Articles Posted in Family Law

child custody Cape Coral
As a parent, your child is one of the most important parts of your life. We understand that, and know that custody battles and parental rights are a delicate, sensitive subject.

This is why we fight so hard for our clients–to ensure they can spend the time they deserve parenting their children. Custody matters can get confusing, especially during a time when much is uncertain and heart-wrenching. Let us help you understand Florida’s family laws and parental statutes.

Shared Parental Responsibility

kid with airplaneIn Naime v. Corzo, the plaintiff appealed a final order that denied her petition to relocate to Port St. Lucie from Miami-Dade County with her minor child. The plaintiff and the defendant were married in 2002 and had the minor child in 2006. The couple separated in 2009, and the parties entered into a mediation, which resulted in a settlement agreement being signed in November 2010. The final dissolution of marriage was entered in January 2011. The terms of the mediation settlement did not discuss the relocation of the minor child.

In June 2013, the mother filed a verified petition with the court, seeking relocation. The father objected, and the lower court held a hearing, allowing the parties to provide testimony. After the hearing, the lower court denied the mother’s petition. She immediately appealed, raising three distinct issues.

The first and second grounds for appeal asserted by the mother contended that the lower court erred when it denied the petition based on the evidence provided at the hearing. The appellate court rejected this argument, finding that there was sufficient evidence in the record. The appellate court also determined that the lower court appropriately followed the factors outlined in Florida Statutes section 61.13001(7) and provided a sufficient statement of findings to supports its analysis and conclusion.

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hand with moneyIn Berger v. Berger, a wife in a divorce proceeding filed an appeal after a lower court amended a final judgment in the couple’s marriage dissolution. The husband initiated the divorce proceeding after the couple had been married for 18 years. When the trial began, the husband was a full-time doctor earning over $200,000 per year. The wife was a stay-at-home mom who had not been employed in a job outside the home for more than two decades. Evidence at trial indicated that at the time the husband filed the divorce proceeding, the wife started seeking employment in various capacities earning $10 to $12 per hour.

During trial, a vocational expert testifying on behalf of the husband stated that the wife held a college degree in social work but that she was no longer professionally qualified to find work in that field. Although the wife testified that she was interested in finding employment, she stated that the job schedule would need to be flexible because she provided care for the couple’s minor children. The expert testified that his research concluded that the wife could earn between $18 and $20 working at retail or clerical positions. He also offered evidence about other positions for which the wife might be qualified and the amount of compensation that each provided.

In its final judgment, the lower court held that the wife could earn a starting salary as a teacher of $39,000 with benefits after two years of education and substitute teaching. It also listed the wife’s reasonable monthly income needs as totaling $6,000 per month. Ultimately, it awarded the wife $4,500 in alimony per month for 10 years.

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divorced coupleIn Saucier v. Nowak, the father of a child appealed a lower court’s ruling that the majority of timesharing in a custody agreement should be awarded to the child’s mother. In his appeal, the father asserted several grounds of error on the trial court’s part. First, the father stated that the trial court failed to establish a schedule for video conferencing in the final judgment, failed to ascribe the correct salary to the father when determining the award of child support, failed to clarify which parent had the right to make medical decisions on behalf of the child, and failed to assign the majority of the timesharing allotment to the father.

The mother also filed an appeal regarding the final order, stating that the lower court committed a reversible error when it awarded the father the right to engage in daily video conferences with the child and failed to determine whether the father owed back child support.

On appeal, the Fifth District Court of Appeal upheld the lower court’s order when it awarded the father video conferencing time each day in the amount of 45 minutes. Although it was clear that the lower court wanted to award this right to the father, it failed to include a specific schedule for conducting the calls in its final order. The appellate court deemed this a discrepancy and remanded the case back to the lower court for further proceedings to amend the final order.

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house-300x225Divorce can be a difficult process, even when the spouses agree on many potential points of contention. Having a dissolution of marriage agreement that addresses every important point can go a long way to make the process as painless as possible.

A recent divorce case on appeal before Florida’s Fifth District illustrates this point. While married, the spouses owned a home together, and at the time of the divorce the home was encumbered by a mortgage under both spouses’ names. The trial court ordered that the former husband keep the couple’s home and that the wife execute a quitclaim deed to him, which would give him full rights to the property. Unfortunately, the order did not address the wife’s mortgage obligation. This would mean that if the husband failed to pay the mortgage the mortgagee could hold the wife accountable.

Florida follows the rule of equitable distribution, rather than community property. This means that in the event of divorce, section 61.075 of the Florida Statutes mandates that the couple’s property is fairly or equitably distributed. The presumption is that the marital property will be split evenly between the parties, but the court may divide the property unevenly based on several factors, including each spouse’s financial situation. The goal is for a distribution that is ultimately fair.

