Know Your Rights!

August 16, 2011

As a family law attorney I meet with many people who are shocked and surprised when I explain to them their rights and how divorce laws will impact their future. Whether it is their ability to protect their assets, or their rights to to timesharing with their child, the divorce laws can often be confusing and eye opening.

There are some individuals who visit with divorce attorney’s prior to getting married, some people wait until their marriage is on the rocks and I have even heard of people receiving a consultation with a divorce attorney as an eighteenth birthday present. The purpose of this is simply to get an education on the law so they can protect themselves if they marry the wrong person. Once people learn how difficult it is to get divorced and how traumatic it can be, often times they will reconsider the process all together and work on their marriage. I am by no means encouraging divorce, but knowing your rights when you get married is as important as knowing your rights if you are pulled over for speeding. You never want to get taken advantage of due to a lack of knowledge. Contrary to popular belief, visiting with the right divorce attorney can often lead people to take marriage more seriously or work on their current marriage to avoid the trauma of divorce.

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Collaborative Law

August 09, 2011

Collaborative law is an increasingly popular alternative to a typical divorce case. The traditional divorce model requires the spouses to sue each other and partake in litigation in order to resolve their disputes. The case is concluded either through a settlement after months of litigation, or with a decision by a judge after an expensive and lengthy trial.

Collaborative law takes litigation out of the divorce process completely. If both parties agree to participate in collaborative law, they must enter into a written agreement with their attorneys that the courts will not be involved in the divorce. The parties will then attend several meetings both together and apart to try and root out the main issues. If the parties decide to do so, a marriage counselor will be used at the initial meetings. If necessary the parties may use a neutral accountant and/ or financial planner in order to deal with financial matters both during and after the divorce. Couples who elect to utilize this process may utilize any professionals they deem necessary to resolve their disputes. After several formal meetings are conducted and financial disclosure is completed, it is the hope that this process will bring about a peaceful resolution to the case.

 

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Changes in Palm Beach County Family Court

August 02, 2011

If a party is in family court in Palm Beach County that means they are going through a divorce, or dealing with various timesharing, alimony or child support issues. Palm Beach County has three courthouses that are partially designated to hear family law matters; North County (Palm Beach Gardens), the Main Courthouse (West Palm Beach) and South County (Delray Beach). The South County family division typically has only two judges, Judge Martz and Judge Burton. These two judges reside over each and every family case in the geographic area. Recently, the South County family division has become extremely overcrowded and cases have been delayed because of it. Due to the judge’s overcrowded dockets, Palm Beach County has been forced to make certain changes to the family court.

In the past, a party’s divorce, timesharing, alimony or child support case would be placed in the courthouse closer to where they reside. Because South County has become overcrowded, there are discussions about placing cases randomly. This means, if a party resides in Boca Raton, their divorce case could be randomly placed in North County. In addition, in an effort to alleviate the case load on judges in South County, Judge Colin, a former family law judge and current probate judge, has now entered the family division. South County will now have three judges who will deal with all family law matters as well as probate matters. This change should enable cases to move quickly through the system rather than be delayed due to crowded dockets.

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Retroactive Child Support and Alimony

May 23, 2011

Parties to a divorce or a child support action may be entitled to retroactive support dating back to the date when the lawsuit is filed. In order to receive alimony or child support an individual must first file a lawsuit with the court against the individual believed to owe child support and/or alimony. Once the lawsuit reaches the judge or settles out of the court, the parties will set a child support and/or alimony amount that must be paid immediately.

Frequently the paying party mistakenly believes they only have to pay support once they are ordered to do so by the court. This may be technically correct, however, what the paying party is not aware of is that the court may force that party to pay child support and/or alimony dating back to the date of the filing of the lawsuit. This payment is referred to as, retroactive child support and retroactive alimony. For example; a divorce action can often times drag out for six months to a year if not longer. If the paying spouse fails to provide any support for the family over the course of that year, the court may order the paying spouse to pay retroactive alimony and/or child support. If the paying spouse has the ability to pay retro-active support in one lump sum, the judge is well within its powers to award a lump sum payment of retroactive support to the non-paying spouse. If a lump sum is not available to the paying spouse, the court will tack on additional support per month until the retroactive support is completely paid off .  The courts are much more serious about failure to pay child support.  In a paternity action for example, retroactive child support may go back to the date when the child was born. 

