Welcome to the Florida Family Lawyer Blog

The posts in this blog focus on Florida family law issues including divorce , child custody/time-sharing , child support , mediation , domestic violence , parenting coordination , parenting rights of same-sex couples , and other family law topics. The posts discuss these topics under Florida law, and also focus on the family law local rules in Broward, Dade and Palm Beach Counties.

I hope the information here is helpful for you.

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A new Florida alimony law recently was passed by Florida’s House of Representatives and Senate, and if signed by Governor Scott, goes into effect on July 1, 2013. An extremely significant provision of the new law is that it also applies retroactively to alimony orders entered before July, 2013 – more about that Part II or III of this post (The act that passed through the legislature also makes a change to the valuation of real estate in particular scenarios in a divorce, and a change to Florida’s time-sharing statute, creating a provision in the statute that equal time-sharing is in the best interests of the child(ren), unless certain conditions are present).

The alimony provisions of the act would change the definition of short-term marriage to less than 11 years; define a mid-term marriage as 11 to less than 20 years; and long-term as 20 years or more. The current ranges are 0 to 7, 7 to 17 and 17 or more (the term of the marriage is important for the forms of alimony available). The act eliminates permanent alimony, and provides that a court may award bridge-the-gap, rehabilitative, or durational alimony or a combination of these types of alimony, but shall “prioritize” bridge-the-gap alimony first, and then rehabilitative alimony above any other form of alimony. (A rehabilitation plan is a fairly detailed plan which lays out how the spouse receiving alimony is going to go about increasing their skills or earning capacity). The remaining type of alimony is durational alimony – alimony for a set number of years. You can follow this link for a description of the different types of alimony. The act apparently provides (in new section 61.08(2)(b)) that although a court may combine the different types of alimony, giving priority as listed above, it may order “only a combination of forms of alimony to provide greater economic assistance in order to allow the recipient to achieve rehabilitation.”

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In a divorce or other family law case, if the Judge finds that it is in the best interests of the minor child(ren) in the case, the Judge can appoint a “Guardian ad Litem”. Either party to the case can request that the Judge appoint a Guardian ad Litem, or your Judge on his or her own initiative can make the appointment. The literal meaning of the phrase “Guardian ad Litem” is guardian for the lawsuit, or guardian for the purposes of the legal action only.

A primary role of the Guardian ad Litem is to investigate the facts of the case for the Judge and report back to the Court – to talk with both parents, the child(ren) and other important witnesses in the case. The types of case where Guardian ad Litems are appointed are cases where there is significant conflict between the parties regarding children’s issues and/or significant concerns regarding the well-being of the children. The Guardian ad Litem’s job is to act in the best interests of the child(ren) in reporting back to the Judge and making recommendations. The Guardian can obtain access to medical and other records, can request the court to order evaluations for the children or the parents, and can also assist with finding experts for examinations or evaluations.

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Even though Florida is a no-fault divorce state, issues of fault or wrong-doing often do come up in Florida divorces, regarding time-sharing, property and debt division, alimony and other issues in the case. This post, however, does not focus on fault or innocence in those contexts, but rather on relief that is sometimes available, and responsibility that can arise, when spouses file a joint tax return, and the IRS determines there are problems with the return and comes after the couple.

One caveat to mention at the outset — this post is intended to raise issues you should be aware of and to point you in the direction of seeking tax advice if these issues are present in your case, not to provide any tax advice. I practiced in the area of tax law earlier in my career, but it is not my focus any longer, and tax law, like most types of law, is something that requires specialized knowledge and experience. One of the provisions you will see in many settlement agreements or pre-nuptial agreements, is a paragraph or clause acknowledging that neither party received tax advice from their family law attorney. Many attorneys these days specialize in one area of law.

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An uncontested Florida divorce filed in Broward County or another county in Florida is a divorce where the spouses have reached an agreement about all of the issues in the case – property division, alimony, time-sharing, parental responsibility, and child support if there are children, and any other issues in dispute in the case. There needs to be a signed settlement agreement between the parties addressing the issues, and a Parenting Plan (a special type of settlement agreement addressing issues regarding the children) and proof that both parents attended a court approved parenting course, if there are minor children.

