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.

February 17, 2012

Relocation, Relocation, Relocation

1064682_airbus_a380.jpgIn today's economy, we see more and more people struggling to find employment. As a result, people are searching over a broader market area then they would normally be looking at, and as a result, more employment opportunities become available to individuals in other states.

This brings up the ever difficult decision a trial judge must face when a parent seeks to relocate with the minor children to another state, or to a new residence that is a substantial distance from their current residence.

Most frequently this situation will arise due to new employment opportunities that may be available to one of the parents.

Relocation of minor children is governed by Florida Statute 61.13001. The provisions of this statute will be applicable whenever a parent wishes to relocate from their current residence, and if the new residence is more than 50 miles from the current residence.

The consequences of not complying with the provisions of the statute could lead to some rather unpleasant consequences for the relocating parent, so it is extremely important to have a clear understanding of all of the provisions of that statute.

There are not only important factual considerations for the court to consider, but procedural ones as well. The petition that is filed, which seeks the ultimate grant of permission to relocate, must contain specific information, including the address of the proposed new residence, the new telephone number, and all the appropriate information regarding the new employment offer. There must be specific warnings to the other parent, in bold type, of the consequences they could suffer by not timely responding to the petition.

If anyone has had any prior experience with the judicial system, the have probably discovered that the judges are busy, and that it takes an extended amount of time to resolve issues that are pending before the courts.

What happens then, if an employment opportunity must be acted on promptly and access to the courts would not be swift? There is a remedy provided under the statute for this very situation.

Under Florida law, if you file a motion seeking expedited relief, for permission to relocate on a temporary basis while your petition is pending, you are entitled to a hearing on that matter within thirty (30) days of filing that request. What I do as a matter of course, is to file that motion right along with the petition, and obtain that hearing very quickly.

These types of cases require close attention to all the details, since the court is guided as to what will be in the best interests of the children. The proper presentation of the relevant evidence and documentation to support the claim for relocation can only increase the likelihood of success in these proceedings.

March 27, 2011

Attorneys fees based upon disparity in income

In dissolution of marriage actions, attorney's fees are frequently awarded when there is a large disparity in the parties incomes. Generally speaking, the underlying premise is to "put the litigants on an even playing field." Both parties should have the ability to retain and be represented by competent counsel throughout the dissolution of marriage proceedings. This holds true whether the proceedings are in Boca Raton, Delray Beach, Fort Lauderdale, or anywhere else throughout the state of Florida.

The award of attorney's fees is governed by Florida Statute 61.16, which is titled as Attorney's fees, suit money and costs. An award of attorney's fees requires both of the parties to appear in front of the judge and to present their evidence regarding income, expenses, and their respective needs for an attorney's fee request.

A judge has the discretion to make an award of attorney's fees on both a temporary basis as the case is progressing, as well as on a permanent basis as the case is concluding.

January 19, 2011

How to vacate a paternity decree in one easy step!

1182574_no_sex.jpgYes, it is possible to have the court vacate a paternity decree after it has been entered, even if years have passed by. The remedy is found in section 742.18, Florida Statutes (2006).

This statute creates circumstances under which a male may disestablish paternity or terminate a child support obligation when he receives "newly discovered evidence" demonstrating that he is not the biological father of the child. Section 742.18(1)(a), Fla. Stat. (2006).

The statute does not require a petitioner to prove fraud or duress when attempting to disestablish paternity. Rather, the statute clearly establishes the necessary allegations, requisite trial court findings, and conduct that would prohibit disestablishing paternity. Section 742.18(1)-(3), Fla. Stat.(2006).

The recent case of Johnston v. Johnston, 979 So2d 337 (Fla. 1st DCA 2008) sets forth a very clear explanation of the statute and how it works. I would recommend this case to anyone facing this particular situation.

For further information on this statute and possible assistance, you can contact me at www.alanburtonlaw.com.

