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To obtain a divorce in Florida, either the Husband or the Wife must reside in Florida for six (6) months prior to the filing of the Petition for Dissolution of Marriage. A court does not have jurisdiction to decide a divorce case unless jurisdiction is appropriately allege in the Petition for Dissolution and proved at the Final Hearing.

Proof of one of the parties’ residence in Florida can be shown by producing a Florida voter’s registration card, a Florida driver license, a valid Florida identification card issued under section 322.051, or the affidavit or testimony of a nonparty witness. The parties’ residency cannot be proven by the testimony of one of the parties. Residency cannot be assumed. The parties cannot agree that residency exists. And, the parties cannot waive proof of residency. Without proof of residency, a trial court lacks jurisdiction to enter a Final Judgment of Dissolution of Marriage.

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

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In an alimony case, a trial court may require a paying spouse to maintain life insurance under certain circumstances. In order for a court to require a paying spouse to maintain life insurance, the trial court must find that the insurance is available, it must state the cost of the policy, and it must determine the that paying spouse has the ability to pay for the cost of the insurance. The amount of the insurance required must be commensurate with the amount of the support obligation. Finally, in order to require a paying spouse to maintain life insurance to secure an alimony obligation, there must be “special circumstances” that justify this requirement. These special circumstances include situations where the recipient spouse would be left in severe financial condition after the death of the paying spouse due to his or her poor health, age, or lack of employment potential.

Additional alimony special circumstances include the paying spouse’s poor health, where minors are living at home, where the recipient spouse has a limited capacity to earn income, and where the paying spouse has failed to live up to his or her support obligations. Finally, a paying spouse can bind him or herself to purchase life insurance by agreeing to purchase life insurance on the record.

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

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A division of property and assets case involving a husband’s pension was recently decided by the Florida Court of Appeal. In this case, the husband and wife were married for thirteen years. When the divorce was filed, the husband had been working for the City of Delray Beach as a firefighter for 16 years. The Husband’s pension accrued at a rate of 2.5% per year. Once the husband had served for 25 years, his retirement benefits increased to 3% per year. When the divorce was filed, the husband was eligible for the 2.5% multiplier. The Florida Court of Appeal pointed out that there are two methods to distribute pensions. The first method is the immediate offset method. Under this method, spouses receive the present value of their interest in the other spouse’s pension either in cash or as a share of marital distribution. The second method is the deferred distribution method. Under this method, the judge determines the amount of the employee’s benefit as of the date of the final hearing (without any early retirement penalty).

In the division of property and assets case,the court then multiplies this amount by the percentage that the spouse is entitled to receive. The recipient spouse then receives this amount from each of the spouse’s retirement payments. The benefits are not to include the value of services performed after the date of the final judgment of dissolution. These methods of distribution enables both parties to share in the benefits accrued during the course of the marriage. In this case the Florida Court of Appeal found that the 2.5% multiplier was the most appropriate multiplier because the 3% multiplier was a bonus for the additional work that the husband must perform after the date of the final judgment in order to qualify for the larger retirement multiplier.

To speak with a division of property and assets attorney in Palm Beach Gardens, Florida, about the division of your pension in a divorce case, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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Modification of child custody & visitation in Florida was recently discussed in a case captioned Lewis v. Juliano.  In this case, the Mother appealed an order that required her to provide the Father with her physical address as a precondition to exercising timesharing. The trial court modified the parties’ timesharing schedule as a result of the Mothers’ failure to provide the Father with her physical address.

The Mother and Father were divorced in 2014.  In 2016, the lower court modified the parties’ Final Judgment of Dissolution due to the Mother’s relocation to another state.  The Court’s order required both parents to provide each other with their residential and mailing addresses. The Father filed a Motion for Contempt of Court as a result of the Mother’s failure to provide him with her residential and mailing addresses and for failure of the Mother to permit the child to have appropriate communication with the Father.

In July 2016, the lower court found Mother in Contempt of Court as a result of her failure to provide the Father with her address. In May 2017, the Father filed a Motion to determine the status of the child’s summer visitation since the Mother had not provided him with her address. The Father argued that the child should not travel to an undisclosed address.

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A child custody and visitation issue was recently decided by the Florida Court of Appeal in a case captioned Preudhomme v. Preudhomme. In this case, the Mother challenged the trial court’s timesharing determination. The Mother lived in Pensacola and the Father lived in Mobile, Alabama. During the pendency of the divorce proceeding, the parents met midway between the two cities for timesharing. The parents arranged for the child to attend preschools in both cities. The Mother asked the trial court to create a parenting plan in which she had majority timesharing and the Father was given alternating weekends and holidays and weekly rotating custody during the summer. The Father asked the trial court to continue the current timesharing schedule until the child began kindergarten. The child was scheduled to begin kindergarten approximately twenty months later. After the child started kindergarten, the Father requested that he be awarded majority timesharing when the child was in school. The Father proposed that the Mother should have timesharing during alternating holidays and weekends, and for most of the summer. The court adopted the Father’s proposed parenting plan.

