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.

Articles Posted in Divorce

Published on:

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.

Continue reading →

Published on:

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.

Continue reading →

Published on:

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.

Published on:

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.

Continue reading →

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

I wanted to return in this post to a topic I have discussed before — the benefits of mediation for a divorce or other Florida family law case. It has been about a year since my last post about mediation, and in that time I’ve continued to become more and more convinced that mediation works, as a way of resolving family law cases.

As an example, a case of a couple who came in for mediation to attempt to settle the divorce action they wanted to file. Neither spouse had filed for divorce yet. In many respects this was a case in which a positive result in mediation was likely – the spouses were getting along well enough to be able to discuss the issues they needed to settle, and both wanted to settle the case without litigation. There were issues to address however. No agreement was reached after an initial two hour mediation session, but the parties left the session, ended up arriving at agreements between themselves, and came back for a final mediation session to address the last remaining issues and prepare a Settlement Agreement. I’ve also had cases where I am the attorney for one party and didn’t believe the parties were going to be able to arrive at an agreement during mediation, but they do.

One or two anecdotes are not a guarantee of positive results in other situations, but one factor that helps parties arrive at an agreement through mediation is that as part of a mediation, each party receives new information to consider, from each other and also the mediator. Although a mediator is not permitted to give legal advice to either party, the mediator can provide general information about Florida law and related issues. You can follow this link regarding Florida Divorce Mediation for more of a discussion regarding the differences between the types of information or guidance attorneys and mediators can provide. In addition, there is an old adage (that I believe came out of research and writing at the Mental Research Institute in Palo Alto, California years ago) – that you cannot not communicate. So even for a mediator who attempts to remain as much of a blank screen as possible and simply serve as a facilitator or intermediary between the parties, the parties will still pick up information from the mediator. It is important I believe for a mediator to recognize that mediation can be a quick process, the potential influence they can have on the parties, and that for all people, including mediators, first impressions and judgments are not always the same as what you arrive at after thinking through an issue more thoroughly. For some issues, although it is helpful for a mediator to think of options or paths to settlement for the parties, it is important for the mediator to not engage in the thought process of beginning to make a value or other judgment about how an issue should be resolved. In any event, the parties receive during mediation and walk away with new information, and my experience is that people take in this information, think about it and what it means for how their case might turn out and how it should be settled, and that this a factor that leads to issues being settled.

Published on:

A contested, high-net worth divorce in Florida involves an interesting combination of a transaction or case that in many ways resembles any complicated business matter, but in the context of a divorce, where emotions run strong, and where the the legal standard for deciding the property and alimony issues, are basically – what’s “fair” or equitable. The business or property issues in your divorce will be decided in family court, usually in the Judge’s Chambers where family law cases are typically heard, and most likely during the same hearing or trial where children’s issues are decided also. So, the litigation factors of adequately presenting your case to your Judge, and explaining why the positions you are taking on business or money issues are fair or equitable, are important.

A second important component of a contested, high-net worth divorce, is doing the ground work to be prepared and take the guess work and uncertainty out of the case, as much as that is possible. If the value of a business is disputed, and the business seems to have a significant value, retain a highly qualified valuation expert to value the business and give you something you can rely on in negotiations, and if you end up at trial. An expert’s opinion is of great worth also in analyzing and responding to issues that come up as the parties and attorneys negotiate, and attempt to settle a case. For example, the other side may raise an issue, and your expert assists in providing the clear and certain response, e.g. regarding technical pension valuation analysis. This type of back and forth in negotiations can decide an issue, and if your position is correct, convince your spouse that there is significant risk at trial if they move forward with litigating the issue.

Other examples of important areas for utilizing qualified experts, in addition to business valuation, are regarding tax issues that arise in the case, valuing a pension plan benefit, a vocational expert if a party’s income earning capacity is at issue, or the services of a forensic accountant when issues arise regarding the accuracy of amounts on the books for a company, or regarding a party’s income. If a case goes to a trial, the issue will be decided almost certainly based on the testimony presented at the trial. A qualified, trusted expert, presenting testimony solidly and fairly based on the facts in the case, helps a lot.

Published on:

Most Broward County Child Support attorneys, as well as mediators and Judges at the courthouse, use family law financial software to calculate child support, and there are some child support calculators on-line. If you’re attempting to determine child support though for yourself, it’s going to be a good idea for you to make the calculations by hand, using Florida’s Child Support Guidelines Worksheet – to be sure you get the figures right, including any adjustment for the number of “overnights” each parent spends with the child(ren) (more below on this), and to be sure you’ll understand the issues and items that go into determining child support under Florida law.

The first step is to determine each parent’s net-income. The income and deductions that are considered in determining net income for child support are set forth in detail in Florida’s child support statute, but the easiest way to arrive at the amount is to complete the Florida Family Law Financial Affidavit. There is a separate form if you make under $50,000 per year gross income and one for over $50,000. The financial affidavits, child support worksheet as well as other family law forms can be found at Florida Family Law Forms. As you can see on the child support worksheet, you need each parent’s net income to calculate child support. If you know the other parent’s monthly gross income and their monthly health insurance costs, figuring their net income may not be difficult for you. There are paycheck calculators on-line that will assist you in determining monthly income tax, and social security and medicare taxes. The amounts you list for monthly taxes on the financial affidavit will not necessarily be the amounts deducted each month from a paycheck – some people, based on the number of exemptions they list on their W-4, have more or less than the actual amount of the taxes they’ll owe at the end of the year deducted from their paycheck. In cases where you don’t know the other parent’s income, there is a part of litigation called “discovery” through which you are entitled to receive financial information and records from the other parent, including their financial affidavit and copies of bank account and other statements. If you believe the other party is hiding income, there are more extensive discovery methods available, and some litigated cases will involve using a “forensic accountant” as an expert witness in establishing the other party’s income.

Once you have the net income for each parent, you can proceed with filling out the blanks in the Child Support Guidelines Worksheet. The Worksheet tells you step-by-step what amounts to add or subtract from what, and the other parts of the calculations. The concept is basically that you add together the parents’ net incomes to arrive at an amount for combined net income, then use the child support chart included in the instructions for the Worksheet to come up with the “Basic Monthly Obligation”. If you look on the child support chart, you’ll see income amounts on the left side, and the number of children across the top, and the Basic Monthly Obligation for your situation, as shown on the chart, is the amount the Florida Legislature has determined is the amount that should be used as the basic child support amount (before health and daycare costs) for parents with a certain combined net income and number of children. The Worksheet will then take you through determining your share of the basic monthly obligation, which is based on your percentage share of the parents’ combined net-income. For example if the parents’ combined net income is $3,000/month and your monthly net-income is $2,000, the calculation starts off with your being responsible for 2/3 of the basic monthly obligation. Each parent’s percentage share of daycare and health insurance costs for the child are then added in.