Premarital Agreements

November 5, 2021

Who Gets the Home in a Florida Divorce?

The marital home is frequently the largest asset between the parties to be divided in a divorce. When and how the marital home was acquired will be a major factor in determining who gets the marital home temporarily and permanently.

What is Exclusive Use and Possession?

Exclusive use and possession refers to one party receiving permission to use the home for their own purposes. Conditions are frequently provided for, as well. A frequent condition to receiving exclusive use and possession of a home is typically connected with paying the mortgage or other household bills. This sometimes occurs initially after holding a temporary needs hearing or a domestic violence injunction hearing. The most expedient, but not necessarily recommended way that a spouse can obtain exclusive use and possession of a home is through a domestic violence case. Using a domestic violence case to obtain exclusive use and possession should only be pursued when it involves a Petitioner that has been the victim of domestic violence. In other words, a petition for injunction should only be filed when actually necessary to stop or prevent violence. Where domestic violence is not an issue, a temporary needs hearing would be the best vehicle to obtain a temporary order to decide who stays in the home temporarily. The author has seen a number of occasions where both parties shared the home while they waited for a final hearing because neither party had a good option to leave. This is not recommended, as it is natural for hostility to build between two partis going through a divorce.

October 11, 2021

In Florida, Does a Child Support Obligation Have a Statute of Limitations?

by Neil Weinreb

What is a Statute of Limitations?

The term “Statute of Limitations” refers to a law that limits the period for which one may file a lawsuit. This time period will typically vary by state and the type of suit that is being filed. For instance, the period of time for filing suit for a wrongful death claim may be different from the period of time one has to file for a trespass suit. Federal law normally controls Statute of Limitations Periods for cases decided based upon federal law.

How Far Back Can One Be Assessed in Determining Child Support?

December 29, 2020

DISESTABLISHING PATERNITY AND TERMINATING CHILD SUPPORT

by Neil Weinreb

Few people want to accept responsibility for a lifelong obligation that they were not responsible for. There is more than one way under Florida law to create a parental relationship with a child. Not all relationships in today’s society follow the model that involved a two parent family whereby the husband was the bread winner and the wife was a stay at home mother. Today, the norm has changed, and single parent households are much more commonplace than they were traditionally.

There are a number of ways that paternity can be established. When a woman is married and she becomes pregnant, there is a legal presumption that the husband is the father. This is true even where the husband could not physically have impregnated the wife. Section 742.10 of the Florida Statutes covers all of the ways that paternity of a child can be established. In short, paternity can be established when a married woman has a child, by consent, by court order, or by the legal father signing the birth certificate and notarized documents admitting paternity.

When a woman has a child out of wedlock and applies for governmental assistance, she may find that the agency or agencies she is applying through will require her to participate in a legal proceeding to establish the paternity of the child. In part, this is because the government wants to make the father responsible for supporting the child. Both parents are responsible for their child and a father or mother can be required to support their child until they reach majority. In some rare cases, they may have legal responsibility beyond the age of majority. The author of this article has handled numerous child support cases over the last 16 years and he has seen some people have their lives wrecked after they were required to pay child support (an Obligor). When an Obligor discovers that the child they are supporting is not theirs, disestablishing paternity may be an option for them. Although disestablishing paternity will terminate an ongoing support obligation, it will not extinguish any child support obligation which has accrued. Even when disestablishing paternity is successful, an otherwise Obligor may still have to pay a large arrearage.

June 30, 2020

Do You Need A Prenuptial Agreement?

by Neil Weinreb

There may be some negative stereotypes that are associated with Prenuptial Agreements. Typically, neither party wants to detract from the blissful atmosphere typical prior to a wedding. However, a Prenuptial Agreement can also help preserve a marriage. This is because there is certainty as to how things will terminate should the marriage not last.

The thought alone of creating a prenuptial agreement can cast a negative light upon a wedding. To some, the contemplation of a prenuptial places a negative light upon wedding preparations and the future of the relationship. Having to plan for divorce is an admission that a relationship is not permanent. That said, it is far better to deal with the details of how a relationship is going to end (should it end) while a couple is reasonable and loving compared with being negatively affected by the hostilities and uncertainties of divorce.

In Florida, there are several types of alimony that courts may consider. There are factors that affect the amount of alimony that can be provided for such as, length of a marriage, the equality of earning ability between the spouses, and the assets that a court must divide. Florida law creates a rebuttable presumption against permanent alimony when a marriage is 7 years or less, which under the Florida Statutes is defined as a short term marriage. However, there is a rebuttable presumption for permanent alimony awards in marriages that are long term (greater than 17 years). Moderate term marriages are defined as between 7 and 17 years and no presumption exists.

June 14, 2020

Is An Uncontested Divorce In Your Best Interest?

by Neil Weinreb

An uncontested divorce is a proceeding to return two married persons to the status of being single in which all of the details of the divorce are reached with an out of court agreement. As a practicing family law attorney for more than 15 years, it is my opinion that overly optimistic litigants frequently find that an uncontested divorce may be more difficult to achieve than first thought. Sometimes both spouses agree that a divorce is the correct thing to do in their circumstances. If a couple contemplating a divorce can agree on all of the important issues then an uncontested divorce will typically benefit the family. The critical issues that people spend the most effort fighting about are child custody, child support, spousal support, and property distribution.

