September 2010 Archives

September 20, 2010

Are personal injury settlements marital assets?

Generally speaking, the answer is no. Settlements from personal injuries are the separate property of the injured person. A portion of an award, if itemized to cover lost wages, or if awarded for loss of consortium, may be considered as a marital asset. Rarely is a settlement itemized, breaking down how the total was derived. See Mazzorana v. Mazzorana, 703 So. 2d 1187, 1189 (Fla. 3d DCA 1997).

When a personal injury settlement is commingled with other funds which are marital, or which are placed into a joint account, the situation becomes much more challenging for a trial judge. This was the very situation which presented itself in the case of Valentine v. Van Sickle, 35 Fla. L. Weekly D1663a, 2d DCA 2010.

In the Valentine case, when the husband was out of town, the wife created a new joint account and deposited the personal injury settlement check into the joint account. A portion of the funds were used to pay marital debts. At some point down the road, the wife transferred all of the money into a bank account in her own name.
The trial judge apparently felt that because the award was deposited into a joint account, and were utilized, at least in part to pay marital debt, that the funds became a marital asset.

The appellate court, upon further review, determined that the trial court had applied an incorrect legal standard when deciding if the award was marital or not. The fact that funds are deposited into a joint account does not necessarily convert separate property into a marital asset. The court needs to "dig a bit deeper" and find out exactly why the funds were placed into a joint account. If the other party's name was on the account, the funds may have been placed in the particular account for convenience only, and the funds would not lose their separate character. Grieco v. Grieco, 917 So. 2d 1052 (Fla. 2d DCA 2006.
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Extreme caution must be exercised when one receives funds which could be considered as separate property, and they become commingled. There is a high risk of those funds losing their separate character, so exercise caution.

September 13, 2010

Your divorce file is a matter of public record!

spying desktop.jpgWere you aware that everything that you file in your divorce case is a matter of public record? Were you aware that your life is "an open book", for anyone to read? Well, it is.

Every single pleading and all its contents is readily available for anyone to read, including your children. It is especially important to try to refrain from filing pleadings that contain scandalous material, which may very well come back "to haunt you" at some point in time in the future.

I recently came across an article dealing with another divorce for the actress we all know and love, Sandra Bullock. This was not her divorce however, but her father's. The court pleadings that someone got their hands on contained less than flattering comments about the behavior of John Bullock, Sandra's father.

The article, published on September 10, 2010 at NDTV.com, alleges the abuse his first wife (not Sandra's mother) was subjected to at the hands of John Bullock.

We are all very aware of the recent high profile divorce of Sandra Bullock, and the gracious manner in which she conducted herself through those difficult times. She, as well as her child, will look back at some time in the future, and see the dignity in which her divorce proceedings were conducted.

Court records are permanent. They illustrate who you are. It is best to rise above the name calling, blame, and slanderous allegations. Look back upon that chapter of your life with integrity.

September 7, 2010

Can prenuptial agreements be challenged without any risk of paying attorney's fees?

There is a presumption that a prenuptial agreement was entered into freely and voluntarily. Usually each party to the agreement has had the opportunity to be advised by their own attorney, and each party has made a complete and total financial disclosure of their assets and liabilities tio the other party.

Prenuptial agreements usually contain a provision for prevailing party attorney's fees. This means that if you decide to challenge the validity of a prenuptial agreement that contains a prevailing party attorney's fee clause, you will be held responsible for those attorney's fees if your challenge is not successful and the agreement is upheld.

The Supreme Court of Florida resolved this issue in June of 2005 when they decided the case of Lashkajani v. Lashkajani, 911 So.2d 1154 (2005).. The court's ruling was clear and precise. The court held that prenuptial agreement provisions awarding attorney's fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable.

The point to be made is is a simple one. Proceed with extreme caution if you are considering a challenge to a prenuptial agreement. The potential cost may well outweigh any benefits you are seeking to achieve by virtue of your challenge.

September 7, 2010

Skype

Skype is rapidly becoming the tool of choice for many family law judges throughout south Florida, Boca Raton and Fort Lauderdale.

Relocation cases involving minor children are not uncommon in South Florida. Relocation can occur for a multitude of reasons, but most frequently relocation with minor children occurs due to job transfers and other employment related issues.

