Gainesville Personal Injury, Divorce and Alimony Attorney

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01/10/2014
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Equitable Distribution the Division of Assets and Liabilities in a Divorce

In any divorce or dissolution of marriage, an area of great concern(s) is the division of assets and debts. In Florida, the law provides for an “equitable distribution” of marital assets and liabilities. While a divorce court must begin with the presumption that marital assets and liabilities are to be divided equally, the court may distribute the marital estate fairly or “equitably” instead. Fair is not always equal. Factors to be considered include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse.  Alimony is determined after equitable distribution.  

Assets may include cars, houses, retirement benefits such as a pension, IRA or 401(k), business interests, cash, stocks, bonds, bank accounts, promissory notes, personal property and other things of value. Debts include mortgages, car loans, credit card accounts and any money owed to third parties.

Assets and liabilities can be (1) nonmarital or (2) marital and some assets could be both. Generally, any asset or debt acquired during the marriage is considered marital and subject to equitable distribution. Any asset(s) or debt(s) that are considered nonmarital should be awarded to only one party. Examples of nonmarital assets are things like family furniture, heirlooms, or other inheritance. Whether a family business is a nonmarital asset or liability, depends on the totality of each individual circumstance.  The court generally approves of reasonable agreements; however, if the parties cannot agree, then the Court will decide the fate of any property or liabilities in a trial.

In all family matters, we perform a conflict check before setting a meeting and after consulting with one spouse, the firm could never consult with the other party or represent them in the dissolution. Therefore, the firm does charge a consultation fee in family cases. Please, click, call or fill out the form to begin the process. Any information gathered will be kept confidential.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Child Support, Incarceration and Imputed Income

When a parent is about to be or has been ordered child support and the paying parent is or is about to be incarcerated, then what? This is a common occurrence in divorce and paternity cases and like many things in family law, the answer depends on the facts of each case. There is a distinction in the case law between setting child support and supplemental petitions to modify child support.

There is a split in the districts as to whether child support can be set during incarceration. The answer differs when if the person paying child support lives in Gainesville or Ocala. The First District, which includes Gainesville and the rest of the Eighth Circuit has held that when setting child support, imputing income to an incarcerated parent is inappropriate. The First District contains the 1st, 2nd, 3rd, 4th, 8th and 14th Circuits) However, the Fifth District encompassing Ocala and the Fifth Circuit had held that does not serve to protect the child’s rights in their support and imputing income is appropriate. Both Districts have certified conflicts with each other but there has not been a resolving opinion as of the typing of this blog.

The Florida Supreme Court resolved the conflict regarding modifications of child support already ordered by establishing a procedure to deal with the problem. First, upon the filing of a Supplemental Petition for Modification of Child Support by an incarcerated parent the arrearages no longer are vested to the recipient. Therefore, a Petition should be filed as soon as possible, since money owed prior to the filing of the action to modify are vested and cannot be changed by the Court. Then, the trial is to place the petition in abeyance until the obligor parent’s release. Once the parent is released from incarceration, the trial court would hear the modification petition, taking into account numerous factors, including any additional considerations even taking into consideration if the crime was motivated to evade a child support obligation. The Supreme Court of Florida also specifically rejected a per se rule that would permit incarceration to be utilized as a basis to modify support, calling that “tantamount to authorizing a suspension or abatement” which they did not want.

Issues in family cases including child support can be much more complex than just using the formula to calculate support. A lawyer can assist in the process. We do charge a consultation fee in family cases, that means that we could never consult with the opposing party on the same issues and will perform a conflict check prior to setting a consultation. To get the process started, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Alimony / Spousal Support in a Florida Divorce

In some divorce cases, alimony can be awarded to a former spouse that is in need of spousal support if the paying spouse has the ability to pay. Alimony is considered after equitable distribution. The court may grant alimony to either spouse. The requesting spouse must demonstrate a need for alimony and the ability of the other spouse to pay alimony.

The need and ability to pay are developed through the discovery process. Each party to a divorce has an ongoing discovery obligation and the right to obtain information about the opposing spouse’s income, assets, debts and relative financial circumstance.

Florida divorce law provides for rebuttable presumptions concerning the length of the marriage for purposes of determining alimony. A short-term marriage is a marriage of less than 7 years, a moderate-term marriage is a marriage lasting greater than 7 years but less than 17 years, and a long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of a Petition for Dissolution of Marriage.

The divorce court will analyze the relevant factors to determine the proper type, duration and amount of alimony. There are four (4) types of alimony.