In an uncontested divorce, there still needs to be a divorce Petition filed, and there are number of other pleadings that need to filed and signed by one or both parties, but there is no need to go through the process of having the Respondent in the case served by a process server. The parties have all of the papers prepared, everything gets signed in front of a notary, and then all of the pleadings, including the Petition and Settlement Agreement can be filed with the court all together, at the same time.

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This holiday season and recent events effectively and painfully lend some perspective to the kinds of conflicts and disagreements that arise in many other areas of life, including family law litigation and other arenas as well.

We see some of a shift I believe in an area of disagreement like the “fiscal cliff” negotiations, that had been prominent in the political and financial life of the country recently – there seems to be less of a focus now on arguing or posturing and more on attempting to arrive at an agreement. That may have been something that was going to happen anyway, but the tone or approaches do seem different now (although in the one day since first writing this post, it appears that Washington may be returning to “normal”).

There also can be a shift in the approach or mind-set in divorce and other family law litigation, or really in just about any area where there is a choice between conflict or seeking to arrive at a solution. People can seek to work things out or seek to argue. There are obviously times when a threat or force needs to be met with an equivalent response – in the context of family law litigation sometimes there are apparent needs to push back, but even then there are sometimes options other than meeting a highly adversarial position with a similarly highly adversarial response.

In family law cases there can be a clear shift from an approach which seeks to litigate and focus on court procedures, to an orientation of attempting to work things out between the parties. People don’t always agree, and there will be disagreements, but there can nonetheless be a goal or habit of attempting to work cooperatively. It’s a little bit of a reach as an analogy, but I recall going through physical therapy for a back injury years ago, and one of the things the therapist focused on were exercises to change my posture, basically to get the muscles used to the habit of standing/sitting with better posture. I believe it’s possible for people to develop different habits for addressing and resolving disagreements.

For disagreements that arise during the holidays, for example regarding time-sharing, parties can attempt where possible to work things out. Sometimes that’s not possible, or the other parent is dangerous or not the type of person where compromise and agreement is possible, but many times a resolution is possible; or people can decide to work things out temporarily now, and argue later.

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There have been reports in the news lately about the placement of 14 year old Modern Family actress Ariel Winters with her sister, because of emotional abuse by the child’s mother. The process for Dependency cases in Florida, is very similar to the events described in the news reports regarding Ariel Winters.

Florida Dependency cases often begin with a call to law enforcement or to the Department of Children and Families Abuse Hotline – 1-800-962-2873 (but can also start with an action filed in Dependency Court). The case is then investigated by a child protective investigator – in Broward County, child abuse investigations are handled by specially trained investigators in the Broward Sheriff’s Office (BSO). In Broward County (and I believe there is a similar process in some other counties), if there is a domestic violence injunction and there are children in the home, a BSO investigator will make contact with the parents to look into how things are in the home. Under Florida law, a child’s exposure to domestic violence constitutes child abuse. If the investigating agency finds that there is abuse, neglect or abandonment or “imminent danger of illness or injury as a result of abuse, neglect, or abandonment”, a child can be removed from the parent’s or guardian’s home and placed with another parent or relative, or in a temporary “shelter” placement in a foster home; and the case then proceeds forward in court and through the Department of Children and Family Services. The Florida Statutes regarding child abuse investigations and cases are in Florida Statutes, Chapter 39. One issue that has been litigated in multiple jurisdictions, is that if a spouse or other partner is the victim of domestic violence, the appropriate course of action is to provide services and assistance, versus jumping to removal of the child from the victim rather than providing assistance.

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The Third District Court of Appeals – the Florida appeals court covering Miami-Dade and Monroe Counties, decided a case this year that provides guidance regarding what it means to use the marital standard of living for determining Florida alimony – Quinones v. Quinones, 37 Fla. L. Weekly D 699 (Fla. 3rd DCA, Mar. 21, 2012). The Florida alimony statute, Florida Statutes Section 61.08, lists a number of factors to consider in determining whether to award permanent alimony, or other types of alimony called durational alimony, rehabilitative alimony, and bridge-the-gap alimony. The Quinones case involved an award of permanent alimony, and this post will focus on what it means to use the “marital standard of living” in determining the amount of monthly permanent alimony. “Permanent” alimony continues until one former spouse dies or the payee remarries, and can also be modified if the payee enters into a “supportive relationship” or there is a substantial change in circumstances. Spouses, in their Marital Settlement Agreement, sometimes change the rules that apply to alimony and when it can or can’t be modified.

