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Alimony Terminated Retroactively

August 10, 2017 by  
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Sometimes a change in circumstances warrants the reduction or termination of alimony.  In the case of Holli Poe Dennis v. Michael Dennis, the First District Court of Appeals for the State of Florida reversed a trial court decision that did not make the termination of alimony retroactive to the date that the Former Wife started receiving a portion of the Former Husband’s military retirement benefits.  The Court reasoned that alimony can be modified retroactively to the date of the filing of a petition for modification, and that where alimony is to be modified there is in fact a presumption that the modification should go to the date of the filing of the supplemental petition.   On the facts before it, the Court held that modification was warranted  retroactive to the date that the Wife started receiving the retirement payments.

If you need to talk to an attorney to discuss if alimony could be modified in your case based upon a substantial change in circumstances contact us for a consultation so we can evaluate your specific situation.

What Is Mandatory Disclosure?

July 6, 2017 by  
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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.

Relocation Judgment That Separated Siblings Reversed

July 6, 2017 by  
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In a relocation case brought pursuant to Florida Statute Section 61.13001, siblings should not be separated from one another unless there is a compelling reason to do so.

In Sickels v Sickels, the Fifth District Court of Appeals for the State of Florida reversed a post divorce relocation judgment that separated two 15 year old twins from their 9 year old sibling by allowing the Father to relocate with the twins to Virginia but providing for the 9 year old to stay  with the Mother in Florida.  The trial court did not make a finding that there was a compelling reason for the 9 year old not to relocate with the other siblings, or that there would be some detriment to the minor child if he relocated with the Father and twins to Virginia. The Appellate Court ruled that absent such findings a judgment separating the siblings could not stand and reversed the judgment sending it back to the trial court for it to either make findings of a compelling reason and detriment to the 9 year old child or not separate the siblings from one another.

If you have minor children and wish to relocate with them it is important that you talk with a lawyer with experience in relocation cases.  If you want to talk to one of our lawyers about your situation please contct our office to schedule a consultation.

If a Change in Circumstances Supports a Change in Child Support You Need to Act Sooner Than Later

June 27, 2017 by  
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Where there has been a substantial change in circumstances like a significant change in income or a change in time-sharing that would justify a change in a child support obligation the Court can only modify the obligation back to the date of the filing of the petition for modification and not before it.  Accordingly, a party seeking a modification will want to file a petition for modification to preserve the date the Court can go back to when modifying child support.  You can not be reimbursed for child support payments made before a supplemental petition for modification was filed regardless of how unfair it may seem in some cases.

If you need to seek modification of your child support obligation or time-sharing schedule you should consult with a lawyer as soon as possible so as to make sure the Court can go back as close as possible to the date of the change in circumstances.  If you need advice in relation to the modification of child support contact us to discuss your situation.

To Successfully Oppose Relocation With a Child the Promise of a Change in Future Behavior is Not Enough

June 13, 2017 by  
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relocating with a child

 

 

In Solomon v. Solomon the Former Husband had a gambling problem and some mental health issues.  The burden of proof under the Florida Relocation Statute, Florida Statute 61.13001, was initially on the Former Wife to show that the relocation was supported by the statutory factors and in the best interests of the minor child. Once established the burden of proof would then fall on the Former Husband to establish that the proposed relocation is not in the best interests of the minor child.

The trial court considered it to be in the best interests of the minor child to be able to relocate with the Former Wife to Virginia , however, the trial court then decided that the Former Husband had overcome the presumption in favor of relocation being in the best interests of the child through a promise to temper his gambling and address his mental health issues in the future.

The Fourth District Court of Appeals for the State of Florida reversed the trial Court’s decision stating that a promise of future changes was not enough,  that a determination needed to have been made in the best interests of the child at the time of the final hearing, and that it must be supported by competent and substantial evidence.

If you need help from an attorney in a relocation case call us for a consultation on (786) 539-4935.

