TESTIMONIALS WHAT OUR CLIENTS SAY ABOUT US
I made the decision to go with Mr. Burton and it proved to be the best decision I could make as he was able to get my children back. Mr. Burton is a true professional, who knows the law and cares about the concerns of his client. I have never met an attorney who is as good as he is, and is as compassionate as well. I'm forever grateful for all that he has done. Read More Testimonials Here
Published on:

A trial court is required to make sufficient findings about an individual’s ability to pay alimony.  A litigant requesting alimony has the burden of proof on both his or her financial need as well as the other spouse’s ability to pay and meet that need. Gilliard v. Gilliard, 162 So3rd 1147 (Florida 5th DCA 2015).

In a recent case, Rutan v. Rutan, 177 So3rd 35 (Florida 2nd DCA 2015), the trial court noted the well-known ability of “self-employed spouses, in contrast to salaried employees, to control and regulate their income.”

Reasonable inferences made by a trial court from the evidence submitted regarding a party’s income are not enough. Inferences, no matter how reasonable, do not constitute a satisfactory substitute for the trial court making specific findings concerning the actual amount of income that would justify an alimony award.

Published on:

Changing the surname of the minor child after divorce is no simple matter.  As a matter of fact, the burden of proof in such a situation is extremely high.

The standard for changing the child’s name is whether the change is in the child’s best interests or is necessary for the welfare of the child.  Azzara v. Waller, 495 So.2d 277 (Fla. 2nd DCA 1986) stands for the proposition that a minor’s surname should only be changed when the evidence affirmatively shows that such change is necessary as necessitated by the welfare of the child.  In Coolidge v. Ulbrich, 733 So.2d 1092 (Fla. 4th DCA 1999), the court stated that a child’s surname should remain unchanged absent evidence that the change is necessary for the welfare of the child.

When a trial court changes the surname of a minor child without adequate evidence, it constitutes an abuse of discretion.  A petitioning parent cannot meet the heavy burden in these situations by making assertions which are conclusory, speculative, unsupported by competent and substantial evidence, and irrelevant to the best interests of or for the welfare of the child.

Published on:

Issues regarding the fitness of parents frequently appear in divorce cases.  Often times one of the spouses will question the competency or moral fitness of the other parent when issues concerning minor children arise.

There is a two-part test that the Court applies when a party is requesting that the other party submit to either a psychological evaluation or a substance abuse evaluation.  First, the issue must be “in controversy”, and second, “good cause” must be shown.

Florida Rules of Civil Procedure, Rule 1.360(a) provides for compulsory psychological evaluations or drug testing only when the party submitting the request has “good cause” for the examination.  The party requesting the examination has the burden of proof in showing that both the “in controversy” and “good cause” prongs have been satisfied before the court can order testing.

Published on:

A final divorce decree providing for the custody of a child can be materially modified only if there (1) are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) has been a substantial change in circumstances shown to have arisen since the decree.  The petitioning parent bears an extraordinary burden to prove a substantial change in circumstances.

A party, in order to modify a final judgment of dissolution of marriage, must allege and prove an unanticipated substantial, material change in circumstances since the entry of the final judgment.  See the case of Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003) for a further discussion of this topic.

In Blevins v. Blevins, 172 So. 3rd 568 (Florida 5th DCA 2015), the former husband successfully appealed his former wife’s supplemental petition seeking to modify their final judgment of dissolution of marriage.  The modification order in this case was based primarily upon the court’s concern regarding the distance of the child’s school, which was a one-hour drive from the former wife’s residence.

Published on:

Did your divorce case turn out different than you expected? Are you considering a review and appeal of your case? If you’ve answered yes to these questions, you should be prepared to review your conduct through the course of the trial court proceedings.

The right to file an appeal is not without limitations. Appeals will be dismissed in dissolution of marriage cases where the appealing party has been held in contempt for failure to pay court-ordered support, or if the appealing party does not comply with the trial court’s orders within a set period of time.

Where an appealing party has disobeyed an order from the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal.  Where dismissal is ordered, it is mandatory however, that the disobedient appealing party be given a period of grace, prior to the effective date of the dismissal, in which to comply with the disobeyed order.

Published on:

The current law in Florida provides that a parent cannot relocate or change the location of their principal residence if that change of residence will be more than 50 miles from their current residence.  If a spouse is considering a move that is more than 50 miles away, they must obtain either the written consent of the other spouse, or seek approval from the court.  The relocation provisions of Florida law are found in Florida Statute 61.13001.

In the absence of a statutory or contractual provision to the contrary, the proper method to measure the distance between 2 points is the straight line or quote as the crow flies” measure. If the distance using the straight-line test measurement is less than 50 miles, a move can be made by one parent without consent from the other parent or approval from the court. This would be true even if the move is 49 miles away.

However, simply because a move is less than 50 miles away, does not mean that other aspects of a parenting plan would be effected.  A move 49 miles away would most definitely effect the school boundaries, and therefore the school that the minor child would attend.  Does this mean that the moving or relocating parent has a right to change schools without obtaining the other parent’s consent?

Published on:

Child support is calculated initially by adding together each of the parties respective gross incomes.  What can you do if one of the parties is out of work and unemployed?  Do you have the right to impute income to the unemployed parent?

Florida law authorizes a court to impute monthly income to a voluntarily unemployed parent.  Florida Statute 61.30(2)(b) authorizes the imputation of income.

A trial court must engage in a two-step process when they are asked to impute income to an unemployed parent. First, the court must conclude that the termination of income was voluntary.  An example of voluntary employment occurs when you are terminated from your employment based on your own actions or misconduct.  See the case of Heard v. Perales ( Florida 4th DCA 2015) for a further discussion on this topic.

Published on:

Alimony is an area of the law that requires a fact intensive investigation by the court.  When a court decides to either award an alimony claim or deny an alimony claim, the court is required to consider all of the statutory factors set forth in Florida Statute 61.08(2).

If a final judgment fails to consider all of the factors set forth in Florida Statute 61.08, the judgment is fatal, and the award or denial of alimony will be reversed and remanded to the trial court for further consideration.

This problem arose in a recent case from Broward County, Florida. In the case of Badgley  v. Sanchez, 165 So3d 742 (2015), the trial court failed to consider all of the statutory factors in making an award of alimony.  The appellate court took note of the fact that some of the statutory factors were considered, but not all of them.  The appellate court stated that a failure to consider all of the mandated factors is reversible error.

Published on:

A financial affidavit must be filed in an initial divorce proceeding as well as in supplemental dissolution proceedings.  Florida Family Law Rule of Procedure 12.285 (e)(1) requires the service and filing of a financial affidavit in supplemental dissolution proceedings within 45 days of service of the initial pleading on the respondent.

In child support modification proceedings, Florida Statute 61.30(14) provides that the respondent shall include his or her financial affidavit with the answer to the petition no later than 72 hours prior to any hearing regarding the finances of either party.

The requirement to provide a financial affidavit in supplemental proceedings cannot be waived by the parties.

Published on:

A parenting plan is a written contract between the parents of minor children.  Parenting plans are subject to court approval.

At a minimum, a parenting plan must include the following: (1) A description as to how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; (2) the time sharing schedule arrangements that specify the time that the minor child will spend with each parent; (3) which parent will be responsible for health care; (4) school related matters, including the address to be used for school boundary determination and registration; (5) other activities that the minor child may be involved with and who shall bear the expense of those activities; (6) the various methods in which the parents shall communicate with the child.

A parenting plan can be as detailed as the parents require, and can provide for any specific situation concerning the family.