January 3, 2011

Is a hearing required before a court can vacate temporary injunctions against domestic violence?

The issue of vacating temporary injunctions against domestic violence was dealt with in Schock v. Schock, 979 So.2d 1201 (Fla. 4th DCA 2008).

In this case the father had obtained injunctions against his child's mother, along with another one against her boyfriend. The allegations made included neglect and abuse against his daughter. The duty judge found the allegations appropriate for the issuance of an injunction, that the child involved was the victim of domestic violence, and was in immediate and present danger, and he issued the orders accordingly.

In response to all this, the mother filed an Emergency Motion For Return of Child and Change of Custody in the dissolution of marriage action that had been filed. Two days after the mother had filed her motions, the trial judge assigned to the divorce case entered two orders vacating the injunctions that had been previously entered by the duty judge.

The judge decided on his own that the allegations made by the father in his application for an injunction against the child's mother were conclusory, and those which were made against the boyfriend were based upon hearsay.

On appeal, the trial judge was reversed. The appellate court stated that once an injunction is issued under Section 741.30, Florida Statutes, the injunction cannot be vacated without a hearing. Sanchez v. State, 785 So.2d 672, 676 (Fla. 4th DCA 2001).

As a result of this ruling, the temporary injunctions were re-instated, and the trial court was instructed to conduct an evidentiary hearing before ruling on the motions filed by the mother. See also White v. Cannon, 778 So.2d 467, 467-68 (Fla. 3rd CA 2001).

For further information, advise, or any questions on this topic, please click the following link: www.alanburtonlaw.com

December 31, 2010

Temporary support....how much is really needed?

In a case recently decided, a wife was awarded an astounding sum of $75,000.00 per month for temporary support for herself and her child. Stanton v. Stanton, 2D10-919 (2010).

The appellate court said this amount simply could not stand, as the amount was not supported by competent substantial evidence.

The trial court should consider the standard of living in addition to the need of one spouse and the other spouse's ability to pay. de Gutierrez v. Gutierrez, 19 So.3d 1110, 1113 (Fla. 2d DCA 2009).

Here, in this case, the wife had testified that her monthly expenses totaled $44,029, including those of her child. Her financial affidavit also indicated her monthly expenses to total $44,029. It was clear to the appellate court that the trial judge had erred in making an award of $75,000 per month for the wife when the evidence reflected that the wife's needs were $44,029. Also CLICK HERE to visit my site for the most updated information on the new alimony laws in Florida.

The appellate court gave further instructions to the trial court that the award to the wife must be based upon her needs, and should not attempt "to fund the enjoyment of every
little luxury enjoyed before divorce." Levine v. Levine, 964 So.2d 741, 742-43 (Fla. 4th DCA 2007).

The purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce. "Fixing alimony at a profligate standard of living is to turn alimony into a lottery. That is one reason why the standard of living during marriage is not a super factor trumping all other factors in awarding alimony. Jaffy v. Jaffy, 965 So.2d 825, 828 (Fla. 4th DCA 2007).
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Although the sum of $44,029, awarded to the wife on a monthly basis was certainly not a nominal amount, this case still clearly points out that the standard for temporary relief is clearly the needs of the requesting spouse versus the ability of the other spouse to meet those needs.

December 29, 2010

Financial affidavits in divorce proceedings

coins question mark desktop.jpgIn every dissolution of marriage action filed in Boca Raton, Fort Lauderdale, or anywhere else throughout the state of Florida, the parties are required to file a financial affidavit which details their income, expenses, assets and liabilities. The importance of filing this document in an accurate manner cannot be over emphasized.

What happens when assets are not disclosed by a party to the divorce proceeding?

In Romero v. Romero, 959 So.2d 333 (Fla. 3DCA 2007), the husband failed to disclose stock options he had received over the course of the marriage, and which the wife was unaware of. They were ultimately discovered by her after the proceedings concluded, and she subsequently tried to reach them through the use of a constructive trust.

The trial court concluded that these options were marital assets because they were awarded to the husband based upon his past qualifications and experience over the course of the marriage.

The wife testified that had she known about them, she would have wanted half; that she would have exercised them; she would have sold them, and would have used the proceeds to reduce the mortgage on her home.

The decision of the trial court, awarding the wife half of the options, was ultimately reversed on appeal. The appellate court ruled that the wife failed to establish the elements of fraud, and "impermissibly stacked inference upon inference, with the full benefit of hindsight, culminating in a final judgment based solely upon speculation."

