Boca Raton Divorce Lawyer Blog

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.

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.

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

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.

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.

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.

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.

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.

We now know that a 17 year marriage is considered a long term marriage under Florida law. A long term marriage raises the presumption of permanent alimony. The new alimony statute lists various criteria that the trial judge should consider in making the determination to award permanent alimony, but it doesn't tell us how much is to be paid.

The standard in alimony awards continues to be the needs of the recipient, balanced against the ability of the obligor to pay and meet those needs. There are thousands of cases on the books which deal with alimony. The following cases are representative of alimony awards which the court has ruled to be excessive, and can certainly be utilized and applied when considering the circumstances in your own particular case.

In Thomas v. Thomas, 418 So.2d 316 (Fla. 4th DCA 1982), the wife was awarded 58% of the husband's net income. The court ruled that this amount was excessive and reversed the award.

Although there was no mention of any percentages being paid, the court in Posner v. Posner, 988 So.2d 128 (Fla. 4th DCA 2008) reversed an award when "the total support and expense awards consumed nearly all of the obligor's net monthly income."

An abuse of discretion was found in Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990) when the husband was ordered to pay 79% of his income for support.

In Benenfeld v. Benenfeld, 705 So. 2d 1072 (Fla. 4th DCA 1998) an award of 80% of the husband's net income was found to be excessive.

Seventy Six (76%) percent of the husband's income was ruled to be excessive in Decker v. Decker, 660 So. 2d 1162 (Fla. 4th DCA 1995).

Dennison v. Dennison, 852 So.2d 422 (Fla. 4th DCA 2003), the court found an award of alimony, in the amount of $3,000.00, combined with an award of child support of $1,500.00, to be excessive. The husband was showing net monthly income of $5,500.00.

In the case of Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983), an award of 71% of the husband's net income was found to be an abuse of discretion.

70% of the husband's income was excessive in Kaylor v. Kaylor, 413 So.2d 870 (Fla. 2d DCA 1982).

In Casella v. Casella, 569 So.2d 848 (Fla. 4th DCA 1990), an award of 70% of the husband's net income was also found to be clearly excessive.

The ultimate question that arises from this discussion is what percentage of support, when paid, becomes excessive? There is unfortunately, no simple answer. Each individual case must be examined on its own set of facts. What may appear to be an excessive award of alimony in one case, may not necessarily be excessive in a different case. It all depends on the unique facts of each case as they come before the court.

Equitable Distribution of marital assets is governed by the provisions of Florida Statute 61.075(1). That section provides that, in distributing marital assets and liabilities, a court "must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors...."

What factors then, would entitle the court to deviate from an equal distribution, and award one party more than the other?

When one spouse engages in conduct which results in the dissipation of marital assets, the court is warranted in making an unequal distribution. Hood v. Hood, Case No. 5D09-593, decided on July 30, 2010. Dissipation has been defined in the domestic relations context as "where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown."

Adultery can be considered as a factor when the court is fashioning an unequal distribution of the marital assets and liabilities of the parties, to the extent that marital misconduct depleted marital resources. As an example, the wife, in the case of Rabbath v. Farid, 1st District, Case No. 1D07-6583 had alleged in her petition that her husband had dissipated over $383,551.00 in marital funds while engaging in an extra-marital relationship.

The husband gave evasive answers and failed to adequately account for his various banking records. A combination of the husband's evasive answers and other competent evidence presented by other witnesses justified the court in making an unequal distribution of marital assets.

Other cases make it very clear that when a party contributes and commingles substantial non- marital assets to the relationship, that factor alone is not a basis for an unequal division of marital assets. In Hitchcock v. Hitchcock, 4th District, Case Nos. 4D06-4743 & 07-1049, decided on October 22, 2008, the court made just such a finding. A presumptive gift occurs when non-marital assets are commingled with other marital assets.

Although a dog is viewed as a member of the family, no one in a divorce case is going to end up with custody of the pet.

A dog, or any other animal, is considered personal property, and personal property is divided between the parties pursuant to the equitable distribution provisions of Florida law. This means that there will be no fighting over custody and visitation privileges with the family pet.

The trial judge in Bennett v. Bennett, 20 Fla. L. Weekly, D225a didn't see it this way. The judge who presided over the case initially awarded custody of "Roddy", the family dog, to the husband, subject to alternating weekend visitation privileges for the wife. The ruling created a never ending stream of conflict between these two parties.