Please consult an attorney if you are involved in a case dealing with child support and/or alimony as retroactive support payments can be a serious burden to individuals if not addressed immediately.

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Relocation with Minor Child, Florida Statute 61.13001

November 28, 2010

When a couple starts a new family, it is not uncommon for that couple to move their residence due to an employment opportunity or to be closer to one of their families. Often times this may mean one party is leaving friends or family members behind to start a new life in a different county, state and sometimes a new country. If the parties’ marriage does not work out one party may feel alone in their new location, especially if they moved away from family and friends to support their spouse. If the parties in this, or a similar example elect to divorce and there are children involved, the issue of relocation may arise.

Relocation is a very difficult and emotionally draining process. Relocation with a minor child is governed by Florida Statute 61.13001. Florida Statute 61.13001 requires that the residential parent of a the minor child seek the courts permission if they intend to relocate with the child(ren) beyond 50 miles from their current residence.  A relocation action may be brought during a divorce action, or after a divorce action is already completed (i.e.: if a residential parent receives a job opportunity outside of the county, state or country where they currently reside.). 

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Bridge the Gap Alimony

September 08, 2010

Bridge the gap alimony is meant to bridge the financial gap between married life and single life. This form of alimony tends to be awarded in shorter term marriages where one party needs assistance transitioning into single life due to a lower income or lack of assets after the divorce. Unlike rehabilitative alimony, there is no requirement to come up with a plan for the transitionary period, i.e. attend school, obtain a certification etc… Bridge the gap alimony is used to provide the receiving party a year or two to transition from part time to full time employment, change jobs, obtain an increase in salary or to provide a stream of income while the parties wait for an asset to be sold.

An important note regarding bridge the gap alimony is that House Bill 907 (which has been discussed at length in previous posts) has capped this form of alimony. Bridge the gap alimony can now only be awarded for up to two years, it is non-modifiable and non-extendable. Although bridge the gap alimony has typically been of a short duration, with House Bill 907, the judges are now restircted by a bright line rule limiting the duration and the flexibility of the alimony once it is awarded.

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Changes to Alimony and Length of the Marriage

August 10, 2010

In my previous two posts I discussed important changes to alimony and child support that will be implemented based on the passage of House Bill 907. Another critical change is that House Bill 907 now strictly defined the length of each marriage.

I discussed length of a marriage and its impact on alimony in a previous post. As I stated, each jurisdiction in Floida has defined a short term marriage, gray area marriage and long term marriage with various lengths of time. A short term marriage could be defined as 3 years in one jurisdiction and up to 7 years in another. Some jurisdictions believe a long term marriage may start at 15 years while other believe a marriage is not long term until 17 years have passed. There is a presumption for permanent alimony in a long term marriage, therefore these inconsistencies throughout the state has caused substantial litigation and dueling precedents. House Bill 907 has now followed other states by strictly defining a short term, midterm and long term marriage.

Beginning immediately, a short term marriage shall now be defined as any marriage lasting up to 7 years in duration. Any marriage lasting between 7 years and 17 years shall be deemed a “midterm marriage” instead of a “gray area marriage”. A long term marriage will be any marriage lasting from 17 years and beyond. These guidelines will eliminate any confusion regarding how to characterize a marriage and will assist lawyers and judges in attaching the appropriate alimony award. Some states attach a definitive alimony award to each marriage term, Florida has not gone that far as of yet.

