Prenuptial Agreement Enforcement, Need to Present Evidence to Prove Your Claim

If you have a prenuptial agreement and there is going to be a question of enforcement before a court it is important that you have substantial and competent evidence to support your enforcement claim.   You need to be able to prove your case.

In the case of Dalmazo v. Dalmazo, the Third District Court of Appeals reversed the trial court’s enforcement of a prenuptial agreement marital home and jointly owned property buy out provision because there was not substantial competent evidence to establish that the Husband had timely provided the written notice to the Wife required in the prenuptial agreement.

The Court cited to Pardes v. Pardes, 335 So. 3d 1241, 1244 (Fla. 3d DCA 2021) (observing that a trial court’s factual findings made with respect to the application of a prenuptial agreement are reviewed for competent, substantial evidence); Bardowell v. Bardowell, 975 So. 2d 628, 629 (Fla. 4th DCA 2008) (Distribution of marital assets and liabilities must be supported by factual findings in the judgment or order based upon competent substantial evidence).

It appears that if the trial court had been presented with evidence of the Husband’s timely compliance with the marital home and jointly owned property written notice buy out provision of the prenuptial agreement, by having sent and had a timely written notice to the Wife and having it admitted into evidence, the trial court would not have been reversed on the issue and the prenuptial agreement would have been enforced and upheld on appeal.

It is unclear from the opinion whether timely written notice was not provided by the Husband, or that it was provided and simply was not admitted into evidence.

If you are going to seek enforcement of a prenuptial agreement you need to make sure you take the right steps from the beginning and then, if enforcement is necessary, provide the court with the substantial competent evidence necessary to prove your claim. Failure to do either may result in the prenuptial agreement not being enforced.

If you have questions about a prenuptial agreement, are divorcing with a prenuptial agreement, or need to enforce one contact us, and we can discuss your specific situation. (786) 539-4935

 

Success in Private Termination of Parental Rights Case

We recently had success in pursuing a private cause of action for termination of parental rights where a child had been, abandoned, abused, and neglected by the Mother. 

Such private causes of actions, as opposed to actions brought by the Department of Children and Families, are both uncommon and complex . 

The trial lasted several days and was the culmination of years of litigation in the case.  Based upon the evidence presented, the  trial Court terminated the parental rights of the Mother based upon abuse, abandonment and neglect without requiring any attempts at reunification with the Mother. 

After success at the trial level the 3rd District Court of Appeals  upheld the trial Court’s ruling. The Mother is seeking Further review but is unlikely to succeed in that regard.

If you have questions about a termination of parental rights case call us to discuss your situation on (786) 539-4935.

 

Robert J. Hanreck has been selected to Expertise.com’s Best Miami Child Support Attorneys for 2023

Expertise.com finds and reviews the top service professionals to help customers find the best-qualified professional for their needs using a multi faceted review process. They scored Miami Child Support attorneys on more than 25 variables across 5 categories and analyzed the results to put us on their hand picked list.

Robert J. Hanreck litigates and practices in the areas of family and civil law.

Selected Best Miami Litigation Attorneys by Expertise 2023

Robert J. Hanreck has been selected to Expertise.com’s Best Miami Attorneys for 2023.

Expertise.com finds and reviews the top service professionals to help customers find the best-qualified professional for their needs using a multi faceted review process. They scored Miami litigation attorneys on more than 25 variables across 5 categories and analyzed the results to put us on their hand picked list.

https://www.expertise.com/fl/miami/litigation-attorneys

Robert J. Hanreck litigates and practices in the areas of family and civil law.

 

 

Presumption of Equal Time-Sharing Likely to Become Florida Law

Bill 1292 has not yet become law but looks like it will be soon.  It creates a rebuttable presumption that equal timesharing between the parents is in the best interest of a child. The parties may waive the presumption and agree on  different time-sharing.  Florida law did not previously recognize such an equal time-sharing presumption .

Child crying looking back as father takes him away

The bill provides that to rebut the presumption, the party in opposition to equal timesharing must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child.

Currently. 61.13(3), F.S., requires the court to consider the enumerated factors when determining the best interest of the child for, in part, timesharing schedules. Therefore, to rebut the presumption provided for in the bill, the court will take evidence related to such factors to determine the best interest.

The bill also provides that a parent’s permanent relocation to a residence within 50 miles of the primary residence of the child may be considered as a substantial and material change in circumstances for the purpose of a timesharing modification.

If you have questions about time-sharing call us on (786) 539-4935.

Florida Alimony Law Update

Florida alimony law appears set to change this year.  A bill has cleared the house and senate and is waiting for the Governor’s signature. 

The bill sets forth 9 factors set forth to be considered in determining alimony.  (1) First need and ability to pay, the burden being on the moving party to establish their need and the other side’s ability to pay.  If that is established the court will then consider: (2) the parties standard of living during the intact marriage and anticipated needs of both parties after a divorce is granted; (3) the length of the parties’ marriage; (4) the parties’ ages and physical and mental conditions; (5) the income and resources of each party and any income earned from marital and non marital assets; (6) the earning capacity, educational level and employability of the parties; (7) the ability of each party to obtain skills or education to enable themselves to contribute to their own support or become self-supporting; (8) the contributions that each party made to the marriage including education, career building, homemaking, and child care, the responsibility that each party will have in raising children that the parties have in common; and (9) any other factor the courts of equity and justice  should consider in making an alimony award including whether a supportive relationship exists or that one of the parties may reasonably retire.

