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.

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

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 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 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.