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In making a child custody and visitation award that provides for ultimate decision-making, a trial court must delineate the specific areas over which a parent can exercise this authority. In a recent case captioned McClure v. Beck, the former wife filed an appeal of a lower court decision which modified the parties’ final judgment. The Court of Appeal agreed with the former wife’s argument that the lower court decision should be reversed because the trial court erroneously gave the former husband ultimate decision-making authority without describing the specific areas over which he could exercise this authority. The parties’ original final judgment of dissolution of marriage gave the parents equal time ­sharing with their children. It required the parties to live in Indian River County. The former wife petitioned the Court to relocate to California. The lower court denied the former wife’s petition. Notwithstanding the Court’s ruling, the former wife remained in California. The former husband then filed a petition to modify the parties’ time-sharing schedule and asked the Court to award him ultimate decision-making authority if the parties were unable to agree. The magistrate gave the former husband ultimate decision-making authority when the parties disagreed on major decisions concerning the welfare of the children. The trial court affirmed the magistrate’s decision. The Court of Appeal reversed the magistrate’s and the trial court’s rulings.

The Court of Appeal stated that permitting one parent to have ultimate authority over specific matters where the parties cannot agree is permissible. However a final judgment must specify the particular aspects of a child’s life over which a parent may have ultimate responsibility. In this case the final judgment was reversed because it failed to delineate the specific aspects of the children’s lives over which the former husband had ultimate decision-making authority. The final judgment in this case stated that the parties should make an attempt to agree on major decisions affecting the children. Major decisions were defined as decisions about the children’s healthcare, education and other matters. If the parties were unable to agree, the Father was given ultimate decision-making authority. Since the order failed to delineate specific aspects of the children’s lives over which the former husband would have ultimate decision-making authority over, the Court of Appeals struck it down.

To speak with a child custody and visitation attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In making an alimony award, adultery and infidelity can only be considered by the trial judge when the adulterous conduct involves the dissipation of marital assets. In a case captioned Keyser v. Keyser, the parties were married for twenty-years. This is considered a long term marriage. When there is a long term marriage, there is an initial presumption that an award of permanent alimony is appropriate. It was also alleged in Keyser v. Keyser that one of the spouses engaged in marital infidelity.

The Florida Court of Appeal recently stated that in making an alimony award, a trial judge is permitted to consider a spouse’s infidelity. The Florida Court of Appeal pointed out that Florida Statutes Section 61.08(1), allows the trial judge to consider adultery in making an alimony award. However, the Court stated that without a showing that marital assets were used to support the allegedly adulterous behavior, infidelity is not an appropriate basis for awarding a larger share of the parties’ marital assets to the innocent spouse. The Appellate Court also stated that adultery is not a sufficient basis to deny an award of alimony to the other spouse. Finally, even if adultery does take place, the payor’s ability to pay and the payee’s need are the primary factors that the trial court should consider in making an alimony award 61.08. In making an alimony award the trial court must first determine whether the payor has the ability to pay alimony and whether the recipient has an actual need for alimony before it considers the other statutory factors set out in Florida Statutes Section 61.08.

To speak with an alimony attorney in Palm Beach County, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In contesting prenuptial agreements, parties should either establish fraud, duress, overreaching or that the agreements are unfair or make unreasonable provision for spouses. In determining whether agreements are unfair or make unreasonable provision for spouses, courts look at the parties relative situations, their ages, health, education, financial status.

In Hahamovitch v. Hahamovitch, the Florida Court of Appeal recently stated: “A party may challenge prenuptial agreements in one of two ways. The first ground for setting aside an antenuptial agreement is satisfied where a spouse establishes that the agreement was the product of “fraud, deceit, duress, coercion, misrepresentation, or overreaching.” Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987)…The second ground for vacating a prenuptial agreement contains multiple elements. Id. To challenge the antenuptial agreement on the second ground, ‘[i]nitially, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.’ Id. When claiming that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education, and financial status. Id. ‘ [A] trial court may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable. In making this determination, the trial court must find that the agreement is ‘disproportionate to the means’ of the defending spouse.’ Id. ‘This finding requires some evidence in the record to establish a defending spouse’s financial means.’ Id…‘However, ‘[t]he element of fairness should, of course, be measured as of the time of the execution of the agreement.’ Del Vecchio v. Del Vecchio, 143 So. 2d 17, 20 (Fla. 1962); see also Francavilla v. Francavilla, 969 So. 2d 522, 526 (Fla. 4th DCA 2007)’”

To speak with a Palm Beach, Florida, attorney about contesting or enforcing a prenuptial agreement, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In calculating alimony, income will be imputed to the owner of non-income producing assets. In a case captioned Sherlock v. Sherlock, the husband appealed the final judgment dissolving the parties’ marriage. The parties were married for seventeen years. A seventeen year marriage is rebuttably presumed to be a long-term marriage. The husband was awarded non-income producing assets. These assets were comprised of financial accounts and real estate.