In regard to the duration of marriage, the bill has defined a short-term marriage as  a marriage that lasts less than 10 years; moderate-term marriage as a marriage that lasts between 10 and 20 years; and a long-term marriage will now be considered to be a marriage that lasts 20 years or more.  The length of the marriage is considered to be the amount of time that has elapsed between the date of the marriage and the date of the filing for divorce.

The bill eliminates the term permanent alimony. The types of alimony per the bill are now temporary, bridge-the-gap, rehabilitative, and durational alimony.  Courts may order alimony to be paid in a lump sum or as periodic payments.

The bill states, Bridge-the-gap alimony may be awarded to assist a party in making the transition from married to single life.  It is intended to assist a party with identifiable, short-term needs.  The length of an award of bridge-the-gap alimony may not exceed 2 years.

Rehabilitative alimony is intended to provide education and training that will enable a party to become self-supporting or contribute to their own support.  An award of rehabilitative alimony may not exceed 5 years.

Durational alimony lasts for a set period of time.  It may not exceed 50% of the length of a short-term marriage, 60% of the length of a moderate-term marriage, and 75% of the length of a long-term marriage.  An award of durational alimony may be extended under exceptional circumstances based upon a consideration of the following 4 factors and the 9 factors listed above. (1) First, the extent to which the payee’s age and employability wholly or partially limit the payee’s ability to be self-supporting; (2) Second, the extent to which the payor’s available financial resources wholly or partially limit the payor’s ability to be self-supporting; (3), the extent to which a payee’s mental or physical disability wholly or partially limits the payee’s ability to be self-supporting;  and (4), the extent to which a payee is the caregiver to the parties’ mentally or physically disabled child.  The amount of durational alimony will be the amount that is required to meet the payee’s reasonable needs, or an amount that does not exceed 35% of the difference between the husband and wife’s net incomes, whichever amount is less.

An alimony award may not leave the obligor with significantly less net income than the net income of the obligee, unless there are exceptional circumstances

Courts will be permitted to consider the adultery of either spouse and its resulting economic impact in determining the amount of alimony to award.

The bill also states that in actions for modification, the court will be authorized to terminate or reduce an award of alimony when the payor has reached the normal retirement age.  The normal retirement age will be considered to be the normal retirement age specified by the Social Security Administration, or the customary retirement age for the payor’s profession.  The payor must actually retire or make demonstrable efforts to retire.  Retirement must reduce the payor’s ability to pay.  The court will look at the following ten factors in determining whether to reduce or terminate alimony.  First, the age and health of the payor. Second, the type of work performed by the payor. Third, the customary age of retirement in the payor’s profession. Fourth, the likelihood that the payor will return to work, and the payor’s motivation for retiring.  Fifth, the needs of the party receiving alimony and that recipient’s ability to contribute to his or her own needs. Sixth, the impact that the termination or reduction of alimony would have on the payee.  Seventh, the parties’ assets before, during and after the dissolution of marriage, and whether either of the parties wastefully dissipated assets received at the time of the divorce.  Eighth, the income earned by the parties during and after the marriage.  Ninth, the retirement, pension and Social Security Benefits received by the parties after the marriage.  Tenth, the payor’s compliance with his or her alimony obligation.  A payor may file a Supplemental Petition for Modification six months prior to the date of retirement.

If you have questions about alimony and the changes in alimony law please call us to schedule a consultation on (786) 539-4935.

Florida Statute of Limitations for Negligence Reduced to 2 Years!

The Florida legislature and Governor Ron DeSantis have shortened the general negligence statute of limitations, the time period within which a general negligence action must be commenced.  The statute of limitations has been changed from 4 years to 2 years for claims arising after March 24, 3023.  A Plaintiff will now usually have 2 years from the date of injury to pursue a negligence claim.

Non Modifiable Durational Alimony In Divorce Agreement Does Not Terminate On Remarriage

In Dills v. Perez, the Florida 5th District Court of Appeals found the trial court had committed reversible error where it terminated the Former Husband’s alimony obligation on remarriage of the Former Wife.

While Florida Statute Section 61.08(7) mandates that an award of durational alimony terminates on death or remarriage of the party receiving alimony, in this case the parties’ Marital Settlement Agreement stated that durational alimony that would be non-modifiable for 48 months and the Former Wife remarried within the 48 month period. The Appellate Court recognized that the parties had agreed to relief beyond what the statute would have otherwise provided for but it was permissible and binding for the parties to do so.

As the parties had specifically included the language that the durational alimony would be non-modifiable during the the 48 Month period the 5th District Court of Appeals reversed the lower Court decision allowing for the termination of the alimony obligation. Had the parties not included such language the alimony obligation would have terminated upon remarriage as per the statute.

If you are going through a divorce, considering a settlement, or facing modification of alimony it is important you understand your legal rights and the intricacies of your situation so contact us for a consultation to discuss the circumstances of your case.

What is Shared Parental Responsibility?

Before a divorce both parents are legally the natural guardians of their minor children and have joint and equal rights regarding time-sharing and decision making. The same is not true where a child is born out of wedlock, in which case a paternity action must be filed to establish the parental rights of the father or non-birth parent.

Shared parental responsibility is where both parents are legally determined to have equal legal rights to make decisions concerning their children’s health, education, and welfare. Sole parental responsibility is where one parent, and not the other parent, is legally empowered to make decisions concerning the minor child. The Court also has the option to grant one parent ultimate responsibility over specific areas of a child’s welfare, even where shared parental responsibility is ordered.

Florida public policy favors shared parental responsibility. The goal of shared parental responsibility is to encourage both parents to be fully involved in their children’s lives. Only where shared parental responsibility would be detrimental to a child will the Court establish sole parental responsibility.