Litigants sometimes find that dealing with the mechanics of settlement are challenging when they attempt to memorialize their intentions in writing. The process of getting to a consented to outcome involves some negotiation in most cases. A self-represented individual will benefit substantially by consulting with a qualified family law attorney prior to signing a marital settlement agreement or a consented to final judgment. This author believes that people are much more likely to honor orders created by negotiation, as opposed to orders emanating from a contested final hearing before a judge. A litigant that is being guided by qualified counsel is more likely to negotiate a favorable outcome over a Pro Se Litigant, since an understanding of the legal issues is necessary to negotiate knowledgeably.

Many of the issues that one has to deal with during a divorce are complex when dealing with custody and financial issues. Parties that are able to amicably settle their divorce in writing typically have fewer post judgment problems. Prior to negotiating a marital settlement agreement, it is important to consult with an experienced family law attorney to help draft the legal documents required to accurately reflect the agreement.

June 5, 2020

In Florida, When Does Child Support End?

by Neil Weinreb

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 19^th 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).

May 22, 2020

What Can Happen When a Parent Violates a Parenting Plan?

by Neil Weinreb

Florida requires parents who are divorcing or are subject to a paternity action to have a parenting plan in place. A parenting plan can be agreed to or simply entered by the court. However, once the plan is entered into the court as an order, it is enforceable through the court system. Violations of parenting plans can be insignificant, or they can lead to great interference with the rights of a parent and a child.

In Florida, timesharing is taken into account in calculating child support for a parent that exercises at least twenty percent of the overnights with a child. Florida’s child support guidelines specifically account for such. However, not every parent takes advantage of all of the overnights that they are awarded. Normally, you cannot retroactively adjust child support. However, failure for a parent to exercise substantial timesharing can have a serious economic impact on that parent, as the Florida Statutes authorize retroactive adjustments.

A parent’s failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule. F.S. 61.30(11)(C).

November 7, 2018

What to Consider Regarding Equitable Distribution in Florida

by David M. Goldman

Divorces in Florida typically split the parties’ assets and liabilities down the middle as much as possible. Determining what is a marital asset or liability or a non-marital asset or liability can be key to whether an asset or liability will be considered in the calculations. Before filing for divorce, you should consider the following items when thinking about equitable distribution:

Previous Inheritance
Marital Home

June 28, 2018

Rudy Giuliani Divorce: Why Asset Protection is So Important Prior to Marriage

by David M. Goldman

Former New York City Mayor Rudy Giuliani and his third wife, Judith, are currently involved in a heated divorce. A day after filing for divorce on April 4, 2018, the parties filed for each other to produce a statement of net worth to determine assets. The Giulianis have been married for 15 years and they do not have a prenuptial agreement.

In 2007, when Rudy Giuliani submitted his financial disclosure to the Federal Election Commission while running for president, he was worth an estimated $30 million. The couple own properties in Manhattan and Palm Beach, Florida. It is estimated that there is currently an estimated $60 million in assets at stake. When he married Judith, Rudy was pretty much insolvent and the money he has now was earned while he was married to Judith. New York is a separate property state, but her participation in his success could be a factor for the assets to be split 50/50.

In Florida, mandatory disclosure applies so the Giulianis would not need to file for a statement of net worth. Mandatory Disclosure is the procedure where financial information is automatically disclosed by the parties upon the filing of a divorce. The parties must exchange financial information in the form of a financial affidavit and additional documents such as tax returns, bank statements, credit card statements, deeds, vehicle titles, insurance policies, etc. Mandatory disclosure must be completed within 45 days after service on the respondent.

May 17, 2018

Lessons to be Learned Regarding Interspousal Gifts During a Marriage

by David M. Goldman

The Florida Supreme Court, on March 30, 2017, issued an opinion in Hooker v. Hooker, 220 So.3d 397 (Fla. 2017) finding a Florida horse farm and a New York summer home interspousal gifts and, therefore, subject to equitable distribution as marital property despite a prenuptial agreement in existence. The prenuptial agreement provided that, upon divorce, each party would retain his or her premarital assets and any appreciation of those assets. Both parties had independent sources of income from family inheritances and they maintained separate finances throughout the marriage. The parties were married for 23 years.

The Florida horse farm, “Hickstead,” was purchased in 1989 and the Hickstead deed listed “Alice I. Hooker Trust FBO, for the benefit of, Timothy I. Hooker” as the grantee. Husband and Wife signed the mortgage on Hickstead. When Hickstead was purchased, it was vacant land and it later became through the course of the marriage a working horse farm with 16 stalls, etc. and the marital home in one wing upstairs and the other wing was the staff apartment. Wife was “extremely and directly involved in all aspects of the Hickstead residence which was the family’s primary home for approximately 20 years,” according to the findings of the trial court. Wife was not limited or restricted in any way from incurring the costs and expenses of maintaining and operating a family home at Hickstead, from the Husband’s assets. Wife was provided unfettered access to the stables and horses to pursue her lifelong passion.

The New York summer home, “Lake George,” was purchased in 1997 and was titled only in the Husband’s name and only Husband signed the mortgage. It was purchased, built and maintained as a summer residence for the family. The Husband paid the expenses for Lake George with his independent funds and Wife was never a signatory on that account and never had access to that account. However, the Husband sent Wife a card for their tenth wedding anniversary with a picture of the property after the Wife had expressed a desire to have a home up north and both parties searched for a suitable property.