Skilled Family Law Counsel

Child Relocation in Palm Beach County, Florida

The standard of review for child relocation cases is abuse of discretion. “This court reviews a trial court’s decision on a petition to relocate for an abuse of discretion. See Botterbusch v. Botterbusch, 851 So. 2d 903, 904 (Fla. 4th DCA 2003).” Rossman v. Profera.

Divorce Child Support Modification – Martin County, FL

In a divorce proceeding involving the modification of child support, when the court makes an allocated award for each child, the modification is retroactive to the date the child reaches majority, and pre-dates the filing of the modification petition.  In Gilbert v. Cole, the Florida Court of Appeal stated that: “The final dissolution judgment named the parties’ two children and gave their birthdates. Addressing child support, the judgment provided: 6. Beginning on the day following closing of sale of the marital home, husband shall pay wife $3,500 per month child support. Such payment shall continue on the corresponding day of each successive month thereafter so long as wife continues to be primary residential parent for two children who have not become 18, married, or self-supporting, whichever soonest shall occur.

If either child upon becoming age 18 is a high school student projected to graduate from high school prior to becoming age 19, child support shall continue as to such child so long as the child otherwise is entitled to child support and continues to be a good faith student in pursuit of graduation from high school. The parties later entered into a court-approved mediated settlement agreement which reduced Former Husband’s child support obligation to $2,625 per month. Appellant then fell into arrears in his child support payments, prompting Appellee to petition the court for enforcement of the child support decree. Appellant later filed a petition for modification of his child support obligation in November 2010. Meanwhile, the parties’ oldest child reached the age of 18 in November 2008, and graduated from high school in June 2009… We interpret the divorce decree to create an allocated child support award, with each child to receive half of the amount until the child is emancipated, as defined in the agreement. Although the decree awards a single monthly sum for both children, it also provides that Appellant’s support obligation ended with each child’s respective emancipation…Where an award is allocated, an obligor is entitled to seek a modification retroactive to that event. Furthermore, when the issue is arrearages, the obligor is entitled to a retroactive reduction pre-dating a modification petition, consistent with the statutory child support guidelines.”

To speak with a Martin County, FL family law lawyer, contact Matthew Lane & Associates, P.A. at (772) 463-2121.

Disestablishment of Paternity in Florida | Lane & Associates

In order for a putative father to be precluded from challenging a paternity determination based upon the conduct specified in Fla. Stat. § 742.18(3), he must know that he is not the child’s father and engage in the conduct specified in Fla. Stat. § 742.18(3). “Although there was evidence to support the finding that the Former Husband should have suspected that he was not the child’s biological father, there was no evidence to support a finding that he did in fact know that he was not the child’s father at the time he signed the child’s birth certificate…The language of subsection (3), however, clearly refers to the male engaging in these acts ‘after learning that he is not the biological father of the child.’ § 742.18(3)…We recognize that our conclusion here conflicts with the First District’s opinion in Hooks v. Quaintance, 36 Fla. L. Weekly D2214 (Fla. 1st DCA Oct. 6, 2011).” P.G. v. E.W.

WHO GETS TO KEEP THE FAMILY PET IN A DIVORCE?

In Florida, pets are considered to be personal property.  In the event that a pet was owned by one of the parties prior to the marriage, that party will be entitled to keep the pet.  In the event that the pet was acquired by the parties during the course of the marriage, the pet will be distributed in accordance with Florida’s equitable distribution statute.

In Florida, trial courts will not award custody and visitation of family dogs and cats.  The Florida Court of Appeal stated that while some states do award custody and visitation of family pets, Florida does not do so.  The reason is that Florida courts are overwhelmed with child support cases and cases involving the custody and visitation of children.  They do not want to undertake supervision and enforcement issues involving pets.

In a recent case captioned Harby v. Harby, the Former Husband and the Former Wife were married in December 2001.  In November 2017, the Former Wife filed a Petition for Dissolution of Marriage.  The Former Husband and Former Wife own two dogs.  Their names are Liberty and Nico. At the trial, the Former Wife testified that Liberty was an emotional support dog. The Former Wife also testified that she took care of Liberty and Nico from 2013 to 2017.  Between 2017 and the date of the trial, the Former Husband took care of both dogs.

When Will Modification of Alimony Be Granted in Florida?