Grandparent Entitled to Makeup Time-Sharing (Visitation) Where Out Of State Time-Sharing Judgment Was Entitled to Full Faith and Credit

June 8, 2017 by  
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While the Florida Statutes do not provide for grandparents to have time-sharing like parents, an out of state Judgment domesticated in Florida is entitled to full faith and credit and can be enforced in Florida.   The Fifth District Court of Appeals for the State of Florida just reversed a trial court decision that did not provide for make up time-sharing for a grandparent based upon the argument that the Florida Statutes do not provide such a remedy to grandparents. The Fifth District Court of Appeals reversed reasoning that restricting the remedies available to a grandparent would be tantamount to not giving full faith and credit to the out of state judgment and that the remedy is available to enforce an out of state judgment. So just because Florida does not itself provide for grandparents to have time-sharing as if they were parents it does not mean that an out of state decision that they are entitled to such time-sharing shall not be given full faith and credit and enforced.

The Court stated:

“The Florida Supreme Court stated in no uncertain terms that the Colorado grandparent visitation order—which was entered in compliance with the Parental Kidnapping Prevention Act of 1980 (PKPA) —is by the express terms of the PKPA subject to the commands of the Full Faith and Credit Clause. Ledoux-Nottingham, 210 So. 3d at 1221. In order to give the Colorado order full faith and credit, the grandparents are entitled to enforce their grandparent visitation rights in Florida. The remedy provided in the Florida Statutes due to a party’s refusal to honor timesharing rights is make-up timesharing to the nonoffending party under section 61.13(4)(c). See § 61.13(4)(c), Fla. Stat. (2013) (stating a court shall award make-up timesharing where the refusal is “without proper cause”). In this sense, make-up visitation “square[s] the loss of past visitation rights.” Morales v. Morales, 915 So. 2d 247, 249 n.1 (Fla. 5th DCA 2005). Furthermore, section 61.526, titled “Duty to enforce,” authorizes the award of “any remedy” to enforce another state’s child custody determination. § 61.526, Fla. Stat. (2013). We construe these provisions together, and conclude that the grandparents are entitled to pursue the remedy of make-up visitation. As a result, we reverse and remand this matter to the trial court for determination of the issue of make-up visitation. The trial court must determine whether it would be in the children’s best interest for the grandparents to receive make-up visitation and if so, order timesharing in a manner fitting the best interests of the children. See Cheek v. Hesik, 73 So. 3d 340 (Fla. 1st DCA 2011).”

Stalking Injunction Reversed, Injunction for Protection Against Repeat Violence

June 6, 2017 by  
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There are different kinds of injunctions for protection against stalking available under Florida law.  You should consult an attorney regarding your specific circumstances.

Where a person seeks a stalking injunction for protection against repeat violence (Fla. Stat. 784.046(2)) it is necessary that there is more than one incident of violence or stalking for an injunction to be issued and be upheld on appeal.  One of the incidents must have occurred within 6 months of the petition for injunction.  Stalking itself requires repeat behavior, so following someone once does not qualify as stalking.

In the case of Kriebel v. Piedrahita the Fourth District Court of Appeals for the State of Florida revered an injunction that had been issued by the trial court for protection against stalking and repeat violence because there was only one incident of violence and one incident of following  the petitioner in the record. As the following of the petitioner had only occurred once the appellate court decided it did not constitute stalking which requires repeated following, harassing, or cyber stalking.

If you need legal advice concerning an injunction, to obtain one, or defend against one, contact our attorneys to schedule a consultation.

 

Alimony Reduced Where Recipient Wife Voluntarily Cut Expenses

April 21, 2017 by  
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Alimony can be reduced if the receiving party voluntarily reduces their expenses.  Courts have considered some voluntary changes in circumstances, such as retirement, as permitting modification of alimony depending upon the totality of the circumstances. Also, courts have reduced an alimony obligation where the substantial change in circumstances has been a reduction of a receiving spouse’s expenses.