What makes this case rather interesting is the fact that neither party completed a thorough examination of their assets when they drafted their marital settlement agreement. Given theses circumstances, the court concluded that the husband did not commit any fraud in not disclosing his stock options.

It is important to recognize that a petition to set aside a final judgment in a divorce case cannot be done simply because of non-disclosure on a financial affidavit. There must be more. The moving party must still establish a ground for setting aside the judgment pursuant to Florida Rules of Civil Procedure, Rule 1.540(b)(3).

In other words, a movant must show not just that the affidavit contained a false statement of a material fact, but also that it was fraudulent, i.e., that the person making the false statement knew that it was false, that the false statement was made with the intent that the other party would rely on the false statement, and that the other party actually relied on the false statement and was thereby prejudiced. Ward v. Atl. Sec. Bank, 777 So.2d 1144, 1146 (Fla. 3d DC 2001).

The moral of the story is to exercise due diligence in not only completing your financial affidavit, but to also conduct your own extensive investigation into discovering the nature and extent of all marital assets. For more valuable information regarding this subject or any other subject that you may have an interest in, please click the following link which will take you over to my site, www.alanburtonlaw.com.

December 27, 2010

The importance of the valuation date in dissolution of marriage actions

desktop stock screen board.jpgIn every dissolution of marriage action, marital assets must be identified and valued. The critical question that is in dispute often times becomes as of what date are those assets to be valued?

Section 61.075(6), Florida Statutes (2004), provides a bright line rule for classifying marital assets and liabilities. Absent a valid separation agreement, the cut-off date for classifying marital assets is the date of filing the petition for dissolution of marriage. Schmitz v. Schmitz, 950 So.2d 462, 463 (Fla. 4th DCA 2007).

Often times, it is a much easier task to identify those assets which are marital, then it is to value them. The case of Odak v. Vitrano, 35 Fla. L. Weekly D1957a (2010) is instructive on this point.

Another point of contention in this case involved the severance payment received by the husband. That payment was substantial. However, since the right to receive the payment did not come into existence until after the date the petition for dissolution of marriage was filed, the court had properly classified the severance payment as a non marital asset.

In this case the husband was an expert in "turning around" troubled companies. He was hired by Wild Oats Markets, Inc. as its president and chief operating officer for a number of years. He had received stock options from the company which he exercised during the marriage. The trial court chose to value those assets as of the date of the trial, as opposed to the date of filing the petition for dissolution of marriage.

The stock that the husband received apparently grew in value by a considerable amount between the date of filing the petition for dissolution of marriage annd the date of trial. The husband had argued that the increase in the value of the stock was occasioned by his post petition efforts to make the company more efficient and profitable, and therefore the proper valuation date should have been the date of filing the petition for dissolution of marriage, rather than the date of trial. It would have been unfair for the wife to benefit from his efforts made after the date of filing.

Although his arguument was very logical, the court sided with the wife with this issue, since there was conflicting evidence presented at trial as to what exactly was the cause of the stock rising in value. The trial court is afforded a wide latitude of discretion, and unless that discretion is abused, the decision cannot be reverersed on appeal.

December 26, 2010

The impact of divorce on children

happy girl desktop.jpgDo the odds of having heart disease increase if your parents have a history of heart disease in their family?

Do your odds of having cancer increase if there is a history of cancer in the family?

The answer to these questions is yes, the risks do increase. In a similar manner, children whose parents have divorced are more likely to divorce than those children who come from intact marriages, where the parents are committed to each other.

A recent article written by Robert J. Hughes, Jr., Professor of Human Development, at the University of Illinois, Urbana-Champaign campus, has compiled the data to support this point. See the article entitled "Are Children of Divorce Doomed to Repeat their Parents' Mistakes?"

The essence of the study is actually quite logical. Children learn from what they see. If they observe parents who are commited to working through conflict, they will be more likely to follow the skills that they have observed and learned for themselves. Unfortunately, the opposite holds true as well. If they observe lack of commitment, they will be more inclined to abandon their own personal relationships as they mature.

Raising strong, healthy children is a responsibility we all share as parents. The responsibility should not be taken lightly.

December 25, 2010

Payment for private school tuition.........mandatory?

books desktop.jpgThe question of payment for private school tuition comes up frequently during the divorce process. Can this obligation be continued after the divorce, so that the child can continue on with his or her private school enrollment?

The answer to this question depends upon the circumstances existing during the marriage.

