Alimony: If at first you don’t succeed try, try and try again!

Once again the Florida Legislature is hopeful of bringing an end to Permanent Alimony in Florida.  This is the fourth (4th) such attempt in four years and it appears that this year it may not just make it to the Governor’s desk, but could receive his approval.  In the past, the Governor vetoed the bill because it was to be applied retroactively.  This year’s version removes the retroactive applicability, which for the client simply means in order for a spouse to terminate alimony, he or she will have to show a substantial change in circumstances and if granted it will terminate only as of the date the action is filed and not before!

The Senate has yet to join the House or pass an Alimony bill of their own, but it does not appear there is as much opposition to the bill as in the past.  A long term marriage under the House bill would be defined as 20 years.  If it becomes law, it will offer Judges a formula, a guideline, from which to order alimony.  Judges will still have a certain amount of discretion to consider the particular facts of each case, but with a specific formula to calculate the amount. We attorneys will be better able to advise the client as to the potential outcome, at least with a bit more certainty than currently exists.  The formula will be based upon a numerical factor times the number of years of marriage, multiplied by the difference between the parties gross incomes.

There would be no alimony at all for marriages less than two (2) years.  Currently, if a disability occurred during  those years, the Court could order some alimony.

This action is viewed by those paying alimony as fair and it is viewed by those receiving alimony as unfair.  I don’t believe it will substantially impact the way divorces are litigated but it should give the client a more realistic view upon which to decide whether litigating the issue is in their best interest.

So for those spouses who may be at risk of paying Alimony, there is hope and for those spouses who would need Alimony, don’t panic! Regardless of the final bill, it is more likely than not,the Court will retain the discretion in certain cases to award alimony.  I can’t imagine a bill that would leave a spouse of 30 years with no income and no employable skills out on the street.

Respectfully,

Gail Linscott Silva, Esquire

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Five Steps to Litigate Your Divorce

When a Judge tries a Dissolution of Marriage Case, he or she will use the acronym PEACE to prioritize the issues and reach a decision regarding your family. What is PEACE? It is the 5 Steps of consideration:
1. Parental Responsibility
2. Equitable Distribution
3. Alimony
4. Child Support
5. Everything Else

Before I give you a brief overview of PEACE, I submit to you the following disclaimer: The following descriptions of the PEACE issues are general in nature. Every rule has its exceptions and every case has different facts which may or may not affect the general application. Most importantly, Judges’ histories and personalities also impact how they analyze the PEACE factors for your case.

PARENTAL RESPONSIBILITY: Florida no longer uses the terminology “custody” or “visitation”. Parental Responsibility involves decision making for your children. There are essentially two types of parental responsibility; shared and sole. Shared Parental Responsibility is NOT Joint Custody. It is rather parents sharing the responsibilities associated with their children. These responsibilities include among other things; where they go to school, what doctor they use, what extra curricular activities they participate in and where they will live. I expect to address how the Court expects you to exercise shared parental responsibility in my next blog so stay tuned. Sole Parental Responsibility is very rare and very difficult to obtained because it essentially tells the Court that one parent has nothing of value to contribute to the children’s lives.

In the Court’s consideration of Parental Responsibility, its primary question is “what is in the best interest of the child?” Included in its analysis is the timesharing schedule the children will exercise with each parent. You may have heard or read that the Courts are mandated to give equal contact to both parents. That is an untruth! There are many factors that the legislature has mandated that the Court consider in developing a timesharing schedule. So while it is true that Courts today strive to give the child as much time with both parents which may in fact be 50/50, they are mandated to consider what is in the best interest of the child.

Equitable Distribution: Generally, the Court will start at an equal distribution of all assets and debts acquired or incurred from the date you are married until the date your petition for dissolution of marriage is filed, regardless of whose name the asset or debt is titled.

Alimony: Is there a need and is there an ability to pay? If the answer to either of those questions is yes, then the Court will consider other factors in deciding whether alimony is order, if so, what amount and for how long. Some of those factors include the length of the marriage, the standard of living during marriage and the health of the parties. Infidelity is generally NOT a consideration.

Child Support: An income formula is used which factors in the incomes of the parties, the number of children, the timesharing arrangement, health insurance, child care costs, and special needs. It is generally not something that you should spend a lot of litigation time and money on because 9 out of 10 times the Court will NOT deviate from the Florida Guidelines.

Everything Else: This generally is the consideration of Attorney Fees. The Court will then consider whether there is a need and whether there is an ability to pay. Generally, if the assets and debts are equally distributed and there is not a gross disparity in the parties incomes, the Court will NOT award attorney fees. It is a myth that the spouse who wants out of the marriage must pay the other spouse’s attorney fees.

Well that is PEACE in a nutshell. As they say in the movies, “may the odds be ever in your favor.” If you have further questions or need help with your case, please feel free to contact me at (407) 343-4730 and schedule a personal consultation to discuss the unique factors which may impact the Judge’s decisions for your family.

Respectfully,
Gail Linscott Silva, Esquire

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CAN I ENROLL MY CHILD IN MY SCHOOL DISTRICT?