The parties married in 1970 and were divorced in 2004. When the divorce was granted the husband had a good job in Louisiana. The court awarded alimony payments which were approximately thirty-five percent of this gross income. When he was over sixty years of age, the husband became unemployed. He looked for a job without success until January 2012. The husband accepted a job in Naples, Florida, where the compensation was commission based. He experienced a reduction in his income which was more than fifty percent of what he earned at the time of his divorce. At the time of the modification hearing, the payments for alimony and life insurance exceeded seventy percent of the husband’s monthly income. The Court of Appeal stated that the party requesting a modification must present evidence necessary for the lower court to make the determinations that are essential for relief.

The trial court needs to make factual determinations about the nature and extent of the change in financial circumstances. It needs to make a factual decision about whether the change was anticipated at the time of the final judgment. Finally the court needs to decide whether the change is substantial and whether the change was sufficient, material, permanent, and involuntary. A severe reduction in income for nearly a year, with no end in sight is considered to be permanent for purposes of granting a modification.

If you have questions about modification of alimony in Jupiter, Florida, contact at Matthew Lane & Associates, P.A. at (561) 363-3400.

WHEN WILL FLORIDA RECOGNIZE A DIVORCE DECREE FROM ANOTHER COUNTRY?

A divorce decree from a foreign country will be enforced by a Florida Court when: (i) the parties were given sufficient notice and an opportunity to be heard at the divorce hearing, (ii) the foreign court had jurisdiction, and (iii) the divorce decree does not offend the public policy of the State of Florida.  The law of a foreign country will not be applied when the law is unjust or unreasonable, or it contravenes the strong public policy of the State of Florida.

In a divorce case captioned, Armand v. Amisy, the Husband and Wife were married in Haiti in 2008.  In 2014 they moved to Massachusetts with their three children.  In 2016, they moved to Florida.  Husband filed for divorce in Florida in September of 2017.  Wife filed an Answer and a Counter-Petition in Florida.  Husband then filed a Voluntary Dismissal in Florida and a Motion to Dismiss Wife’s Counter-Petition.  Husband alleged that Florida lacked subject matter jurisdiction.  Husband argued that he was a Haitian citizen and resided in Somalia, and that his Wife had returned to Massachusetts with their children prior to filing her Counter-Petition in Florida.

Prior to the hearing on Husband’s Motion to Dismiss, Husband filed a divorce decree from Haiti.  Husband stated that he initiated a dissolution proceeding in Haiti in 2014, and that a Final Judgment granting his divorce was entered in May of 2017.  In May of 2018, Husband filed a Second Motion to Dismiss for want of subject matter jurisdiction based on the fact that the parties were already divorced in Haiti.

Psychological Evaluations in Child Custody Cases in Florida

A parent involved in a child custody and visitation dispute may be required to submit to a psychological evaluation when his or her mental condition is in controversy and good cause is shown for the examination.  Seeking custody and visitation, in and of itself, does not put a parent’s psychological condition in controversy.  The parent requesting that a psychological evaluation be performed on the other parent must prove that the other parent has mental health issues that could significantly impact on his or her ability to care for the parties’ children.  There must be evidence that the alleged mental health condition causes the other parent to be unable to meet the needs of the parties’ children.

In a case captioned Ludwigsen v. Ludwigsen, the Florida Court of Appeal stated that in order for a psychological evaluation to be required by a Court, the party submitting the request must demonstrate that: (i) the condition for which the examination is being sought is in controversy, and (ii) that good cause exists to order the examination.  In order for a condition to be “in controversy”, a parent’s mental condition must be directly involved in the determination of the issue that is currently before the Court.  The Florida Court of Appeal stated in Ludwigsen v. Ludwigsen that “good cause” is shown where a parent has been unable to meet the needs of the parties’ children.

The requesting party must provide the trial court with verified allegations that the other parent has a mental condition that substantially affects his or her ability to raise their children, or that a parent has been unable to meet their children’s needs. This can be accomplished by demonstrating that the other parent’s mental illness places the children at risk of abuse, abandonment or neglect.  The issue is not whether a parent has demonstrated good or bad parenting.  The Court is looking for an indicator of significant mental illness that affect the wellbeing of the children.  The requesting party is also required to demonstrate to the Court that expert testimony is required to resolve the child-related issue that is before the Court.

