Articles Posted in Uncategorized

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

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.

In Florida, the enhancement of value of a nonmarital asset could be declared by a divorce court to be a marital asset.  Most of the time you see this when one spouse’s nonmarital asset is alleged by the other spouse to be a marital asset.  If it cannot be declared a marital asset any other way, the court may look at enhancement of value of the nonmarital asset and award the other spouse an interest of that enhancement of value.  The Mitchell case illustrates this concept.

divorceIn Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2ndDCA 2003), the husband owned a Tampa Carrollwood home prior to the marriage and kept it titled in his name so it was nonmarital property.  The trial court found that the home had been enhanced due to marital funds and efforts. Typically, the enhancement in value of a nonmarital asset resulting from either party’s nonpassive efforts or the expenditure of marital funds is a marital asset.  The appellate court found that such enhancement in the Mitchell case was negligible.  They performed primarily cosmetic or maintenance-related improvements, such as wallpapering.  The most important factor in the increase in the value of the property was passive market appreciation, about 5 to 6 % annually.  This produced a market value of $185,000.  The appellate court found that where the increase in market value is attributable to inflation or “fortuitous market forces,” the expenditure of marital funds on the nonmarital asset does not transform the appreciated asset into marital property.  However, an increase in equity due to the use of marital funds to pay down a mortgage balance is a marital asset subject to equitable distribution.  The appellate court found that the wife’s interest in the home was limited to her one-half share of the amount by which the mortgage was reduced with marital payments.

The husband in Mitchell also had 41 acres of unimproved land in North Carolina that was solely titled in his name alone throughout the marriage.  The circuit court characterized the entire appreciation in the value of the nonmarital North Carolina property as a marital asset subject to equitable distribution despite the fact that the appreciation was entirely attributable to passive inflation.  As in the case of the Carrollwood home, this was error according to the appellate court.  It was undisputed that the property was unimproved.  It had no sewer, septic, electric, or water connections.  The record showed that the parties used marital funds to pay mortgage payments, taxes, and a road assessment fee. The increase in the husband’s equity due to the use of marital funds to pay down the mortgage was a marital asset to be divided between the parties. Otherwise, the North Carolina property was found to be husband’s nonmarital asset.

In some marriages, a spouse’s parents may supplement the family income with monetary gifts, which may be an issue later on if the husband and wife divorce.  Can one spouse argue that the other spouse will have higher income due to the monetary gifts from family members thereby raising alimony and child support payments?  According to Florida law, it depends.

SupportIn Oluwek v. Oluwek, 2 So.3d 1038 (Fla. 2ndDCA 2009), Jonathan Oluwek, the husband, appealed an amended final judgment of dissolution of his marriage to Linda Oluwek, the wife.  The trial court imputed $1500 per month contributed regularly by the husband’s parents to husband for alimony and child support.  The husband argued the trial court erroneously imputed the $1500 per month as income to the husband.  The record indicated his parents made regular monthly payments of $1500 over the last five years of marriage.

The Oluwek court held that as a general rule, the trial court may not consider financial assistance from family or friends in determining a party’s ability to pay alimony or child support.  However, there is an exception that allows the court to impute income based on gifts “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.”  In Vorcheimer v. Vorcheimer, 780 So. 2d 1018 (Fla. 4thDCA 2001), the appellate court held that the trial court erred by imputing $1500 to the husband as income where there was no evidence that the payments would continue. The $1500 payments had been made on a monthly basis for twelve years, but the husband’s father testified at trial that he had stopped making the monthly payments and would not make them in the future.  The court distinguished that case from Ordini v. Ordini, 701 So.2d 663 (Fla. 4thDCA 1997), in which regular monthly payments from the husband’s parents continued through trial and the husband’s mother testified that she would continue to make them in the future.

