To view the entire blog, please click here!
You May Be Entitled to All or a Portion of Your Spouse's Disability Pension, Even Though it is Labeled as "Disability"
January 25, 2016
While the normally automatic law in Florida is that, in the event of divorce, each spouse is entitled to half of the other spouse's retirement or pension benefits which accumulated in such a plan during the years of marriage (your "marital share"), divorcing parties sometimes do not realize that even a pension or retirement plan that pays out as a result of one spouse's disability can also be subject to equitable distribution.
It is so important to have an attorney advise you and represent your interests in Court when dealing with a disability benefit. What the circumstances surrounding the disability are (for instance, did the disability occur on the job or was it unrelated to the employment), when the disability benefit began being paid out to the disabled spouse as opposed to when the disabled spouse's normal date of retirement was or would have been, and when the retirement benefits "vested" are all crucial issues that will determine what portion of such disability benefit is marital or nonmarital in nature.
The Law Office of Summer R. Nichols deals with equitable distribution issues involving regular and abnormal retirement and pension plans every day. Do not go without legal representation when trying to deal with important financial issues such as these. A good attorney is not an expense, but the ultimate investment your future. Call today to schedule your free consultation.
See Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989) and "Determining the Nonmarital Portion of Pensions and Retirement Benefits", 83-FEB Fla. B.J. 37 (2009)
Pension Benefits in the Event of Divorce: What You NEED to Know if Dealing with a Spouse Who Has Benefits Via the Police & Fire Pension Fund
January 25, 2016
A black and white rule of Florida Law is that as the result of a divorce, each spouse is entitled to one half of any benefits which have accumulated during the marriage in any retirement, pension, or similar plan owed by the other spouse. Most often this division of assets is accomplished through a special court ordered call a Qualified Domestic Relations Order, or "QDRO."
However, there are some plans which do not require a QDRO to separate out such an account. For instance, an IRA Rollover is usually able to be accomplished though other means, such as use of the original final judgment of dissolution of marriage with other required forms accompanying it. Also, U.S. Military retirement accounts are able to be separated via a Military Retired Pay Division Order, which is much less complicated than the average QDRO.
When problems arise is when you encounter a type of benefit plan that does not allow a QDRO or any other type of court order as a means of separating out funds a spouse is entitled to during divorce. One such benefit plan is the Police & Fire Pension Fund ("The Fund") which is available to City of Jacksonville police and firemen, and should be available to their spouses upon divorce. The Fund does NOT recognize QDRO's or any other type of Court Order to separate out benefits. The Fund DOES recognize Income Withholding Orders for the deduction of child support or alimony from this benefit plan. The important question then arises, how can you get access to your marital share of the Fund when you are entitled to that asset under the umbrella of Equitable Distribution, not child support or alimony?
Unless you can trust your spouse completely to always pay you your share of the benefits, upon retirement and every month after that (which is a rare quality for a former spouse to have), you need to ensure that your final judgment of dissolution of marriage takes this problem into consideration through careful language. My advice is to argue for language in your judgment that orders your spouse to pay you directly, but states that if your spouse fails to do so (perhaps becomes more than 30 days past due), then such payment will be re-labled permanent non-modifiable alimony and an Income Withholding Order shall be entered immediately for that purpose.
The Law Office of Summer R. Nichols is knowledgeable about all equitable distribution issues which can arise in a divorce, has drafted and had implemented hundreds of QDRO's and similar court orders, and has handled specific cases regarding the Police and Fire Pension Fund. Call today for your free consult on these issues and more.
Wanting to Relocate with your Children? You MUST adhere to the Florida Law!
September 17, 2015
If you already have a Court Ordered Parenting Plan in place and are the majority timesharing parent, you are NOT permitted to relocate more than 50 miles away without following the correct Florida legal procedure first!
1. You are required to file a Notice of Intent to Relocate and serve it on the other parent. The other parent than has 20 days to object and, if he or she does object, a hearing must be held where you will seek the Court's permission to relocate.
2. It is extremely important to have legal counsel when filing your Notice of Intent to Relocate as there are very specific rules regarding what such Notice must contain in order to be VALID or it could be kicked out!
3. You are entitled to a hearing on your request to relocate within 30 days after requesting the same where the Court will make a temporary determination.
4. There are many factors the Court considers in granting or denying a request to relocate, including the reason for the relocation (better employment, remarriage) and whether that reason supports the best interest of not just you, but will enhance the quality of life (education, etc.) of the children; the timesharing schedule of the other parent; whether the children will still be able to have a meaningful relationship with the other parent; whether you will encourage a close a continuing relationship; the community and school ties of the children; where extended family are located, etcetera.
The Law Office of Summer R. Nichols, LLC has handled several relocation cases and knows the detailed requirements of the law. Contact us today to set your FREE consultation (904) 322-7702
The Importance of Having a Living Will and Health Care Appointment
April 06, 2015
A Living Will is not to be confused with a legal will, which disposes of a person's property upon his or her death. A Living Will directs the provision, withholding, or withdrawal of life prolonging procedures in the event one should have a terminal condition. In Florida, "life prolonging procedures" also includes the provision of food and water to terminally ill patients. If you chose to direct in your Living Will that your life not be prolonged, you can also request that you are administered pain medication or other similar treatment to alleviate suffering.
