15 YEARS IN BUSINESS!

I can hardly beleive that 15 years ago this week I opened my law office.  I cannot even remember all the changes since then.  However, some do stick out in my mind.  For example, my Husband and I welcomed 2 beautiful additions to our family in the intervening years.  We moved the office from our first location on West Bay to our current home on Seminole Blvd.  And the economy, well, collapsed.  When I opened my office I had a total of 8 files.  Since then I have the opportunity to represent hundreds of people.  I am so grateful for the chance to contribute to my family, my community and my profession all these years.

Minor Child Passport Application Requirements

Under the two parent consent law, as amended in 2008, and as implemented by the United States Department of State, both parents are required to consent to the passport application for a minor U.S. citizen under the age of 16. In the alternative, the applying parent must document his or her sole authority to obtain a passport by producing one of the following: (a) evidence of sole custody, (b) a court order allowing the parent to travel with the child, or (c) notarized written consent of the other parent or written statement explaining why the non-applying parent’s consent cannot be obtained. The minor child must appear in person when applying for the passport. This law in practice is designed to decrease the likelihood that a U.S. passport would be used to facilitate an international parental child abduction.

Will the Court Credit a Spouse for Money Borrowed During the Divorce Proceeding?

The answer is maybe and maybe. Our district court looked at this issue is the case of Stock v. Stock, 693 So.2d 1080, 1086 (Fla. 2d DCA 1997) and found that "the reimbursement or credit for a party's payment of marital property-related expenses during separation is a matter of judicial discretion in light of all relevant circumstances." The First District Court of Appeal recently relied on this holding in Fashingbauer v. Fashingbauer, 19 So. 3d 401 (Fla. 1st DCA 2009). The issue depends on the answer to (1) what the money was borrowed for and (2) the Judge's discretion depending on the unique facts of that specific case. Marital and family law is, by its nature, very fact intensive which is why case law can serve as a guide but cannot always answer the specific question in your case.

Are too many children prosecuted as adults?

Currently local prosecutors have discretion as to whether or not to prosecute a child charged with a crime as an adult in certain instances. The Florida Bar's Legal Needs of Children Committee recently issued its report and recommended that Judges make all transfer decisions rather than the current practice. This report comes after a noticeable increase in the number of children prosecuted in adult court. The other issue noted in their report was whether or not coercive pleas are taken. The example observed is that a child may given the choice between pleading guilty and serving 9-18 months in juvenile detention or be prosecuted as an adult facing a life sentence and wait about 18 months in jail for trial in the interim. While being tough on crime is clearly a popular sentiment the question remains whether it is helpful or appropriate to push so many juveniles into the adult system. Unfortunately in our office we often see children acting out and sometimes getting into trouble with the law when the parents are in high conflict. Reducing that conflict so that parents are able to effectively co-parent not only benefits the parents but also the children and our society.

Changes made to Income Deduction Orders

The statutory changes recently enacted by the Florida Legislature require certain additional findings to be set forth in Income Deduction Orders (IDOs). IDOs are the Orders that require employers to withhold income from an employee's pay when that employee owes a child support and/or alimony obligation. Back in 1998 IDOs were statutorily required in all cases involving child support. The new changes in the law require that the end date for child support be set forth specifically in the IDO. The changes also require that in cases where there is more than 1 child the IDO set forth the specific date when child support shall be reduced due to an older child being an adult; the new reduced amount of support must be listed also. Today the Florida Supreme Court issued a proposed form to help us all comply with the new statute.

Major Changes Made to Alimony and Child Support Statutes

This past session the Florida Legislature passed major legislation that makes substantive changes to Florida's alimony and child support laws. Governor Crist has signed the bill which becomes effective later this year. An overview of the changes are as follows:

(1) Creates a new type of alimony called "durational alimony;"
(2) Changes the threshold for triggering substantial time-sharing (which generally greatly reduces child support paid);
(3) Mandates certain findings of fact related to unallocated child support for multiple children;
(4) Establishes very specific requirements to impute income to a parent;
(5) Addresses poverty guidelines;
(6) Makes changes in the adoption laws; and,
(7) Addresses assignment of time-sharing by military personnel.