 

In the case of Regan v. Regan, the Fourth District Court of Appeals for the State of Florida ruled that the trial court did not abuse its discretion by finding a voluntary change in circumstances had occurred and reducing alimony to the former wife from $ 9,000 a month, which was agreed to in a mediated settlement agreement, to $ 7,800 a month because the former wife significantly cut her expenses by selling the marital home, moving to a different state, and purchasing a smaller home.

 

If you have questions about a modification of an alimony obligation in your case contact us to schedule a consultation.

What is a Guardian Ad Litem?

November 17, 2016 by  
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In a divorce case or a case involving the creation, approval, or modification of a custody, time-sharing or parenting plan the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator (but not as an attorney or advocate) if it is in the best interests of the child(ren) to do so.  The court can also appoint legal counsel for a child, an attorney ad litem, however the guardian ad litem and attorney ad litem can not be the same person.  A guardian ad litem is meant to investigate and evaluate for the child(ren).  A guardian ad litem usually has the ability through court order to obtain records they may want regarding the child and otherwise collect information so that they can then make recommendations to the court.

To be qualified a guardian ad litem must be certified by the Guardian Ad Litem Program pursuant to s. 39.821, certified by a not-for-profit legal aid organization as defined in s. 68.096; or a Florida attorney in good standing.

Once appointed a guardian ad litem may investigate the allegations of the pleadings affecting the child, and after proper notice to interested parties and subject to any conditions set by the court, may interview the child, witnesses, or any other person having information concerning the welfare of the child.  A guardian ad litem may petition the court (through counsel) for an order which directs that the guardian ad litem be allowed to inspect and copy any records and documents which relate to the minor child or to the child’s parents or other custodial persons or household members.  A guardian ad litem may request the court (through counsel) to order expert examinations of the child, the child’s parents, or other interested parties by medical doctors, dentists, and other providers of health care including psychiatrists, psychologists, or other mental health professionals.  A guardian ad litem may also assist the court in obtaining impartial expert examinations.

A guardian ad litem may address the court and make written or oral recommendations to the court. The guardian ad litem shall file a written report which may include recommendations and a statement of the wishes of the child. The report must be filed and served on all parties at least 20 days before the hearing at which it will be presented unless the court waives the time limit. The guardian ad litem must be provided with copies of all pleadings, notices, and other documents filed in the action and is entitled to reasonable notice before any action affecting the child is taken.

A guardian ad litem acting through counsel may file pleadings, motions, or petitions in furtherance of the guardian’s function. The guardian ad litem is also entitled to be present and to participate through counsel in all depositions, hearings, and other proceedings in the action, and may compel the attendance of witnesses through counsel.

Attorney Kira Willig has served as a guardian ad litem on numerous occasions.  We have also represented  parties in cases where a guardian ad litem has been appointed on many occasions.  If you have questions about a custody case or a guardian ad litem has been appointed in your case and you have questions you are welcome to contact tour office to set up a consultation.

 

 

 

Rebuttable Presumption Against Permanent Alimony Not Met

October 21, 2016 by  
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In a long term marriage of 17 years or more, where alimony is otherwise appropriate, there is a rebuttable presumption in favor of permanent alimony. See § 61.08(4), Fla. Stat. (2014); Dickson v. Dickson, 41 Fla. L. Weekly D1807, 1808 (Fla. 4th DCA Aug. 3, 2016)(“Our courts recognize that with respect to long-term marriages, there is a rebuttable presumption in favor of permanent alimony.”).

In Berger v. Berger, the 4th District Court of Appeals for the State of Florida ruled that the trial court erred in awarding the wife durational alimony rather than permanent alimony in a long-term marriage where the trial court had erroneously failed to find that a rebuttable presumption existed in favor of permanent alimony and its findings were insufficient to rebut the presumption in favor of permanent alimony.

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Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.