The two primary factors considered in determining Florida alimony are the receiving spouse’s need and the paying spouse’s ability to pay, and one of the primary factors used in determining need is the marital standard of living. The ruling of the 3rd DCA in the Quinones case was that the marital standard of living is basically what the term says – the standard of living during the marriage, or the amount the couple spent on their various expenses during the marriage – e.g. mortgage, entertainment, grooming, household expenses. So if the couple lived an extravagant life-style during their marriage, and a spouse needs $20,000 to afford the same home, vacations, entertainment, etc. as enjoyed during the marriage, then $20,000 is an appropriate amount to consider as the amount needed.

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One of the phases of divorce or other family law litigation, which you may find the most frustrating or time consuming for you, but which is often a vital stage of the litigation, is “discovery”. Discovery is part of the litigation procedures during which each side is entitled to receive and demand documents and records from the other; and to give the other side questions, called Interrogatories, which must be answered in writing, under penalty of perjury for false answers. Each party can take the other party’s or other witnesses “deposition”; and give the other a Request for Admissions – statements which you ask the other party to admit or deny in writing, also under penalty of perjury. Discovery is a process during which both sides can attempt to nail down any facts in dispute in the case.

For family law cases (with a few specific exceptions, e.g. adoptions, enforcement proceedings and “simplified” divorces), there is a procedure called “mandatory discovery” which requires both sides to provide to the other tax returns; pay stubs or other documentation of income; banking, investment and retirement account statements; deeds, promissory notes regarding real estate; credit card statements; and a few other items. Each party is also required to complete, file with the court, and provide to the other party a Florida Family Law Financial Affidavit. The mandatory discovery rule is Florida Family Law Rule of Procedure 12.285. The parties can waive the requirement to provide account statements and other records, but cannot waive the requirement to file a Financial Affidavit (unless the case is one of the limited types of cases to which the mandatory discovery rules do not apply). A “simplified” divorce is a case where there are no minor children, the parties have an agreement regarding financial matters, and a few other procedural requirements are satisfied, including both spouse attending the final hearing for the divorce. In a simplified divorce the parties are not required to file financial affidavits, or a written settlement agreement, if they prefer to keep their financial settlement confidential.

Important factors to remember when you are completing your mandatory discovery/disclosure, are to be thorough, truthful and efficient. Discovery can be a time consuming and expensive phase of litigation, but there are some things you can do to make mandatory discovery less costly for you if you are represented by an attorney. Your attorney will give you a list of documents and records to get together, and explain to you what you need to provide, and it is helpful to get all of the documents together and provide them to your attorney’s office all at one time. Many financial records/statements are available on line or may be in the hands of your accountant or financial advisors, and you could turn the task over to your attorney’s office, if you wanted them access your accounts on-line for you and download the statements, and contact your accountant, etc. for records.

In addition to mandatory discovery, each side can demand additional documents and records from the other side. For example, mandatory discovery requires production of 3 months of bank account and credit card statements, but often one or both parties will request records going back further in time, or additional records not on the mandatory discovery list. Pulling together documents or answering Interrogatories can be a time-consuming, even somewhat painful process for some clients, but it’s one of those things to get through. if you and your spouse/the other parent are working the case out amicably between yourselves or through mediation, you can avoid the time and cost of discovery. However, if an issue is in dispute (and the parties are not cooperating), e.g. regarding whether a spouse is under-employed or income or perks available to a spouse through a business, you may need the discovery process to get access to records.

You are only required to provide documents in your “possession, custody or control”, e.g. if you have the document at home or your office or can access it on-line it’s something than can be given to the other party, but you are not required, for example, to send a written request to your bank for additional statements. Depending on how much time you want your attorney’s office to put into your case, your attorney or his or her paralegal also could sit with you, ask you interrogatory questions and record your answers, or sit with you and complete your financial affidavit, but a lot of time can go into that. There are some objections that can be made to discovery requests from the other side and ways to protect confidential or privileged information, but the allowable scope of discovery is pretty broad – if the information/document requested is relevant to an issue in the case, it most likely will need to be produced (i.e. provided to the other side).

