When is Alimony Modifiable?

Most types of alimony available under Florida law can be modified where there has been a substantial change in circumstances.  Modification of alimony is based on need and ability to pay.

Examples of situations where a modification of alimony may be warranted include a substantial reduction in the income of the party paying alimony, an increase in the income of the party receiving alimony, a reduction in the expenses of the receiving party, or  the receiving party entering into a new supportive relationship since the judgement or agreement awarding alimony.  The court may consider if a change is temporary or permanent, whether it is voluntary or involuntary, and other such factors in making its determination. A modification of alimony can be a downwards or upwards modification.

The statutory right to modification of alimony, unless specifically waived, is as a matter of law incorporated into a judgment or agreement awarding alimony. However, modification of alimony can be waived in an agreement establishing alimony if explicitly stated in an agreement.

It the type of alimony awarded in your case is modifiable and modification is warranted by the circumstances in your case alimony may even be reduced to zero. The modification of alimony is meant to be retroactive to the date of the filing of the alimony modification action.

If you need help in a modification of alimony case or accessing if you are a good candidate to seek a modification of alimony contact us for a consultation (786) 539-4935.

 

 

 

Jeff Bezos Divorce, Hey Alexa, Can I Have a Prenuptial Agreement?

Yes, Jeff Bezos, founder of Amazon and the undisputed richest person alive is going through a divorce from his long time Wife MacKenzie Bezos.  Yes, it is fodder for divorce gossip and jokes. Yes, they have four children together and I am not sure the child support calculator can handle the math.  Yes, it is doubtful that the Bezos have a prenuptial or post marital agreement and perhaps MacKenzie is entitled to half of the Bezos’ fortune which is reportedly close to $150 billion, and child support will likely be staggering.

While one might think this the ideal launching pad for a discussion of how Jeff Bezos should have had a prenuptial agreement I think the exceptional fortune at play makes a prenuptial agreement less important for these people.

Does it really matter in their lives how many billions of dollars they have?  Is there anything either of them could not still afford to do if they split their assets? I think the lessons to be taken from this relate more to how money does not buy you happiness and that happiness and living ones life as best as one can in our limited time on this earth are more important than money.

That being said, everyone who does not have a billion dollars or more, so money does not matter to them in the event of a divorce, should be calling us right now on (786) 539-4935 to get a prenuptial agreement.

What is Mandatory Disclosure?

Mandatory disclosure is a Florida family law term referring to the production of a financial affidavit and financial documents required pursuant to Florida Family Law Rule 12.285. The rule applies to most initial and supplemental family law actions like divorce, paternity, and modification actions. Mandatory disclosure is not required in adoption actions, simplified dissolution cases, contempt cases, domestic violence cases, and cases where a divorce is by publication. The parties or court may modify these requirements, except a financial affidavit must always be filed in cases as to which the rule applies, and a child support worksheet must always be filed in cases involving children and child support.

A party must gather and provide to the other party each of the types of documents required by the mandatory disclosure rule and provide a certificate of compliance with mandatory disclosure. Required documents include things like pay stubs, tax returns, deeds, bank statements, account statements, and promissory notes. In an initial or supplemental proceeding the rule requires that mandatory disclosure be completed within 45 days of service of the initial pleading unless there is an objection to the disclosure, agreement or motion for extension of time to do so. The requirements of mandatory disclosure vary where temporary financial relief is being sought within 45 days of the filing of a petition. The parties have a duty to update their financial affidavit and documents whenever there is a material change in their financial circumstances.

If you have questions about your family case or the requirements of mandatory disclosure contact us and we can schedule a consult to help you.

What is Shared Parental Responsibility and What is Sole Parental Responsibility?

“Shared parental responsibility” is where both parents retain full rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined together. Shared parental responsibility is what is usually ordered by the courts. If the parties have shared parental responsibility but can not agree they can ask the court to decide the issue or potentially change parental responsibility.

