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Same-sex marriage in Florida is not recognized, which has posed a number of questions to Jacksonville and other Florida divorce attorneys about how to handle to such matters. The State of Florida originally initiated a statute defining that same-sex marriage would not be considered legally authorized or recognized in the state of Florida. That, not being enough, in 2008, Floridians voted by 62% to institute Amendment 2 to the Constitution, which gave us the language of Article I, Section 2, defining marriage as, “the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

As other states, like Vermont, have enacted the right for same-sex couples to forge in the bonds of matrimony, that marriage is not given full faith and credit in states like Florida. In accordance with Florida Statute 741.212, such marriages that are valid elsewhere are not considered valid if the couple decides to reside in Florida. Therefore, a legal marriage is not legally dissolved in Florida. This means that if the marriage is valid in another state and not recognized where the couple resides, for the marriage to be properly dissolved, the couple must move to a state where their marriage is legal. In places like Vermont, the residency requirement before filing for divorce is one year as opposed to six months in Florida. This can put a strain on the individuals if they were to have the marriage dissolved effectively. However, there may be arguments to say that since you reside in a State where the marriage is not recognized that there are no real reasons to have it properly dissolved because in essence, the marriage is void. In that situation though, the problem would be in dividing property, assets and debts, which can be divided equally or fairly in a divorce.

This leaves a great deal of difficulty for same-sex couples and could potentially be construed as unconstitutional and interfering with ones right to travel, which has been upheld as a constitutional right by the U.S. Supreme Court, beginning with U.S. v Guest, 383 U.S. 745 (1966).

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1129102_poker.jpgGambling debts, martial affairs, excessive drug use and the like can lead to a divorce in Florida. However, Florida is a no-fault state so these things do not really come into play when determining such things as alimony. As a Jacksonville divorce lawyer, I am often able to get these acts of impropriety and waste into the case because Florida law does allow for these actions of using martial funds for the benefit of one spouse to play a role in dividing assets and liabilities. Florida Statute Sec. 61.075 (1)(I) provides that one of the factors for unequal distribution is: “The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” Therefore, the use of marital funds to further such things as an affair, within two years of filing for divorce, can be used to unequally distribute assets and debts to the parties.

When the court hears a divorce case and the court makes a decision regarding division of assets, then the losing party may believe that there are grounds for an appeal. In that case, the appealing party provides a brief to the appellate court establishing the legal basis and argument for why the first court’s order should be overturned. In a recent Florida case, Zambuto v. Zambuto, 36 FLW D2758 (Fla. 2nd DCA December 16, 2011), the Husband filed an appeal after the Wife was awarded an unequal distribution of marital debts and assets to her favor. In this case, the Husband had gambling debts/losses of $90,000.00 that were established two years before the filing for divorce. In the first court, the debts for gambling were charged solely to the Husband and the Husband appealed. The appellate court heard the case and ultimately decided to overturn the first trial court’s decision regarding said debts due to the lack of specific findings that the gambling only benefited the Husband and that the gambling occurred during the “undergoing of irreconcilable differences,” meaning the parties were not getting along and heading towards divorce.

While the appellate court seems to put this new twist on the statute, there is question as to whether the appellate court intended to require that in all circumstances, the debt for the benefit of one party is accumulated during the “undergoing of irreconcilable differences.” In this case, there was a history of the Husband making more money than the Wife and using gambling as a way to entertain business clients, and sometimes the Wife joined in the gambling. Therefore, the thought may be that the court intended this second portion for purposes of activities that historically benefited both parties, not just one, and that the use of the martial funds was done at a time when the Husband already stopped the benefit to the Wife by reducing the money in their joint accounts, moving out, etc. However, the case does not specifically state this and therefore leads to the question of whether funds depleted two years before filing must only be considered if the funds were depleted during the, “undergoing of irreconcilable differences.”

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1092822_bathroom_1.jpgAn award of alimony or spousal support in a Florida divorce does not mean that the award will be valid under any and all circumstances or that it is not modifiable. Support obligations are, unless waived by agreement, always modifiable in Florida. As a Jacksonville divorce lawyer, clients have contacted me regarding their support obligation because their income has changed, the other party has remarried, or a variety of other things have arisen since the divorce. In Florida, if there is a substantial change in circumstance, alimony may be reduced or terminated based on that change (Florida Statute 61.14). If the receiving party is living in a new relationship setting and that relationship could be deemed supportive in nature, based on the Florida law, then the court may terminate or reduce alimony in accordance with that new support.