A Health Care Surrogate is a person designated by you to make all health care decisions during any period in which you may become incapacitated. You can also designate an alternate health care surrogate in the even your primary surrogate is unwilling or unable to handle the responsibility at the time he or she is needed.
There are very specific rules involving the signing a validity of Living Wills and Health Care Appointments. For instance, two witnesses are needed for each document and neither witness may be a spouse or blood relative of the maker of the will. The health care surrogate cannot act as a witness for the Health Care Appointment document. If the maker of the Living Will is physically unable to sign, one of the witnesses can sign in the presence of and at the direction of the maker.
It is important to hire an experienced attorney to draft and handle the signing of these documents for you.
The Law Office of Summer R. Nichols, LLC has handled hundreds of wills, living wills, and health care appointments. Please Call Us Today to make an appointment to have this done and feel secure knowing that you did!
The Importance of Having an Attorney Handle Your Will...Life's too short not to.
March 26, 2015
A Will is your last testament of how you desire your property and personal belongings to be distributed. Most importantly, it is also your last chance, if you are a parent of minor children, to express who you want to become legal guardian(s) of your children, and who you choose to distribute or put into a Trust, as a Trustee, any of your assets or personal property for your children, as those children become the age of your choice (18, 21, 25, 30?) A will is also the ultimate tool to prevent loved ones from getting upset with each other over things that are preventable by YOUR will and YOUR written statements about why you are leaving what you are leaving. Specific sentimental or explanatory statements can be made in your will, if so desired.
It is extremely important to have a Family or Probate Law Attorney draft and complete this for you. There are many very specific laws regarding the provisions and signing of wills that, if done incorrectly, could completely invalidate your will! Beware of online services. Have the peace of mind that comes with having a local certified attorney prepare and do the signing ceremony for your Last Will and Testament.
The Law Office of Summer R. Nichols has handled hundreds of Wills and enjoys the opportunity to make you and your loved ones feel at ease knowing that things were done right, and that your children are taken care of in accordance with your specific wishes, in the event of your untimely death.
Please consider taking care of this now. Life is too short not to.
The Child Tax Credit: The Federal Law & How the Divorce Court Handles it
Thursday, January 15, 2015 at 4:27PM
As you are likely aware if you have a child, there is a credit which may be claimed when filing your income tax. For 2014 tax returns, the deduction from income was $3,950.00.
Federal Law states, in part, that in the case of parents residing separately, the parent with whom the child lives for the majority of time is the one entitled to claim the child on their taxes to receive this credit. If the child spends an equal amount of time with each parent (a 50/50 parenting time schedule), then the parent with the highest adjusted gross income is the correct parent to receive the credit.
IMPORTANTLY, if the tax credit is requested by a non-majority timesharing parent, the Court will normally order that parent may claim the child for tax purposes in alternating years so long as he or she is current on child support payments.
If you are a non-majority timesharing parent who is entitled to claim your child for a tax exemption, it is best to ensure the majority timesharing parent completes FORM 8332, which informs the IRS of your entitlement, and attaches such form to his or her tax return. If the other parent is not cooperating, you can provide a copy of your Final Judgment of Dissolution of Marriage (together with your Marital Settlement Agreement, if applicable) and the IRS will review the same to determine your rights.
See The Dependency Exemption for Minor Children: When Following the Rules Pays Off, The Florida Bar Journal, January 2015.
Domestic Violence: Do you have a case?
Thursday, January 15, 2015 at 3:51PM
Domestic Violence is a serious issue that needs to be resolved through the Court if you feel you are in imminent danger based on previous physical violence, threats, or stalking. You can be granted an Injunction for Protection against Domestic Violence (more commonly known as a restraining order) if you can convince the court that your fear of the violent person is reasonable.
You have a right to request an Injunction for Protection against spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
Your local county courthouse has a department where you can file for an Injunction for Protection. Once you file, your written request will be reviewed by a judge and, if there are grounds, the judge will grant you a temporary injunction or a period of two weeks. This temporary injunction will be served by the sheriff's office on the other party and a court hearing will be scheduled exactly two weeks from the date you filed, where you will be given an opportunity to testify in person before the Court regarding your allegations and why you feel an injunction is necessary. The other party will be given an opportunity at that Court hearing to either agree to the injunction or defend his or her self.
It is STRONGLY RECOMMENDED to have an attorney present with you at such a hearing!
The Law Office of Summer R. Nichols is extremely experienced in these types of hearings, the testimony that is needed, and the evidence or witnesses that will be permitted to assist you with making your case. Contact us today for a free consultation to discuss getting you relief from violence and fear of violence!
Child Support & Disability Income -- What You Need To Know
Thursday, January 15, 2015 at 3:15PM
If you or the other parent of your child receives disability income, it WILL be used as a source of income when calculating child support in accordance with the Florida Child Support Guidelines. If you have a child that receives disability income due to a parent's disability, that income should go to the parent with whom the child resides for the majority of time as a form of child support AND, IMPORTANTLY, that income will be used to decrease any child support amount calculated for the care of the child.
The Law Office of Summer R. Nichols has handled hundreds of divorce and child support cases where disability is involved. Contact us today to have a free consultation regarding how we can help you resolve your case!