“Sole parental responsibility” means only one parent makes decisions regarding the minor child. Where warranted by specific facts a court can order ultimate decision making authority or sole parental responsibility be given to one party concerning a child or specific issues concerning a child like, for example one parent could be awarded decision making concerning education. To award sole parental responsibility the court must make a determination that shared parental responsibility would cause detriment or harm to the child. Sole parental responsibility is not usually order by the courtsand is only awarded where warranted by the specific facts of the case.

If you have questions about shared or sole parental responsibility in your case please call our office for a consultation.

What is an Uncontested Divorce?

An “uncontested divorce” is as the name suggests a divorce without a contest, an unopposed divorce or a divorce based upon an agreement. If a Husband and Wife can reach an agreement concerning the issues in their divorce case, and the agreement is consistent with the requirements of the law, they can pursue an uncontested divorce using a divorce agreement or through the Respondent filing an Answer and Waiver to the Petition. This is not the same things as a “simplified divorce” which has its own set of additional requirements such as both the Husband and Wife having to attend the final hearing.

If the parties go the uncontested divorce route, they can usually avoid the extra expense and extra stress commonly associated with a contested divorce and can usually get divorced from one another much more quickly than in a contested divorce case. In an uncontested divorce the parties can also benefit from being able to agree to terms that fit their lives best and their best interests rather than having terms that may not fit their lives so well imposed upon them by the Court.

If you are able to agree with your spouse on the issues in your divorce case such as: the distribution of marital assets and debts, alimony or the lack of it, children’s’ issues like time-sharing, parental responsibility, and child support calculated pursuant to the guidelines, you may be good candidates for an uncontested divorce. If you would like more information on the uncontested divorce process and to find out if it may be right for you please contact us to arrange a consultation.

Wrongful Detainer, When a Person Who is Not an Owner or a Tenant Will Not Leave Your Home

It came as a complete surprise to me how frequently people try to stay in other peoples homes without a legal right to be there, and how the police may not to be very helpful in resolving the situation, and may even assist the person without ownership or tenancy in the home to gain access to it or remain there. It seems horrific that someone who forced their way into your home or whom you invited in may refuse to leave, and that the police might not assist you in having them removed, and may even tell them they have some right to be there. For instance, a friend who stays at your residence, overstays their welcome, and then refuses to leave.

If you are faced with such a situation you need to consult with an attorney to evaluate your options, determine if you are able to complete an affidavit based upon which an illegal occupant can be removed by the police, or if you do not qualify for the affidavit and need to file a wrongful detainer action to get the illegal occupant out.

A wrongful detainer action is for when you are trying to remove someone from your home; when you are the owner or legal tenant; the person you are trying to remove is not a tenant or legal owner; and there is no agreement for rent. Wrongful detainer is a distinct and separate cause of action from eviction and ejectment. It is important to file the correct cause of action to prevent unnecessary delay in getting the person illegally occupying your home out. If you have a person illegally occupying your home who is neither an owner or a tenant without an agreement for rent you scan contact us for a consultation about getting your home back.

“We Want Prenup, We Want Prenup”, Prenuptial Agreements Are Not Just For Celebrities

“We want prenup” was a term thrown into the popular culture of the time by Kanye West’s song “Gold Digger”. While people often think of a prenuptial agreement as reserved for celebrities and the mega rich any couple can benefit from one.

Prenuptial and premarital agreements are agreements entered into by parties contemplating marriage that set forth the rights and obligations of each party in the event of death, divorce, and even during the marriage. They can be used to delineate the assets, debts, and income that may be marital and divided should the marriage fail, and those that may remain separate and not be divided in the event of divorce. There are only a few things that they can’t be used for which mostly relate to child issues, like determining child custody, a parenting plan, or child support.