The trial court denied husband’s request for permanent alimony. The trial court ruled that the husband could earn income from his real estate. The court also ruled that the husband would earn income from his investments. The trial court imputed income to the husband based upon his investments and his real estate. The trial court found that a conservative return on investments of three percent per year would produce income for husband without requiring him to invade principle. The trial court did not require the husband to deplete the principle or sell his personal property.

The Florida Court of Appeal affirmed the trial court’s ruling. It held that it was appropriate to impute income to the husband from his non-liquid, income producing assets. The Court found that it was appropriate to require the husband to earn a three percent return on his non-income producing assets.

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Modification of Child Custody and Visitation will only be granted where there is a substantial, unanticipated, material, change in circumstances and where a modification is in the best interests of the children. In D.M.J v. A.J.T a final judgment was entered by the trial court in 2011. A parenting plan was incorporated into the final judgment. The parenting plan provided that when the parties’ child was old enough to attend kindergarten the parents would decide where the child should go to school. If the parties were unable to decide, the matter was supposed to be mediates. Four years later, the mother alleged in her supplemental petition for modification of timesharing that the father had moved 25 miles from where he lived when the final judgment was entered. The mother alleged that this created a substantial change in circumstances that warranted a modification of timesharing. The Mother requested additional timesharing, increased child support, a designation as the ultimate decision maker for issues involving the child’s education. The trial court granted the Mother’s supplemental petition. The father appealed the trial court’s order.

The Florida Court of Appeal held that in a Modification of Child Custody and Visitation proceeding, the petitioning party has the extraordinary burden of proving the existence of a substantial change of circumstances. The Court held that a change of address is not a material change if the change does not involve a significant distance (more than 45 miles) from the child’s current location. Finally, when a final judgment reserves jurisdiction to determine which school children should attend and the parents can not agree, the Court must make that decision for the children based upon the children’s best interests. The best interests of the children may warrant the modification of time ­sharing . In reaching this determination concerning timesharing, the court should take into account the children’s relationship with their siblings.

To speak with a divorce attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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Restrictions on child custody and visitation by a judge in a court order must be accompanied by a description of the steps that a parent can take to reestablish unsupervised custody and visitation. In a recent case captioned Bahls v. Bahls a parent asked for a rehearing on a prior decision that was rendered by the Court. The appellate court granted the motion for a rehearing and reissued a revised opinion. The appellate court reversed the trial court’s judgment because it failed to provide the specific steps required for the parent to end supervised visitation with her child. The trial court heard testimony from many witnesses on the appropriate timesharing arrangements for the parent and the child. The trial court ordered supervised visitation. The court also awarded ultimate parental responsibility to one of the parents. The Court permitted one parent to have most of the timesharing with the child and awarded supervised visitation to the other parent without providing any suggestion as to how unsupervised visitation could take place.

The Court of Appeal held that the lack of specific standards in an order as to how the other parent could eliminate restrictions on a parent’s timesharing was error. This applies to timesharing restrictions as well as the absolute prevention of child custody and visitation. A trial court is required to give a parent an opportunity to reestablish timesharing with his or her child. When a judgment does not set forth the specific steps that a parent can take to reestablish timesharing, it will be reversed. Since the trial court did not state the specific steps that the parent could take or let the parent know what was required of them to reestablish timesharing, the order was reversed.

To speak with a child custody attorney in Palm Beach Gardens, Florida contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In a paternity unwed/unmarried parents case, two men both sought to be declared the father of a child. In J.A.I. v. B.R., the Florida Court of Appeal stated if a person signs a notarized voluntary acknowledgment of paternity, this acknowledgment creates a presumption of paternity that is rebuttable. When 60 days have elapsed after the signing of the voluntary acknowledgment of paternity, the acknowledgment constitutes an establishment of paternity and may be challenged in court only on the basis of fraud, duress, etc. The burden of proof is then placed upon the challenging party.

Paternity is established when there is a judgment of paternity or by filing affidavits or a stipulation acknowledging paternity. Paternity is also established when a child is born into an intact marriage and is recognized by the mother and husband as being their child. When an unmarried mother and the alleged father get married after the child is born, the child is deemed to be their child. A mother does not have the right to block a father’s right to determine paternity by marrying another man while a paternity action is pending.

In J.A.I. v. B.R., the Florida Court of Appeal stated that orders requiring a DNA test for paternity purposes may be reviewed by certiorari. The Court of Appeal reversed the lower court’s decision to grant the alleged father’s request to require genetic testing. The alleged father filed his request after the 60 day period of time had elapsed.