Florida Statue 61.13001 deals with relocation of children. The court is required to consider the statutory factors listed in the statute when deciding if relocation would be in the best interest of the minor child or children.

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One of the statutory factors deals with substitute arrangements for continuing contact. Section 7 (c) of the statute reads as follows:

(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

Boca Raton Divorce lawyer Alan R. Burton frequently deals with this issue with relocation cases, and has found that many judges have readily adopted and embraced Skype as part of their rulings and orders.

Skype, for those of you who are not familiar with it, is an on line program that provides for video communication between parties. All you need is a computer, a webcam, and the Skype software downloaded on your computer. You register and are good to go.

Skype is just one example as to how technological advances can assist your clients in their quest for relocation. Although it is not the same as being physically present with your children, Skype does offers a viable and significant option.

September 6, 2010

Tiger Woods is starting over, or is he?

More often than not, a divorce requires one to re-group and to start fresh. Usually, starting over is on a scaled down, reduced standard of living. No so with Tiger Woods.

In spite of the massive financial settlement he recently paid to his wife Elin Nordegren, which was reported to be in excess of $100million, he appears to have come out of his divorce unscathed, at least as to his finances.

South Florida Boca Raton attorney Alan R. Burton knows how a divorce can negatively impact the lives of individuals, especially when they were involved in long term marriages. It is generally more difficult for a family to maintain the same standard of living, when living apart, then when they were living together.

Tiger Woods has apparently been unaffected by this principle. He is nearing completion of his $50million mansion, with its own sports facilities, a golf course, what else?

Tiger Woods has become one of the wealthiest sportsmen of all time, earning in excess of $105million last year alone, as reported by Forbes magazine.

Although he apparently has unlimited wealth, that wealth alone did not bring him happiness in his marriage. The Tiger Woods saga adequately demonstrates the old adage that "money can't buy happiness".

Source: Daily Mail Reporter, September 6, 2010

September 6, 2010

The economy has taken a toll on the payment of child support!

The payment of child support can put even more stress on an already difficult situation for many people today. The economy has taken an obvious downturn for many, many people. In spite of the economic crisis, children depend on the support for their wellbeing.

Trying to keep current on support obligations is no easy task, but the ramifications of not keeping up can be significant. Delinquencies can subject one to the loss of a driver's license, professional license, or even the loss of their freedom, if the non payment is intentional and willful.

South Florida, Boca Raton, Fort Lauderdale are all areas in South Florida that feel the impact of the economy on the payment of child support. The Department of Revenue, the agency responsible for the collection of support, witnesses first hand the difficulties experienced by many in collecting child support in a difficult economy. A recent story appeared in the Sebring, Florida area that dealt with this very issue. You can read the story from the Tampa Tribune, and specifically their on line site.

September 5, 2010

Do I have the right to waive the receipt of child support?

No. Child support is a benefit and entitlement for a minor child. Under Florida law, a parent does not have the legal right to waive the receipt of child support. Also, a parent does not have the unilateral right to determine how much he or she wants to pay, nor can the recipient parent due the same thing. Any agreements which purport to do so are against the public policy in the state of Florida and are unenforceable.

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There are many, many cases which deal with this very issue. Just a few to read which are instructive, are as follows: Lester v. Lester, 736 So.2d 1257 (Fla. 4th DCA 1999); Strickland v. Strickland, 344 So.2d 931 (Fla. 2nd DCA 1977; Brock v. Hudson, 494 So.2d 285 (Fla. 1st DCA 1986); and Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967).

The amount of child support to be paid is determined by statute in Florida. This section is known as the child support guidelines in Florida, and is found under in Florida Statue 61.30. The judge assigned to your case is going to make certain that a "Child Support Guideline Worksheet" is filed in your case, and that the appropriate amount of child support, as required by law, is being paid.

The new child support statute in Florida does have significant changes from previous versions. The statute takes into consideration credits or reduction as to the amount required to be paid as a result of "substantial time sharing".

Substantial time sharing, as that term is defined under Florida law, would be any amount of overnight time with the children in excess of 20% of the year, or at least 73 overnight visits throughout the course of a year.

September 5, 2010

Understanding the divorce process in Florida!

The two part question that is frequently asked of me is "how long will this take and how much will it cost?"

That's not always an easy question to answer. It depends. It depends on what the issues are that are involved; it depends on whether or not there are minor children; and it depends on how reasonable the parties are that are involved in the proceeding.