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Continued from Part I. For issues regarding the children, you can think about the type of time-sharing you want in the case, that you think is best for the children, and works for you and the other parent. For overnight time-sharing, relevant issues include being sure there’s a place in the home, apartment for the child to sleep, and the work schedule for each parent. Safety for the child, and for one or both parents is an issue in some cases. You’ll have to decide on how you want to handle the time-sharing exchanges and transportation, as well as money issues such as paying for extra-curricular activities, and medical, dental, vision expenses that are not covered by insurance, and who is going to get the health insurance for the child. The cost for health insurance is almost always added into and apportioned between the parents as part of the child support calculation. Many if not most mediators will have the family law financial software that will let them easily compute child support for you, once they have the figures to plug into the calculation. You can follow the following link for more information about calculating Florida child support. One good way to review and organize your thoughts regarding the children’s issue in a case, is to look through the form Parenting Plan on the Florida court’s website – www.flcourts.org, in the section of the website containing the family law forms.

If deciding who gets which assets and who pays which debts is an issue, it is a good idea to use some type of financial software or spreadsheet to keep track of how much in “net” assets each party is receiving, to avoid having to continually recalculate on a calculator as you keep trying out different options or scenario. It is also important to have recent account statements and pay stubs available and organized before you go to mediation, which can save you time searching for statements or calling the Human Resources department at you job during the mediation, to look for information regarding your earnings, the balance in retirement accounts, bank accounts, etc. If you need to deal with short selling or refinancing a home and removing one party’s name from the mortgage, you can think about how you want to handle this – how many months to refinance, what happens if it isn’t done or it’s not possible to get it done. Each case can involve different issues, depending on what there is to resolve. Sometimes people will use the first mediation session to help organize the issues and identify financial and other information needed to reach a settlement.

Sometimes, you will be able to resolve all of the issues in one mediation session. As I have mentioned before, in some mediations each party can take in the information they receive during the session, and come to decisions after the session. In my opinion, it’s better for there to be a period of time following a session before you sign an agreement, but many times parties will want to get everything done during the first mediation session, especially if the mediation is done as part of a case that is being litigated and both sides want it over, want to be sure they have an agreement, and want the litigation to end. Hopefully in a litigated case or otherwise, you won’t go into a mediation feeling that kind of pressure.

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Mediation is available for you at different stages of the process of your pursuing your Florida divorce or other family law case. For a Broward County Divorce and for most other family law cases in Broward, Dade or Palm Beach county, you will be required to attend mediation before you can go to trial and finish your case, if you have not been able to settle the case on your own with the other side. You can also use mediation as a way to try to resolve you divorce, before filing suit in court – i.e. you and the other party to the case go to mediation and try to settle rather than litigating the case in court. Whatever route to mediation you take, there are some things you can do before the mediation to prepare – to help the mediation be as successful as possible and to help be sure the time in mediation is well spent, and used efficiently.

One approach would actually be to not prepare at all – go to the mediation without necessarily having thought a lot about the issues you want to settle, and without having checked on the value of assets, balances in different accounts, etc.; and use the mediator and the first one or two hour mediation session as a way to organize the issues and the financial information you will need to put together. Many times though you can get a lot of work done during one mediation session, and doing some preparation before the session can help make that possible.

You can get together a list of all of the assets and debts, and the “fair market value” of each asset and balance owing for each debt. Fair market value is basically what you can sell the item for now, whether it’s furniture, jewelry, or a used car. You’ll want to include on your list all of the assets acquired and debts incurred during the marriage, because the determining factor under Florida law in deciding whether an asset/debt is “marital”, is not whose name an asset or debt is in, but when it was acquired. It’s helpful to bring the most recent statement available with you to the session, for each bank account, credit card, retirement account, etc. You can obtain a credit report for yourself and the other spouse/parent or have an asset search done regarding the other party. Bring your most recent pay stub, and pay stubs for the past few months, if you are employed, or other documentation of your income if you are not an employee. Child support and alimony will be based on your net income, computed under the rules described in the Florida family law statutes. Having the pay stubs will help allow each parent/spouse confirm the other’s income. Also, often the parties, when they do the calculations themselves, compute their net income incorrectly, or at least in a way that is not consistent with the Florida family law rules/law. Your mediator can help both sides arrive at the income amounts to use.

Sometimes there will be a dispute regarding one or both sides earning potential, and the income determination may end up being more complicated. In a Florida divorce or other family law case, a Judge can “impute” income to a party, if the party is under-employed or voluntarily unemployed. (continued in Part II)