In Wilson v. Wilson, 559 So.2d 698, 700 (Fla. 1st DC 1990), it was stated that the court may order a non custodial parent to pay for private education expense if it finds that" the parent has the ability to pay for private school" and the "expenses are in accordance with the family's customary standard of living and are in the child's best interest."

This legal premise was clearly set forth in Luskin v. Luskin, 492 So.2d 783 (Fla. 4th DCA 1986). In Luskin, the trial court denied the wife's request to compel the husband to pay for the children's private school tuition and camp expenses. On appeal, the decision was reversed. The appellate court held that the trial court had applied the wrong legal standard to the payment of these expenses. The proper standard, as stated by the court, is a balancing of "needs as fixed by the parties' standard of living, on the one hand, and ability to pay, on the other."

In Luskin, the husband had the ability to pay private school tuition and summer camp costs, and these expenses were in accordance with the family's customary standard of living and were in the children's best interest. Accordingly, the court could order these payments as further support for the children.

However, if payment for tuition for private school, or payment for camp is to be sought, it is very important that the person requesting these payments clearly state so in his or her respective pleadings. Failure to formally plead such a request, even if it is within the customary budget and best interests of the children, will in fact result in a denial of that obligation being paid. In other words, if you don't ask for something, you will not be entitled to reecive it. See Gelman v. Gelman, 24 So.3d 1281 (Fla. 4th DCA 2010).

December 23, 2010

Child support payments from jail!

baby jail stripes desktop.jpgFlorida has a very strong policy in favor of support for minor children. Even when a parent has no actual income, the courts do not hesitate to impute income to that parent.

Section 61.30(2)(b) governs the imputation of income for purposes of child support: "Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found by the court to be voluntary on that parent's part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community......."

In the case of McCall v. Martin, 34 So.3d 121 (4DCA 2010), the father was on his way to prison for domestic battery against his wife. The trial court would not establish any child support obligation since the husband would have no income in prison. On appeal, the decision was reversed.

The appellate court stated that a child's best interest is certainly not served by refusing to set an initial amount of support based on imputed income for a parent about to be imprisoned.

The appellate court further stated that income shouild be imputed to the father so that arrearages can accumulate until he is able to earn an income. When his release occurs, the court should establish a payment plan to reduce arrearages according to his earning ability, setting a payment plan.

The Florida Supreme Court has also previously addressed this issue. The court has stated that "an incarcerated parent may not automatically have his or her child support payments obligations modified solely on a reduction of income resulting from incarceration. Dep't of Revenue v. Jackson, 846 So.2d 486, 494 (Fla. 2003).

The highest court in Florida went on to states "If trial courts were permitted to suspend an incarcerated parent's obligation to pay child support, the supported child would never receive the benefit of the support payments to which the child was entitled. Therefore, the child's best interests are certainly best served when courts do not modify an obligor parent's child support payments simply because of the parent's incarceration."

For further understanding of this concept, one should also read the decision of Mascola v. Lusskin, 727 So.2d 328, 333 (Fla. 4th DCA 1999). In this particular case, the payor parent attempted to kill the child's mother, and off to prison he went. The court stated that "although his incarceration may relieve him from the use of contempt to coerce payment, that is no cause to reduce the amount of support where the failure to ay results from the payor's voluntary conduct."

Child support is clearly an entitlement for a child, and that entitlement is well protected by our courts.

December 23, 2010

Attorney's fees awarded pursuant to Florida Statute 57.105

fine violation desktop.jpgFlorida law provides that in a dissolution of marriage proceeding, both the husband and wife are entitled to be on an "even playing field." What this means is that the spouse who controls the family finances and who earns the higher income, frequently is required to pay for the legal fees and expenses of the other spouse. This is frequently referred to as the "need versus the ability to pay" standard.

This is not however, the only standard utilized by the courts when awarding attorney's fees and costs. Florida Statute 57.105 is becoming a tool frequently utilzed by the courts to impose sanctions by awarding attorney's fees, when appropriate.

Section 57.105(1) provides that the award of attorney's fees are appropriate when:

"The losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then existing law to those material facts.

Sullivan v. Sullivan, 35 Fla. L. Weekly D2896a, decided on December 22, 2010, is instructive on this concept. In the Sullivan case, the former husband was found in civil contempt for various issues arising under the final judgment. He never took an appeal on those findings. Subsequent hearings were held, and he argued that the reason he did not pay his former wife, as ordered by the court, was that he deposited funds into an LLC account, and it was the LLC who should pay, not him.

The former husband controlled the funds and had exclusive control of the LLC. The appellate court viewed this factual situation as one falling squarely within the confines of Florida Statute 57.105 and awarded attorney's fees, to be shared equally by the former husband and his lawyer.