Court CANNOT Order Restrictions on Religious Upbringing Unless Harm Shown...Each Parent Has the Right to Have Their Child Participate in the Religion of Their Choosing
Wednesday, September 17, 2014 at 6:14PM
A court does not have the power to order restrictions on parents regarding religious upbringing, subject to harm to child shown.
For instance, in Pierson v. Pierson, 1D14-79 (Fla. 2014), the children of divorcing parents had been raised Catholic their entire lives, however, the Father became a Jehovah’s Witness during the divorce proceedings and involved his children in that religion.
I love this part -- at one Catholic Sunday school class, the 9 year child told the teacher that music was wrong, the priests were bad, they were using the wrong Bible, and there was no heaven.
Despite this, the Court found that having confused children regarding religion was not sufficient reason to interfere with a parent's Constitutional right to direct their children's religious upbringing, even if the parents' choices of religion clash.
Venue is not changed due to fleeing from Domestic Violence
Tuesday, September 16, 2014 at 6:09PM
Dissolution of marriage action in Florida must be filed in the county where the Respondent resides or in the county where the marriage was last lived out. Just because one spouse may claim he or she was forced to flee the proper county due to spousal abuse that does not give that spouse a right to file in any other county save that which is proper under Florida's Venue Statute, as stated above.
For instance, if the parties lived as a married couple in Duval County, and one of them flees to Dade County due to domestic violence that party cannot file in Dade, only Duval or any other county in Florida where the Respondent resides at the time of filing.
Domestic Violence cannot be used as an excuse for improper venue.
I actually wrote my first appellate brief on this exact issue my first year out of law school and won. I could not believe opposing counsel had even filed an appeal claiming improper venue due to fleeing from domestic violence. This is an issue on which the law is very clear.
Court Now Has Power to Give Credit for Overnights in Child Support Formula Despite No Court Ordered Timesharing!
Tuesday, September 16, 2014 at 5:54PM
In May of 2014, the Florida Legislature passed a law permitting courts, when calculating child support, to take into consideration overnights which are non-court ordered. "Overnights" are nights when either parent has timesharing with their child(ren).
Prior to this new law, courts were unable to give a parent credit for overnights in the Child Support Guidelines unless that parent's timesharing with the minor child(ren) was actually already awarded in a court order. Now, courts can take into consideration non-court ordered overnights that are being exercised by each parent per agreement of the parties (no need for this agreement to be in writing).
This is a big change in Florida Family Law. Seek the assistance of a Family Law Attorney if you are exercising non-court ordered overnights with your child(ren) and are not currently receiving credit for the same in your previous or pending child support case.
Your Petition for Dissolution of Marriage Must be Correct & Complete or You Could Suffer the Consequences Later!
Tuesday, September 16, 2014 at 5:45PM
Your Petition for Dissolution of Marriage is the initial document filed in your case which states you are requesting a divorce. Your Petition is your one chance to make any other requests you have, such as for alimony and attorney's fees. If your Petition is not correct and complete, you could forever lose the right to make certain requests.
For instance, when asking for alimony, ask for any and all forms of alimony just to be on the safe side. A specific example: an unrepresented individual can easily make the mistake of asking for "bridge-the-gap" alimony only, when he or she could be entitled to a better type of alimony. By statute, bridge-the-gap alimony cannot be awarded for a period exceeding 24 months. This is just one example of why it is so important to retain a family law attorney to draft all important case documents for you.
The Law Office of Summer R. Nichols is experienced and knowledgeable regarding all types of alimony, all other issues involved in a divorce, and ensuring your Petition is filed correctly and completely.
Alimony and Attorney's Fees CAN be Ordered During the Pendency of an Action Despite Language to the Contrary in an Antenuptial Agreement ("Prenup")
Monday, September 15, 2014 at 7:44PM
Despite language in an antenuptial agreement (commonly known as a "Prenup"), or in a post-nuptial agreement for that matter, where one party has agreed to be awarded no alimony or assistance with attorney's fees in the event of a dissolution of marriage or separation, the Court DOES have the power to award alimony or attorney's fees on a temporary basis while such an action is pending.
See Belcher v. Belcher, So. 2d 7 (Florida 1972).
While most attorneys will require a retainer prior to taking any case, it is important to know that you can still request financial assistance for both household bills and other needs, as well as reimbursement or assistance with future attorney's fees (and court costs), during the pendency of your divorce or action for alimony connected with a divorce (separation needs), despite having waived the right to financial assistance in a pre or post nuptial agreement!
The Law Office of Summer R. Nichols is experienced with handling this exact situation and is ready to represent you and assert your rights under Florida law.
You CAN Disestablish Paternity to Terminate a Child Support Obligation
Monday, September 15, 2014 at 7:16PM
If you have reason to believe you are NOT the Father of a child for whom paternity has previously been established, whether administratively by signing the child's birth certificate, or judicially, such as during a child support or dissolution of marriage action, you can file a Petition to Disestablish Paternity.
You must show that you have (1) newly evidence that leads you to believe you are not the Father of the child (including a DNA test, discussed below); and (2) that if you have been ordered to pay child support, you have at least substantially complied with such obligation.
Obviously, a DNA Test showing you are not the Father is considered "newly discovered evidence," however, if you are unable to have access to the child to complete such a DNA test, you can request a Court Order to make this happen.
