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What Can Happen If I Don’t Pay Child Support?

Where a parent fails to pay court ordered child support pay checks can be garnished, bank accounts can be frozen, a driver’s license can be suspended, passport renewal can be denied, and a tax refund can be intercepted.  A parent can even be incarcerated if found in contempt.

Where a parent fails to pay court ordered child support the other parent or the Department of State, Child Support Enforcement Program, can seek to have them held in contempt of court.  To establish a parent is in contempt for the non-payment of child support it is necessary to establish the willful violation of the court’s child support order.  ie. that a parent presently has the money to pay the court ordered child support, but instead chose not to comply with the court ordered child support obligation.

An order of contempt must be in writing and contain findings of fact that a prior order requiring payment of child support was entered; that the parent failed to pay the child support as ordered; that the parent had the ability to pay; and that the parent willfully failed to pay the child support.  The burden is on the party seeking a finding of contempt to establish the willful violation of the court’s order by clear and convincing evidence.

An order must specify the amount to be paid and the manner of payment.  If an order imposes incarceration or another coercive sanction it must specify how the parent can purge themselves of the sanction.  If a parent still fails to comply the movant must file an affidavit of non-compliance and the court can then issue a writ of bodily attachment for the arrest of the non-compliant party so that they can be brought before the court within 48 hours for a hearing on whether they have the present ability to pay and if so what sanctions the court will impose.

If you have questions about establishing child support, enforcement of an existing order, or modification of child support contact our attorneys to help answer your child support questions.

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Can A Stalking Injunction Or Domestic Violence Injunction Be Modified?

Modification of Stalking Injunctions and Domestic Violence Injunctions

Yes.  Stalking injunctions and domestic violence injunctions can be modified or dissolved under Florida law where there has been a substantial change in circumstances warranting the change.  Where a party seeks to modify a stalking or domestic violence injunction and sufficient allegations are made in a motion to support the modification the court must then hold an evidentiary hearing to determine if the modification is justified, and if so, how the injunction will be changed.

Hence even a permanent injunction may not be permanent at all.

In Feldman v. Callins, the Fourth District Court of Appeals for the State of Florida reversed a trial court decision that dismissed a legally sufficient motion to dissolve or modify a stalking injunction.  The Court ruled that the where a legally sufficient motion for modification has been filed a party must be given the opportunity to be heard on it.

If you need to talk to a lawyer about a stalking or domestic violence injunction or the modification or dissolution of one contact us to arrange a consultation.

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Relief from Injunction Against Stalking Pursuant to Florida Rule of Civil Procedure 1.540

Stalking Injunction Respondent, John Richards asked for relief from an injunction against stalking pursuant to Florida Rule of Civil Procedure 1.540.  Florida Rule of Civil Procedure 1.540 provides the possibility of relief from an order, judgment, or decree where there has been a clerical mistake, mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. There are some very specific procedural requirements that must be observed for relief to  be granted under the Rule.

Mr. Richards claimed in support of his motion that he was of low to average intelligence and had poor comprehension, did not understand what the injunction was, or understand the notice of evidentiary hearing  so he did not attend the evidentiary hearing at which the injunction was entered against him.  In support of his Motion to set aside the injunction Mr. Richards filed affidavits sworn to by both himself and his mother.  The trial court summararily denied Mr. Richards Motion without conducting a hearing.

Stalking Injunction Set Aside

In Richards v. Crowder, the Fourth District Court of Appeals for the sate of Florida reversed the trial court’s denial of Mr. Richard’s Motion stating that the Motion was facially sufficient as Florida law recognizes that illness, psychological condition, lack of the ability to read, and lack of comprehension can all support a finding of excusable neglect that can lead to relief from a court judgment such that the trial court should have conducted an evidentiary hearing on the Motion rather than denying it outright.  The trial court was instructed to hold an evidentiary hearing on Mr. Richards’ Motion.

If you need to talk to a lawyer about a domestic violence or stalking injunction or a motion to set aside or obtain relief from an order, judgment, order or decree contact our office to schedule a consultation.

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Can I Get My Lawyer’s Fees Paid By The Other Side In A Divorce Or Paternity Case?

The answer in one word is, sometimes.

attorneys fees in dovirce and paternity cases

Pursuant to Florida Statute Section 61.16: “The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.”

