparent, for custody and time sharing with a minor child?  How will the court look at a situation like this? Will the judge apply the same standards regarding the best interests of the child in structuring a time sharing or custody arrangement of the child?

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The question frequently arises in a divorce case as to whether or not an inheritance is a marital asset or non-marital asset.  The Florida equitable distribution statute which deals with the distribution of assets, both marital and nonmarital, clearly sets forth that assets acquired separately by either party by non interspousal gift, bequest, devise, or descent, and any asset acquired in exchange for such assets, are non-marital.  See Florida Statute 61.075(6)(b)2.

The initial determination as to whether an asset received as an inheritance is marital or nonmarital is rather straightforward.  The issue can become more complex as the years go on in a marriage, and the separate nature of the inheritance becomes clouded.

In order for an asset to maintain its separate, non-marital status, it is very important not to commingle marital assets with non-marital assets.  Therefore, in order to preserve the integrity of the inheritance being a non-marital asset, the inherited funds should be maintained in a separate bank account, in your own name, and you should never, ever deposit or commingle marital funds into your separate account.

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Supplemental security income or as more commonly known as a SSI  benefits, are in fact included in your income when it comes time to calculating child support in Florida.

Florida is, however, in the minority when it comes to utilizing SSI benefits for child support calculations.  Most states exempt this type of income from an individual’s gross income when it comes time to calculating their gross income.

In Florida, child support is calculated by utilizing a formula which includes the gross income of each party from all possible sources.  Florida Statute 61.30(2) provides a non-exclusive, detailed list of items that are included in a person’s gross income in order to arrive at an accurate amount of child support that is to be paid in any particular case.

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Although 401K accounts and IRA retirement accounts are generally protected from creditors, they may not have the same protection against an ex- spouse regarding the payment of alimony or child support arrears.  Stated another way, if you are owed either alimony or child support, do you have a right to collect the monies owed from your ex-spouse’s retirement accounts?

Statutes that were designed to protect the family assets from creditor claims, so that the family would not become dependent upon the state for support, do not afford an individual the same protection against their ex-spouse for the payment of child support or alimony arrears.

In order for a spouse to reach funds held in a retirement account, whether it be an IRA or a 401(k), there must first be an existing support order.  Next, there must be a finding by the court that there are in fact arrears owed pursuant to that court order which have accrued as a result of nonpayment by the obligor.  If the court makes an affirmative finding that the obligor has willfully refused to pay support obligations, he or she may be found in contempt of court.

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Do you have a divorce case, a paternity case, or a supplemental petition for modification of alimony or child support pending before the court?   If you have answered yes to this question, you need to be sure that you have “clean hands” when you proceed to court with your case.

What in the world does this mean “clean hands”?   “Clean hands” simply means that you must act in good faith when you appear in court.  You cannot expect to be rewarded for bad behavior when you appear in court.  You must act in good faith, “have your house in order”, and be candid and honest with the Court.  This is what “clean hands” means.

The clean hands doctrine frequently arises in supplemental petitions for modification of alimony or child support.  A party may be seeking to reduce the previously ordered obligation for support, based upon a change in their financial circumstances.  Often times these individuals will have a large, accrued balance, of either child support or alimony arrears.  If you fall into this category and proceed to court seeking relief,  you better have a good explanation as to why you have not been paying the previously ordered amounts for either alimony or child support.

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The rate at which alimony and/or child support arrears are repaid is largely dependent on whether or not an income withholding order has been previously entered in the case.

If an income deduction order or income withholding order has been entered, Florida Statute 61.1301(1)(b)(2) mandates that any arrears must be repaid at least at the rate of 20% of the regular monthly support obligation. This is a nonnegotiable amount that cannot be repaid at less than the 20% rate based upon the statutory mandate.

The situation is a little bit different when there is no previously existing income withholding order.  The court has more discretion to dictate the terms at which arrears will be repaid to the recipient.  Case law has made it clear that in situations where income deduction or income withholding orders are not at issue or in play in the case, the trial court would have discretion to provide a different rate of payment on existing arrears.

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Never a truer statement has been made then “the buck stops here”, when dealing with time sharing issues in a divorce case.  What this means is that the judge must have the final word in all issues which affect minor children, and he does not have the legal authorization to delegate that responsibility to any third party, including a therapist.

The animosity between parents can lead to difficult situations with their minor children.  When a parent’s anger adversely affects the minor children, that particular parent may end up with restricted contact with their minor children.  When one parent suffers from anxiety or depression, their behavior may have adverse effects on their children.  In either one of these scenarios, a therapist might be called in to intervene, and make recommendations to the court as to future prospects for time sharing, if a parents rights have been temporarily restricted.

In Grigsby v. Grigsby, 39 So 3rd 453 (Florida 2nd DCA 2010), the mother suffered a suspension of her time sharing with her children.  The trial court failed to delineate what was required of the mother in order to reestablish her time sharing.   As a result of the trial court’s failure to delineate, the decision was reversed on appeal.

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All income available to the recipient of alimony should be taken into consideration prior to the court assessing the amount of alimony to be paid.

Income from all sources reduce the “needs” of the spouse who is claiming alimony from the other party.  “Needs versus ability to pay” is the general standard utilized by the courts in determining alimony awards.  The importance of examining all sources of income available to the recipient of alimony cannot be understated.

Interest earned on 401(k) retirement accounts should be considered as income available to the spouse even though the spouse is not able to draw on the income until he or she reaches the age of 65.  Niederman v. Niederman, 6o So3rd 544 (Florida 4th DCA 2011)  stands for that very principle.  This is true regardless of whether the recipient of the alimony award has attained the age at which funds may be withdrawn without penalty.

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Equitable distribution of marital assets comes in many forms.  One such form is the enhanced equity that one party obtains when his non-marital mortgage is paid down during the course of the marriage with marital funds.  Support for this proposition is found under Florida Statute 61.075(6)(a)(1)(b).

In the case of Somasca v Somasca, 171 So3rd 780 (Florida 2nd DCA 2015), the former husband owned commercial real property encumbered by a mortgage.  A substantial portion of the mortgage was paid down during the marriage by utilizing marital funds obtained when the wife refinanced the marital residence.  The wife was claiming 50% of the amount of the mortgage reduction as a marital asset and as a portion of her equitable distribution.

The husband responded by claiming that his separate property depreciated substantially in value during the marriage, which essentially “washed out” or canceled any claims that the wife was making in reference to a pay down of his non marital mortgage.

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The amount of child support paid has a direct correlation to the number of overnights that the child spends with each parent.  Therefore, child support is not just based on the respective incomes of the parents, but must also include the number of overnights that the child spends with each of the parents.

When you are seeking review of an inaccurate calculation for child support, generally the lack of having a transcript of the of the record from the trial court will be fatal to your review of any errors.  However, child support is a whole different matter, separate and apart from review of alimony or equitable distribution errors.  The reason for this is that child support is not a requirement imposed by one parent on the other, rather it is a dual obligation imposed on the parents by the State of Florida.  See Quinn v. Quinn, 169 So3rd 268 (Fla. 2nd DCA 2015).

The right of child support is a right that belongs to the child, and the parents do not have the right to waive the amount of the child’s support.