Are Private Disability Insurance Policy Payments Marital Property?

Our Second District Court of Appeals looked at that issue in the Gibbons case decided last month. See Gibbons v. Gibbons, 10 So. 3d 127, (Fla. 2d DCA 2010). In that case the Husband who had been an attorney became disabled prior to the filing of the divorce action. As a result of his disability he received payments from 3 disability insurance policies he purchased and paid for during the marriage. One of the policies ended payments when he reached the age of 65 while the other 2 policies did not. The 2 other policies continued payment with no set end date as long as the Husband remained disabled. The Wife argued at trial that since the Husband would be receiving payment from the 2 policies after he reached the age of 65 the payments were akin to retirement payments and therefore subject to equitable distribution. The lower agreed with her and awarded her 1/2 the value of the 2 policies in question.

The appellate court disagreed and reversed the trial court's decision. The appellate court held that there was no evidence that the payments made to the Husband after age 65 contained a retirement component and were subject to the condition that he remained disabled; therefore the payments was the Husband's separate income and not subject to division.

Proposed Budget Cuts for Clerk of Court

I recently received a notice from Ken Burke, the Clerk of Court for Pinellas County, advising of a bill pending in the Florida Legislature to dramatically cut funding to the Clerks' offices. Though I do not remember the precise amount of the budget cut Mr. Burke did advise that last year due to budget cuts the Clerk's office laid off approximately 28 people and if this bill passes the cuts this year will have to be twice as much. I recognize the financial constraints we are all under these days including our government. Cuts seem to be the foregone conclusion. Though it is clearly sad for the employees who may get a pink slip the public using the civil court system will also suffer a great deal with delays and inefficiencies due to the lay offs. If there is less money the Clerk will have to re-prioritize where employees work. There are mandates that ensure the criminal court system will be funded first. Therefore the primary place the pain of the budget cuts will be felt is on the civil side. It will likely mean significant delays in information processing.

Is He/She Going to Have to Keep Paying for Private School Tuition?

Florida's Fourth District Court of Appeals took up this issue last month in the case of Gelman v. Gelman. In this case the parties agreed to a timesharing plan and the Court incorporated that agreement in the final judgment. The Father was ordered to pay child support and a lump sum payment to the Mother instead of alimony and equitable distribution. The Father was also ordered by the Court to pay the children's private school tuition. The Father appealed and argued that the Mother never pled for school tuition. The Mother stated that the agreed upon plan specifically mentioned the private school tuition and that plan was incorporated into the Court's final judgment.

The higher Court reversed the lower Court's ruling and found that the Mother had not specifically pled for it and that there was no evidence to show that the Father had agreed to pay it. Additionally the appellate Court held that the trial Court had not properly analyzed the requirement before imposing a financial responsibility for private school tuition. The Court cited Wilson v. Wilson, 559 So.2d 698 (Fla. 1st DCA 1990) which held that to order private school tuition (1) the parent must have the financial ability to pay it, (2) the expenses must have been in accordance with the family's customary standard of living, and (3) private school must be in the children's best interests.

Can Having a Boyfriend Reduce Former Wife's Alimony Award?

Alimony is based on one party's need for support and the other party's financial ability to meet that need. Florida's Fourth District Court of Appeals examined the issue of whether having a boyfriend would reduce the former Wife's alimony award late last year in the case of French v. French, 4 so.3d 5 (Fla. 4th DCA 2009). The Court ruled in that case that the boyfriend relationship that was, in fact, a financially supportive relationship for the former Wife. As such it took the financial place of a remarriage. Therefore that relationship inherently affected (reduced) the former Wife's need for alimony. The result suggests that once the Court finds that a "supportive relationship" exists then by necessity the Court shall either reduce or end alimony because the recipient's needs have changed.