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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 time–sharing 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 time–sharing must prove by a preponderance of the evidence that equal time–sharing 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, time–sharing 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 time–sharing modification.

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

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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.

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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.

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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.

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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.

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Florida Supreme Court Rules Courts Are Not Required To Specify How A parent Can Reestablish Time-Sharing In A Final Judgment

In C.N. v. I.G.C. the Florida Supreme Court ruled that the statute governing modification of parenting plans neither authorizes nor requires a court to set forth specific steps necessary to reestablish time-sharing upon modification of a preexisting parenting plan. Prior to this ruling there were a line of cases requiring that, if a parent’s time-sharing is restricted, a court should specify what that parent would need to do to be able to regain time-sharing. The Florida Supreme Court reasoned that there was no such requirement in the applicable Florida Statutes.

“Requiring the court to give concrete steps would essentially entitle a parent to be restored to the pre-modification status quo, albeit after satisfying court-identified conditions. Such an entitlement is inconsistent with section 61.13(2)(c)11., which says that “[t]here is no presumption … for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” It is also inconsistent with section 61.13(2)(c)2.b., which says that the “court shall order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent if it is in the best interests of the minor child.”

And perhaps most basically, it is inconsistent with the statute’s overarching “best interests of the child” standard itself. Depending on the circumstances, it might not be reasonable for a court to attempt to devise conditions that would lead to a restoration of the pre-modification status quo. Yet the rule advocated by the mother would require the court to specify a pathway to restoration in every case.

In light of these aspects of chapter 61, a court does not err simply for finally modifying a preexisting parenting plan without giving a parent concrete steps to restore any lost time-sharing.”

While not going so far as to say that a court may not include how a parent can regain time-sharing the Florida Supreme Court stated that a Final Judgment is not deficient where it does not include how a parent can regain time-sharing.

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Can I get an Annulment instead of a Divorce and what are the Requirements?

You can get an annulment instead of a divorce if you can establish to the satisfaction of the court that the marriage was legally void, or legally voidable and has not been ratified. However, the annulment process is more complicated and more expensive than an uncontested divorce so in addition to the legal requirements you would want to consider if there is a special circumstance that makes it worth while to deal with additional complexity and additional expense to have the court determine that the marriage was not legally valid rather than just divorcing.

Annulment is where a marriage is void or voidable and the parties seek to be returned to the status of being single as if no marriage had taken place. A void marriage is a marriage that has a defect that can not be made valid by the actions of another party. A voidable marriage is a marriage that there was a legal impediment to the marriage at the time it was entered into that makes the marriage voidable but the impediment to marriage could be removed and the marriage ratified.

There is no specific statutory requirement for an annulment, so the courts look to case law in making a determination as to if a marriage can be annulled. Examples of circumstances in which an annulment may be granted include; where the other party has concealed his/her true identity before and after the marriage; where a party was legally married to someone else at the time of the marriage; where a party refuses to cohabitate or consummate the marriage; where the parties were under the influence of drugs or alcohol at the time of the marriage; where there was duress; where a party was pregnant with the child of another party at the time of the marriage; or where a party was underage to legally marry. The burden is on the party seeking annulment to establish the grounds for the annulment.

Florida is a no fault divorce state and practically favors divorce over annulment. The divorce process in Florida can be a relative simple one depending on the issues in a case and whether the parties are in agreement or seek to litigate those issues, while the annulment process will always include having to establish that the marriage was void, or voidable and has not been ratified, to the satisfaction of the Court. It depends on your specific situation whether an annulment offers you any advantages over a divorce. If you have questions about annulment please call us to discuss your situation on (786) 539-4935.

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Can I Still Get a Divorce In Miami During the Corona-virus COVID-19 Pandemic?

The short answer is: Yes, you can still get a divorce. The Clerk of Court is still accepting divorce filings and judges have established procedures to allow the cases before them to progress without in person appearances. Some judges have conducted hearings by zoom, and in uncontested divorces some have permitted the parties to submit affidavits rather than requiring the appearance of a divorcing party at a hearing as would normally have been required.

If you would like an attorney to assist you get a divorce during the Corona-virus COVID-19 pandemic we are here to assist you.

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Can a Domestic Violence Injunction be Set Aside or Dissolved?

Th short answer is yes. Sometimes domestic violence injunctions are only entered for a certain period of time and expire automatically, obviously a one year injunction expires after a year. But sometimes a permanent injunction is entered with no set expiration date. Such an injunction stays in place through the passage of time and is an ongoing blemish on your record. Most people do not realize that a permanent injunction can still be dissolved or set aside in time, and/or under the right circumstances.

To dissolve an injunction against domestic violence the enjoined party must show changed circumstances and demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose. In determining whether an injunction continues to serve a valid purpose the trial court must consider whether Petitioner reasonably maintains a continuing fear of becoming the victim of domestic violence. This determination can be fact specific but the more time that passes without anything happening that would lead anyone to reasonably believe an injunction is necessary the ore chance there is that it might be dissolved by a court upon the request of the enjoined party.

Once before the court on a motion to dissolve a domestic violence injunction the injunction should be set aside if the evidence presented is not legally sufficient to show that petitioner’s fear of domestic violence is objectively reasonable. The possibility of future contact between the parties is not, without more, sufficient to conclude that the circumstances underlying the injunction remain the same. Nor is a Petitioner’s speculative fear of future violence legally insufficient to justify the never-ending existence of injunction.

So if a domestic violence injunction has been entered against you, and you want to have it set aside or dissolved, contact us to arrange a consultation so we can discuss your circumstance with you and evaluate your options to do so.