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Important Information Regarding Alimony

July 13, 2010

As stated in my previous post, Governor Charlie Crist has signed into law House Bill 907. House Bill 907 not only deals with child support, it also introduces a new law regarding alimony. As it stands today, a judge may award four basic forms of alimony; lump sum, bridge the gap, rehabilitative and permanent alimony. Bridge the gap and rehabilitative alimony are generally short in duration where as permanent alimony lasts forever. As you can see, the discrepancy in length of time for various alimony awards is extreme.

There are often cases where a judge may not believe a party is entitled to permanent alimony but the party may require an extended period of alimony to help transition into single life or to care for the children. In these types of cases a judge’s hands are tied and they must decided whether to grant alimony that lasts forever, or only for a couple years. Whatever the judge decides each side will feel they got the short end of the stick and it will inevitably lead to an appeal.

House Bill 907 has introduced a new form of alimony called, “Durational Alimony”. Durational Alimony allows the judge to decide exactly how long alimony will last. After this law goes into effect, the judge will have many more options when making a decision on the length of alimony. I believe that this new form of alimony will reduce the amount of permanent alimony awards, and that may be the intent of the law. I also believe that this will reduce the amount of appeals pertaining to alimony awards. If a party requests permanent alimony and they are awarded 10 years, I believe it will be much less likely they will appeal that ruling then if they were awarded 2 years of bridge the gap alimony.

It will of course take time to determine exactly how much of an impact this law will have on the amount of litigation in family law cases, but it is a positive step that the judges will now have many more options than they once did. Be sure to address this change of law with your attorney upon initiating a divorce proceeding.

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Important Information Regarding Your Child Support

June 21, 2010

On June 3, 2010 Governor Charlie Christ signed into law House Bill 907 . House Bill 907 contains several changes to the laws that govern divorce. The most important change pertains to child support and what is considered substantial timesharing.

As the law stands now, in order to get a reduction in child support the parent who is paying child support (“payor”) must have 40% or more of the overnights with their child(ren). If the payor parent obtains 40%of the overnights, the courts will apply; “the gross up method”. The gross up method is an additional calculation to the support guidelines that results in a substantial reduction in the payor’s child support obligation.

House Bill 907 has reduced the substantial timesharing number from 40% or greater to 20% or greater. The reason for this change is that the 40% threshold caused endless litigation. In the past the typical payor spouse would obtain a model timesharing arrangement which provided for approximately 30-35% of the overnights with their child(ren). Because the payor would only need to take on a few more overnights to obtain the 40% threshold, the payor would frequently go to court to try and fight for that reduction in child support. On the other hand, the spouse receiving child support (“payee”) did not want to give up overnights with the child(ren) in fear their child support would be greatly reduced. It can be said that parents were trying to obtain additional time with their children due to financial concerns resulting in needless litigation involving the children. This bill is another attempt by the Florida legislature to reduce litigation amongst families. Since it is very rare a parent will not have greater than 20% of the overnights with their child, the result of House Bill 907 will likely be a substantial reduction in child support across the board.

It appears as if this law will go into effect on January 1, 2011. Please consult an attorney to discuss whether you may or may not be entitled to a reduction in your child support or if you should expect the payor to make a claim for a reduction in child support.

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Parenting Plans

May 10, 2010

When it comes to dealing with parenting issues in divorce cases, Florida is now recognized as one of the more progressive states in America. Florida recently eliminated the terms custody and visitation from the statutes. Instead of custody, the courts now use parenting plans and instead of visitation the courts use the term “timesharing”. Please see Florida Statute 61.13 which deals with parenting plans and timesharing. Click here to see an example of a Florida Supreme Court Parenting Plan.

No longer can a party go before a judge requesting a change in custody, they must request to establish a parenting plan or to modify an existing parenting plan. In addition, the courts have eliminated the use of primary and secondary parent as a term to describe the parties. All of these changes were geared towards lessening the amount of litigation involving families. Parties did not want to have “visitation” with their own children, nor did they want to be referred to as a secondary parent. The changes to Florida parenting laws are fairly new so the jury is still out as to whether they have had the impact the legislature intended.

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