Generally, however, a divorce or dissolution of marriage in Florida, commences with the filing of a petition for dissolution of marriage. Other supporting documentation, such as a financial affidavit, compliance with mandatory disclosure, UCCJEA, request for production of records, as well as interrogatories, can also be filed at that time, or they can supplement the file and be filed at a later date.

A summons is issued by the clerk's office, directing the other party to file a written, responsive pleading, usually an answer, within 20 days of receipt of the paperwork. The paperwork must be personally served by the county sheriff's department, or someone authorized by law to serve papers, in lieu of the sheriff.

Mandatory disclosure requires that each of the parties voluntarily disclose certain basic financial information that they have in their possession. Additional records can also be requested by each party.

If everone involved is acting in a civil and rational matter, they can sit down togeter, usually with the assistance of their respective attorneys, and possibly with a mediator, and work out the terms of their settlement. Once their agreement is reduced to writing, it can be entered into evidence at a previously scheduled motion calendar hearing, and the court can dissolve the marriage.

This process, although it does happen frequently, may not necessarily be the norm. If the parties are not able to come to terms on their own, the case will be settled and resolved by a judge. Remember, a divorce is like any other civil case; once the litigants are able to settle the case, it is essentially over. If there is no settlement, the case moves forward through the system, sometimes slowly, until it is decided upon by the judge.

Most, if not alll lawyers in Florida, especially in South Florida, charge by the hour for their time. There is simply no way to predict the time that could be involved in a family law case, so expecting to pay a flat fee for services would be virtually unheard of, unless there was an agreement reached right at the very beginning of any proceeding.

A divorce can be resolved in as little as 20 days, or it could continue on for months, even years.

September 4, 2010

Are lump sum alimony payments dischargeable in bankruptcy?

This question frequently arises in the context of a subsequently filed bankruptcy proceeding. Generally, the obligor, or person who is obliged to make the lump sum alimony payment, seeks to have the payment or payments discharged through a bankruptcy proceeding.

The resolution of these types of situations is of course dependent upon the intent of the parties. The intent is ascertained by examining the language used in the parties agreement. Although the language used in an agreement is not conclusive, the words are given weight in determining the intent of the parties. Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968); Woodworth v. Woodworth, 385 So2d 1024 (Fla. 4th DCA 1980).

If the court ultimately determines that an obligation, which is labeled as alimony in an agreement, is in fact alimony, the alimony, which is lump sum, payable in installments, is is a vested right and not subject to modification. Such a determination would preclude the obligation from being discharged in bankruptcy, and would further subject the obligor to the contempt powers of the court if the obligation is not paid. Zuccarello v. Zuccarello, 429 So.2d 68 (Fla. 3d DCA 1983); McCombes v. McCombes, 440 So.2d 683 (Fla. 1st DCA 1983).

However, if the parties to an agreement had agreed that payments required under an agreement were for settlement of property rights, and not intended as alimony, those payments could not be enforceable by contempt, and would therefore be dischargeable in bankruptcy. Pabian v. Pabian, 480 So.2d 237 (Fla. 4th DCA 1985).

The contempt powers of the court simply cannot be used to punish someone for contempt, when the payments required from that individual are not support related. In Veiga v. State of Florida, 561 So.2d 1335, (15 Fla. L. Weekly D1487), the husband was found in criminal contempt for failing to pay his wife $25,000.00 as "lump sum alimony for purposes of equitable division of the interest in his business." Having determined that the obligation was for property settlement issues, rather than support, the contempt order was reversed. The payment then becomes a dischargeable obligation in bankruptcy.

It is very clear from the cases that emanate from Boca Raton, Palm Beach County, South Florida as well as throughout the state of Florida, that the only remedies for non payment of property obligations are those that are available to creditors against debtors. Underwood v. Underwood, 64 So.2d 281 (Fla. 1953); Hine v. Hine, 558 So.2d 496 (Fla. 3d DCA 1990); Carlin v. Carlin, 310 So.2d 403 (Fla. 4th DCA 1975); and Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968).

In conclusion, the lump sum alimony payments will only be dischargeable if the intent was to treat those payments as property rights versus a true alimony obligation. Extreme caution must be exercised in drafting any agreements so as to establish clearly the true intent of the partes.