In Simmonds v. Perkins, No. SC17-1963 (Fla. 2018), the Florida Supreme Court decided to take up the question of whether a biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage, where the mother or her husband object to allowing such rebuttal.  The Court held that the biological father may rebut the presumption of legitimacy when he has “manifested a substantial and continuing concern” for the welfare of the child.  The presumption of legitimacy may be overcome by a “clear and compelling reason based primarily on the child’s best interests.”

fatherThis case involved the child’s mother, Treneka Simmonds, and biological father, Connor Perkins, and their daughter.  When Perkins and Simmonds were together, Perkins was never told Simmonds was married to a man named Shaquan Ferguson.  When Perkins did find out Simmonds was married, she told him she was married for “immigration purposes” and was going to get a divorce.  Perkins was there when the child was born, taken the child to the doctor, enrolled the child in daycare, and even had sole physical custody for awhile.  The child called him “daddy.”  Perkins’ mother is also know as her grandmother.

Perkins decided to file a petition to determine paternity, timesharing, and child support.  Simmonds moved to dismiss the action based on it being barred by the common law presumption of legitimacy because Simmonds was married to Ferguson.  Perkins then added Ferguson as an additional party, amended his petition to seek disestablishment of Ferguson’s paternity, and alleged it would be in the child’s best interests for him to be recognized as her legal father.  Ferguson also moved to dismiss under common law.  The trial court dismissed Perkins’ petition because of previous Fourth District precedent stating that the putative father cannot seek paternity when the child was born in an intact marriage and the married woman and her husband object.

In 2016, Angelina Jolie filed for divorce from Brad Pitt after he got into an altercation with his son Maddox on a plane that resulted in an FBI investigation.  You may have heard about the custody battle with their six children that has ensued.  Recently, a judge apparently ordered “new restrictions” regarding Angelina’s participation in how Brad interacts with the children.

Child custodyThe Judge wrote, “[The children] not having a relationship with their father is harmful to them.  It is critical that each of them have a healthy and strong relationship with their father and mother.”  The Judge also state, “If the minor children remain closed down to their father and depending on the circumstances surrounding this condition, it may result in a reduction of the time they spend with [Jolie] and may result in the Court ordering primary physical custody to [Pitt].”  The Judge created a visitation schedule for Brad to see his children over the summer with the children continuing to receive therapy.

It seems the Judge is trying to prevent parental alienation.  Parental alienation is the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members.  Check out 9 warning signs that parental alienation might be present here.

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.

giftThe 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.

1. Never Lie in Court

The very worst thing you can do is lie in court. Many people take liberties with the truth in a domestic case. In most cases the Family Law Judge has to decide a case based upon conflicting testimony from the parties. Help the court choose your side by telling the truth, the whole truth and nothing but the truth.

2. Never Lie to Your Lawyer

“Forum Shopping” occurs when a party attempts to choose a judge or court because they feel that judge or court will favor their position over the other party. This is looked down upon by the courts, but isn’t often addressed. There are strict rules when it comes to which judges have jurisdiction, but jurisdiction over a case can change if the parties relocate.

What used to happen a lot in Florida was situations where a child’s parent would move to a state far away from the other parent and take the child with them. This would force the non-moving parent to sell their home and quit their job if they were to have a good chance to get visitation rights with their child.

People complained to the Florida Legislature and to address the issue they proposed and passed Florida Statute 61.13001 which permits a judge to enter an injunction against a party moving move than 50 miles from the other parent. If court permission to move is not granted and a move still occurs, the court can order the return of the child to the jurisdiction.

As a Jacksonville Gay and Lesbian Estate Planning Lawyer it is satisfying to report positive actions that benefit the LGBT communities in Florida. The Volusia County Council just approved Central Florida’a first countywide domestic partnership registry. This registry will take effect July 1, 2012, and will extend legal protections to gay and lesbian families who reside in Volusia County.

Days ago, the City of Gulfport in Pinellas County also passed a domestic partnership registry. Domestic partnership registries give protections to same-sex couples and non-married couples that most heterosexual couples take for granted. Among these safeguards are: making medical decisions for an incapacitated partner, being notified in a life threatening emergency, hospital visitation rights and participating in the care of your “non-legal” children.

Bringing it closer to home, there will be Jacksonville City Council public hearing on Tuesday, May 22, 2012 at 5:00 to discuss the inclusion of gender identity and sexual orientation in the Jacksonville Human Rights Ordinance.

Contact Information