I recently had a DNA test ordered for a client who stated his "newly discovered evidence" was that the Mother's current boyfriend continued to taunt him by telling him HE (the boyfriend) was the Father, not my client. If you suspect you are not the Father of a child and want to seek termination of a previously ordered, pending, or potential child support child support obligation, do not wait to seek the assistance of a Family Law Attorney to accomplish this. The Law Office of Summer R. Nichols is experienced in dealing with these types of cases every day.
How Old Does a Child Have to be to be Left At Home Alone?
Monday, September 15, 2014 at 7:01PM
There is no specific age that Florida Law states is not okay for a child to be left at home alone.
Chapter 39, Florida Statutes mandates that the Division of Youth and Family Services Hotline be contacted when any person who knows, or has reasonable cause to suspect, that a child of any age is being left home alone without adult supervision if the child is unable to care for his or her own, or another's, basic needs or is unable to exercise good judgment in responding to any kind of physical or emotional crisis.
A Hotline counselor will assess the information provided a make a determination of report acceptance or non-acceptance based upon statutory criteria.
Report online at https://reportabuse.dcf.state.fl.us/
use 711 for Florida Relay Services
fax your report to 1-800-914-0004
If you suspect or know of a child or vulnerable adult in immediate danger, call 911.
How to Prevent the Other Parent from Taking Your Child Out of the USA Due to Fear the Child Will Not be Returned; the Hague Conference
Thursday, July 3, 2014 at 12:17AM
If your former spouse desires to take your child out of the country and you are hesitant to agree due to fear that the spouse will not return the child to the United States, you can obtain court assistance to prohibit it.
You may be able to stop your child from being taken out of the country simply on grounds that the country where your former spouse wants to take the child is not a member of the Hague Conference. The Haugue Conference is an international treaty that some, but not all countries, have signed off on stating they will cooperate in efforts to locate and bring back to their home country wrongfully taken or kept children.
It is also helpful if you can allege other reasons why you believe there is a likelihood that your former spouse will not return the child when the vacation or extended stay in the other country concludes. For instance, if your former spouse has made threats regarding this in the past, or if your former spouse has many family members or other connections in the other country but little or no ties to the U.S.
If you have these concerns and your child does not yet have a passport, you can refuse to sign off on the passport application, leaving the other parent to initiate court action if they are still seeking the same. If your child already has a passport, you must take immediate, emergency court action to obtain an order prohibiting the travel, which can then be presented to the appropriate officials. Likewise, if you are the former spouse of a parent who is refusing to sign a passport application without good cause, you can seek a court order for the passport without the other parent's cooperation.
Retaining an attorney experienced in the above matters is crucial. Summer R. Nichols has argued at several hearings regarding child passport issues.
Below is a link to a list of countries who are currently members of the Hague Conference:
See also Matura v. Griffin, 5D12-4182 (Fla. 5th DCA January 21, 2014), online at http://www.5dca.org/Opinions/Opin2014/012714/5D12-4182.op.pdf, for a case regarding the Court's denial of a Father's request to take his child out of the U.S. to Jamaica for parenting time, where Jamaica is not a member of the Hauge Conference, the Father had previously threatened to kidnap the child, and the Father had been convicted of domestic violence against the Mother.
Florida Laws on Leaving Children Unattended
Monday, May 12, 2014 at 1:39PM
The state of Florida does not have a law that species the age at which a child may be left unattended, however, the Florida Dept. of Children and Families recommends 12 as the age.
Importantly, Florida Statute Section 316.6135 states that children younger than 6 may not be left in an unattended vehicle for more than 15 minutes, however, if the vehicle is running or if the child could be in danger, there is no amount of time that is acceptable to leave a child there.
Cannot Waive Right to Modify Child Support
Monday, May 12, 2014 at 1:34PM
The Court always has the inherent right to modify child support based on the Florida Child Support Guidelines, despite any prior agreement of the parties to the contrary, including prior agreed upon deviations. A settlement agreement cannot divest the Court of jurisdiction to modify child support.
See Guadine v. Guadine, 474 So. 2d 1245 (Fla. 4th DCA 1985).
*Information courtesy Michael Mattson, Certified Family Mediator, [email protected]
Assets & Liabilities Determined as of DATE OF FILING; Not Date of Separation
Monday, May 12, 2014 at 1:24PM
Beware of purchases you or a spouse makes or debts incurred post-separation. Apparently, even if you are separated or are no longer cohabitating together, the Court will strictly still use the Date of Filing your divorce case to determine which debts and assets are considered marital.
See Wagner v. Wagner, 2D12-5404 (Fla. 2nd DCA February 14, 2014) (court ordered over $13,500.00 in debt incurred by Husband only, post-separation, to be marital debt for which both parties were responsible because the divorce ad not yet been filed at that time)
See Broadway v. Broadway, 1D13-2779 (Fla. 1st DCA February 21, 2014) (court ordered a camper the Husband purchased during the parties' separation in September 2010 to be a marital asset because the divorce was not filed until 2011).
Do NOT allow your name to be attached to vehicle your former spouse is driving post-separation
Monday, May 12, 2014 at 11:48AM
Any owner on the title of an automobile is liable for damage done by the driver. Christensen v. Bowen, SC12-2078 (Fla. April 10, 2014). Therefore, it is important to ensure your name is not still attached to a car driven by an ex-spouse post-separation. Make sure your attorney knows how to draft the appropriate provision into your settlement agreement or court order.