In order to reduce or terminate an alimony obligation, the State puts the burden of proof on the obligated paying party. The court may reduce or terminate, upon making findings that since the divorce was finalized, granting the alimony, receiving spouse has lived with another individual in what could be considered a supportive relationship. In determining whether such relationship is, in fact, supportive, the paying party is responsible for proving, beyond a preponderance of the evidence that the following relationship and supportive-like behaviors exist:

1. Whether the party receiving support is with another person and they are presenting their relationships to others a married couple by engaging in activities similar to that of a marriage or supportive relationship(e.g. referring to one another as “husband” and “wife”; taking the last name of the other; this is “our” family, etc.).

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1174069_management_team.jpgIn a divorce or paternity case involving issues with children including time-sharing/visitation, parental responsibility or child support, the court may refer the parties to mediation. Florida law provides for the judge in such a proceeding to send the parties to mediation over disputed matters to determine if such things can be settled out of court, Florida Statute 61.183. As a divorce and family lawyer in Jacksonville, it has been my experience that mediation can be beneficial to both parties without going to trial because the parties have more control over the outcome.

What is mediation? Mediation is a formal negotiation process involving the parties, their attorneys and a neutral third party (the mediator). The mediator’s role is to help facilitate the negotiation process by working with both parties to reach the best outcome. Mediation often starts with everyone in one room (e.g. a conference room) and the party’s attorney will give a brief overview of the case and what the client is looking to achieve. Once the attorneys have completed the opening statement to the mediator, the parties are divided into two separate rooms. The mediator will typically start the process by talking to the party that initiated or filed the court action and will then go in between the rooms to see what may be resolved. Everything that is shared with the mediator is confidential and everything that happens at mediation is confidential and cannot be used at trial if the case is not resolved.

While going through this process, the mediator can make suggestions to both parties about what his/her experience has been with the judge in the case and give recommendations for offers to each party in order to help facilitate an agreement. However, the mediator is not allowed to provide legal advice to either party, even if she/he is not represented.

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68916_law_education_series_2.jpgIn a divorce, often one party may have more financial security than the other party, either by income, inheritance, or the like, thus putting the other party in a financial situation that makes it difficult to pay attorney’s fees. When hiring a lawyer for a divorce or modification action in Florida, the concern is the price for an attorney and whether she or he will have the ability to pay for an attorney. The other concern is that, knowing the financial situation, the other party will have the money available to pay for an attorney and that will require the party without disposable income to borrow money from family or represent himself or herself. As a Jacksonville family law and divorce attorney, I use the consultation to determine what the issues are and approximate the attorney fees associated with the action, also I educate the potential client about Florida law as it relates to attorney’s fees. Florida actually provides for the court to determine whether one other party will be responsible for the other party’s attorney’s fees and costs. Florida Statute 61.16 provides parameters for the court to use in determining the award of attorney’s fees and costs to the needing party.

When a party does not have the financial means to pay for his or her own attorney’s fees and associated costs (e.g. Filing fee; deposition costs, etc.), then the court may look at the financial resources of both parties to determine if the other party does have the financial ability to pay reasonable fees and costs for the other. For example, A has been a homemaker and cared for the children during the fifteen (15) year marriage and B has been the breadwinner and makes approximately $200,000 per year. When A decides to file for divorce, A does not have income available that is nonmarital at the time of filing for the divorce. A feels that an attorney is necessary in the divorce and hires an attorney and files for divorce, which has a cost of $409 in Jacksonville and a cost is associated with serving B the divorce papers. A’s attorney can request, in the petition for divorce and with a request and motion for temporary needs, that B pay for A’s reasonable attorney’s fees during the divorce and at the end. The court would look at the financial situation of both parties and determine if A is in need of B paying A’s attorney’s fees and costs and whether B has the financial ability to do so.

