Latest Commentary on Recent Legal Events
Latest Commentary on Recent Legal Events
On April 15, 2016, Governor Rick Scott vetoed a bill which would revise Florida’s alimony and child sharing laws. The Florida Governor quickly made his decision after many supporters and protestors spent time at the capitol in order to make their views known. The bill greatly affected the family law community due to its major changes in alimony calculation and child-sharing guidelines. The majority of the parties were in agreement with the section on alimony but greatly disapproved of the new child time-sharing policy.
The bill (SB 668) would change how alimony is determined, getting rid of bridge-the-gap, durational, rehabilitative, and permanent alimony all together. The new policy would require judges to use a calculation guideline based on the length of a marriage and the income of the parties involved. For marriages lasting less than twenty years, the alimony would be calculated by multiplying the amount of years of the marriage by the difference in the monthly gross income and then by 0.015. For marriages lasting twenty years or longer, alimony would be calculated by the amount of years of the marriage by the difference in the monthly gross income and by 0.020. For the shorter marriages (less than 20 years), the alimony would only last a fourth of the time that the marriage did. For the longer marriages (20 years or more), the alimony would last for three quarters of the length of the marriage.
The bill also contained changes to child time-sharing guidelines. It created a policy that assumed that 50/50 time sharing custody would be best for the child regardless of the circumstances.
Gov. Scott cited in his veto statement “This bill’s proposed revisions to Florida’s alimony and child custody laws have evoked passionate reactions from thousands of Floridians because divorce affects families in many different ways. The one constant, though, is that when a divorce involves a minor child, the needs of the child must come before all others. Current law directs a judge to consider the needs and interests of the children first when determining a parenting plan and time-sharing schedule. This bill has the potential to upend that policy in favor of putting the wants of a parent before the child’s best interest by creating a premise of equal time-sharing. Our judges must consider each family’s unique situation and abilities and put the best interests of the child above all else.”
We will see if the alimony and time-sharing issues will return in the upcoming 2017 session.
The bill (SB 668) also contains child time-sharing language that calls on the courts to presume that 50/50 custody is in the best interest of the child.
Changes in Alimony and child-sharing laws have been the hot topic in the legislature for several years. All that is left is to wait to see whether Governor Scott will sign the new bill making it law. As a reminder, ,n 2013 he vetoed an alimony reform bill opposing a clause making it retroactive to existing alimony awards; a provision which was not included in this year’s bill.
The Florida law regarding alimony is up for consideration again this year by the Florida Legislature. A House bill aimed at effectively ending permanent alimony is heading to the House floor after clearing its final committee of reference on Thursday.The Judiciary Committee approved the measure (HB 455), sponsored by Republican state Rep. Colleen Burton of Lakeland, by a 14-3 vote.
Chiefly, the measure limits judges’ discretion in awarding alimony by providing guidelines for how much an ex-spouse should get and for how long. The idea is that “no matter where you live, you can anticipate you will receive equal treatment,” Burton said. Her bill picked up a key Democratic supporter in state Rep. Jared Moskowitz of Coral Springs, a self-described “child of divorce. He said he knows from first-hand experience that “an indefinite financial relationship between two divorced parents is bad for the children.”
Lawmakers heard from Tarie MacMillan of Wimauma, a 65-year-old woman paying permanent alimony for 16 years. Her husband, a former insurance executive, decided to stop working and lives on 65 percent of her income, she said. Alimony “needs to be a formula,” said MacMillan, a jewelry dealer. “It’s so wrong for one adult to live off another for so long.”
Others continued to insist that the changes will be at the cost of mothers who opted to leave the workforce and raise children. After a breakup, they have trouble finding jobs and depend on alimony, some as their sole support. “There’s no consideration for a stay-at-home mom who has no work experience,” activist Cynthia Wheeler of Palm Beach County said. Wheeler’s recent appearance in Tallahassee resulted in her being ejected from a Senate committee when she refused to leave the lectern. On Thursday, she again spoke over her allotted one minute and until two sergeants-at-arms turned off her microphone.
It’s the third time in recent years the Legislature has attempted to change Florida’s alimony law. A companion bill, sponsored by Republican Kelli Stargel of Lakeland, has not yet been heard in the Senate. Another family-law bill moving this session is SB 250, sponsored by Brandon Republican Tom Lee, that would change state law on child-sharing. It would create an assumption that equal time-sharing for both parents after a divorce is in the best interest of a child.
Florida law states that both parents are legally obligated to provide support for their minor child/children. Child support payment is considered a right of the child not the parent. The purpose of child support is to meet the the child’s basic needs for food, clothing and shelter, as well as to allow the child/children to share in the wealth and good fortune of their parent’s. In a dissolution of marriage or paternity action, child support is calculated pursuant to guidelines set forth in the child support laws in Florida. The child support guidelines are also used for actions to modify the amount of child support.