Looking to Relocate With Your Children? BEWARE: Florida has VERY Strict Relocation Rules
Wednesday, February 5, 2014 at 3:26PM
If you are a Florida parent with a previous court order in place regarding custody/parenting time and are considering relocating more than 50 miles away, it is imperative to seek an attorney's assistance due to the strict relocation rules Florida maintains.
Section 61.13001, Florida Statutes, requires that a Notice of Intent to relocate be filed prior to any relocation. Importantly, there are many detailed requirements to adhere to and if even one requirement is not met within the drafting of the Notice or Petition, your entire case could be DISMISSED. For instance, the statute requires one particular provision contain the exact statutory wording and be in caps and bold font in order for the Notice/Petition to be valid.
Florida no longer has a presumption that relocation is not in the best interest of your child, so do not ruin what could be a good chance of having your relocation granted by failing to properly comply with this detailed procedure. A family law attorney knows the rules and will ensure your relocation case is properly filed.
Think Twice Before Having Sex With a Married Woman
Friday, December 27, 2013 at 1:22PM
In Florida, a biological father has no rights to a child if the child was born to a mother while she was in an "intact" marriage with another man. Florida basically believes that it is in the best interest of the child to be considered a child of the marriage, rather than to be born a "bastard” (courts actually use this word in the case law).
I worked on a case that turned on this rule a few years ago. I represented the biological father. The Court refused to grant my client any rights to his own child because the child had been conceived while the Mother was supposedly in an "intact “marriage. The parties had actually already been granted a divorce before the child was born, however, the Husband was able to set aside the divorce decree just in time to be able to provide his consent (as the husband and "legal" father of the child) to the child being adopted! Yes, the Mother did not even want the child, and still the Court found the bio dad had no rights. This resulted in the child being adopted by complete strangers rather than being permitted to be raised by his biological father. Crazy case.
A case which confirmed this same rule recently came out of the 5th DCA, Pena v. Diaz, 5D12-4504 (Fla. 5th DCA November 8 ,2013) (see it online at http://www.5dca.org/Opinions/Opin2013/110413/5D12-4504.op.pdf). Similar set of facts -- except here, the parties dismissed their divorce for the sole purpose of the Court deeming their marriage "intact" so they could fend off the bio dad and prevent him from having any rights to his child. The Court held that even though the parties had filed for divorce, once they dismissed the case it was as if it had never occurred and, therefore, the marriage is to be considered "intact." Once again, the bio dad granted no rights to his own child, Unbelievable!
Sending Child to Boarding School is not”Relocation"
Monday, December 23, 2013 at 9:32AM
Sending a child out of state (or more than 50 miles away) for purposes of attending a boarding or private school is not a "relocation" for purposes of Section 61.13001 (Florida Statutes, 2013). This means there is no requirement to file a Notice of Intent to Relocation or comply with the other provisions of the statute. See Blackely v. Blakely, 4D12-3079 (Fla. 4th DCA October 16, 2013); Young v. Hector, 833 So. 2d 793 (Fla. 3rd DCA 2002).
When Can Your S-Corporation Income Be Used in Child Support Calculation?
Monday, December 23, 2013 at 9:16AM
Section 61.30(2)(a)(3), Florida Statutes (2013) (“Chapter 61”) provides that income for purposes of calculating child support shall include business income from close corporations.
Florida Supreme Court case, Zold v. Zold, 911 So. 2d 1222 (2005) reviews the issue of whether the “pass through” income of an S-corporation that not “distributed” to shareholders constitutes income within the meaning of Chapter 61. The Court finds there is no bright-line rule that such income is or is not to be included in child support calculations. Id. The Court states that if such income has been retained for corporate purposes, then it cannot be included in a child support calculation because it is not “available” income. Id. at 1231. However, the Court states that where such income has been retained for non-corporate purposes, such as to shield the income from the reach of the other spouse during dissolution, the improper motive for its retention makes it “available” or “business” income under the meaning of Chapter 61. Id. at 1231-32. The Court points out that its conclusion is consistent with Rosen v. Rosen, that “proceedings under Chapter 61 are in equity and governed by basic rules of fairness;” that the Court should not allow a shareholder of an S-corporation to reduce the amount of available income by manipulating the retention of pass-through income for his personal benefit. Id. at 1232. The Court states the “potential for manipulation is greater if the spouse is a sole or majority shareholder who, by virtue of his or her ownership, has more control than does a minority shareholder over whether income is retained or distributed by the corporation.” Id. The Court states that the burden is on the shareholder party to prove the S-corporation income was properly retained for corporate purposes, rather than impermissibly retained to avoid child support obligations. Id. at 1233.
Of course, any distributions actually made from the S-Corp will be automatically counted as income.
 Zold cites several cases on this topic from the lower courts which conflict with each other. Zold is the most recent and controlling case which creates the current rule to be used when determining under what circumstances S-corporation income should be used in a child support calculation.
