In a Florida divorce case, sometimes, a marital asset can become non-marital property of one spouse by contract.  Or one spouse can become the beneficial owner of marital property by transferring it to an irrevocable trust.

PropertyIn Nelson v. Nelson, 206 So.3d 818 (Fla. 2nd DCA 2016), a husband and wife transferred an out-of-state home to an irrevocable trust that had the wife as sole trustee.  The appellate court ruled that because the husband waived all right to alter, amend, modify, revoke, or terminate the trust, and the trust instrument did not contain a provision dissolving the trust upon divorce, the trust was irrevocable.  The court ruled that the out-of-state home was not marital property subject to equitable distribution in a divorce.  Neither the wife nor the beneficiary daughter had applied for modification or revocation of the trust, so the court could not dissolve the trust.

This case illustrates an example of how property can be classified in a divorce.  When the husband bought the out-of-state property and jointly titled it with his wife, the home became marital property.  When the husband transferred the home to the trust, it ceased being marital property and became non-marital.  In addition, the Nelson court cites to Hansen v. Bothe, 10 So.3d 213 (Fla. 2nd DCA 2009) regarding the Former Husband’s Trust instrument not containing a provision dissolving the Trust upon divorce.  In Hansen, the court held that divorce of husband and wife who were co-settlors and co-trustees of a revocable trust, did not terminate the trust even though wife relinquished any rights she had under the trust as part of the divorce.  The trust in Hansen contained no provision terminating it upon divorce of co-settlors, and the trust explicitly provided for replacement trustees in the event the original trustees ceased to serve.

Non-marital assets and liabilities are defined in Florida Family Law as 1) assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2) Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets; 3) All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset; 4) assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets.  See Fla. Stat. § 61.075(6)(b)(1-4).

In a dissolution of marriage case, the court must set apart each spouse’s non-marital assets and liabilities and marital assets and liabilities and must begin with the premise that the distribution should be equal absent justification for unequal distribution pursuant to factors under the statute.  See Fla. Stat. § 61.075(1).  Assets acquired before marriage are not marital assets and remain the property of the owner spouse in the absence of evidence of a gift or conveyance of the assets to the owner’s spouse.  See Moss v. Moss, 829 So.2d 302 (Fla. 5th DCA 2002); see also Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).  Essentially, the court in Horton v. Horton, 433 So.2d 1386 (Fla. 5th DCA 1983) stated:

“When a marriage partner brings his or her own property to the marriage and does not make a transfer of the asset or any portion of it to the spouse then that asset remains separate property.  Upon dissolution of the marriage the asset is still owned by the original owner.  Unless the asset, or a portion of it, is awarded as lump sum alimony then the court must recognize the proper ownership of the property and not take it from the owner.”

alimony taxesThe Tax Cuts and Jobs Act “TCJA” has a definite effect on alimony payments.  Prior to the new law, alimony payments could be deducted by the payer for federal income tax purposes and recipients had to report the payments as taxable income.  Any divorces finalized before December 31, 2018 will continue under the old tax law.  Any divorces finalized after December 32, 2018 apply under the TCJA eliminates the deduction for alimony payments and recipients no longer have to include them as taxable income.  In addition, any modification of alimony payments after December 31, 2018 shall be affected by the TCJA if the modification specifically states that the TCJA applies; meaning if the TCJA is ordered applicable by the Court.

Pre-2019 divorce orders for alimony still qualify under the old federal income tax law for a deduction benefit without having to itemize if all requirements are met.  Requirements include: 1) a written document is required the alimony payment; 2) payment must be to or on behalf of a spouse or ex-spouse; 3) the divorce decree or separation document cannot state the payment is not alimony; 4) ex-spouses cannot live in the same household or file jointly; 5) a payment must be made in cash or by cash equivalent; 6) cannot be deemed to be child support; 7) the taxpayer’s social security number must be included on the tax return; 8) the obligation to make payments ceases upon the recipient’s death.  See IRS Tax Topic No. 452.

Depending on your situation, you need to speak with an experienced Jacksonville family law attorney now.  If you will be making alimony payments, it is in your best interest to get a divorce wrapped up before December 31, 2018 so payments will be deductible.  If you will be receiving payments, it is in your best interest to put off finalizing your divorce until next year, so the payments will be tax free to you.  Contact the Law Office of David M. Goldman, PLLC for a consultation.

For sale signWhat happens to real estate or property that you jointly own when you get a divorce in Florida?  How does the Court handle your property when you and your spouse can’t agree on what to do?  How can it be distributed between you and your spouse?  In divorces, the court will partition your property absent an agreement as to the contrary.  Partition means simply “to divide into parts.”

The Court cannot order partition of your property without it being alleged in your dissolution of marriage petition.  Florida courts have long held that a judge may partition the jointly-owned property of the parties in a divorce action only if the due process requirements of Chapter 64, Florida Statutes, relating to partition are met.  See Sanders v. Sanders, 351 So.2d 1156 (Fla. 2nd DCA 1977).  The complaint for partition can be incorporated into a divorce petition and no separate filing is needed.  F.S. § 64.041 specifies that the complaint must allege a description of the property, the names and places of residence of the owners, and the share held by each owner.  The partition complaint must be filed in the county where the property is located.

