March 2012 Archives

March 26, 2012

Zealous divorce attorney representation

We all know that divorce is an extremely difficult time for people to experience. Emotions run high, and often time, all sense of reason and reasonableness vanish during divorce proceedings.

Some people like to amicably resolve their differences, and move on with their lives. Others, however, would prefer to make their soon to be ex-spouse's life a miserable experience for months and years ahead.

600957_hulk.jpgLawyers have an ethical obligation to represent their clients as zealously as possible, within the bonds of the law. Apparently one divorce attorney in New Mexico decided that there were no boundaries under the law, and that he was at liberty to take matters into his own hands in a divorce proceeding. He gives no meaning to zealously representing his client.

Aggressive representation was given a whole new meaning when this attorney took control of his client's affairs. This is not the best way for an attorney to proceed in a divorce case or any other case for that matter.

Check it out! Watch the New Mexico divorce attorney go to work. You will be shocked.

March 26, 2012

Are engagement rings marital property and subject to equitable distribution?

698266_rings.jpgThe age old question, which invariably comes up time and time again. The answer to this question is determined by examining the reason why an engagement ring is given by one party to the other.

An engagement ring is a gift made upon the implied condition that a marriage is to occur. If a marriage does in fact occur, the courts will most likely follow the general rule that engagement rings are not marital assets subject to equitable distribution. Rather, they are the separate property of the recipient.

In the event a marriage does not occur, the chances are much better for recovery of the ring, since it was conditioned upon the subsequent marriage.

An interesting twist to the engagement ring story occurred in the case of Randall v. Randall, 56 So3d 817 (Fla. 2nd DCA 2011). In the Randall case, the judge treated the engagement ring as a family heirloom, and provided that the husband could hold the ring, as long as he delivered the ring to his children as he saw fit.

The wife promptly filed an appeal of this ruling, and she easily prevailed on her appeal. The appellate court followed the general rule that an engagement ring is a gift, in contemplation of marriage, and once that marriage occurs, the ring belongs to the wife.

An engagement ring is simply not subject to equitable distribution, and the trial judge has no jurisdiction over the ring.

March 26, 2012

Equitable distribution of retirement benefits, military benefits, pensions, and other assets

Military retirement benefits are marital assets and subject to equitable distribution. Florida Statute 61.076. The exception is that military retirement benefits that are based on a disability are excluded from equitable distribution. Abernethy v. Fishkin, 699 So2d 235 (Fla 1997).

Disability pension and benefits are not marital assets, and are not subject to equitable distribution. See Hanks v. Hanks, 553 So2d 340 (Fla. 4th DCA 1989). The reason for this is because the benefits are personal to the employee; it represents compensation for injuries or lost wages sustained on the job.

Federal social security benefits are not divisible as marital assets upon a divorce. Johnson v. Johnson, 726 So2d 393 (Fla. 1st DCA 1999). Social security represents social insurance, and it is not considered a property interest under the law.

A portion of workers' compensation benefits and personal injury claims are marital assets. The portion of the award representing past lost wages, loss of earning capacity, and medical expenses is a marital asset. The portion of the award, which represents future lost wages, loss of earning capacity, and future medical expenses is the separate property of the spouse who was injured. See the case of Weisfeld v. Weisfeld, 545 So2d 1341 (Fla. 1989) for a more detailed analysis of this particular subject.

pile of money desktop.jpgUnvested or contingent options are also marital assets. Florida law is replete with cases on this subject matter. These assets were created by marital labor that are capable of valuation and distribution in the event that monies are realized in the future upon the sale of the options.

March 26, 2012

What are the rules for imputing income to a party?

Support awards in a family law case are generally made based upon the actual income of the parties involved in the proceeding.

665434_dollarsign.jpgHowever, often times it becomes necessary to impute income to either the husband or the wife, if either of them are underemployed or intentionally making themselves unemployed.

Who has the burden of proof when it comes to imputing income in situations like this; the husband, the wife, or the judge?