Majority Timesharing Parents: Feel free to give more time to other parent without fear of future modification of parenting time or decrease in child support being granted
Monday, December 23, 2013 at 8:47AM
A majority timesharing parent granting non-court ordered extra parenting time to the other parent is not a basis for the "substantial change of circumstances" required for a parenting time modification. Brown v. Brown, 1D13-0125 (Fla. 1st DCA October 25, 2013). What this means is that if you are a majority timesharing parent, feel free to allow the other parent additional time without worry that the other parent can later use this against you as grounds to ask for an official court ordered increase in parenting time (and that parent cannot use it to try to decrease his or her child support either! DOR o/b/o Sherman v. Daly, 74 So. 3d 165 Fla. 1st DCA 2011)) This is because Florida courts do not want to discourage "voluntary changes" between parties post-judgment. See Sidman v. Marino, 46 So. 3d 1136 (Fla. 1st DCA 2010).
Remember, most Final Judgments / parenting plans, even if they do not directly state it, mean any timesharing schedule for the non-majority timesharing parent to be a minimum -- not a limitation -- and majority timesharing parents should give additional time when requested and reasonable.
Same Sex Couples Entitled to Court Determination of Parental Rights!
Friday, December 20, 2013 at 5:01PM
The Florida Supreme Court, on November 7, 2013, ruled that same sex couples are entitled to a full determination of timesharing and child support by Florida courts! D.M.T. v. T.M.H., SC12-261 (Fla. November 7, 2013) (see online at http://www.floridasupremecourt.org/decisions/2013/sc12-261.pdf). This case involved a biological mother and a birth mother. This case was remanded to the lower court with directives to apply a best interest standard with determining timesharing and child support.
Unrepresented parties are expected to know law and procedures: having no attorney is no excuse
Friday, December 20, 2013 at 4:53PM
Unrepresented (pro se) litigants are held to the same standard as reasonably competent attorneys. http://www.3dca.flcourts.org/Opinions/3D12-2871.pdf. This means that if you are unrepresented, do not expect to catch a break from the court if you fail to know the rules, forget to file something in a timely manner, etc. This is why it is SO IMPORTANT to hire an attorney. The services a family law attorney provides are worth the cost necessary. Failing to hire an attorney could negatively impact a custody or child support decision that will affect you the rest of your life...and your children’s' lives. Be smart!
The Law Office of Summer R. Nichols continues to do FREE consultations and offers affordable payment plans. You do not have to go through this alone. Call or email us today so we can help! (904) 322-7702 or [email protected]
*Thank you to attorney and family law mediator Michael Mattson ([email protected]) for this case citation
"Right of First Refusal" Does Not Apply to Deployed Military Members
Monday, September 30, 2013 at 12:30PM
A "right of first refusal" is a provision that sometimes gets added in to a settlement agreement or court order. Such a provision provides that if a parent cannot exercise his or her parenting time for a certain period of time (usually at least an overnight), that parent must offer the time to the other parent before making other arrangements for a caretaker (like a babysitter or family member).
Importantly, as of 2010, Section 61.13002, Florida Statutes, allows military parents who are given orders to activate or deploy, or who are temporarily assigned to military service, for a time period in excess of 90 days, to designate a person to exercise the missed timesharing on the parent's behalf. This person must be a family member, step-parent, or relative to the child by marriage. This means that the other parent is not automatically given that time; there is no right of first refusal. The other parent may only object to the designation on the basis that the visitation is not in the best interest of the child.
Request for Attorney's Fees Can Be Denied Due to Voluntary Unemployment
Monday, September 30, 2013 at 11:55AM
When a party requesting an award of attorney's fees is found by the court to be voluntarily unemployed or underemployed, the court can deny the request of fees, even when there is a large disparity in income between the parties. See Spenceley v. Spenceley, 746 So. 2d 505, 506-07 (Fla. 4th DCA 1999).
A court may look to several factors when determining whether one party should pay or contribute to the other party's attorney's fees. First, a court looks at the requesting party's need and the other party's ability to pay. A court may also consider any factor necessary to provide justice and ensure equity between the parties, the scope and history of the litigation, the duration of the litigation, the merits of the respective positions, whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall), and the existence and course or prior or pending litigation. See Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997), Balko v. Balko, 957 So. 2d 15, 16 (Fla. 2nd DCA 2007), and Trespalacios v.Trespalacios, 978 So. 2d 858, 861 (Fla. 2nd DCA 2008).
Children, Not Parents, Must be Named as Life Insurance Policy Beneficiaries
Tuesday, July 23, 2013 at 5:25PM
When including a provision in a settlement agreement or court order that one or both spouses must maintain life insurance policies to cover child support in the event of that parent's untimely death, it is the children, not the parents, who must be named as the beneficiaries.& It is irreversible error for a court to order otherwise (unless the parties agree). See Zvida v. Zvida, 4D11-2891 (Fla. 4th DCA January 9, 2013), citing Layeni v. Layeni, 843 So. 2d 295 (Fla. 5th DCA 2003).
Lump Sum Alimony NOT Tax Deductible
Tuesday, July 23, 2013 at 4:57PM
Beware that if you are a payer spouse, lump sum alimony, unlike other types of alimony, is NOT tax deductible to you. If your tax consequence would be huge, consider a different alimony scheme!
DCF Reports Not Admissible as Hearsay
Monday, July 22, 2013 at 2:41PM
Even if the author of a DCF (Department of Children & Families) report is available to testify, the hearsay within the report which is testified to must have a hearsay exception of its own, otherwise the report will be inadmissible. Davis v. Davis, Fla. 5th DCA Case No. 5D11-1534, January 2013, citing Reichenberg v. Davis, 846 So. 2d 1233 (Fla. 5th DCA 2003).