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writing checkA man whose alimony payment went from being 35 percent of his income to more than 70 percent was given the chance to modify his dissolution order. The Florida Second District Court of Appeal held that the man had adequately proven that changed circumstances warranted the modification of his alimony payments.

To modify an order of dissolution of marriage, the requesting party must allege and prove three elements. First, there must have been a substantial change in circumstances. Second, the change in circumstances must not have been contemplated at the time of the divorce. Finally, the change in circumstances must have been involuntary, sufficient, permanent, and material.

In this case, the petitioning party was bound by an original order of dissolution of marriage entered in 2004 that required an alimony payment of $4,200 per month. At the time, the petitioner made about $150,000 per year, or $12,500 per month. This made his alimony payment, along with life insurance and other de minimis contributions, about 35 percent of his gross monthly income. Continue reading

law booksIn an appeal from a final judgment in a divorce proceeding, the Fourth District Court of Appeal examined issues regarding the validity of a prenuptial agreement and the interpretation of the agreement, as well as support issues. At its conclusion in Hahamovitch v. Hahamovitch, the appeals court acknowledged a conflict with other districts and certified a question to the Supreme Court of Florida.

At the outset, the appeals court noted that a prenuptial agreement may be challenged in only two ways. First, a party must claim that he or she entered into a prenuptial agreement as a result of fraud, duress, deceit, coercion, or the like. Otherwise, a party must first establish that a prenuptial agreement is unfair or unreasonable to one spouse under the particular circumstances of the case. Then there must be a determination as to whether there was a full disclosure regarding marital property, income, or similar factors before the agreement was signed.

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batch of dollarsThe laws of Florida provide clear guidance in most divorce scenarios.  However, under certain circumstances, the parties’ agreement may not follow the status quo.  In Taylor v. Lutz, an ex-wife sought back alimony payments plus attorneys’ fees. The evidence before the trial court indicated that the parties were married for approximately four and a half years. Upon the dissolution of their marriage, the parties agreed to a Marital Settlement Agreement (“MSA”) that provided for alimony payments from the former husband. The alimony provision in the MSA stated that the former husband would pay “Bridge-the-Gap alimony” in a non-modifiable amount of $500.00 per month for a total of three years.

Bridge-the-Gap alimony, as defined by Florida law, is designed to assist a party by providing support during the transition from being married to becoming single. Florida law further provides that Bridge-the-Gap alimony may be awarded for up to two years, and it automatically terminates upon the remarriage of the party receiving alimony payments.

The trial court found that the ex-husband made only two partial payments of $235 each. In fact, the trial court had entered a judgment against the former husband several years before, finding that he owed his ex-wife $5,197.97 in unpaid alimony and attorneys’ fees. However, the ex-husband failed to make any such payments.

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wedding ringsWith many states now allowing and recognizing same-sex marriage, the legal issues that come along with marital status are becoming more and more complicated. This issue can come up when a same-sex marriage is recognized in one state, but not another. Recently, the Second District Court of Appeal was confronted with the issue of a petition for the dissolution of a same-sex marriage. The parties in that case were same-sex partners that were married in Massachusetts in 2010, but had subsequently moved to Florida.

In January of 2014, Mariama Shaw filed for a divorce in a Florida circuit court. Florida law declines to recognize same-sex marriage, stating that marriages between same-sex individuals entered into in any jurisdiction are not recognized for any purpose in the state of Florida. Therefore, upon receipt of the petition for dissolution, the circuit court dismissed it, holding that it did not have jurisdiction to dissolve a relationship that is not recognized under Florida law.

Apparently, however, some courts throughout the state of Florida have in fact allowed the dissolution of same-sex marriages obtained in other states. To further complicate matters, several county circuit courts and the 2nd District Court of Appeal have recently ruled that Florida’s prohibition on same-sex marriage is unconstitutional. Florida’s current law states that the term “marriage” is defined as a legal union between a man and a woman, as husband and wife.

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law libraryBecause of the very sensitive nature of parental abandonment cases, any court making such a determination is required to make special considerations under the laws of Florida. In fact, the Florida legislature has set forth a specific definition for parental abandonment, describing it as a situation in which a parent has made little or no provision for the support of the child, or little or no effort to communicate with the child. Such behavior is sufficient in demonstrating an intent to reject parental responsibilities. Upon a finding of abandonment, a court may terminate a parent’s rights.

In V.C.B v. Shakir, the Fourth District Court of Appeal held that a father’s parental rights could be terminated due to clear and convincing evidence that he had abandoned his child. In Shakir, a child’s maternal grandparents were seeking to terminate the father’s parental rights in order to adopt the child. The 12-year-old child’s mother had recently died, and the grandparents alleged that the child’s father had abandoned the child.

The trial court found that the father had in fact abandoned the child, both financially and emotionally. However, the trial court could not find that the father had exhibited a willful disregard for the child’s safety, which it determined to be a requirement for terminating parental rights. The grandparents appealed the trial court’s judgment.

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