Nobody goes into a marriage thinking it will fail but its best to plan for contingencies, just like we get insurance to protect things we own. Prenuptial agreements can offer certainty and help to reduce the transactional costs should the worst happen and the marriage result in a divorce, leaving less to fight about and with both parties knowing where they will stand. While it can be a little uncomfortable discussing a prenuptial agreement with a fiancé, having a prenuptial agreement can help people stay friends down the road if the relationship results in a divorce by taking the acrimony out of the divorce process itself. If you think it’s hard to talk about consider it may be easier to negotiate with a party that loves you and wants to marry you than one that wants to leave you and divorce you already. If you are losing the relationship with the person you thought was the love of your life you may thank yourself and they may thank you also for not adding a fight in divorce court to the process. For the frugal among you, the cost is likely to be much less than a divorce with contested financial issues.

If you want to talk to us about a prenuptial agreement please contact our office to arrange a consultation on (786)539-4935

Alimony Will No Longer Be Tax Deductible to the Payer in 2019

According to the Tax Cuts and Jobs Act, in divorces entered or modified after Dec. 31, 2018, alimony will no longer be deductible for the payer, and taxes won’t need to be paid on it by the recipient. This is a change from the long standing position that the payer would not pay taxes on the alimony they paid and the recipient would have to pay the taxes on the alimony they received.

Divorce, Property Division, and Equitable Distribution, Florida Statute Section 61.075

PROPERTY DIVISION

If you have questions about a divorce, division of assets or equitable distribution call us on (786) 539-4935 to arrange a consultation.
Florida State Section 61.075 (2015) Equitable distribution of marital assets and liabilities states:

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
(i) 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.
(j) Any other factors necessary to do equity and justice between the parties.

(2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor’s estate to the obligee or the obligee’s estate, unless otherwise agreed to by the parties.

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

(4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.

(5) If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities. An interim order may be entered at any time after the date the dissolution of marriage is filed and served and before the final distribution of marital and nonmarital assets and marital and nonmarital liabilities.

(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing.
(b) The court shall specifically take into account and give appropriate credit for any partial distribution of marital assets or liabilities in its final allocation of marital assets or liabilities. Further, the court shall make specific findings in any interim order under this section that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees.
(c) Any interim order partially distributing marital assets or liabilities as provided in this subsection shall be pursuant to and comport with the factors in subsections (1) and (3) as such factors pertain to the assets or liabilities made the subject of the sworn motion.
(d) As used in this subsection, the term "good cause" means extraordinary circumstances that require an interim partial distribution.

(6) As used in this section:

(a)1. "Marital assets and liabilities" include:

a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
b. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
c. Interspousal gifts during the marriage.
d. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.

2. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

3. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.

(b) "Nonmarital assets and liabilities" include:

1. Assets acquired and liabilities incurred by eith
er party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.

(7) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.

(8) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse’s individual property; affect the laws of descent and distribution; or establish community property in this state.

(9) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.

(10) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.

(11) Special equity is abolished. All claims formerly identified as special equity, and all special equity calculations, are abolished and shall be asserted either as a claim for unequal distribution of marital property and resolved by the factors set forth in subsection (1) or as a claim of enhancement in value or appreciation of nonmarital property.

In Kind Benefits, Military Overseas Housing Allowance, Count Towards Income For Child Support

In The Department of Revenue v. Price, the Fists District Court of Appeals for the State of Florida ruled that the Father’s overseas housing allowance should have been included as part of the Father’s gross income for the purposes of determining income for the calculation of child support.

Florida Statutes Section 61.30 broadly defines income and provides that the following not all inclusive list of items should be included as income for the purposes of calculating child support:

1. Salary or wages.

2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.

3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. "Business income" means gross receipts minus ordinary and necessary expenses required to produce income.

4. Disability benefits.

5. All workers’ compensation benefits and settlements.

6. Reemployment assistance or unemployment compensation.

7. Pension, retirement, or annuity payments.

8. Social security benefits.

9. Spousal support received from a previous marriage or court ordered in the marriage before the court.

10. Interest and dividends.

11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.

12. Income from royalties, trusts, or estates.

13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses.

14. Gains derived from dealings in property, unless the gain is nonrecurring.