However, in Davis, despite the Court's decision that the lower court erred in admitting such a report, the Court found that the lower court's error did not require reversal of the ultimate custody ruling, because the error did not "injuriously affect the substantial rights of the complaining party," meaning an "error is harmless where there is no reasonable possibility [the] error contributed to the verdict." Davis, citing Forester v. Norman Roger Jewll & Brooks Int'l, Inc., 610 So. 2d 1369, 1372 (Fla. 1st DCA 1992) and CA v. Dep't of Children & Families, 958 So. 2d 554, 557 (Fla. 4th DCA 2007).
Women's Unequal Access to Divorce in Egypt and How This Affects Child Support
Monday, July 22, 2013 at 2:00PM
I have a pending Florida child support case involving Egyptian parties who were previously divorced in Egypt and the Husband (who resides in Florida) has never paid a dime of child support for the parties' minor child, who lives solely with the mother (in Egypt). As it turns out, the parties Egyptian divorce decree makes no provision, nor even a mention of, child support. This is in total contrast to Florida law which requires that child support be established in every divorce decree when minor children exist. In fact, even if the payee of child support desires to waive the requirement that his or her spouse pay child support, Florida courts will prohibit a waiver of support because it would not be in the best interest of the children. Florida feels BOTH parties have an obligation to financially support their children and the Court is here to look out for those children.
Egypt continues to have one of the most discriminatory divorce systems in the world. While men seeking divorce can be granted one in a matter of minutes, no questions asked, and never even need to enter a courtroom (in fact, all they have to do is utter "you are divorced" to their wife 3 times and then register the divorce within 30 days with a religious notary), women requesting a divorce face several procedural and evidentiary hurdles, which could delay the case for years. Women must prove they have been harmed by their husbands, often requiring eyewitness testimony, in order to be awarded any assets or other financial compensation upon divorce. As of 2000, women do have the option to file for a "no-fault" divorce, but by doing so they are required to forfeit all financial rights and repay any dowry they received from their husbands upon marriage.
Divorced women in Egypt are often reduced to homelessness or begging on the streets for money to feed their children. In order to evade its international obligation to protect women's rights, including women's rights to equal access to divorce, Egypt cites it is simply adhering to Islamic law.
Some Random Facts:
-- Women are prohibited in Egypt from being employed as criminal prosecutors or judges
-- Bribery plays a role in Egypt's unequal divorce system
-- Divorced Egyptian women seeking public assistance are required to produce a copy of their former husband's birth certificate, which is often impossible for the women to access, so they are denied public assistance.
-- Egyptian women forfeit their right to any alimony upon divorce if they are found guilty under the"obedience laws," which means they left the house without their husband's permission.
*The above information was obtained from an article entitled "Divorced from Justice: Women's Unequal Access to Divorce in Egypt," found at http://www.refworld.org.
Did You Know: Florida Now Has a Debit MasterCard Program for Collection of Child Support Payments?
Saturday, October 13, 2012 at 3:56PM
The Florida Debit MasterCard Program is a new way to receive your child support payments if you receive your payments via the Florida State Disbursement Unit (rather than directly from your former spouse). The State of Florida automatically processes these payments to a debit card which you can then use everywhere MasterCard is accepted, including being able to get cash out at banks and ATMs (If you use a Wachovia bank they do not charge any extra fee!)
Go to www.myflorida.com/dor/childsupport pr call 1-877-769-0251 to register to receive your card in the mail.
Modification of Alimony NOT Permitted When There is No "Financially Beneficial" Cohabitation
Saturday, October 13, 2012 at 3:21PM
Sure, you may recognize the familiar rule that alimony terminates upon death or remarriage. However, alimony can also be terminated or modified when a former spouse begins cohabitating with another individual. However, cohabitation is only grounds for a modification of alimony when that cohabitation is "financially beneficial" -- meaning that the boyfriend or girlfriend of the former spouse is not only living with the former spouse, but helps to pay the household bills, etc., thereby reducing the cohabitating spouse's "need" for alimony.
A recent appellate court case reaffirmed the financially beneficial cohabitation rule. See Murphy v. Murphy, 3D11-1604 (Fla. 3rd DCA October 3, 2012), where the Court found the former wife was in a supportive relationship, but received no economic support from her boyfriend, and therefore denied the Former Husband's request to modify alimony.
In fact, the fact that a former spouse is receiving enough alimony to support a live-in boyfriend or girlfriend could be grounds to go ahead and reduce the alimony based on a showing of less need on the part of the cohabitating spouse!
TITLE: Income Deduction Orders
DATE: 02/02/2012 06:55:29 PM
Whose duty it is to have an Income Deduction Order entered for child support or alimony purposes when the order is silent as to whose duty it is, Obligor (Payor) or Obligee (Payee)?
Florida Statute § 61.1301(2)(a) states that the obligee or his or her agent shall serve an income deduction order and notice to payor. Therefore, it is the obligation of the person who is receiving alimony or child support to see that the Income Deduction Order gets entered. However, it is important for the obligor to be aware that it is his or her duty to pay the child support either directly to the obligee, or through the State of Florida Disbursement Unit, until an Income Deduction Order goes into effect and the child support actually starts to be deducted from the obligor's pay check.