The amount of Child support is established based on the Florida Child Support Guidelines formula. The formula takes into consideration the net income of both parents, health insurance premiums being paid the parents and the daycare costs for the child/children. The formula also accounts for the number of over-nights the child/children spend with each parent. The Child Support “guidelines” are contained in Section 61.30, Florida Statutes.
The Florida Department of Revenue uses a calculator to determine the specific amount to child support to be paid by the parents. The Calculator can be found here.
When child support is initially determined, retroactive support may be established for the time period between the date the parents separated and the date that the child support order goes into effect. If the parties separated more than twenty-four months prior to the filing of the action requesting child support, retroactive support will generally be capped at twenty-four months. The law regarding retroactive Child Support is also found in Section 61.30, Florida Statutes.
In Florida, Child Support can be modified at any time based upon a showing of a substantial, permanent and unanticipated change in circumstances. What constitutes a substantial change in circumstances includes but is not limited to, the loss of a job, the termination of the child’s attendance at daycare, the disability of a parent, an increase in the costs of health insurance or daycare, or a substantial increase or decrease (15% or greater) in either parent’s income. Further, a permanent change is one that has lasted or is anticipated to last for one year or more. Generally, a modification can only be effective as of the date of filing of the action for modification. Therefore, any arrears that accrued due to non-payment of child support after the loss of a job but before the modification action was filed will remain due and owing. The law regarding modification is found in Section 61.13, Florida Statutes.
There are a number of ways to enforce child support. Including: contempt of court, suspension of the obligor’s driver’s license, and the placement of a lien on the obligor’s property. The Florida Department of Revenue has additional enforcement mechanisms including suspension of the obligor’s passport, and seizure of the obligor’s bank account.
The Clerk of Court can also will enter a judgment on the arrears that have accrued when child support is payable through the State Disbursement Unit. Once such a judgment is entered, interest begins to accrue. Therefore it is best to make child support payments in a timely manner whenever possible. There is no statute of limitations on the enforcement of child support and its arrears. Therefore, child support can be enforced after the children emancipate, and even against the estate of the obligor after the death of the obligor. The law regarding enforcement of Child Support is found in Section 61.13, Florida Statutes.
For more information please contact me at Max@maxfactorlaw.com
Clients often ask what to expect at a family law mediation. Family law mediations can involve many issues, including: dissolution or divorce; child sharing; child support; divisions of assets and liabilities; as well as, other family law issues that arise.
What is mediation?
Mediation is a process where a neutral third party, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal, non-adversarial, confidential process that gives decision making authority to the parties. The role of the mediator includes, but is not limited to, assisting the parties with identifying issues, fostering joint problem solving, giving information and suggestions, and exploring settlement alternatives. The objective of mediation is to help disputing parties reach a mutually acceptable and voluntary agreement.
What are the benefits of a family law mediation?
There are many benefits of mediation.
• Mediation is a confidential process; therefore, nothing said from the time the order of referral is signed until the mediation ends may be disclosed, except where disclosure is required or permitted by law.
• Mediation empowers the parties. It is a process that encourages and facilitates the resolution of a dispute between two or more parties and gives decision making authority to the parties.
• Mediation is an informal and non-adversarial process.
• Mediation may resolve all of the issues in your case and can be more efficient and economical.
Who may serve as a family law mediator?
For general information about the qualifications for a mediator in Florida please go to http://www.flcourts.org/resources-and-services/alternative-dispute-resolution/. All mediators provided by the Second Judicial Circuit ADR Unit are certified as family, dependency or county civil mediators.
How to schedule a family law mediation through the Second Judicial Circuit ADR Unit?
Your attorney will schedule the mediation with opposing counsel. Mediations ordered in all six counties of the Second Judicial Circuit (Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla) are scheduled by emailing Mediations@leoncountyfl.gov.
Do I have to attend family law mediation?
For county civil, ($5,000-$15,000 in dispute), family and dependency cases, you must be physically present for all mediations unless you have obtained the written consent of the other party, or a court order allowing you to appear by telephone. You will be responsible for obtaining the court order if the other party objects to your attendance by telephone.
In all cases the lawyer or non-lawyer must have full authority to settle the case on behalf of the party they are representing.
Who else can attend a family law mediation?
If you have hired an attorney, the attorney may attend, but is not required to do so. However, attorneys can be beneficial to the mediation process. Mediators are not allowed to give legal advice; therefore, the parties may wish to have an attorney present for that purpose.
Other interested parties (e.g., family members or friends) may attend the mediation only if consent is given by the other party.