Regarding the child custody and visitation issue, the appellate court pointed out that custody decisions must be supported by competent, substantial evidence. The court went on to state that lower courts have significant discretion in deciding timesharing matters. Courts of Appeal should affirm trial courts’ decisions concerning timesharing when there is substantial and competent evidence that supports the trial courts’ decisions. However, trial courts may not engage in prospective-based analyses when they create parenting plans. Trial courts are prohibited from deciding what the best interests of children will be in the future. Custody and visitation issues must be decided based on the present best interests of children because trial courts are not equipped with “crystal balls” that permit them to predict the future. The Court of Appeal stated that when the trial court in this case ruled that it was in the child’s best interest for the parents to continue rotating timesharing on a weekly basis until the child entered kindergarten, and to then grant majority timesharing to the Father, the trial court engaged in a prohibited prospective-based analysis. The appellate court reversed the trial court and sent the case back with directions to the trial court to delete that portion of the Final Judgment that was based upon future events.

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

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In Florida, permanent alimony is rebuttably presumed to be appropriate in a marriage that exceeds seventeen years. In a case captioned Hedden v. Hedden, the wife appealed a judgment terminating her marriage of thirty-seven years. The parties have two children. The wife was a stay-at-home mother for a majority of the marriage. The wife was last employed twelve years prior to date of the trial. The wife also had a medical condition. The trial court found that the wife had a need for support and that the husband had the ability to pay. The trial court awarded the Wife both permanent and durational alimony. The durational alimony was scheduled to end when the wife reached age 62. At age 62, the wife was eligible to receive Social Security benefits.

The Florida Court of Appeal reversed the trial court for two reasons. First, the Court of Appeal held that, in Florida, permanent alimony is rebuttably presumed to be appropriate when there is a long-term marriage. A long-term marriage is defined as a marriage that exceeds seventeen years. Permanent support is appropriate where no other type of support would be fair and reasonable. The purpose of durational alimony is to provide the recipient with alimony for a set period of time when there is not an ongoing need for support. A court should not award durational alimony where there is a need for ongoing support. Where a recipient has an ongoing need for support, durational alimony is inappropriate and permanent alimony is the appropriate remedy. Additionally, an award of support should not be based upon a predicted increase in the recipient’s income.  This award is to be based upon the present circumstances of the parties. The court may always modify a support award should the parties’ circumstances change in the future.

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

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The division of property and assets in a divorce proceeding cannot include property that was previously conveyed to the parties’ children. In a recently decided case captioned Perez v. Perez, the parties were married for twenty-three years. The husband and wife owned several pieces of real estate. During the course of the marriage, they conveyed four pieces of real estate to their sons. As part of the final judgment in the divorce proceeding, the trial court awarded some of the real estate that was conveyed to the children to the husband and some of this real estate to the wife.

During the course of this divorce proceeding, the wife sued her sons as third party defendants claiming that her husband and sons had engaged in a scheme to defraud her. The husband contended that the wife agreed to the transfer at the time that it was made. In point of fact, the wife signed the deeds conveying the property to her sons. In making its equitable distribution award, the trial court included the properties that the parties had conveyed to the children.

The Florida Court of Appeal reversed the trial court’s ruling on the division of property and assets. The appellate court stated that the lower court improperly awarded property to the husband and wife that they had previously conveyed to their children. The Florida statutes create a clear rule as to when property is deemed to be marital and nonmarital. Absent a separation agreement, the date to determine when an asset is marital or nonmarital is the date of the filing of the divorce. The lower court should have looked at what the parties owned when the divorce was filed. An asset that was previously conveyed to another person cannot be awarded to a spouse as part of an equitable distribution award in a divorce proceeding. The property deeded to the children was a nonmarital asset and should not have been part of the equitable distribution in this matter. Accordingly, the Court of Appeal held that the trial court’s distribution of the son’s property was improper and reversed the ruling.

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In a Florida divorce, the value of a business is determined by valuing all of its assets and the amount of its liabilities.  In Florida, businesses are valued according to their fair market value.  Fair market value is the amount that a willing buyer would pay and a willing seller would accept.  Enterprise value is the value of a businesses’ tangible assets and the willingness of customers to return (business goodwill).  Personal goodwill is based upon the skill and the continued participation of the current owner in the business.

In a Florida Court of Appeal case captioned Soria v. Soria, the husband and wife were married in April 1988. The husband was the founder of a start-up limited liability company. At the time of trial, the company was carrying approximately $400,000.00 of debt. The company’s liabilities varied from $9,000.00 to $76,000.00 and the company’s assets varied from $147,000.00 to $190,000.00. The husband testified that he was essential to the operation of the business and that the business could not operate without him. The husband owned approximately 64% of the business and investors owned the remaining 36% of the business. After the divorce was filed, the husband transferred 30,000 of his shares in the company to his girlfriend in order to compensate her for her work for the company.