However, if the reason for the case is the inaction or failure to comply with the court’s prior order by the needing party, and the court rules against the needing party, then often times the other party will not be required to pay attorney fee’s and costs for defending the action. For example: A is awarded child support in the original divorce order to be paid by B. A has more money than B due to an inheritance of $100,000.00, which is and was nonmarital, and B makes $30,000 per year. A hires an attorney and files a Motion for Contempt against B for failure to comply with the court order. B requests attorney’s fees and costs to defend against the action. The court finds that B has not complied with the order and is, therefore, in contempt of court. The court does not have to award B attorney’s fees since B’s own actions lead to the hearing and need for attorneys. In fact, B could be on the hook, if shown that B has the ability to contribute to A’s attorney’s fees, to pay back to reasonable attorney’s fees incurred as a result of B’s actions.

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1097209_shaking_hands.jpgFlorida recognizes the use of premarital and post marital agreements when deciding the outcome or possible outcome of a divorce. In some cases, during the marriage the parties may find themselves thinking of divorcing and may enter into a marital settlement agreement, but ultimately not have the agreement entered with the court because they are able to reconcile the marriage, this too is valid in Florida. When parties decide to divorce any agreement between the parties, whether premarital agreement, post marital agreement or a prior marital settlement agreement that allows for enforcement later if the parties reconcile, can be construed as an enforceable contract in the divorce proceedings. As a Jacksonville divorce lawyer, issues can arise regarding the enforceability of the agreement and in order to fight the document, the parties may need to hire separate attorneys, potentially leaving one of the parties needing financial assistance during the contest of the divorce. Therefore, Florida case law allows for temporary support to be awarded for temporary alimony and attorney fees.

Enforcing or contesting a premarital agreement, post marital agreement, or a marital settlement agreement may require attorney time and costs. In order for an agreement to be contested, the issues that come to question are laid out in Florida Statute 61.079. Premarital agreements are enforceable unless it can be shown that one or more of the following occurred:

1. The agreement was not entered into voluntarily by both parties;

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1237883_computer_room_2.jpgDivorce cases in Florida often have an alimony component, which husband and wife do not always understand. As a Jacksonville divorce lawyer, I often educate my clients on how alimony is determined and calculated based on their case facts and whether the alimony can be changed or modified in the future. Florida does not have a formula for divorce, but the Florida statutes along with prior Florida cases provide a format by which alimony may be determined. For example, alimony may be awarded in a divorce case where the parties have been married for 20 years and the wife has not worked full-time in 15 of the 20 years because she has been homemaker, mother and wife. If the husband makes roughly $150,000 per year and the division of assets still leaves the wife with a need to pay her bills and living expenses, then the court may award the wife permanent periodic alimony (i.e. permanent and paid monthly) if the husband has the ability to pay, which he most likely would based on the above example. The question then becomes, if alimony is awarded and the husband loses his job, then how does that impact his financial obligation to pay alimony? Can alimony be modified? The simple answer is yes, but a substantial and involuntary change in circumstance must be presented to the court along with new financial information.

Recently, a Florida appellate court heard a case involving a husband that made $175,000 per year at the time of the divorce and the wife was awarded $5,000 per month in spousal support after all necessary factors were determined by the court. The husband later was laid off from his job and eventually found a new job that paid $66,000. The husband attempted to modify his alimony payment based on his involuntary change in circumstance. However, the trial court found that he should have saved during the time that he knew he was getting laid off (approximately 16 months) in order to pay for his alimony obligation. Also, the trial court found that the husband was using his savings to pay his living expenses while he looked for a new job and the court found that he also could have used his savings to pay his alimony obligation. The trial court ultimately reduced his alimony to $3,500 per month, which constituted 81% of his net income. The appellate court heard the case and reversed the decision based on prior Florida case precedents.

The appellate court basically found, based on Florida law, that the husband could not pay an amount of support that does not allow him to support himself. This goes to the basic ability for alimony, which is not only a need for alimony, but an ability to pay. Second, the appellate court found that the husband could not be required to incur debt in order to pay alimony. Also, the appellate court found that the husband could not be required to deplete or sell his assets to pay alimony to the wife. Furthermore, they found that the husband did not have an obligation to save money to meet his future alimony obligations.

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701012_writing_a_check_1.jpgA concern regarding child support and alimony, in Florida, is that once it is ordered, the other party will not pay. As a Jacksonville, Florida divorce and family law attorney, my advice is to clients is generally the same regarding this issue, once alimony and/or child support are ordered by the court, we should do an income deduction order. Such orders can be done only after the order establishing support is entered by the court. Once that is done, the court can enter an income deduction order, which lays out the payment schedule for the paying party. In addition, the income deduction order is sent directly to the employer of the responsible party so that the wages can be garnished.

