Articles Posted in Modification

It is important to know your rights following a divorce.  The final judgment of dissolution and the parenting plan determine the legal playing field for the future.  However, most issues are dynamic.  Children get older and their schools change and sometimes their relationship with parents change.  Incomes change, which can directly impact child support and people sometimes desire to relocate where child custody can be an issue.  There are a myriad of circumstances that should be re-evaluated following divorce. 

In Florida, the standard used to file an action to modify a final judgment is that a substantial change in circumstances occurred that was not anticipated at the time of entry of the final judgment.  It does not always make practical sense to file an action to modify a final judgment just because a party can do so.  The relationship that a party has with a former spouse is important, especially where children are involved.  Every time a party considers filing a supplemental petition (this is the instrument filed requesting modification of a final judgment), one should consider how such will impact their relationship with their former spouse and other legal consequences.  I frequently have parties coming to me that wish to file for a modification.  I typically find that they have only evaluated a part of the effect of seeking a modification.  For this reason, it is imperative that one review the ramifications of an action for modification with an experienced family law attorney.

Although a divorce is designed to deal with all of the legal issues concerning dissolution, the reality is that there are sometimes issues that are left unresolved.  On occasion there are assets that neither party put on their financial affidavits that require addressing post dissolution.  One example of such an issue involved a divorce of a long time married couple in which neither party included the child’s prepaid college fund account on their financial affidavit.  The fund was cashed out by the Father/Former Husband after the divorce without permission from the court or the Mother/Former Wife.  Since the asset was not listed on either party’s financial affidavit, the judge considered the asset marital property and ordered the Former Husband to pay back one half of the funds post dissolution.

For some, child support is an ongoing obligation that holds no light at the end of a long tunnel that can extend over 18 years.  Every situation is different and the answer as to when child support will end depends on your individual situation.  An experienced North Florida Family Law Attorney can review your circumstances and help you obtain the best result for you under the law.  

The answer to when child support ends is far from a black and white question in Florida.  Conceptually, child support is the right of each child.  Therefore, courts are reluctant to enter an order that does not provide for child support.  As a practicing Family Law Attorney, I have encountered many individuals that believe that parents can simply agree that child support will not be provided for in a final judgment of dissolution or paternity.  In Florida, a statutory guideline exists to determine what is presumptively reasonable for a parent to pay for child support.  The court can depart from the statutory amount by up to 5%, but there must be specific findings of fact enumerated in the order to justify any departure beyond the 5%, up or down.  

Under current law, when two or more children are provided for in a support order, that order must include provisions detailing when the support obligation terminates for each child.  There should be a modification of the income deduction order to reflect the changes.  There are circumstances that allow child support to continue past the age of 18.  If a child is still in high school at age 18 with a reasonable chance of graduating before age 19, child support may continue through graduation.  Where a child graduates high school prior to his or her 19th birthday, support ends at age 18.  If a child becoming an adult has a disability that would result in the child continuing to be a dependent, child support could continue indefinitely.  There are other less conventional reasons that child support might end, the death of a child, the emancipation of a child, or a situation where a child is earning enough money that no support is required (this would be a rare occasion, but there are numerous child stars that have earned more than their parents).  Under Florida Law, the only circumstance where one would be obligated to support a healthy adult child beyond the age of 19, would be where an Obligor agrees to such a duty in a contract (i.e. marital settlement agreement). 

There are cases where a non-custodial parent is unemployed and has little or no income.  Even a person with little or no income can still have an obligation to pay child support.  This is because a parent’s child support obligation can be calculated based upon his or her imputed income, as opposed to actual income.  Imputed income is income that the court determines an individual should be making with a reasonable effort.

When child support is calculated a number of factors are used to determine each party’s obligation.  The parents’ income, the number of children, and insurance expenses are the major elements in determining one’s obligation.   It is not infrequent that a parent will manipulate the system in an attempt to lower his or her income which is aimed at reducing that parent’s child support obligation.  This is accomplished in a number of ways.  People that own their own business have found numerous ways to receive what would otherwise be income through creative accounting.  One way that the court system counter’s this is through the use of imputed income.  Sometimes this involves imputing minimum wage.  Other times, it is much more complicated and a vocational evaluator may be used.  

Although unemployment can no doubt affect one’s income adversely, it may not necessarily affect his or her child support obligation.  The courts do not always use imputed income to determine one’s child support obligation.  Most situations where it is used involve a parent that is unemployed or underemployed voluntarily.  In my practice, I have primarily seen imputed income used where a parent is unemployed and the court will impute minimum wage.  There are situations in which much higher income has been attempted to be imputed.  In one divorce case with no children that I handled, a Wife of an attorney, requested a vocational evaluation to determine the attorney’s true earning capabilities.  A court will usually inquire as to why a parent is unemployed or underemployed and whether or not there is justification for it.  A case in which unemployment is caused by an accidental injury would be a likely example of one that may be justifiable.  A layoff or company downsizing could also account for why an Obligor is unemployed.  Trying to prove that someone is underemployed can be difficult and expensive.  One has to prove that there is work available and that the Obligor turned it down.  Most of the cases I have handled involving the Dept. of Revenue are examples of situations where it is impractical or not economically feasible for the Dept. of Revenue to pay to have a vocational evaluation.  One example of a recent case I came across where there is little doubt that a father has a legitimate excuse (arguably) for not working is where a father must stay home to care for a young child with Cerebral Palsy. 