“Bridge-the-gap” alimony is to assist the receiving spouse transition from being married to being single and addresses short-term needs. There are limits as to the length and conditions of a bridge-the-gap alimony award.

“Rehabilitative” alimony is awarded to assist a spouse in establishing self-support through education, training or work experience to develop employment skills or credentials. Rehabilitative alimony requires a specific rehabilitative plan that places expectations upon the alimony recipient.

“Durational” alimony is when permanent periodic alimony is inappropriate and lasts for a determined period of time following a short or moderate term marriage or a long term marriage when there is no ongoing need for permanent support. There are limitations as to the period of time and modifications of an award of durational alimony.

“Permanent” alimony provides for the needs and to some extent the lifestyle established during the marriage. The recipient should lack the financial ability to meet the necessities of life following a dissolution of marriage. There are limits as to when a court awards permanent periodic alimony.

There is no formula and every case is unique unto itself. Everyone has rights and should know them and use them. To hire a divorce and alimony attorney, please click, call or fill out the form. We will ensure there are no conflicts and charge a consultation fee prior to meeting with a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Divorce, Retirement Pension – Purchase of Premarital Years.

In divorces, a large asset for most people is their retirement or pension. A pension or retirement account is likely a marital asset that has to be divided by the divorce court. If a spouse began saving for retirement before the marriage, or if it is a second or subsequent divorce, then all of the pension may not be a part of the marital estate.

In a recent case, the Husband attempted to argue that a portion of his civil service retirement was nonmarital. Unfortunately, he had cashed out his retirement benefits and then began contributing to retirement savings again. That means that the he made the asset marital. The husband then purchased the rights to have past years counted but did so using marital funds. The couple utilized “marital funds based on the parties’ joint decision to make 8 years of installment payments because it would be better for the couple financially in the future.”

In Florida, there is a presumption that assets acquired during the marriage are marital assets and subject to equitable distribution. A party claiming that an asset acquired during the marriage is nonmarital, bears the burden of overcoming the presumption. Property acquired during a marriage is considered marital property until proven otherwise.

According to the Court, there was no Florida divorce case law on the specific point of purchasing credit for premarital retirement years, using marital funds. The Court wrote, like most states having considered the issue, that when marital funds are used to purchase credit for premarital years of employment, the enhanced value to the pension plan is marital. Using marital funds to purchase any item, including retirement benefit, makes that item a marital asset. According to the Court, New York and California have reached the opposite result.

In any divorce, a lawyer can help guide through the process. If assistance is needed determining how to split retirement assets, then please click, call or fill out the form to start or continue the process with a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Family Law – Child Support Enforcement & Spendthrift Trusts

In family law, whether divorce or paternity, once there is an order of child support, the next problem for some is collecting said support payments. Enforcement of child support can be especially difficult when the obligor has no assets, hidden assets or protected assets. One way to protect assets from being depleted is by having a spendthrift trust that restricts the way that funds that are distributed can be used. 

A spendthrift trust usually provides the beneficiary with income while maintaining eligibility for public assistance; it restrains both voluntary and involuntary transfer of a beneficiary’s interest. Just enough money is distributed to allow the beneficiary to stay dependent on the government. What if the beneficiary of a spendthrift owes back child support?

Under Federal law, a beneficiary of a spendthrift trust is not disqualified or deemed ineligible for medical assistance to the extent that assets are transferred to the individual’s child. Furthermore, under Florida law, there is an explicit exception to a spendthrift provision. Therefore, even though a spendthrift trust may not be forced to make distributions, any discretionary distributions are subject to garnishment. Nothing prohibits a former spouse or a co-parent from obtaining a writ of garnishment against discretionary disbursements made by a trustee. However, garnishment of a spendthrift trust should only be used as a last resort when all other traditional remedies have been exhausted and are ineffective.

Whether the family needs assistance in prosecuting or defending a spendthrift trust or child support we can help. Please click, call or fill out the form to begin.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Even in Divorce Words Mean Things – “A” Prenuptial Agreement

In divorce or dissolution of marriage cases, if there are any prenuptial or postnuptial agreements, the Court will have to decide the validity of the agreements but may also have to interpret the meaning. Prenuptial or postnuptial agreements are interpreted using contract law principles because they are contracts by another name. 

In any contract litigation, words mean things, but the meaning could be different to each side of the litigation. In a recent case, the tiniest word had a great impact. In an appeal from a declaratory action interpreting a prenuptial agreement, the word “a,” meant the difference of a million and a half dollars in alimony to the Wife.