So when one party needs money for their attorney’s fees and the other party has the financial ability to pay the court can make a fee award in favor of the party in need.

Pursuant to the Florida Supreme Court case of Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) and its progeny a court can also award fees where warranted; in light of the scope and history of the litigation; the duration of the litigation; the lack of merit of the positions taken by the other side; because the other side has brought defenses and assumed positions to mainly frustrate and stall; and based upon the existence and course of prior and existing litigation.

Accordingly, when the other party in a divorce or paternity case engages in bad conduct and takes bad positions during a divorce case that drives up attorney’s fees the court can hold them accountable for those fees.

The court can make an award of temporary attorney’s fees while the case is ongoing and can also make an award of attorney’s fees at the end of the case.  Whether the court will do so is usually based upon the requesting parties’ need for attorney’s fees and the other parties ability to pay.

To recover fees on a temporary basis during the pendency of the case or at its conclusion it is usually necessary to establish the facts that support your claim to establish need and ability to pay and the Rosen case’s factors through admissible evidence and testimony.  It is also necessary to establish the amount of the fees and there reasonableness.

If you want to talk to a lawyer about the potential for recovery of fees in your case contact us for a consultation on (786) 539-4935.

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Can I Get Sole Custody Of My Child?

You can not get sole custody in a divorce or paternity case anymore, but you can get something close to it if warranted by the specific facts of your case, and in some cases parental rights can be terminated were there are egregious circumstances of abuse, abandonment, and/or neglect.

Under Florida law, there is no longer something called sole custody.  The law favors the involvement of both parents in a child’s life and now uses the phrases, parenting plan, time-sharing, and shared parental responsibility, to reflect the preference of Florida law for the involvement of both parents in a child’s life, rather than the historically used terms custody and visitation which imply one parent has superior rights concerning a child as compared with the other.

Sole Custody

In a typical family law, divorce, or paternity case, you can expect both parents to share time with the child.  While all time-sharing schedule are not equal time-sharing schedules, in a typical case both parents have regular overnights with their child.

In a typical case, parents are are also expected to make important decisions concerning their child together.

However, if warranted by the specific circumstances of a divorce or paternity case, the court can create an unequal time-sharing schedule,  can limit or restrict a parents communications and time-sharing with a child, and can give one parent decision making authority concerning important decisions for a child on specific issues to the exclusion of the other parent.

The court does not take such decisions lightly and a parent needs to establish a very good basis, through testimony and evidence, for the court to award sole decision making authority, or restrict a parents time-sharing and communications with their child.

Where supported by the right testimony and evidence the court can order things like no overnights, supervised time-sharing, supervised communications, and/or impose conditions on a parent they must fulfill for them to be able to be involved in shared decision making, have communications with the child, and have time-sharing with the child.

In the context of a typical divorce or paternity case, it is not realistic to expect the court to completely cut off a parent and not give them a way back into a child’s life if they do the things the court requires them to do.

In the most egregious of cases, cases of abuse, abandonment, and/or neglect, the law does provide a mechanism for the termination of parental rights.  It is also possible for a parent to voluntarily surrender their parental rights as part of an adoption or step-parent adoption proceeding. Further, depending on the circumstances parental rights can  be terminated  where a parent is incarcerated.

If you have questions about “sole custody”, “visitation”, time-sharing, parental responsibility, or the termination of parental rights contact one of our lawyers to arrange a consultation to discuss your situation and get the advice you need.

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Partition, The Division of Property Between Co-Owners

You own a property with someone you planned your future with, bought it together as an investment, or obtained title together, but there comes a time when you decide you need to separate your interest in the property but the other owner won’t agree.  What do you do?  You pursue a partition action.

keys to house for partion or sale

When a property is owned jointly with another person, and you want to separate your ownership interest and sell the property but the other owner won’t cooperate you can ask the court to partition the property.  In a partition case the court can order the public or private sale of a property.   Once sold the court can determine how the proceeds of the sale should be distributed between the owners based on their ownership interests, give set-offs and credits for things like; upkeep of the property, the payment of the property’s expenses, the cost of mutually approved improvements to the property, and to the extent to which one owner is out of possession of the property they may be entitled to a portion of the fair rental value of the property from the owner in possession.