WHAT IS THE AGE OF RETIREMENT FOR PURPOSES OF ALIMONY IN FLORIDA?

In order to determine whether a voluntary retirement is reasonable, Florida trial courts are required to consider the age of the payor, the payor’s health, and the payor’s motivation for retirement. Additionally, Florida trial courts are required to consider the type of work that is performed by the payor and the age at which other people who are engaged in the same type of work normally retire. Sixty-five is the presumptive age of retirement in Florida

In a recently decided alimony case captioned Tanner v. Tanner, the Husband appealed the trial court’s order denying his Supplemental Petition for Modification of his divorce decree. The parties were divorced in January 2016. The final judgment of dissolution required the Husband to pay permanent periodic alimony to the Wife. In September 2018, the Husband filed a Supplemental Petition to Modify the divorce decree in which he sought to eliminate or reduce the amount of his alimony payments.

In the Husband’s Supplemental Petition for Modification of Alimony, the Husband stated that his employer terminated his employment, and that his medical condition precluded him from finding similar employment.  The trial court denied the Husband’s Supplemental Petition for Modification of Alimony based upon the fact that it found the Husband’s retirement at age 64 to be unreasonable. In his appeal, the Husband argued that his retirement was reasonable based on his age and failing health.

WHAT IS CONSIDERED MARITAL PROPERTY & NONMARITAL PROPERTY IN A FLORIDA DIVORCE

A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned Hamilton v. Hamilton.  In this case, the husband appealed the Final Judgment of Dissolution of Marriage based upon the fact that the trial court awarded an unequal division of the parties’ assets to the wife.  The husband contended that the trial court improperly classified over fifty thousand ($50,000.00) dollars of husband’s credit card debt as nonmarital debt.

The Florida Court of Appeal ruled that marital assets and marital liabilities are all assets acquired and all liabilities incurred during the course of a marriage.  These assets and liabilities may be acquired during the course of the marriage by either spouse, jointly, or individually.  There is a presumption in Florida law that all assets acquired and all liabilities incurred after the date of marriage which are not specifically designated as nonmarital assets and nonmarital liabilities are presumed to be marital assets and marital liabilities.

In the case at bar, the husband incurred charges on several credit cards that were used to pay for business expenses and personal living expenses during the course of the parties’ marriage.   The trial court concluded that the husband’s business expenses were nonmarital debt because the Husband failed to provide the trial court with evidence that any portion of the debt was marital.  The Florida Court of Appeal reversed the trial court’s ruling.  The Florida Court of Appeal ruled that the trial court’s designation of the husband’s business expenses as nonmarital liabilities failed to comply with Florida’s statutory presumption that all assets acquired and all liabilities incurred during the course of a marriage, which are not specifically established as nonmarital assets and nonmarital liabilities, are presumed to be marital.  Absent any evidence that the husband’s business expenses were specifically established as nonmarital liabilities, they are presumed to be marital liabilities.  Since there was no evidence in the record that showed that the husband’s business expenses were nonmarital, the Florida Court of Appeal ruled that they were marital liabilities.

ARE ASSETS THAT NO LONGER EXIST INCLUDED IN A DIVISION OF PROPERTY IN FLORIDA?

In a division of property and assets case captioned Roth v. Roth the parties were married for twenty-nine years.  The Former Husband was seventy-four, and the Former Wife was fifty-eight.  Both had high school educations, and both worked in the automotive industry.  The Former Husband was in a car accident and suffered injuries.  The parties filed a personal injury lawsuit and received a settlement award of $28,154.00.  On the day before the Former Wife left the marital home, she withdrew $13,000.00 from the settlement funds.

The Former Wife testified that she used the portion of the settlement funds that she withdrew to pay for her attorney’s fees and to pay for her living expenses.  The Husband testified that he used a portion of the settlement proceeds to pay for his living expenses and expenses related to the parties’ home.

The trial court included the settlement proceeds in its division of property and assets in this case.  The Former Wife argued that the trial court erred when it included these funds in the Court’s equitable distribution because the funds did not exist at the time of the trial.  The Florida Court of Appeal agreed with the Former Wife’s position, and stated that ordinarily it is a mistake for a trial court to include assets in an equitable distribution scheme that no longer exist.