The prenuptial agreement in that case created a schedule of alimony that was fixed upon the filing of “a” Petition for Dissolution of Marriage (Divorce in Florida). The Wife filed a Petition at seven years of marriage, but the Husband was not served. The Wife voluntarily dismissed the divorce. Then, the Wife filed for divorce again at year ten. At issue was whether the alimony would be fixed at the year seven or year ten amount. Both sides argued the agreement was perfectly clear and meant the interpretation they proposed.

While the trial court agreed with the Wife and chose year ten, that ruling was overturned on appeal. The Appeal Court held that the filing of the first petition was the fixing moment.  The Court used an interesting analogy.  A rule in golf that “when a thunderstorm approaches, you must end your golf game, would be universally understood to mean the first time a thunderstorm approaches. Certainly, more than one storm might come and go throughout the day, but the rule would make little sense if it were construed to mean whichever storm the golfer chooses, so long as the game is ended.”

Divorce and Family law can be stormy.  The lesson here is to read, read and re-read the agreements and then read them out loud with your lawyer and talk about potential discrepancies before the agreement is finalized and litigated. Once a prenuptial or postnuptial agreement is signed and put away for ten years, there are no more chances for the parties to clarify meanings and a judge may decide the fate of the agreement. For assistance drafting or litigating a prenuptial agreement or postnuptial agreement please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Divorce and Tax Treatment of Alimony

In divorce or dissolution of marriage cases, the tax treatment of alimony or spousal support changed radically at the end of 2018. These changes will affect all cases where alimony is agreed to, or ordered by the Family Court. Effective January 1, 2019, the changes to the tax treatment of alimony have turned upside down the historical tax treatment of alimony. 

Previously, alimony was a tax deduction, reducing taxable income for the payor. The receiving party was taxed on the alimony which was treated as income. Beginning in 2019, alimony payments are NOT a deduction for the payor and NOT taxable to the recipient. The change only applies into the future and does not affect the tax treatment of alimony for divorces that were final on or before December 31, 2018 or to individuals who have already been ordered to pay or receive alimony.

This of course means that payors will be liable for a lot more taxes. For example, if alimony payments are $1,000 per month or $12,000 per year, then at a highest marginal tax rate of 1/3 the payor will still owe $4,000 in taxes whereas if the divorce were final before December 31, 2018, the payor would have lowered taxable income by $12,000 and lowered the tax liability by $4,000. In this example, in 2019, the payor will be out of pocket $16,000 instead of less than $12,000 after any tax savings but, the government will have collected $4,000 instead of potentially nothing.

In general, paying alimony means that the court found an ability to pay (high income) and a corresponding need for alimony (low income). Payors usually pay a much higher rate of tax than recipients. This change will mean more money in the government coffers and less money in the pockets of families. This will probably have the effect of lowering alimony payments that parties are willing to agree to pay and that courts are willing to order.

Whether you are being asked to pay alimony or seeking alimony payments, you should have a lawyer to guide you through the process. Please click or call to hire a divorce lawyer. A consultation fee is charged in family matters.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Florida’s Equitable Distribution in Divorce – dividing property

In a proceeding for divorce, called dissolution of marriage in Florida, a substantial issue is the division of property owned by the spouses. First a divorce court will identify and separate each spouse’s marital and nonmarital assets and liabilities. Identification of assets and liabilities as marital or nonmarital is therefore very important because, only marital assets and liabilities are subject to distribution in a dissolution action. 

Under current Florida divorce and family law, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution. The burden is on the person advocating for an unequal distribution to prove entitlement to the unequal distribution. A court should consider many factors in determining equitable distribution within a dissolution matter.

Factors include any contribution(s) to the marriage by each spouse, including the care and education of the children and services as homemaker, the economic circumstances of the parties, the duration of the marriage, and interruptions of careers, educational or other opportunities, contributions to the personal career or educational opportunity of the other spouse. In addition, a divorce court should consider the desirability of keeping assets intact such as a business, professional practice, or the marital home as a residence for dependent children. Furthermore, a court should consider the contribution(s) of each spouse to the acquisition, improvement, production of income or the incurring or burdening of liabilities to both the marital assets and the nonmarital assets. A family court should also look to any evidence of intentional dissipation, waste, depletion, or destruction of marital assets within two (2) years prior to the filing of the petition. There is also a catch-all clause in Florida family that allows the court to consider “[a]ny other factors necessary to do equity and justice between the parties.”