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Modification of child custody and visitation orders require a substantial, material change of circumstances since the Court’s prior custody decision. Additionally, the movant must demonstrate that the children’s best interest justify a change in custody. In Chamberlain v. Eisinger, the Florida Court of Appeal had a case before it in which a judgment was entered in Maryland.  The Maryland trial court gave the Mother custody of the four children. After the divorce was granted the Father moved to Florida. In 2008, the Mother and Father agreed that the Father would have custody of the oldest daughter. In 2009, the Mother and Father agreed that the Mother would have custody of the youngest daughter and the two sons. In 2010, the Mother moved to Florida. The same month that the Mother moved to Florida, the trial court in Maryland entered a new order specifying times and dates for visitation. However, the new order was based upon the premise that the Mother and the younger children were living in Maryland.

In the summer of 2010, the Father filed a Supplemental Petition for modification of child custody and visitation. The trial court granted the Father’s petition finding that there had been a substantial change in circumstances since the final judgment was entered. The Florida Court of Appeal affirmed the trial court’s ruling. The Florida Court of Appeal held that in order to grant a modification of child custody, the moving party is required to show that the circumstances have substantially and materially changed since the original order was granted and must also show that the modification would be in the children’s best interests. Additionally, the change in circumstances may not have been contemplated by the parties. There is an extraordinary burden on the party seeking to modify time-sharing to demonstrate a sufficient change of circumstances. The purpose of this high burden is to discourage parents from continually disrupting their children’s lives by repeatedly initiating custody proceedings. Although the burden is high, it does not preclude a modification of custody when there has been a significant change of circumstances and it is in the best interests of the children. In deciding whether to modify timesharing, the best interests of the children is the primary consideration. The trial court should consider evidence concerning each of the statutory time-sharing factors in reaching a determination as to the best interests of the children. Finally, the Florida Court of Appeal stated that a parent has a duty to encourage and nurture the relationship between the child and the other parent.

To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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The division of property and assets in a Marital Settlement Agreement can be contested in two ways. The first basis to challenge a Marital Settlement Agreement is for fraud, coercion or misrepresentation. The second basis to challenge a Martial Settlement Agreement is for unfairness. In a recent case captioned Hall v. Hall the Florida Court of Appeal stated that a Marital Settlement Agreement could be set aside for fraud, duress, misrepresentation, or coercion. The second basis for setting aside a Martial Settlement Agreement contains three elements. First, the spouse that wants to set aside the agreement must prove that the Martial Settlement Agreement is unfair to the recipient spouse in light of the parties’ financial circumstances. The trial court will then look at the financial situation of the parties, their ages, their education and their health. The trial court may then decide that the agreement is unfair to the recipient spouse in light of the payor spouse’s financial circumstances.

Once the trial court determines that the division of property and assets in the agreement is unreasonable, it is presumed that the payor spouse either concealed assets or that the recipient spouse did not have accurate knowledge of the payor spouse’s financial situation at the time that the agreement was entered into. The payor spouse can then defend by demonstrating that there was full disclosure to the recipient spouse or that the recipient spouse had knowledge of the approximate amount of income that the payor spouse earned and the amount of the payor spouse’s wealth. The fact that the recipient spouse made a bad deal is not sufficient by itself to defeat a Martial Settlement Agreement. The issue is whether the recipient spouse did not have adequate knowledge of the income and assets of the payor spouse at the time that the agreement was entered into.

To speak with a divorce attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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| Jan 15, 2016 | Division Of Property And Assets

The division of property and assets in a Marital Settlement Agreement can be contested in two ways. The first basis to challenge a Marital Settlement Agreement is for fraud, coercion or misrepresentation. The second basis to challenge a Martial Settlement Agreement is for unfairness. In a recent case captioned Hall v. Hall the Florida Court of Appeal stated that a Marital Settlement Agreement could be set aside for fraud, duress, misrepresentation, or coercion. The second basis for setting aside a Martial Settlement Agreement contains three elements. First, the spouse that wants to set aside the agreement must prove that the Martial Settlement Agreement is unfair to the recipient spouse in light of the parties’ financial circumstances. The trial court will then look at the financial situation of the parties, their ages, their education and their health. The trial court may then decide that the agreement is unfair to the recipient spouse in light of the payor spouse’s financial circumstances.

Once the trial court determines that the division of property and assets in the agreement is unreasonable, it is presumed that the payor spouse either concealed assets or that the recipient spouse did not have accurate knowledge of the payor spouse’s financial situation at the time that the agreement was entered into. The payor spouse can then defend by demonstrating that there was full disclosure to the recipient spouse or that the recipient spouse had knowledge of the approximate amount of income that the payor spouse earned and the amount of the payor spouse’s wealth. The fact that the recipient spouse made a bad deal is not sufficient by itself to defeat a Martial Settlement Agreement. The issue is whether the recipient spouse did not have adequate knowledge of the income and assets of the payor spouse at the time that the agreement was entered into.

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