January 17, 2011

"Primary residential parent" abolished in Florida

dad and daughter desktop.jpgIn 2008, the Florida legislature made substantial changes to the law in reference to minor children. The primary and most significant changes made by the 2008 amendments to section 61.13, Florida Statutes, was the abolishment of the terminology of "primary residential parent."
The effective date of the amendments were on October 1, 2008, and the changes were to have prospective application only. The changes could not be utilized to effectuate any modifications to agreements that were previously entered into by individuals prior to October 1, 2008. See the case of Hahn v. Hahn, (Fla. 4th DCA 2010).

The Hahn case is an interesting case to read. It clarifies many points of law that have arisen under the 2008 amendments to section 61.13. Although the designation of "primary residential parent" has been removed from the statute, the trial court is still required to consider the best interests of the child if called upon to create a parenting plan. The trial court must still "determine all matters relating to parenting and timesharing of each minor child of the parties in accordance with the best interests of the child. Section 61.13(2)(c)1., Florida Statute (2008)(amended October 1, 2008).

The Hahn case involved modification proceedings that were filed two years after the final judgment was entered, and before the effective date of the new statute. It was error on the part of the trial judge to apply retroactively the provisions of the new statute.

January 14, 2011

Is jewelry a marital asset and how is it valued?

diamond ring desktop.jpgJewelry is clearly a marital asset if acquired during the course of the marriage, and it is therefore subject to equitable distribution.

Placing a value on jewelry is a more difficult question. There is ample case law that sets forth the principle that valuations must be based upon competent evidence. Noone v. Noone, 727 So.2d 972, (Fla. 5th DCA 1998); see also Knecht v. Knecht, 629 So.2d 883 (Fla. 3d DCA 1993).

In Lassett v. Lassett, 768 So.2d 472 (Fla. 2d DCA 2000), the husband tesified that his wife's jewelry was valued at $10,000. There was no other evidence. The trial court stated that this was not competent evidence as to value. His unsupported opinion as to the value of the jewelry is not sufficient to warrant the distribution of that amount to the wife.

The only evidence the wife had as to the value of the husband's jewelry in the Noone case was that apparently he had told her it was worth $10,000 at some point in time. This was not considered competent evidence by the court. Alternatively, the husband valued his own jewelry at $1,500 on his financial affidavit, which the court deemed to be competent evidence.

January 12, 2011

Relocation decisions cannot be deferred

airplane desktop.jpgFlorida, and in particular south Florida, is suffering from the economic downturn experienced by the rest of the country. Foreclosures are at an all time high in Palm Beach and Broward County; families are losing their homes at an unprecedented pace.

This situation makes relocation a very real possibility for many families after divorce. Single parents are looking for better opportunities for themselves as well as for their children. As a result, trial judges are dealing more frequently with the very difficult issue of relocation. Relocation cases are extremely difficult since most often times there is little to negotiate and there is no room to compromise. One parent wants to go, while the other would prefer that his or her children remain in close proximity.

Relocation cases must be dealt with when the issue arises; it is not appropriate for the court to consider a relocation case today when the anticipated move will occur sometime in the future. See Sylvester v. Sylvester, 992 So.2d 296 (Fla 1st DCA 2008).

The law on this issue is supported by substantial case law. When a cause involving child custody is presented to the trial court, "the trial court is required to make a final determination on that issue at that time." Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990).

The court in the Sylvester case made it very clear that it would not be appropriate for a trial court to look into its crystal ball and determine whether relocation would be in the best interest of the child at some time in the future. The proper cause of action is to determine whether relocation is presently appropriate and consider future relocation based on the circumstances existing at that time.

January 10, 2011

Retroactive alimony is there for the asking!

pile of money desktop.jpgThe entitlement to an award of retroactive alimony is a right, and not a privilege, if the circumstances support the award. See alimony update for additional information on this subject.

The case of Gremel v. Gremel, 35 Fla. L. weekly D2291a (Fla. 2nd DCA 2010) illustrates the point. Mrs. Gremel separated from her husband in December 2003. She did not file her divorce petition until March 15, 2007, more than three years after her initial separation. On April 1, 2008, the trial court entered a temporary order requiring Mr. Gremel to pay his wife $2950 per month, as of April 1, 2008.