TITLE: Retroactive Child Support
DATE: 02/03/2012 08:02:21 PM
Can the Court base a retroactive child support calculation simply on what a party is making now?
Under F.S.A. § 61.30(17), an initial support award in a dissolution proceeding may be made retroactive to the date of the parents' separation, but not more than 24 months before the filing of the petition.
When determining a retroactive award, the court must do the following:
Under F.S.A. § 61.30(17)(a), the Court must apply the guidelines schedule in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income, as defined by F.S.A. § 61.30(2), during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor's income at the time of the hearing in computing child support for the retroactive period.
Under F.S.A. § 61.30(17)(b) the Court must consider all payments made by a parent to the other parent, the child, or third parties for the benefit of the child throughout the proposed retroactive period.
Lastly, under F.S.A. § 61.30(17)(c) the Court must, ?Consider an installment plan for the payment of retroactive child support.? This type of payment plan usually tacks on around 10% of the child support amount on a monthly basis until any retroactive arrearage is paid off. For instance, if your child support payment is $600/month, the Court may increase it to $660/month until arreareage is paid off.
TITLE: Contempt of Court/Penalties for Non-Payment of Child Support or Alimony
DATE: 02/03/2012 09:41:26 PM
Can a court order incarceration as a penalty for contempt of continuous refusal to pay child support or alimony? What other penalties are avaialble for non-payment of support?
A Court can enter a civil order of contempt and impose incarceration as a penalty for non-payment of child support and alimony, where evidence shows the payor has a present financial ability to comply with the ordered payments. Owens v. Owens, 578 So.2d 444 (Fla. 1st DCA, 1991).
Incarceration cannot be used as a means to seek compliance with a court order when the contemnor does not have the ability to purge himself of contempt. However, the court does have other means available to obtain compliance.
If, for example, the payor has willfully neglected his support obligations, but no longer has a present ability to pay because he is unemployed, the court may direct him to seek employment through Florida State Employment Services and to report weekly until employment is secured, in addition to requesting the employment service to periodically report to the court on the status of his job search.
If the party is employed but presently lacks funds or assets, the court may issue a writ directing his employer to garnish the party's salary in order to satisfy the alimony or child support obligations in accordance with F.S.A. § 61.12, or may enter an income deduction order for payment of child support or alimony, pursuant to F.S.A. § 61.081 or § 61.1301. CHILD SUPPORT, FACS FL-CLE 5-1.
A court may also suspend a person?s driver?s license and/or professional license. The Title IV-D agency may place a lien for unpaid child support over $600 on motor vehicles or vessels owned by the delinquent obligor. The Title IV-D agency may intercept federal income tax refunds to obtain payment of past due child support.
Also, unpaid alimony and child support payments under a preexisting order are vested and the obligee has a right to a judgment for arrearages. Dept. of Revenue ex rel. King v. Blocker, 806 So.2d 607 (Fla. 4th DCA 2002); Milopoulos v. Milopoulos, 691 So.2d 1199 (Fla. 4th DCA 1997). Once the judgment for arrearages is entered, it may be enforced through additional payments under an income deduction order, F.S.A. § 61.1301(1)(b), by garnishment, F.S.A. § 61.12, by entry of a lien against real property, or by contempt proceedings.
TITLE: Court-Approved Online Parenting Schedule & Expense Tracker for Divorced or Separated Parents
DATE: 03/29/2012 01:44:34 PM
Did you know there is a Duval County Court approved website that allows parents to share information online regarding their parenting schedules, school events, keep track of child support and medical expenses, etc.? The website is www.OurFamilyWizard.com.
Judge Karen Cole, 4th Circuit, Duval County Family Law Judge, recently ordered the parties in one of my paternity actions to utilize this website when the Court found that offical parenting coordination with a local parenting coordinator was likley not an affordable or practical option for the parties, as one party lives out of state and is currently receiving only unemployment compensation.
The website seems to me to be a convenient and much less costly alternative to official parenting coordination. At any rate, it is worth a shot. The site allows you to sign a 1 year contract for only $99, and a 2 year contract for only $179; in most cases this expense could be shared equally between the parties. Plus, your attorneys and any other professionals involved in your case are permitted to access your account on the website for free.
An account on this website is obviously a great way to keep evidence of missed parenting time, late arrivals, offers of additional parenting time, notifications of school functions and doctor's appointments, unreimbursed medical expenses owed, etc. organized and available for any future court hearing or trial.
For more information, visit the website listed above, email them at [email protected] or call them toll free at 1.866.755.9991.
TITLE: What to do When Pornography is Found on the Family Computer During a Divorce or Custody Action
DATE: 03/30/2012 02:56:14 PM
How much pornography is on the computer? Is there child pornography? How did it get there? Did your children have access to view this pornography, even if access was unintentional?
The answers to these questions will assist in determining whether criminal charges can be brought and if and how the existence of the pornography will affect the divorce or custody case.
If you are the parent accused of having the pornography, be sure to assert your 5th Amendment right not to answer any related questions during any family law deposition or court hearing.
Helpful information on this this topic can be found in the following ABA Journal Article: http://www.americanbar.org/publications/gp_solo/2012/march_april/family_law_finding_pornography_family_computer.html
Request an Appointment
Message Sent. Thank you for contacting us. We will be in touch with you shortly.
|Mon - Fri:||8:00am - 5:00pm|