Can I Get Advance Permission from the Court to Relocate?

That sounds like a good idea for those "forward thinking" people who like to plan well in advance like me but the legal answer seems to be no. The Florida Supreme Court issued a ruling on January 14, 2010 in Arthur v. Arthur, SC08-1675 that runs contrary to this thought process.

In this case the trial court had awarded the mother primary custody of the parties' 16-month-old child. The mother had requested permission to move to Michigan with the child and the trial court agreed with the request, but only when the child turned three, finding that the child needed more time to bond with the Father. The Father appealed and the Second District Court of Appeals affirmed the lower court's order. The Father than appealed to the Florida Supreme Court.

The Florida Supreme Court found that the trial court was required to make findings as to what is in the child's best interests at the time of the trial not based on future possibilities. The Court further held that the lower court was incapable of predicting whether a future relocation, months or years in the future, would be in the child's best interests at that time. The Court instructed the trial court to remove the relocation provision. In their holding the Court indicated that the Mother is able to seek to relocate in the future by filing a modification action, but any modification action would be governed the two-part substantial change test. That test requires the movant must show both that (1) the circumstances have substantially, materially changed since the original custody determination and (2) that the child's best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original Court Order.

When might "Nominal Alimony" be awarded?

This question was answered by Florida's 1st District Court of Appeal in November of last year in the case of Welch v. Welch. This opinion was written to replace and clarify the Court's earlier ruling. The facts of this case are: The parties had a 23-year marriage with the Husband earning $140,000 per year in income and the Wife earning $85,000 per year in income. The Wife had requested permanent periodic alimony but the trial court awarded the Wife nominal alimony of $1.00 per year instead. The Wife appealed the case and argued, in part, that there was insufficient evidence to support the lower court's determination that she earned $85,000. The appellate court upheld the lower court's ruling stating that the lower court had not abused it's discretion. Abuse of discretion is the standard of review. The higher court looked to the statutory definition of income, the evidence before the trial court (including the Wife's 2007 income, a forensic accountant's testimony, evidence of a cost of living increase, etc...) and found that there was substantial evidence in support of the lower court's decision.

Mandatory Financial Affidavits

A frequent question/complaint I have in amicable divorce cases, is why do I have to file a Financial Affidavit? My general response is because the law says you have to. And now and again I will discuss the multiple reasons why I think it is also a good idea. Today however, I read a case that outlines at least one exception to the "because you have to rule." See Salczman v. Joquiel, 776 So. 2d 986 (Fla. 3d DCA 2001). In that case, which for the record is not out of our appellate court but our sister court to the north, the parties entered into an ante-nuptial agreement after full disclosure. Both parties had separate counsel in the negotiation and execution of the agreement. Both were in their sixties at the time of their marriage; both had been married previously and both were financially secure. They ended their marriage after three years, each party agreeing that the ante-nuptial agreement controlled and requesting that the court ratify the same and grant their dissolution. At the final hearing, the court ordered that the parties file financial affidavits. The parties responded that they should not have to do so in light of their agreement and the fact that neither party was requesting any permanent financial relief from the other. The court indicated that it would seal the affidavits in the court file upon their being filed. The parties still refused, and the Court threatened contempt. The parties jointly appealed. Reading Fla. Fam. L. R. P. 12.285 literally, the Third District reversed the court's order directing the parties to file a financial affidavit. "Having found this agreement to be fair and reasonable on its face and entered into after full disclosure between the parties, the court was presented with absolutely no issue as to permanent financial relief for either party. Thus, the filing of financial affidavits would serve no purpose under the facts of this case and we do not believe that the rule mandates that they be filed." 776 So. 2d at 988.