The appellate court stated that Mrs. Gremel may very well be entitled to retroactive alimony from March 15, 2007, the date of the filing of her petition for dissolution of marriage. See Valentine v. Van Sickle, 35 Fla. L. Weekly D1663 (Fla. 2d DCA Jul. 28, 2010).

The trial court was instructed to consider the wife's needs and the husband's ability to pay during the retroactive time period sought by the wife in determining whether the wife's retroactive alimony request is appropriate.

January 7, 2011

Supervised visitation and hearsay

whisper desktop.jpgObviously, the courts won't hesitate to enter any orders when necessary to protect minor children from harm. This would include orders for supervised visitation against a parent if the circumstances warranted this type of relief.

In the divorce proceedings between N.W. and M.W., 41 So.3d 383 (Fla. 2nd DCA 2010), the mother alleged that the father was sexually abusing the parties' daughter. As a result of those allegations, the father was restricted to supervised visits with his daughter. The father subsequently moved for unsupervised visits, and the mother moved to admit the child's hearsay testimony regarding the sexual abuse pursuant to section 90.803(23), Florida Statutes (2009). The court denied the mother's request, and re-instated the father's unsupervised visitation.

The mother filed a timely appeal, and the appellate court reinstated the order for supervised visitation. The court said that the trial court had applied the incorrect standard of law.

The proper standard for admitting hearsay statements of children was succinctly stated in State v. Townsend, 635 So.2d 949, 954 (Fla. 1994). The trial court has responsibility in ensuring that child hearsay statements satisfy a strict standard of reliability before admitting them as evidence. The trial court must make findings that satisfy two criteria:" (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability."

As the Townsend case makes clear, the focus on these types of cases is on the person to whom the statement was made by the child and the manner in which the statement was made.

The appellate court also noted that the mother sought to introduce statements made by the child to the mother, the grandmother, a therapist, and a family friend. The trial court's order was reversed because, as the appellate court found, the trial court made no findings with regard to any of these sources and also failed to address the individual statements and circumstances under which they were made.

The trial court neglected to follow the mandates of the Townsend case, as established by the Supreme Court of Florida.

If you or any of your family members require expertise in the admissability of hearsay evidence in order to protect a child from harm, you can contact me directly by clicking on my name, Alan R. Burton, Esq.

January 5, 2011

Civil contempt in divorce proceedings for non payment of child support

sad boy desktop.jpgFailing to pay a court ordered child support obligation can land the non complying parent in jail. However, there are certain procedures that must be followed before incarceration can occur.

An order of civil contempt for failure to pay child support requires findings of wilful failure to pay ordered amounts. If incarceration is to be orderd as a result of finding wilful contempt, the court must then make the affirmative finding that the contemnor possessses the present ability to comply with the purge. Miller v. Murrah, 14 So.3d 1019 (Fla. 5th DCA 2009); Brown v. Brown, 658 So.2d 627 (Fla. 5th DCA 1995).

The key too these cases requires that an order be in writing, and that these findings must be clearly set forth in the order. Alan R. Burton, Esq. is well qualified to assist you in preparation of appropriate orders for this purpose.

Todd Alan Grant was successful in securing his release from custody after having been jailed for non-payment of support. In his case, there was never a written order entered, and he was promptly released. Grant v. Department of Revenue on behalf of Heather R. Kopp, 27 So.3d 190 (Fla. 5th DCA 2010).

Rafael Carbonell had much the same luck as Mr. Grant. He was also incarcerated for non-payment of support, but upon filing an appeal, he was also promptly released. The order which had him jailed failed to make the specific affirmative finding that he had the present ability to comply with the purge amount as set by the court. Carbonell v. Department of Revenue on Behalf of Deydry Capella, 30 So.3d 664 (Fla. 5th DCA 2010).

If in fact there is wilful noncompliance with a child support order, it is incumbent upon the trial judge to be meticulous in his or her findings. The order directing incarceration must be carefully drafted if it is to withstand any subsequent attack.