Because dissolution of marriage or divorce is a civil case, a person is not entitled to have a lawyer appointed. If an attorney is desired, then an attorney must be hired. In all family matters, any law firm should perform a conflict check before you set a meeting; we should too. After consulting with one spouse, the firm could never consult with the other party or represent them. Therefore, the firm does charge a consultation fee in family cases. Please, click, call or fill out the form to begin the process of hiring an attorney. Any information gathered will be kept confidential.

Gainesville (352) 371-9141

Ocala (352) 694-4529

INFANT DEATH STUDY: UNSAFE SLEEP PRACTICES AMONG BABYSITTERS, RELATIVES, OTHERS

Parents of newborns are often quick to rely on their own parents and relatives for babysitting help. It is easy to assume that since your parents raised you they must be qualified to babysit your infant, perhaps even more qualified than a professional childcare provider.  However, at least one study indicates in some instances this may not be the case and may lead to deadly results. Recent evidence from University of Virginia School of Medicine found that 1,375 out of 10,000 infant deaths occurred when a parent was not present. Digging deeper into the research showed that babies who were not in the presence of their primary caregivers were more likely to be placed in unsafe sleep environments or positions. What constitutes an unsafe sleep environment is an area with toys or soft bedding. As for positions, the American Academy of Pediatrics has urged families to lay infants down on their backs since the Safe to Sleep initiative began in 1994.  Since the implementing of this program, death by sudden infant death syndrome (SIDS) has declined by over fifty percent. However, the research from the University of Virginia showed that baby sitters, relatives, and other caregivers may not be aware of the importance of sleep position or environment for preventing SIDS. The lowest compliance for placing infants in either a bassinet or crib, the recommended sleep environment, by type of caregiver, was with relatives at 29.4 percent and friends at 27.1 percent. Nearly three quarters, 72.5 percent, of licensed child care providers placed infants in the bassinets. When it came to laying the baby on their back for sleep, 54.1 percent of childcare providers were compliant whereas only roughly 38 percent of relatives, friends, and babysitters followed suit. This disparity may be a result of parents not relaying the doctor’s recommendations to their caregivers, or a refusal of the caregiver to abandon their way of caring for infants. The reasoning for why friends and families may not practice the safest sleep patterns for infants isn’t clear, but the moral of the story is—it’s important to talk to anyone who is watching your infant about safe sleep practices.

I am divorced. Who makes medical decisions for my child?

It is not unusual for married parents to disagree regarding decisions affecting the lives of their children, much less divorced or unmarried parents.  After school activities, sports, choice of day care, and even whether their child can dye their hair the color blue are just some examples.  The divisiveness can reach an unmanageable level when the parents are divorced or no longer together. While a child probably will not experience long lasting repercussions if they cannot dye their hair, there is one area where a parental disagreement can have a serious effect: medical treatment. It is inevitable and unfortunate, but, children get hurt or sick and need to receive medical treatment. A disagreement on the approach parents take to certain treatment of their child could permanently alter their lives.

There are actually two important categories of medical treatment when considering the topic with separated parents: emergency and non-emergency. For good reason, there are different considerations that medical professionals have to ponder when a child needs emergency medical treatment. When time is of the essence, a doctor should obviously not have to wait for approval from both parents (or in many cases even one parent) to conduct emergency medical treatment, considering the parents may be difficult to reach or extraordinarily defiant of their ex-partner. However, as you will read more about below, this has not been the case for non-emergency medical treatment, until recently.

Fortunately, in most instances, a Parenting Plan which is now required in child custody cases, should cover such issues as parental responsibility for non- emergency medical decisions and cost sharing. If so, you just follow the directives as set out in the Plan which can allow either to make the decision individually or only one parent, depending on the ruling previously entered by the court.

However, if you do not have a Parenting Plan for a child (which can occur for a variety of reason) Florida law will take over.  Throughout the state’s history, it has been customary for both parents to be required to consent to non-emergency medical treatment for their child. This is based on the idea that, barring a prior award by a court of medical decision making to only one parent, the decision should be just like every other decision parents make for their child—a shared one.

However, last year a Florida court, albeit not in a case about child custody, came to a different conclusion by finding one parent could consent to a non-emergency medical treatment. The rational was quite simple: medical professionals should not be put in the “untenable” position of being forced to act as the mediator or referee between the two parents regarding a dispute over a procedure. Thus, there is now a foundation for one parent to consent to a non-emergency medical treatment. Now, does that mean all medical professionals will proceed with a procedure without consent from both parents? No, hospitals and medical offices have their own procedures that they follow. Yet this case does signal a change and a trend towards a more singular consent system. As a result, the area of consent for medical treatment post-divorce or for unmarried parents is currently murky.  If you need assistance in this area, you should hire an experienced family law attorney.