The par value of the company stock was a dollar per share. The trial court used the par value of the company’s stock to value the company. The Florida Court of Appeal reversed the trial court. The Florida Court of Appeal held that in making a division of property and assets determination involving a business, the value of the business is determined by assessing its fair market value. The Florida Court of Appeal stated that the fair market value of the business in question was the amount of money that a willing buyer would pay for the business and a willing seller would accept for the business when both parties have knowledge of the value of the business and neither is under duress to enter into the transaction. The value of a business is the value of the company’s assets plus the value of its goodwill. Enterprise goodwill is the value of a business that exceeds its assets. It constitutes the tendency of patrons to return to a business irrespective of the presence of its owner. Professional goodwill of a doctor, lawyer or business owner is distinct from enterprise goodwill. It is based on the skill and continued participation of the owner in a business. Although, enterprise goodwill is considered to be a marital asset in divorce proceedings, a doctor, lawyer or business owner’s personal or professional goodwill is not considered to be a marital asset.

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In alimony cases, living with someone may reduce or eliminate the need for alimony when the live-in relationship is found to be substantially equivalent to a remarriage. In a recently decided case captioned Bruce v. Bruce, the wife appealed the trial court’s refusal to award her alimony. The parties were married for twenty years. They had three children. The wife worked part time and took care of the children during the day. The wife had serious medical issues, including being hearing impaired and having permanent arthritis, and was a cancer survivor. The wife moved out of the marital home and into an apartment with her boyfriend. The wife denied that she was in a supportive relationship with her boyfriend. The wife contended that she owes her boyfriend back rent, which she intends to repay in the future. The wife contended that she pays for her own phone, electric and water bills and pays for her own groceries. The wife and her boyfriend have no joint financial accounts, they have no joint investments and they do not jointly own personal or real property.

The lower court denied alimony to the wife because it found that the wife had entered into a supportive relationship with her boyfriend. The Florida Court of Appeal held that under the Florida law, it is appropriate for trial courts to consider party’s supportive relationships in awarding alimony. The Court of Appeals directed Florida trial courts to look at the particular circumstances of each case. Florida courts are to utilize the factors contained in the Florida Statutes to determine whether alimony should be reduced or denied where there is a supportive relationship. The court defined supportive relationships to be relationships that take the financial place of marriages. Supportive relationships decrease the financial need of former spouses. The financial support in a supportive relationship is equivalent to a marriage and permits the reduction or elimination of the need for alimony. However, financial support alone does not create a supportive relationship. The court is required to look at the nature of the live-in relationship and the length of time the relationship has existed. Only when the relationship is the equivalent to a remarriage is the reduction or elimination of an alimony obligation warranted. The trial court must look into the extent and nature of the supportive relationship and how the relationship permanently reduces a party’s need for alimony.

To speak with an alimony attorney in Wellington, Florida, contact Matthew La ne & Associates, P.A. at (561) 363-3400.

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In awarding alimony, income will not be imputed to a spouse who decides to defer taking Social Security benefits when that party would receive larger benefits by deferring the benefits.

In a case captioned Huertas Del Pino v. Huertas Del Pino the trial court imputed income to the Wife based on the Wife’s failure to apply for Social Security benefits. A court may impute income to an unemployed or underemployed party in determining that party’s need or ability to pay alimony. The party seeking to impute income has the burden of proof. In this case, the Wife was a stay at home mother with little employment experience. After the divorce was filed, the Wife unsuccessfully attempted to find employment. The trial court held that the Wife could find forty hours per week of employment and that she was capable of earning ten dollars per hour. Additionally, at the time of the final hearing, the Wife was eligible to immediately receive $640 per month in Social Security benefits. However, if the Wife elected to defer receipt of these Social Security benefits until after her sixty-fifth birthday, she would receive $900 per month in Social Security benefits. The lower court ruled that the Wife had an obligation to immediately apply for her Social Security benefits and imputed $640 per month to the Wife in reaching its alimony determination.

The Florida Court of Appeal reversed the trial court and held that the trial court improperly utilized the Wife’s current monthly Social Security payments in reaching its alimony computation. The Court of Appeal held that a party may properly choose to defer taking his or her Social Security benefits when the economic value of receiving the benefits early is outweighed by the benefit of receiving them later. A trial court should impute Social Security benefits and pension benefits to a party when that party can elect to draw benefits without receiving any reduction in these benefits. However, if by immediately taking pension or Social Security benefits a party will receive a reduced amount, it is improper to impute these benefits to that party as income. Deferring receipt of these benefits is not considered to be an intentional reduction in income; it is considered to be a wise investment strategy.

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