CHILDREN MAY NOT ATTEND MEDIATION, unless they are specified in the order of referral to mediation. The Second Judicial Circuit ADR Unit does not have child care facilities.
How long does a family law mediation take?
One session of family court mediation is scheduled to last three hours. Parties attending mediation must be prepared to spend the full three hours at the session, but often the session does not last for three hours. Normally, the mediation takes between two and three hours to complete. If the mediation is not completed within that timeframe, you must pay an additional fee for another session.
If the parties reach a settlement, the mediator will prepare the agreement. This will take additional time. All parties must remain throughout the entire session, including the preparation and execution of the agreement.
How much do I pay for family law mediation?
For family court mediation, the cost depends on the combined gross incomes of both parties in a family case. If the combined gross income (before taxes) is less than $50,000, the fee is $60 per party, per 3-hour session.
If the combined gross income is greater than $50,000 but less than $100,000 the fee is $120 per party, per 3-hour session.
If the combined gross income exceeds $100,000 then your case does not qualify for the Second Judicial Circuit ADR Unit. You must select a private mediator. In all cases mediation fees must be paid before the mediation begins.
When must the fees for the family law mediation be paid?
All mediation fees must be paid prior to the mediation session beginning. You must obtain an invoice from the Second Judicial Circuit ADR Unit or the Mediator prior to paying the fee with the Clerk of Court. All fees are paid to the Clerk of the Court in the county in which the case is pending.
If the court has approved your motion to appear by phone or you have received consent from the other party to appear by phone you must contact the Second Judicial Circuit ADR Unit immediately to receive instructions on how to pay your mediation fee.
What is a parent coordinator?
A parenting coordinator is an impartial third person whose role is to assist the parents in successfully creating or implementing a parenting plan.
What if I have a family law mediation question not covered by this discussion?
If you have any unanswered questions we welcome you to contact our office at (850) 577-1699 or email.
Clients often ask me, “what can I expect in my divorce case?” It is a good idea to explain the process of a dissolution case during one of the first meetings with the client, so he/she will know what to expect as the process unfolds. Although many clients make the comment, “my divorce case is different,” there are many aspects of the process that will be common in almost all cases.
Petition for Dissolution – A divorce case in Florida is begun by filing a “Petition for Dissolution of Marriage” with the Clerk of the Circuit Court. The Respondent, the person served with the divorce petition, must file an Answer within 20 days.
All divorce cases in Florida are heard by a judge, not a jury (unless paternity or personal injury is involved, those issues can be tried by a jury). Judges do not want excessive emotion brought into their courtrooms. Therefore, a good attorney will make sure the client will be calm in the courtroom. The demeanor of a client in court, whether testifying or not, will be observed by the judge. Many divorce cases are heard in a judge’s chambers, except for trials and hearings involving numerous witnesses.
Answer/Counter-Petition – In responding to the Petition, the Respondent will file an Answer. The Answer often includes a “Counter-petition for Dissolution of Marriage.” If the Respondent is requesting relief not addressed in the original Petition it is recommended that a Counter-petition be filed to allow the Court authority to award the affirmative relief to the Respondent.
Discovery – During the case, each attorney has the right to obtain “discovery” (i.e., information and documents, often financially related) from the other attorney. There are five types of discovery in Florida: 1. Mandatory Disclosures, 2. Request for Admissions, 3. Interrogatories, 4. Request for Production of Documents, and 5. Depositions. The Respondent has 45 days to respond to discovery requests served with the Petition. Thereafter, either party who receives a discovery request must respond within 30 days.
Mandatory Disclosures – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. The documents which need to be produced are as follows:
-Tax Returns for prior 3 years
-Pay Stubs (evidence of income) for 3 months prior to Financial Affidavit
-Loan Apps/Financial Statements for 12 months prior to the Financial Affidavit
-All deeds, promissory notes and leases
-Checking, Savings, Money Market CD statement (3 months)
-Brokerage Account statements for last 12 months
-Pension, Def Comp, IRA, 401(k) etc, most recent statement
-Dec Page, last statement for life ins policy
-Health and Dental cards for self/spouse/children
-Corp/Partnership/trust tax returns last 3 years(over 30% int)
-Credit card statements, promissory notes, prior 3 months
The “mandatory disclosure” can be waived by the parties, but should not be waived in cases involving significant assets and/or liabilities. However, the filing of a “Financial Affidavit,” which is part of mandatory disclosure, cannot be waived. A Financial Affidavit is the most important financial document filed by each party in a divorce case. It contains detailed information about one’s income, monthly expenses, assets, and liabilities. Florida law permits a final judgment of divorce to be reopened at any time if a spouse filed a significantly inaccurate Financial Affidavit.