Where the joint owners are married partition is often alleged as part of a divorce case so as to give the court options beyond what equitable distribution may provide for.  Technically the partition can only happen after the parties are divorced.

If you need to separate your interests in a property from a co-owner, or need to discuss partition as part of a family law or divorce case, with an attorney with experience in partition of real property please contact us to arrange a consultation.

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Should a Brokerage Account Funded with Inherited Money be Considered Marital?

In a Divorce case the court determines what assets and liabilities are marital and which are not and equitably divides the marital assets and liabilities. The Third District Court of Appeals entered an opinion in the case of Gromet v. Jensen reversing the trial court for its decision to consider three brokerage accounts funded with inherited money to be marital and subject to equitable distribution.

Of the three brokerage accounts, one had been established prior to the marriage and the two others that had been established during the marriage. All three had been funded by the Husband with money inherited from his mother. Inherited money usually starts of as being non-marital.

The Wife claimed that the brokerage accounts were marital because the Husband had deposited about $1,100 from the dissolution of a marital business into a brokerage account and because the Husband had expended marital efforts and labor in his management of the accounts such that any enhancement in value should be considered marital.

The Husband claimed that while he had managed the accounts during the marriage they had actually decreased in value because of trading losses and the use of funds to maintain the marital household. The Husband also testified that the had not deposited the $1,100 from the marital business into any of the three brokerage accounts having deposited it into a separate bank account.

The Third District Court of Appeals considered the testimony, evidence, and law in detail coming to the conclusion that the three brokerage accounts were not marital on the record before it. It reasoned that the Wife had not specified which brokerage account the $1,100 had been deposited into and did not have specific knowledge regarding the accounts such that the evidence before it was insufficient to find commingling had occurred based upon the vagueness of the Wife’s testimony and evidence concerning the deposit.

The Court then considered the Wife’s enhancement in value argument. The Court reasoned that while the Husband had actively managed the accounts during the marriage the Wife had failed to meet her burden to show an enhancement in their value had resulted from it, and that the evidence of record actually supported that they had decreased in value. Accordingly, the Wife was not entitled to any portion of the three accounts.

This case shows the importance of properly preparing for trial and presenting the right evidence to the trial court. Had a different record been established at trial through documents or testimony the outcome may have been completely different. For instance a bank record showing the deposit of the $1,100 into the initial brokerage account which was then used to fund the other two may have affected the court’s consideration of whether the accounts had become marital through commingling.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, valuation under the law, and presenting the legal arguments and evidence to the court to support your position, contact our office to arrange a consultation on (786)539-4935

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Divorce, Equitable Distribution, Court Must Identify Marital Or Nonmarital Status of Assets and Liabilities and Value Them

equitable distribution assets and liabilitiesIn a divorce case with assets and liabilities, the court must identify what assets and liabilities are marital and what are non-marital and then assign values to the assets and liabilities so they can be divided in equitable distribution.

Determining what is marital and what is non-marital generally starts with a determination of what assets and debts were obtained or incurred during the marriage.

There are however some exclusions from what is considered marital even where an asset was acquired during the marriage, for instance, non-interspousal gifts, income produced by nonmarital assets, or an inheritance.

Then a court must then decide if assets and debts that existed prior to the marriage have a marital component because of concepts like gifting, enhancement, and commingling.

The assets and liabilities are then valued and equitably divided by the court.

This is not necessarily an easy process involving both legal concepts and valuation issues so you will want a lawyer with experience in such issues to present the right legal concepts and values to the court.

If a court does not determine what is marital and what is nonmarital and value the assets and liabilities in its judgment a decision can be reversed.

For instance, in Buckalew v. Buckalew, the trial court had affirmed a General Magistrates written findings of fact that did not identify what assets and liabilities were marital and what were not.  Nor did it assign values to each asset and liability.  The Fourth District Court of Appeals for the State of Florida reversed the trial court’s decision to adopt the written findings because they did not state what was marital and what was not and assign a value to each asset and liability.

A decision can also be reversed if a court does not categorize what is marital or nonmarital correctly or uses inappropriate valuation methods.

If you are facing equitable distribution issues in your divorce case you need a divorce lawyer who can help identify the issues specific to your case and help you present your case to the court.  Call us for a consultation. (786) 539-4935

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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.

 

 

 

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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.