August 4, 2012

Does the length of my marriage make a difference when I get divorced?

The length of a marriage becomes one relevant consideration for the court to consider in a divorce case if alimony is an issue in the proceedings.

The Florida legislature has attempted to bring some standardization to the awards of alimony in divorce proceedings. Alimony has historically been that unknown "wild card" in contested divorce cases.
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Permanent alimony is now reserved primarily for long term marriages, which by statutory definition, is now defined as a marriage in excess of 17 years. A short term marriage is one under 7 years. Anything in between is a marriage of moderate length.

Bridge-the-gap alimony can be awarded to a spouse in a short term marriage, and it may not exceed 2 years. Bridge-the-gap alimony is not subject to modification.

After bridge-the-gap, you will see rehabilitative alimony and durational alimony awards. Rehabilitative alimony is designed to assist the recipient in either re-establishing the skills to be financially self sufficient, or to obtain the skills to do so. This type of alimony may end with non compliance with a proposed plan of rehabilitation on the part of the recipient.

Durational alimony may be awarded for up to a maximum number of years equal to the length of the marriage. The number of years is discretionary, based upon other factors which the court may consider.

You can read the Florida alimony statute by clicking the link attached. All of the factors which the court will consider are included within the statute.

Having appropriate, competent representation in a divorce proceeding is important, and becomes ever more so important when the duration of the marriage increases.


August 4, 2012

Is the payment of child support voluntary?

Over the years, I have had the opportunity to discuss child support issues with many parents. A frequent question that often arises is whether one parent has the right to waive the receipt of child support from the other parent?

The answer to this question is simple, NO! There are scores of cases in Florida which clearly state that the entitlement to child support is a right that belongs to the child, not to the parent, and the parent has absolutely no right to waive receipt of those funds.

What about the situation when a father proclaims his desire not to have any part in the child's life, in exchange for a release of his child support obligation. Will this work to release the father from his obligation? Again, the same answer, NO.

I recently read an article dealing with individuals in the "public eye," which dealt with this very issue of waiving the obligation to pay child support, and I find it contrary to law. This of course would be the story of Kate and Jon, which is all over the internet. Kate has publicly indicated that she has released Jon from his child support obligation. It was reported in a story in the Star magazine. There will be more to this story in the future. Most likely an agreement is in place for a temporary abatement of support, but certainly not the total eradication of support for all those kids. Stay tuned.

The payment of child support is not discretionary, it is mandatory. The payment of child support is a joint obligation of both parents. The Florida Child Support Guidelines are based upon this concept, so that each parent bears their proportionate share of the expense to raise their children.

Further information on this subject, as well as on other issues, can be found on my website at www.alanburtonlaw.com. With over 30 years of experience, I am well qualified to answer and address any and all of your concerns with family law issues of any kind, including divorce, annulment, paternity and child support issues.

August 2, 2012

What does it take for a marriage to become irretrievably broken?

In Florida, no grounds for divorce are required other than the fact that the marriage must be irretrievably broken.. As a matter of fact, you can find this provision under Florida Statutes 61.043, which indicates that all one need do in a petition for dissolution of marriage is to assert that the marriage is irretrievably broken. No other grounds are required.

Over the years, I have had many people tell me that their "spouse has abandoned them", or "deserted them", or engaged in "acts of either mental or physical cruelty against them". They want a divorce and want to know if these are sufficient grounds.

The reality of the situation is that all of these reasons, although valid reasons to seek a divorce, are not a prerequisite or requirement for obtaining a divorce. All one need do is to allege that the marriage is "irretrievably broken."
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What makes one couple's marriage broken may be very different than for another couple. Sometimes people grow apart; sometimes they engage in mental abuse, and sometimes......

Well, you decide. Is the victim of a knife wielding spouse involved in a marriage which you would consider to be irretrievably broken? This was a story recently reported in the Huffington Post. Check it out!

August 2, 2012

August is Child Support Awareness Month

Child support is designed to cover the basic necessities of life for a minor child, such as food, clothing and shelter.

Every state has "Child Support Guidelines in place, and Florida is not excluded. Florida Statute 61.30 deals with the support of minor children, and includes the child support guidelines adopted by the Florida legislature.

A compilation of various statistics regarding child support was recently reported in an article found at Ebony.com. As an example, the story indicates that child support is paid primarily by men, 85% to be precise. This is indicative of the mother generally being responsible for raising the children.

There are a host of penalties that one could suffer by not paying child support, including wage garnishments, seizures of property, loss of driving privileges, and jail time.

Take a moment to check out the article, with its other statistical information. It i informative.