Child support is essentially a payment from the higher income parent to the lower income parent.  Child support and timesharing have an interesting relationship.  The law values the child and parent relationship.  A parent’s right to timesharing is not dependent upon being current in child support.  It is a frequent mistake among individuals to assume that timesharing can be denied if an Obligor parent fails to keep up with his or her child support.  Such has no such relationship to Florida law.

Another misconception is that child support must go to the child specifically.  However, it is a general purpose reimbursement which covers the cost of living in a household with children.  The amount of child support paid by each parent is dependent upon the amount the Florida child support guidelines determine.  The number of overnights the child or children spend with each parent is one of the factors used to decide a parent’s child support under Florida’s guidelines.  There is a chart that is published within the Florida Statutes that shows the amount of child support a child is entitled to.

Florida law requires that generally, where there are minor children then child support should be paid.  The principle behind this general rule is that entitlement to support belongs to the children and parents cannot decide not to pay support.  There are situations in which a parent does not have a child support obligation.  In Florida, this must either be because the amount of support owed is very minimal, as determined by the guidelines, or the specific reasons must be enumerated in the child support order.  The law allows up to a 5% deviation from the guidelines without further enumeration.  Florida has a form known as a Child Support Guideline Worksheet which is required to be filed in every divorce and paternity case where child support is determined.  The guidelines account for some of the specific costs of supporting a child, such as health insurance and uncovered medical expenses.  As long as a parent is awarded at least 20 percent of the overnights, overnights are a specific factor used to determine a parent’s support.  Items like rent, electricity, water, and food are essential items that are not specifically accounted for in the guidelines.  Other items that are specifically accounted for under the guidelines are taxes, daycare, and medical costs.

That dreaded word in a divorce:  Alimony. Alimony is determined by the court after looking at one party’s actual need versus one party’s ability to pay. After equitable distribution is determined, the court reviews what money is left over, if anything, and considers the parties’ circumstances to come up with a fair award.  Some questions to answer:

  • Length of the marriage
  • Standard of living the parties are accustomed to

In Florida, divorces with children involved primarily focus on the parenting plan first.  The parenting plan determines numerous factors in raising your children and will be the document most referred to after the divorce is finalized.  It is important that the plan is tailored to you and your children and accounts for the best interest of the children.  Before filing for divorce, you should consider whether you would like to request one of the following:

  • Shared Parental Responsibility: Both parents confer and jointly make all major decisions affecting the welfare of the children, such as education, healthcare, etc.
  • Shared Parental Responsibility with Decision Making Authority: Both parents attempt to agree on major decisions, but one parent will have the ultimate decision-making authority.

When parties come to family court in Florida for paternity, dissolution of marriage, or child support proceedings, income of the parties can become very important in calculations and is examined closely. There may be certain situations where one parent is working overtime to make additional money, whether it be to pay support or to supplement income because of a lack of support being received. Can working overtime be a Child supportproblem in your family court case?

Florida Statute § 61.30(2)(a) indicates that gross income shall include, among other things, bonuses, commissions, allowances, overtime, tips, and other similar payments.  Child support will be calculated from net income, so it is important to get all allowable deductions as accurate as possible.  For purposes of child support, the court must impute income to a voluntarily unemployed or underemployed parent unless the lack of employment is the result of the parent’s physical incapacity or other circumstances beyond the parent’s control.  The court has to state the exact amount of gross income it is imputing to a parent. See Shrove v. Shrove, 724 So.2d 679 (Fla. 4thDCA 1999). Regular overtime or second-job income is included unless the court specifically finds that the opportunity to earn overtime will not be available as an income source in the future.  See Butler v. Brewster, 629 So.2d 1092 (Fla. 4th DCA 1994).

Therefore, it can be possible that overtime and second-job income can be used to calculate child support and the court won’t make a finding that the income source will not be available as an income source in the future, making child support higher or lower depending on the circumstances. Contact an experienced Jacksonville Family Law Attorney with the Law Office of David M. Goldman, PLLC for a consultation.

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.

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.

Changing Venue: Moving  Family Law Cases

One question we often receive from our family law clients is if they can change courts, also known as venue, when they move to a new area in Florida from the court where the marriage dissolution proceedings originally occurred to a more nearby court.

venue changeThe short answer to this question is yes. In family law, the courts in Florida always try to act in “best interests of the child.” This standard will be explained further in this article, but first lets explain exactly how the change in venue process would potentially work.

Before a spouse can change venue, it is important to understand where a family law proceeding can actually be brought. According to the Florida Statute 61.13, a family law case may be brought in “the circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered…” This usually means that venue will start in the court where the divorce was filed, and stay in this court for all related matters such as equitable distribution, alimony, parenting responsibility, child support, and all modifications.

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