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.

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.

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.

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.

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.

The Corona Virus, Pandemic Influenza Benchguide

Did you know that there is a Pandemic and Influenza Benchguide addressing legal issues concerning quarantine and isolation in Florida?

There is! I certainly hope it never has to be used.

The Benchguide, designed for a Judge, addresses legal issues associated with quarantine and isolation. It provides links to relevant Statutes and Code. Additionally, it presents legal authorities that may be useful to judges in an influenza pandemic.

While we may watch what is happening in China and think that mandatory quarantine would never happen in the United States, nobody is going to be forcefully quarantined or dragged from their homes here, there is legal authority out there set forth in the Benchguide that may provide the framework for exactly that, and that is before the Courts are closed!

Here is the Benchguide:

pandemicinfluenzabenchguide

Revenge Porn

Can you imagine someone distributing or displaying pornographic or sexual pictures of you through the internet? 

Revenge porn can be devastating to its victims lives and their emotional well being.

In Florida, there are very specific laws in relation to what constitutes cyber sexual harassment.  In layman’s terms, laws against revenge porn.

First, it can be criminally prosecuted.  It appears that there have been a small number of criminal prosecutions under the revenge porn law since it has been on the books, approximately half of which resulted in the dismissal of the case, and half of which lead to an adjudication. 

To address revenge porn criminally you will want to gather all the evidence you can and go to the police to make a report. Hopefully, the police will then conduct a criminal investigation which can lead to potential criminal prosecution by the State Attorney.

Under many circumstances a victim or effected person can also seek a civil injunction for protection against cyber stalking to address revenge porn similar to an injunction that would be available to a stalking victim.  An injunction to stop revenge porn acts like distributing or displaying pornographic or sexual pictures of you.

Florida statutory law defines cyberstalking as: 

1.Engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person; or

2. To access, or attempt to access, the online accounts or Internet-connected home electronic systems of another person without that person’s permission, causing substantial emotional distress to that person and serving no legitimate purpose.

While not all encompassing the statutory definition of cyberstalking is quite broad and has been found to include many types of revenge porn.

If you feel you have been the victim of cyberstalking or revenge porn and need an injunction to protect you please contact us to discuss the specifics of your situation and how we maybe able to help you.

Contempt For Failing To Pay Medical Expenses

Where an order or judgment in a divorce or paternity case requires a party to pay uncovered medical expenses one might think that to be enforceable by contempt.

Not necessarily.  Enforceability thorough contempt may depend on exactly what the order or judgment states and how specific it is.

For instance an order of contempt has been overuled on appeal where the order violated was not specific enough, stating only that the Former Husband bring current within 90 days those uncovered medical expenses for which he had received documentation.

While the trial court found the language sufficient to find the Former Husband in contempt when the Former Husband did not pay the 5th District Court of Appeals held that the language of the order was not sufficiently specific as to what the Husband was to pay to find the Former Husband in contempt for non payment.

If you have questions about contempt proceedings, an order, or judgment and enforceable please contact us to set up a time to discuss your specific circumstances.

Can a Prenuptial Agreement Be Invalidated?

Yes, a prenuptial agreement and/or a provision of a prenuptial agreement can be invalidated by the court.

Courts invalidate prenuptial agreements for reasons like their violation of public policy, duress,  a lack of full financial disclosure, or fraudulent financial disclosure.

Section 61.079(7)(a), Florida Statutes (2019), in relevant part, provides: “A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that . . . [t]he agreement was the product of fraud, duress, coercion, or overreaching.” Duress is defined as “a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him [or her] to do and act or make a contract not of his own volition.” Herald v. Hardin, 95 Fla. 889, 891, 116 So. 863, 864 (1928) (citation omitted). In order to prove duress, “[i ]t must be shown (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side.”City of Miami v. Kory, 394 So. 2d 494, 497 (Fla. 3d DCA 1981).Thus, duress involves a “dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion.” Id. (quoting 17 C.J.S. Contracts§ 168 (1963)).“It is not . . . duress for the proponent of the agreement to make it clear that there will be no marriage in the absence of the agreement.” Eager v. Eager, 696 So. 62d 1235, 1236 (Fla. 3d DCA 1997). Nonetheless, a party may not exploit another “for his [or her] own pecuniary advantage.” Berger v. Berger, 466 So. 2d 1149,1151 (Fla. 4th DCA 1985) (emphasis in original) (citing Paris v. Paris, 412 So. 2d 952 (Fla. 1st DCA 1982)).

For instance, in Zeigler v. Natera, the Third District Court of Appeals upheld a trial court ruling invalidating a prenuptial agreement where it was first presented to the fiance less than a week before the wedding date, signed on the eve of the parties wedding, and was not accompanied by a full and complete financial disclosure.

The parties planned to marry in Venezuela. Six days before their wedding, the husband presented the wife with a draft of an antenuptial agreement. At the time, the wife was four months pregnant with their second child. The only financial disclosures contained within the document were perfunctory references to the husband’s ownership of certain nominal non-convertible bearer shares with corresponding assigned nominal values. The agreement did not provide for equitable distribution or alimony. The husband allowed the wife to peruse the document and then assured her that he would furnish full financial disclosures prior to the wedding. The day before the wedding, having not yet provided any financial documentation, the husband threatened to cancel the ceremony if the wife did not.  Although it appears that the trial judge considered both unconscionability and duress in invalidating the agreement, as a finding of duress is amply supported by the record evidence, any error as to the unconscionability analysis does not dictate reversal. Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I] f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).  The agreement did not contain an express waiver of any right to disclosure.

No two cases are identical and you will want to have your prenuptial agreement prepared and/or reviewed for validity and enforceability by a lawyer knowledgeable in the area.