Establishing child support and alimony in Florida is based on statutory guidelines. The calculation for child support is based on the income of both parties and their pro rata share of the total income of both. Credits may be given for such things as the child’s health insurance and daycare or if a parent has a prior child support obligation. Alimony does not have such a calculation in Florida, but is based on need and ability to pay.

Once the court determines how much will be owed in child support or alimony, the court may enter an income deduction order at the request of a party. The payments made by garnishment are not made directly to the receiving party, but to the State depository. In addition to the employer receiving the income deduction, the State is also provided a copy so that an account may be set-up for both the paying and receiving parties. The money is then garnished each month, in accordance with the order, for the length of time established in the order.

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763367_missing_.jpgAs a Jacksonville divorce and family law attorney, I often have clients ask me if they can have the other party’s parental rights terminated due to the lack of participation in the child’s life. In child support cases, when a parent has not paid child support nor attempted to contact the child or have any visitation with the child, the primary parent grows weary of tracking down the other and tired of explaining to the child why the other parent is not involved in the child’s life. Other times that this topic arises is when a parent remarries and the stepparent wants to adopt the child. However, terminate the rights of a parent, without consent, is not as easy as 1, 2, 3 because it is a big deal to give up rights to the child and for the child to give up rights to the other parent. The Florida legislature has given provisions that protect children, but ultimately, if the other parent does not respond to the court action, then by default his/her parental rights may be terminated regardless of the provisions.

The main factor in terminating parental rights is whether the other parent agrees to the termination. Termination of parental rights may be accomplished by consent of both parties. However, if there is no one there to step-in as the other parent (e.g. stepparent adoption), then the court may require financial information for the remaining parent to show that the parent is financially capable of independently providing for the child. The reason for this is that parents that do not have financial means to provide for the child may request some type of government assistance, such as Medicaid for the child’s healthcare. The State then has an interest in the case and the Court needs to protect the State from the remaining parent presently asking for such assistance from the government and voluntarily relieving the other parent of financial support.

If the other parent’s whereabouts are unknown, then a diligent search must be completed. If the missing parent is the father, then the search must include the Florida Putative Father Registry. The Putative Father Registry is a place where men should register their name and identifying information if there is any chance that he may be the father of a child in Florida. Once the registry search is completed, that notice of search is filed with the court. In addition, regardless of mother or father, the requesting party must also publish notice of the case in a local newspaper in the city of the last known address of the parent. If no answer or reply is ever received, then parental rights may be terminated by default. Once a clerk’s default is entered, a final default hearing must be held with the Judge to determine whether it is in the best interest of the child for the parent’s rights to be terminated.

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952313_gavel.jpgIn some circuits in Florida, like Jacksonville, St. Augustine and other surrounding areas, cases involving divorce, paternity, child support or other family law matters may be heard in front of a magistrate instead of a judge, if the parties do not object. The magistrate is given the power to hear cases and make rulings based on the facts and evidence presented. Once a magistrate makes a ruling, the order is submitted to the Judge to sign-off. If a party disagrees with a magistrate’s findings, then that party can file for exceptions to the magistrate’s report based on the evidence versus the decision contained in the report. In so doing, the judge will then hold a hearing for the parties to argue why the court should accept or deny the magistrate’s report.

When the hearing is held regarding the exceptions, the party that filed the exceptions is required to provide the Judge and the other party with a transcript of the hearing. At the hearing, there is a presumption, in accordance with Florida case law that the court must accept the magistrate’s report if the findings are supported by competent and substantial evidence. When issues of credibility arise, such as the credibility of a witness’s testimony, the court should reject the magistrate’s findings if the findings are stated in error to the testimony evidenced in the transcript.

Basically, a court is required to give discretion to the magistrate’s findings and report unless the report seems to be wrong on its face. The court does not get to change the ruling simply because it disagrees with the magistrate’s conclusions, if those conclusions are based on the evidence reflected in the transcript.

If the court finds that the evidence does not support the report, then it may send the case back to the magistrate for reconsideration. Once the magistrate writes a report, even the second time, the parties still have a right to file for exceptions and start the process over again. Ultimately, however, the court is tied to the magistrate’s report if the report has findings that can and are substantiated by the evidence reflected in the transcript.

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