August 2, 2012

The end of permanent alimony in Florida

Currently there are four types of alimony awarded under Florida law. Florida Statute 61.08 provides for the possibility of an award for Bridge-the-Gap, Rehabilitative, Durational, and Permanent Alimony.

Although permanent alimony is "still on the books", there have been strong movements forming in south Florida and across the country for the reform of alimony, including the abolishment of permanent alimony entirely.

As an example, a recent article in the Asbury Park Press addressed the efforts to have the New Jersey Legislature examine the alimony laws currently in existence in that state, just as Massachusetts has done in recent years.

In Boca Raton, Fort Lauderdale and throughout south Florida the "Second Wives Club" is an organization that has strong support for the abolishment of permanent alimony. A recent article appearing in the Sacramento Bee is illustrative of the frustrations felt by many people.

Recent legislation in Florida has taken steps to make it more difficult to receive permanent alimony if the duration of the marriage is under 17 years in length. There must be significant and exceptional circumstances at play for a judge to award an individual permanent alimony in a marriage of less than 17 years.

For more information on this timely issue, contact a family law attorney who has substantial experience in dealing with these as well as other family law issues.

August 1, 2012

What is a parenting plan?

Under Florida law, terms such as custodian, primary custodian,and any other use of the term custody have been abolished.

Florida has now adopted what is known as a parenting plan, the provisions of which can be found in Florida Statute 61.13 (2)(b). A parenting plan must include, at a minimum, certain things, as follows: a detailed description as to how the parents will share and be responsible for daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of health care, school-related matters including the address to be used for school boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the child.

Developing a parenting plan is an individualized matter, and every plan should be tailored to your family. It is important to consult with an attorney who handles these child issues on a routine basis.

Alan R. Burton, Esq., a Boca Raton, Florida attorney
, has been in practice for over thirty years, and deals primarily with divorce and other family law cases.

August 1, 2012

No one is exempt from paying child support

Is anyone exempt from paying child support? The answer is clearly NO. Each parent has a responsibility to support their children, not just one parent.1380007_one_dollar.jpg

This is even true if one parent is wealthy, and the other parent is down and out. Remember the television show, Jon & Kate plus 8? This situation exemplifies the example that both parents owe a duty of support.

In a recent news story published in "RealityTea" about child support, Jon Gosselin confessed that he was having difficulty sustaining himself, let alone all of his children.

Keep following this story. Mr. Gosselin will soon learn that regardless of the fact that his ex-wife has money or not, he has a responsibility to his children as well. Remember, "it takes two to tango."

August 1, 2012

Not paying child support may be hazardous to your freedom

Child support payments for a child in Florida is an extremely protected right. The state of Florida has imposed significant penalties against those who choose not to pay child support, including the loss of driving privileges, the loss of professional and other business licenses, and the loss of freedom..

Prior to the imposition of penalties for non payment of child support, the court must conduct an evidentiary hearing, and provide the non paying parent with an opportunity to explain why the support is not being paid. If the court determines that the non payment has in fact been willful, the parent will be found in contempt, and the next step for the court to consider becomes the penalties to be imposed.

If a determination is made by the court that the non paying parent has either cash or other assets available to pay towards the support owed, that then becomes the "purge payment". The purge payment is the amount necessary to be released from jail, if the judge determines that is the appropriate sanction.

Loss of driving privileges is also possible, until such time as child support becomes current.

An experienced divorce lawyer, who frequently deals with child support, can work with you on these most important issues. It is often times best to deal with non payment of child support issues early on as these matters tend to "snowball" rapidly.

Florida Statute 61.30 governs the provisions and amounts of child support to be paid, based upon the combined earnings of the parents.

July 14, 2012

Alimony in Florida

The Florida legislation is attempting to bring uniformity to the subject of alimony in Florida.

New legislation now objectively defines a marriage as short term, long term, and moderate term. If a marriage is 7 years or less, it is short term. If the marriage is 17 years or more, it is long term. Anywhere in between, it is a marriage of moderate length.

The length of the marriage is important, since the type of alimony available depends upon the length of the marriage.

Florida Statute 61.08 is the alimony statute in Florida. There are four main types of alimony in Florida, as follows:

Bridge-the- gap alimony

Rehabilitative alimony

Durational alimony

Permanent alimony

Bridge-the-gap alimony may not exceed a term of 2 years, and is not subject to modification as to the length or the amount of the award.

Rehabilitative alimony may be awarded to a party to assist them in obtaining the capacity for self support.

Durational alimony is generally awarded when permanent alimony is inappropriate. Durational alimony can be awarded for a maximum number of years equal to the length of the marriage.