On appeal, the decision was reversed. The appellate court explained that a dog, or any other animal, is allocated to one party or the other as part of the equitable distribution of the marital assets. The pet is considered personal property, and there is no provision under Florida law to order either custody or visitation rights of a family pet.

Several cases on record establish this principal of law. Two that come to mind are County of Pasco v. Riehl, 620 So2d 229 (Fla. 2d DCA 1993) and Levine v. Knowles, 197 So2d 329 (Fla 3d DCA 1967). Perhaps it would be a good idea for married couples to have two dogs, one for each of them, in the event of a divorce.

Maybe yes, or maybe no. The fact that such a large indebtedness exists, in and of itself, is not the determining factor that may lead to incarceration. The court must first determine how much of that debt can be presently paid by the obligor. This amount becomes the "key" to the jailhouse cell for the obligor.

This principal for asserting civil contempt in family law cases was established by the Florida Supreme Court, in the case of Bowen v. Bowen, 471 So.2d 1274, 1278-79 (1985). The Bowen case requires a two step analysis. First, the court must determine if the obligor, who is behind in his payments, has willfully violated the court order for support; and second; the court must determine an appropriate remedy which is to be imposed in order to compel the defaulting individual to comply with the court's orders.

If the court wishes to incarcerate an individual for willfully failing to pay support, an affirmative finding must first be made to determine what the present ability is to meet a purge condition. A purge is generally a dollar amount that the defaulting party has the "present and current ability" to pay. Once that amount has been determined, the obligor or defaulting party can either pay or go to jail; his or her release will be subject to the payment of the purge established by the court.

Quite frequently, the purge payment represents a very small percentage of the support that is actually owed. It could literally be pennies on the dollar.

A recent case from the 3rd District illustrates the principals involved in jailing an individual for non payment of support. See the case of Aburos v. Aburos, Case No. 3D08-2808, decided on April 21, 2010. The former husband owed $319,828.00 in child support payments. He was found in willful contempt, and was ordered to be taken into custody. The court established a purge amount of $25,000.00, which amount would represent the" key to his cell". On appeal, the appellate court ruled that it was simply error to establish a "purge amount" when there was no evidence in the record that the former husband had the "current and present ability" to pay the amount as ordered by the court.

Just when you were thinking about all the different ways in which you were going to spend your tax refund, reality sets in, and you realize that the IRS has intercepted your money. How can they do this; is it really possible; can the IRS take my refund and apply it against child support that I owe? The answer is YES!

The authority of the IRS to intercept tax refunds was established pursuant to Title IV-D of the Social Security Act and the Internal Revenue Code. The program is known as TRIP, or the tax refund intercept program.

The TRIP program is administered by the Florida Department of Revenue in cooperation with the United States Internal Revenue Service (IRS). The authority of the Department of Revenue to act in this capacity is found in Sections 409.2554(1) & 409.2557(1) of the Florida Statutes, (2008).

This does not mean that the TRIP program is absolute, and without safeguards for the taxpayer. A delinquent parent does have rights. A delinquent parent is one who owes at least $500.00 in past due child support. This parent must first be certified by the State of Florida to the Federal Office of Child Support Enforcement. If the intention exists to intercept the taxpayer's refund, he or she must be given 30 days advance notice in which to challenge the action. The procedure to be followed in challenging the action along with an analysis of the TRIP program can be found in the case of Florida Department of Revenue, Child Support Enforcement, o/b/o Tammy J. Baker v. Harvey Baker, 1st District Case No. 1D09-1929, decided on December 31, 2009.

You may feel that the amount of child support arrears that is owed may be inaccurate, or you believe that there are no arrears or delinquencies. Don't delay in bringing this to the attention of the court. Get a hearing scheduled and get the matter clarified before year end. It will save you a lot of time and energy by taking a proactive approach with this issue, rather than a reactive one.

Some areas of the law are "black and white" in that based upon a prescribed set of facts, you knew exactly where you stood. Some areas are "gray", which is especially true in the context of a divorce case, where the family court judge presiding over the case has a wide range of discretion . This was never more true than when dealing with the issue of alimony.

Alimony was always the "wild card" in a divorce case. If the entitlement to alimony was apparent, the recipient never really knew what to expect as to how long the financial assistance would continue, nor did the obligor really know what their exposure would be to pay the obligation. That has all changed now, with the enactment of Florida Statute 61.08, effective July 1, 2010.

The Florida legislature has now categorized marriages into three types, short term; moderate-term; and long term marriage, all of which are determined by the length of the marriage.

