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All income available to the recipient of alimony should be taken into consideration prior to the court assessing the amount of alimony to be paid.

Income from all sources reduce the “needs” of the spouse who is claiming alimony from the other party.  “Needs versus ability to pay” is the general standard utilized by the courts in determining alimony awards.  The importance of examining all sources of income available to the recipient of alimony cannot be understated.

Interest earned on 401(k) retirement accounts should be considered as income available to the spouse even though the spouse is not able to draw on the income until he or she reaches the age of 65.  Niederman v. Niederman, 6o So3rd 544 (Florida 4th DCA 2011)  stands for that very principle.  This is true regardless of whether the recipient of the alimony award has attained the age at which funds may be withdrawn without penalty.

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Equitable distribution of marital assets comes in many forms.  One such form is the enhanced equity that one party obtains when his non-marital mortgage is paid down during the course of the marriage with marital funds.  Support for this proposition is found under Florida Statute 61.075(6)(a)(1)(b).

In the case of Somasca v Somasca, 171 So3rd 780 (Florida 2nd DCA 2015), the former husband owned commercial real property encumbered by a mortgage.  A substantial portion of the mortgage was paid down during the marriage by utilizing marital funds obtained when the wife refinanced the marital residence.  The wife was claiming 50% of the amount of the mortgage reduction as a marital asset and as a portion of her equitable distribution.

The husband responded by claiming that his separate property depreciated substantially in value during the marriage, which essentially “washed out” or canceled any claims that the wife was making in reference to a pay down of his non marital mortgage.

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The amount of child support paid has a direct correlation to the number of overnights that the child spends with each parent.  Therefore, child support is not just based on the respective incomes of the parents, but must also include the number of overnights that the child spends with each of the parents.

When you are seeking review of an inaccurate calculation for child support, generally the lack of having a transcript of the of the record from the trial court will be fatal to your review of any errors.  However, child support is a whole different matter, separate and apart from review of alimony or equitable distribution errors.  The reason for this is that child support is not a requirement imposed by one parent on the other, rather it is a dual obligation imposed on the parents by the State of Florida.  See Quinn v. Quinn, 169 So3rd 268 (Fla. 2nd DCA 2015).

The right of child support is a right that belongs to the child, and the parents do not have the right to waive the amount of the child’s support.

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In a dissolution of marriage action, the court is required to identify all the marital assets and to establish the value for those marital assets.

Stock is just one example of what might be considered a marital asset in a divorce case.  Stocks which are traded routinely on an exchange have a value that is easily determined.  What do you do however when you are dealing with stock in a privately held company, or stocks commonly referred to as penny stocks?  How do you go to go about valuing these types of stocks?

Bring your valuation experts to court, and present their full testimony.  For certain, a trial judge should not make a finding of value until all the evidence has been presented to the court regarding valuation.  Additionally, if both parties to the proceeding offer evidence of differing valuations, it is not appropriate for a court to take an average of the two conflicting valuations in order to assign a value to the stock.

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Child support, under Florida law, is initially established by applying the Florida child support guidelines.  The child support guidelines are applied to not only a final hearing in a dissolution of marriage action, but are also applicable in temporary support proceedings

Florida Statute 61.30(1)(a) specifically states that the child support guideline amount is utilized to establish the amount of child support,  whether in a temporary or permanent proceeding.

When the court is assigned the task of determining the amount of child support that is going to be paid, a trial court is permitted to deviate from the amount of child support as provided for in the guideline amount, based on a myriad of different factors, as noted in Florida Statute 61.30(1)(a)(11).  There are 11 separate factors itemized under this statute which provide for different scenarios for deviating from the child support guidelines.  Take a few moments to read through that section to see if any of the listed factors will provide you with a basis to seek additional child support over and above the amount as set forth under the child support guidelines.

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There is a general rule in Florida that essentially says that a trial court should award the primary residential parent exclusive use and possession of the marital residence after divorce, until the child or children reach majority or are emancipated.

As we often discover in life, there are exceptions to every rule, and this holds true in situations dealing with the marital residence.

When “special circumstances” exist, it may be appropriate for the court to order the sale of the marital residence, rather than awarding exclusive use and possession to one of the parties.  Special circumstances may exist “when the parties incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expense of maintaining the marital residence.”  This concept was set forth in the case of Coristine v Coristine, 53 So3rd 1204, (Florida 5th DCA 2011).

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A trial court in a divorce proceeding lacks the legal authority to order the sale of jointly owned real property, unless there was a specific pleading asking for partition of the real property.

Partition is a request that is made by one of the parties to sell jointly owned real property.  The court in the case of Martinez v. Martinez, 573 So.2d 37 (Fla. 1st DCA 1990) specifically held that a court has no authority to partition or order the sale of  jointly held real property in the absence of an agreement between the parties or a specific pleading filed in the case requesting partition.

The court does, however, have the right to award a 100% interest in a parcel of real property to one party or the other in a dissolution of marriage case, as part of the equitable distribution ordered by the court, as provided under Florida Statute 61.075.

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Bonus income can be paid on a regular and routine basis, or it could be paid for an isolated event.

The law is clear however, that in order to include bonus income in a child support calculation, there must be evidence that the bonus is regular and continuous before it can be included in a party’s income for purposes of calculating child support.

In Rudnick v. Rudnick, 162 So 3rd 116 (Florida 4th DCA 2015), the husband experienced a substantial spike and his income for the year of his divorce.  He testified that he was a political consultant, who experienced an unusually high level of income in the year 2012 due to the presidential election that year.

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How does a Florida Family Court judge deal with the issue of foreign law?

There is no doubt that Florida is a multi-cultural state, drawing residents from around the world.  Oftentimes those residents will come to Florida with prenuptial agreements executed in their home countries.

These agreements usually will contain a choice of law provision which basically spells out that the law of their country will apply to the provisions of the agreement, even though a divorce action is filed in Florida.

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Extreme caution should be exercised when a party in a dissolution of marriage action seeks temporary emergency relief without giving notice to the other party.   This is what is commonly known as ex parte relief, which is seeking relief without providing any notice whatsoever to the other side.  These types of proceedings are at substantial risk of reversal based upon a denial of due process of law.

There is a basic premise under the law that states that absent an emergency, failure to give notice to the other party is tantamount to a denial of due process of law.   The appellate courts throughout the State of Florida routinely reverse temporary custody orders entered without notice to the other party, or with insufficient notice, or with insufficient opportunity to be heard.  Putting it a different way, there are at least two sides to every story, and both parties should be afforded the opportunity to present their position to a judge, prior to the Court making any adjustments regarding a previously existing time-sharing schedule between the parents.

The former husband, Basem Yunis, ran afoul of these basic principles when dealing with an ex parte motion seeking emergency relief.  You can read about the facts in his case in Suleiman v. Yunis, 168 Southern 3rd 319 (Florida 5th DCA 2015).