Permanent alimony is generally reserved for those cases in excess of 17 years in length, and is awarded to an individual who lacks the ability to meet his or her needs and necessities of life.

These are all generalizations, and each case must be considered on a case by case basis. I have over 30 years of experience involving cases dealing with alimony,of all kinds, and can offer you the appropriate guidance to resolve your case quickly and efficiently.

July 14, 2012

Relocation of minor children

Relocating with minor children involves the consideration of many factors by the court.

Although there are many factors involved in this process for the court to consider, the primary factors often become the extent of the involvement of the non relocating parent, the payment history of any child support obligation, and of course, the reason for wanting to relocate.

If relocation is premised upon a good employment opportunity, the chances for a successful petition are increased.

Relocation comes into play when a parent wishes to move more than 50 miles from their current residence.

These types of cases can be difficult, and there is usually very little room to negotiate a settlement, as they are often "all or nothing" types of cases.

The court will require a well organized, thought out presentation, of all of the statutory factors for relocation, as set forth under Florida Statute 61.13001.

The Florida relocation statute also offers a rare opportunity for those who avail themselves of the section of the law, not frequently encountered under the law. That is the opportunity to get a quick, expedited hearing, usually within 30 days from the date a request is made.

Consult with an attorney like myself, who has substantial experience in these matters. You usually have one opportunity to put your best foot forward, so you want to reduce your risks of making any mistakes.

July 14, 2012

Remedies for non payment of child support

The payment and collection of child support in the state of Florida often times can become a frustrating process. On the surface, the receipt of child support payments should be a straightforward matter.

The most effective remedy for the collection of child support is to invoke the contempt powers of the court. What exactly do we mean by invoking this process in the court system?

Initially there must be a court order which directs the obligor to pay a certain amount of child support, usually on a monthly basis. If the support payments become delinquent, the recipient has the right to bring the obligor (payor) before the judge, and to seek incarceration.

Having someone put in jail for non payment of support is not the easiest thing to do. First, the recipient of the child support, or alimony, must first prove to the court that the payor had the present ability to pay the court ordered support, and that the payor willfully refused to pay his child support or alimony.

Once this step is proven, you then need to demonstrate to the court that the person responsible for the payment of child support or alimony has the ability to either pay the full amount of the delinquency or a portion thereof. Once that amount has been established, it becomes the "purge" payment, and the payor can be sent off to jail until he pays the purge amount.

More often than not, the judge will usually give the payor a few days or up to a week to pay the purge amount, and if it isn't paid within the required time, then jail would be appropriate.

The payor would remain in jail until such time as the purge is paid.

A simple straightforward analysis of this process is found in the case of Ramirez v. Ramirez, 4D11-3818 (April 4, 2012).

May 28, 2012

Retroactive child support

Child support awards are always subject to modification. There are a multitude of reasons which would justify a modification, such as a loss in employment, change of custody, increase in income, etc.

The question which often arises is when does the modification, if granted, commence. The case of Webber v Webber, 56 So.3d 822 (Fla. 5th DCA 2011) makes it clear that the modification is effective, retroactive back to the date of filing the petition for modification, and not retroactive to the circumstances which give rise to the modification.

The point to note here is that if you are entitled to a modification, file your petition right away and don't delay!

May 28, 2012

Unreimbursed medical expenses

Unreimbursed medical expenses for minor children is an issue that arises in every divorce case involving children. The question to be addressed is which parent pays for these expenses.

It seemed that for a very long time the unwritten rule was that each parent is responsible for these kind of expenses on an equal, 50-50 basis.

That is no longer the case. The proper standard to be applied today is based upon the parties same percentages which are utilized for child support calculations.

"Absent some logically established rationale in the final judgment to the contrary, collateral child support expenses must be allocated in the same percentage as the child support allocation."

The ruling can be found in the case of Zinovoy v. Zinovoy, 50 So.3d 763 (Fla. 2d DCA 2011).

May 28, 2012

The importance of filing a Child Support Guidelines Worksheet

Calculating the proper amount of child support requires more than simply ascertaining the appropriate net monthly incomes of the parties. A Child Support Guidelines Worksheet must be filed in the particular proceeding. There is no discretion with the court in this regard. Failure to file the worksheet is reversible error.

This mandate is found in Fla. Fam. L. R. P. 12.285(j). ('If the case involves child support, the parties shall file with the court at or prior to a hearing to establish or modify child support a Child Support Guidelines Worksheet...This requirement cannot be waived by the parties").

This requirement was further set forth in the case of Palewsky v. Dept. of Revenue, 61 So.3d 1227 (Fla. 3rd DCA 2011).

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.