A short term marriage is one in which the duration is less than 7 years; a moderate-term marriage is from 7 years but less than 17 years in duration; and a long term marriage is one which exceeds 17 years duration. The time period is measured from the date of the marriage to the date of filing the dissolution of marriage action.

The length of the marriage is important, since it becomes the determining factor in the type of alimony to be paid and received. For example, once you fall into a long term marriage bracket, the presumption exists for the payment of permanent alimony, the amount of which would continue to be measured by the needs of the recipient, balanced against the financial ability of the obligor to meet those needs. Although there is only a presumption in favor of permanent alimony, rather than a directive, that presumption may be difficult to overcome.

What about the other two categories, short term and moderate-term marriages? What is the relationship between alimony and these types of marriages? The Florida legislature, in Chapter 61.08, has defined four types of alimony, which are bridge-the-gap; rehabilitative; durational; and permanent.

Bridge-the-gap alimony is generally reserved for those falling within a short term marriage, and is utilized to assist one in making the transition from being married to being single. The length of the award cannot exceed two years.

An award of rehabilitative alimony may be awarded to assist a party in establishing the capacity for self support. This is to either redevelop previous skills or for receiving the training to acquire new skills. There must be a specific plan in place to achieve these objectives.

Durational alimony may be awarded when permanent alimony is not appropriate, and it may not exceed the length of the marriage.

By having these objective standards in place, the subject matter of alimony is now approaching the "black and white" zone of the law.

As the old cliche goes, "nothing is forever", including either the award of or agreement to pay permanent alimony. Support obligations are always subject to modification.

However, in order to justify a modification of alimony, the petitioning or moving party must prove (1) a substantial change in circumstances; (2) that the change was not contemplated at the time of entry of the final judgment of dissolution of the marriage; and (3) that the change is sufficient, material, permanent and involuntary.

One should be mindful of the fact that there is a very big difference in modifying alimony downward due to a change in final circumstances, versus a complete termination of alimony. In order to terminate a permanent periodic alimony obligation, one must allege and be able to prove that he or she is no longer able to pay any amount of alimony or that the recipient of the alimony is able to support themselves through their own efforts and abilities.

A recent case from the Third District Court of Appeal, decided on August 18, 2010 offers a good explanation as to the heavy burden involved in terminating permanent periodic alimony. Suarez v. Sanchez, 3rd District Case No. 3D09-1593.

Mr. Sanchez was an eighty one year old gentleman, whose health had deteriorated since the dissolution of marriage was entered, and due to poor health, chose to take a voluntary retirement. Although he had met his burden in establishing a basis for a modification of his alimony payment, he did not meet the very heavy burden of having his payments terminate in their entirety. The evidence presented in the case demonstrated that Mr Sanchez had an annual surplus of approximately $10,000.00; and the former wife had an annual deficit of approximately $19,000.00.

Since the ability to continue to pay something existed, although at a reduced amount, the alimony obligation would continue, even at the age of 81.

Recent legislation in Florida has changed the way we now provide for minor children in a divorce case. The manner we have previously been accustomed with in dealing with the issue of custody has in fact been abolished in Florida.

The new parenting and time sharing provisions of Florida law are found in Chapter 61.13. All of the old nomenclature and terminology regarding "custody" of minor children has been abolished. The reason for this is really quite logical. Emotions run high in a divorce case, and the minor children are generally the focal point of the dissolution of marriage proceedings. If one parent felt that they could come out of the litigation with the title of "custodian", it was often times viewed as some type of victory. This resulted in unnecessary litigation, expense, and emotional toll upon the parties, as well as the children.

The new legislation removes the issue of "custody" from the battleground. There is no longer a need for the mother or father to fight over obtaining the prize for becoming the "custodian" of the minor children. Now both parents simply enter into a Time Sharing Plan, whereby certain days of the week, as well as various responsibilities of each parent, are spelled out in a written contract or plan.

A Parenting Plan can be very detailed and elaborate as the particular situation dictates, or it can be very general. It is up to the parents to create their own plan, based upon their individual and unique circumstances. However, a Parenting Plan, in order to be approved by the Court, must, at a minimum, contain certain provisions. A Plan must describe in detail how the parents will share and be responsible for the 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.

It is the public policy of the state of Florida that each minor child has frequent and continuing contact with both parents after the parents separate or once the marriage of the parties is dissolved. By abolishing the old manner of dealing with minor children and doing away with the "custody" determination , the process should become a less costly one for the parties, both on a financial as well as on an emotional level.