The answer is simple. The individual who seeks to impute income to the other spouse has the burden of proof. He or she must prove to the court by way of competent and substantial evidence that there is a sufficient basis to impute income to the other.

In the case of Mudafort v. Lee, 62 So 3d 1196 (Fla. 4th DCA 2011), the court was called upon to make a determination regarding the imputation of income. Although there was no dispute that the wife had voluntarily quit her job, since she was relocating, the question in this case was whether or not she was under employed in her new job.

In applying the particular facts as set forth in this cae, the court stated that the husband did not meet his burden to entitle him to impute income to his wife.

March 25, 2012

Modification of Child Support Awards

Child support awards in Florida are always subject to modification, based upon many different reasons. In connection with a proceeding for the modification of child support, the question of retroactive support becomes important.

In other words, if an increase in child support may be appropriate, at what point in time does that increase become effective? Is the increase effective as of the date the circumstances arose, which entitles the recipient to receive more support, or does the increase start from the date of the award by the judge, or some other date? If you , as the payor, are seeking a reduction in the payment of child support, what date does that reduction occur?

The answer to that question was clearly provided for in the case of Webber v. Webber, 56 So3d 822 (Fla. 5th DCA 2011). The court in the Webber case made it clear that any modification of child support cannot be imposed on an individual prior to the date that a petition for modification is filed.

The moral of the story is that if you believe that you are entitled to either an increase in child support, or a decrease, don't wait to file. If you delay in filing, you will lose out on the benefits that you are seeking.

March 25, 2012

Life Insurance to secure child support obligation

Florida law does in fact require an obligor to either acquire or maintain life insurance in order to secure a child support obligation. This is found in Florida Statute 61.13(1)(c).

What does this mean exactly? A judge does not have the discretion to order any amount he or she pleases. The amount of life insurance required will vary from case to case. The amount required should be in a sufficient amount to cover the remaining outstanding obligation.

A requirement to carry a policy in the amount of $100,000.00 may very well be excessive if there is one 17 year old child, and the monthly child support obligation is $500.00 per month. There simply must be a correlation between the outstanding amount owed and the benefits payable under the life insurance policy.

March 25, 2012

Alimony Reform in Florida

There has been much discussion in Florida regarding alimony reform, but it has not arrived just yet.

In order to understand the future of alimony, you have to be familiar with the current laws in Florida regarding alimony. Alimony is governed by Florida Statute 61.08. The initial step for a judge in deciding whether to award alimony or not is to first determine the need of one party versus the ability of the other party to meet that need.

1377964_tightened_100_dollar_roll_.jpgOnce that bridge has been crossed, the court will then decide on what type of alimony is appropriate under the specific facts of the case.

The award of alimony has become a bit more objective in recent years, since the length of a marriage is critical to the type and nature of an award of alimony.

Florida defines a short term marriage as any marriage under 7 years in duration. A long term marriage is a marriage over 17 years in duration. Anything in between is a moderate term marriage.

Why is the length of the marriage important? Simply because there are certain presumptions in favor of a particular type of alimony, based upon the duration of the marriage. For example, there is a presumption in favor of permanent alimony when you have a long term marriage.

In circumstances when permanent alimony may not be appropriate, durational alimony may be awarded by the court. Durational alimony may not exceed the number of years that the parties were married.

In short term marriages, bridge-the-gap or rehabilitative alimony may be more appropriate.

Bridge the gap alimony may not exceed a period of 2 years duration.

Recent efforts to modify the existing alimony laws in Florida did not come to pass during the most recent legislative session in 2012. To get an idea where Florida is heading, review of the House Bill which was proposed, but which failed, will shed some light on this matter.

House Bill 549 attempted to do away with permanent alimony, and changed the category to "long term alimony." Additionally, the amount of any alimony award was capped out at 20% of the payor's net monthly income, which was averaged out over the past three (3) years.

A long term marriage, under the proposal, involves a marriage over 20 years, rather than the existing 17 year marriage. In considering an award of durational alimony, the award cannot exceed 50% of the number of years the parties were married.

Although this bill did not pass, it should give you an idea of the future direction of alimony in the state of Florida.