Typically, the parties will agree on a real estate broker to list the property for sale at current fair market price and the parties will split the proceeds according to the parties’ interest in the property (taking into account the costs and expenses put into the property) unless an agreement is made for one party to refinance the home and pay the opposing party their share.  After a divorce, property automatically converts into a tenancy in common and each owner has the right to sell, lease, or mortgage their interest in property.  See F.S. § 689.15.

Child custodyWhen can you ask the Court for an emergency child pick-up order? If your ex-spouse or, if you have not been married, the other parent takes your child for timesharing and does not return the child, what can you do?  What are your options if the child is taken out of the State of Florida?

What is an emergency pick-up order?  An emergency pick-up order is an order signed by the Court that directs the sheriff or other law enforcement officer to take a child from the person who has physical possession of your child and deliver the child to your custody.  The process is started by filing an Emergency Verified Motion for Child Pick-Up Order.  You must attach a certified birth certificate if you are the birth mother of a child born out of wedlock and no court order of paternity exists.  If you have a judgment establishing paternity or a court order showing you have legal custody, you attach a certified copy to your motion.

Compliance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a must to ensure that Florida has jurisdiction.  See Fla. Stat. 61.514.  Florida must be the child’s home state within 6 months before the commencement of the proceeding.  The conditions in 61.514 specifically indicate under what circumstances the Court can take jurisdiction.

You may be tired of receiving child support or alimony payments late or not at all, and you would like to be paid directly from the employer of your ex-spouse or child’s father/mother.  Florida Statutes 61.1301 provides that an income deduction order can be entered once there is an order of alimony or child support by the court.  The income deduction order must be issued by separate order.

There is a federally approved and required Income Withholding Order “IWO” that will allow you to garnish income for child support and alimony.  See 42 U.S.C. 666, Social Security Act.  Arrearage of child support can be withheld also and the employer/income withholder is given instructions on how much to withhold until full payment is made.

moneyThere are very clear rules about the IWO, and an IWO may be rejected and delay payment if not completed properly.  The employer must reject the IWO and return to the sender if the IWO instructs the employer/income withholder to send a payment to an entity other than a state disbursement unit, which is a centralized facility for collections and disbursement of child support payments.  Another reason the IWO must be rejected is if the form does not contain all the necessary information to comply with the withholding.  The IWO must include a dollar amount as the amount to withhold and must include a copy of the underlying order.  In addition, the correct Office of Management and Budget “OMB” approved form must be used or it will be rejected.

travel service passportWhat do you do when you want a divorce but your spouse has left to go to a foreign country?  How do you serve your spouse with divorce papers?  It can be a very complex and scary process; even to a lot of lawyers.

To commence a divorce action, there must be personal service on a spouse, meaning that a copy of the petition may be served on your spouse by sheriff or certified process server at their usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.  The spouse may also be served at their employment in a private area designated by the employer after contacting the employer.  Service may also be made on a spouse doing business as a sole proprietorship at their place of business by serving the person in charge of the business at the time of service if 2 attempts to serve the owner have been made at the place of business.

International service of process is governed by the Hague Convention on the Service of Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Inter-American Service Convention “IASC,” with an Additional Protocol.  There are some countries who are not a part of the Hague Convention and special rules apply for these countries.

You may wonder how Florida courts make a decision on what is income and what is not in divorce cases.  In addition, you may wonder how business income is considered in divorce cases by the courts.  The case of Marchek v. Marchek, 159 So.3d 1025 (2nd DCA 2015) gives a great example of what can be considered income, especially when it comes to business income.  In this case, the husband appeals a final judgment of dissolution of marriage to his wife.  The court reversed an equalizer payment of $35,777 to the wife because there was not competent, substantial evidence supporting the court’s valuation of the business income.

business caculateThe husband was an electrician that owned an electrical contracting business where the wife worked handling much of the administration such as bookkeeping, payroll, and accounts receivable for a time.  As of the trial date, the business had a pending job for which it billed $100,000 and accounts receivable of $40,000, some of which stemmed from the pending job.

The problem was the $100,000 for the pending job was the gross amount for the job, NOT a net amount.  The $40,000 accounts receivable figure was the amount the business had already received including the $100,000 job and any others from that same year, and the figure was still only a gross amount, not a net amount.

It’s only natural that when a step parent has been a major father or mother figure in a child’s life that the subject of adoption comes up.  It makes official what has already been a reality for quite awhile.  How complicated is step parent adoption in Florida?

The step parent must consent to the adoption and the process is started by the step parent filing a sworn petition to adopt.  A copy of any judgment terminating parental rights or consents to the adoption from the parents must be attached.  If the child is over 12 years of age, a consent to the adoption may be attached.adoption

Under Chapter 63, Florida Statutes, consent of the parent is required but the court may waive the consent of:

Mother and childBeing served with a termination of parental rights petition is the first step to a complicated process in the state of Florida.  A termination of parental rights petition must include facts alleging that at least one of the grounds listed in F.S. 38.806 has been met and that granting the petition would be in the manifest best interests of the child or children as listed in F.S. 39.810.  No answer to the petition is required, but if you answer, the petitioner will need the court’s approval to amend their petition later.

Grounds for termination are as listed:

(1)      Voluntary surrender:  When you have signed a written surrender of their parental rights to the child(ren)

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