Request for Admissions – A request for admissions, sometimes also called a request to admit, are a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admissions are part of the discovery process in a civil case. If admitted, the statement is considered to be true for all purposes of the current case. Parties may also use this discovery device to request that other parties verify that documents are genuine. Requests for admission are generally used toward the end of the discovery process to settle uncontested issues and simply the trial.
Interrogatories – Interrogatories are written questions submitted to the opposing party during the divorce process. Interrogatories must be answered, truthfully, under penalty of perjury within 30 days. The opposing party may object to answering the questions if they feel they are arduous in nature and have no bearing on the case. Interrogatories should be straightforward, asking for information that would be readily available. Florida law permits divorce lawyers to add up to ten additional questions to the form Standard Family Law Interrogatories, most attorneys surprisingly do not do so.
Request for Production – A Request for Production is a request for documents from the opposing party that relate to issues in your divorce case. The “request for production” of documents must set forth the items to be inspected. You must describe the documents by individual item or by category. Below are samples of information or documents you can ask for:
•All written reports of each person whom you expect to call as an expert witness at trial.
•All documents upon which any expert witness you intend to call at trial relied to form an opinion.
•All written, recorded, or signed statements of any party, including both parties to the divorce, witnesses, investigators, friends, family members or employer of the parties concerning the subject matter of this divorce action.
•All photographs, videotapes or audio tapes, emails, surveys or other graphic representations of information concerning the subject matter of this divorce action.
Depositions – A deposition is, “An important tool used in pretrial discovery where one party questions the other party or a witness in the case. Often conducted in an attorney’s office, a deposition requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on a witness’s contradictory testimony or to refresh the memory of a suddenly forgetful witness. If a deposed witness is unavailable when the trial takes place — for example, if he or she has died — the deposition may be read to the judge in place of live testimony.”
Florida Mandated Court Submissions – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. Those documents include, but are not limited to, the following:
Notice of Social Security Number
Certificate of Mandatory Disclosures
Certificate of Completion of Child Parenting Class
Child Support Worksheet
Marital Settlement Agreement
Mediation – Meditation during divorce is a way of finding solutions to issues such as child custody and spousal support. It is an alternative to formal process of divorce court. During mediation, both parties to the divorce and their attorneys meet with a third party. This third party, the “mediator” assists the parties in negotiating a resolution to their divorce. Parties have the opportunity to discuss the issues, clear up any disagreements and come to an agreement that they both agree to. The mediator is an objective party. It is not his/her job to resolve problems or force an agreement on the parties. He/She helps the parties come to an agreement by acting as an intermediary. He/she may offer an opinion or make suggestions but, at no time are they allowed to force an agreement upon the parties. A mediator has no power and the sole function of a mediator is to facilitate settlement if possible. Proceedings are confidential. Mediation is required in Florida divorce cases before any hearing for temporary relief or trial. The benefits of settlement, with or without mediation, is saving substantial attorney fees and costs, eliminating the time and emotion of trial, and having a certain result of a settlement agreement, and not relying on the judge to make all decisions for both parties.
Trial – If mediation is unsuccessful, then trial is the only remaining option, unless the parties settle before trial. The problem with a late settlement is the cost of additional attorney fees and litigation costs. The judge will schedule a Pretrial Conference. Each attorney, under Florida law, is required to file a Pretrial Conference Statement which lists the lay witnesses, expert witnesses, documents anticipated to be introduced at trial, the stipulations (attorney agreements) to reduce unnecessary issues at trial, the estimated length of trial, etc. The judge will schedule the trial date (often 60-90 days after the Pretrial Conference). Typically, attorney fees for trial, including the preparation and attendance at trial, will be three to four times more than the attorney fees previously incurred.
A divorce trial is not to air all the dirty linen. It’s not a “She did, he did” drama, like a daytime soap. It is the standard legal way that contracts are examined, broken, changed, or ended, when the two parties to that contract can’t come to a decision. Marriage is a legally binding contract over which the State retains the right to rule whether or not it can be dissolved. It is a legal process.
The process is for each side to present to the court their demands, backed up by their documents and reasons for their demands. Of course there are “arguments” on both sides, i.e. reasons for the demands, presented both in writing and then orally by the attorneys representing the parties. But here is the most important point: A trial can be your best friend because the decisions made by the Judge are not arbitrary. He makes his decisions based on (A) The facts presented (B) The supporting documents provided, and (C) Case law that is already on the books, i.e. cases that have already happened over the years on which judges have ruled. At the completion of the trial, the judge will issue an Order on all of the issues of the case.
For more information on what I can expect in my divorce case, click here.