December 22, 2010

Do you think personal service is required in your case........guess again!

Generally speaking, personal service of the initial divorce petition and summons on your spouse is necessary in order to effectuate full relief. The concept of due process of law mandates that all parties involved be afforded the opportunity to have notice of the proceedings and opportunity to be heard.

What happens however, when you don't serve your divorce papers on your spouse, but your spouse decides to actively participate in the proceedings?

A recent case from the Boca Raton, Florida area dealt with this very issue. A final judgment was set aside and vacated by the trial judge in the case of Sheila Scott-Lubin v. Paul J. Lubin, 35 Fla. L. Weekly D2688a, decided on December 8, 2010. The court had ruled that there was no personal jurisdiction over the husband since he was never served with the divorce papers, in spite of the fact that he actively participated in the proceedings.

In this particular case, the wife had filed a petition for divorce in 2005. However, she was unable to locate her husband, and the court authorized a divorce by publication. In 2006, the court had granted the divorce, awarded the wife the marital residence, cars, permanent alimony, and attorney's fees and costs.

Several years later, the wife brought forward before a magistrate proceedings to enforce her judgment. The husband appeared at the magistrate's hearing. He indicated that he was unaware of the judgment, but he never raised any objection to the lack of personal service over him. The magistrate ordered the husband to pay the amounts previously awarded to the wife.

Subsequent to this hearing, the husband had obtained counsel in an effort to have the final judgment vacated, which in fact was successfully accomplished. The husband was never personally served with a summons and copy of the divorce petition, therefore the trial judge ruled that the judgment had to be vacated.

Generally, when an individual proceeds with a dissolution of marriage action by publication, that method would not be sufficient to determine issues related to alimony and property. The court would only be able to dissolve the marriage.

The Fourth District Court of Appeal reinstated the final judgment in this case. Since the husband had voluntarily appeared and participated at the magistrate's hearing, he waived his right to challenge the court's jurisdiction. The court further noted that "it is well established that if a party takes some step in the proceeding which amounts to a submission to the court's jurisdiction, then it is deemed that the party waived his right to challenge the court's jurisdiction regardless of the party's intent not to concede jurisdiction." Solmo v. Friedman, 909 So.2d 560 (Fla. 4th DCA 2005).

As you can see, and although it rarely happens, a divorce can in fact be obtained without personal service on your spouse.

December 20, 2010

Do grandparents have rights?

grandparents desktop.jpgUnder Florida law, the rights of grandparents are extremely limited. In fact, recent cases have indicated that grandparents do not have the right to visit with their grandchildren over the objection of the child's parents. Any law to the contrary has been declared unconstitutional.

In 2004, the Supreme Court of Florida made it very clear that any law which afforded grandparents the right to visit with their grandchildren was unconstitutional. A full explanation of their analysis can be found in the case of Sullivan v. Sapp, 866 So.2d 28 (Fla. 2004).

The Supreme Court has consistently stated that based upon the privacy provision of the Florida Constitution, the state may not intrude upon the parents' fundamental right to raise their children except in cases where the child is threatened with harm.

Prior to this decision, the Supreme Court also dealt with grandparent visitation rights in the case of Von Eiff v. Azicri, 720 So.2d 510 (Fla. 1998). The court stated "neither the legislature nor the courts may properly intervene in parental decision making absent significant harm to the child threatened by or resulting from those decisions."

October 7, 2010

Boca Raton Divorce Lawyer comments on imputed income!

money dollar bill desktop.jpgWhat is the significance of the concept of imputed income and its application to alimony and child support?

Imputed income can become a very significant and important aspect in a divorce proceeding when we are talking about alimony and child support obligations. Florida law provides that a trial judge shall impute income to an unemployed parent where such unemployment is voluntary, "absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. See Florida Statutes, Section 61.30(2)(b).

Thus, we have a two step process. The trial judge must first determine that a spouse is either not working or working at a reduced level on a voluntary basis.

If this finding is made, the judge must then determine whether the subsequent employment or lack of employment "resulted from the spouse's pursuit of (her) own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received."

Once these findings have been made by the court, income can only be imputed to a level supported by the evidence of employment potential and probable earnings based on work history, qualifications, and prevailing wages in the community.

The spouse who is claiming that the other is either voluntarily unemployed or underemployed will bear the burden of proof in any such proceeding. Chipman v. Chipman, 975 So. 2d 603 (Fla. 4th DCA 2008).

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.