THIS TIME OF YEAR ALWAYS LEADS TO CALLS BY PARENTS ASKING THE QUESTION, “CAN I ENROLL MY CHILD IN THE SCHOOL DISTRICT WHERE I LIVE IF THE OTHER PARENT OBJECTS?”

ABSENT A COURT ORDER SPECIFICALLY ADDRESSING THE ISSUE, THE ANSWER VARIES DEPENDING ON THE STATUS OF THE RELATIONSHIP WITH THE OTHER PARENT, THE HISTORY OF THE CHILD’S SCHOOLING, WHETHER THERE WAS EVER ANY COURT ORDER ENTERED AT ALL AND MOST IMPORTANTLY WHETHER IT IS IN THE BEST INTEREST OF THE CHILD.

WHEN TWO PARENTS LIVE IN DIFFERENT SCHOOL DISTRICTS AND SHARE PARENTING TIME, THEY SOMETIMES DIFFER ON WHERE THE CHILD SHOULD GO TO SCHOOL. I STRONGLY RECOMMEND THAT THIS ISSUE BE ADDRESSED BY THE PARENTS AT LEAST 9 MONTHS PRIOR TO THE CHILD’S ENROLLING IN SCHOOL BECAUSE IF YOU WAIT UNTIL SPRING OR SUMMER AND CANNOT AGREE WHERE THE CHILD SHOULD BE ENROLLED, IT IS HIGHLY UNLIKELY THE COURT WILL HAVE COURT DATES AVAILABLE BEFORE SCHOOL STARTS TO HEAR YOUR CASE AND YOUR CHILD WILL BE LEFT WITH THE POTENTIAL OF HAVING TO CHANGE SCHOOLS IN THE MIDDLE OF THE YEAR WHEN THE COURT MAKES A DECISION. SOME DECISION MUST BE MADE FOR THE CHILD TO ATTEND SCHOOL, BUT WHO MAKES THE DECISION?

CONSIDER THE FOLLOWING GENERAL ANSWERS, UNDERSTANDING THAT THE FACTS OF EACH CASE IMPACT THE ANSWER:

1.IF THERE HAS NEVER BEEN A COURT ORDER ENTERED, IT IS ASSUMED THE PARENTS WERE NEVER MARRIED AND GENERALLY, THE MOTHER UNDER FLORIDA STATUTE IS STILL KNOWN AS THE PRIMARY RESIDENTIAL PARENT AND SHE WOULD MAKE THE DECISION.

2.IF THERE WAS AN ORDER ENTERED BUT IT DID NOT DESIGNATE A SCHOOL ZONE AND ONE PARENT HAS THE MAJORITY OF THE TIME SHARING, MOST SCHOOL DISTRICTS WOULD DESIGNATE THAT PARENT’S RESIDENCE AS THE APPROPRIATE SCHOOL DISTRICT FOR THE CHILD. HOWEVER AND IT IS A BIG HOWEVER, ABSENT A COURT ORDER THE PARENTS WOULD BE EXPECTED TO FOLLOWING THE TIMESHARING SCHEDULE OUTLINED IN THE COURT ORDER. SEE, KERSHAW V.KERSHAW, 2014 Fla. App. LEXIS 9209, decided June 18, 2014.

THE FLORIDA RELOCATION STATUTE DEFINES RELOCATION AS 50 MILES, THIS LEAVES A HUGE VACUUM FOR PARENTS AND COURTS TO INTERPRET WHICH PARENT’S RESIDENCE SHOULD BE USED TO DETERMINE A CHILD’S SCHOOL WHEN PARENTS LIVE 49 MILES OR LESS FROM EACH OTHER. I RECOMMEND YOU DO YOUR RESEARCH. FIND OUT WHICH SCHOOL HAS THE BEST STATE RATING. DOES IT OFFER SPECIAL PROGRAMS THAT THE OTHER SCHOOL DOES NOT OFFER THAT WOULD BENEFIT YOUR CHILD? REVIEW SCHOOL CALENDARS AND CONSIDER ALTERNATE TIMESHARING SCHEDULES THAT WOULD INSURE QUALITY TIME WITH THE OTHER PARENT. CONSIDER THE TRANSPORTATION ISSUES AND YOUR WORK SCHEDULES. IS ONE PARENT AVAILABLE IN THE MORNING BEFORE SCHOOL AND IN THE AFTERNOON AFTER SCHOOL?

3. THERE IS NO GOOD ANSWER WHEN PARENTS CANNOT AGREE. LITIGATION IS EXPENSIVE AND TIME CONSUMING. THE BEST ANSWER IS ADDRESS THE ISSUE EARLY AND IF YOU ARE INVOLVED IN CREATING A PARENTING PLAN, MAKE SPECIFIC PROVISIONS ADDRESSING THE ISSUE, EVEN IF YOUR CHILD IS AN INFANT. THEY WILL BE READY FOR SCHOOL IN THE BLINK OF AN EYE.

IF YOU NEED ASSISTANCE, OUR OFFICE STANDS READY TO ASSIST YOU.

RESPECTFULLY,
GAIL LINSCOTT SILVA

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CAN THE COURT ORDER PARENTS TO PAY CHILD SUPPORT PAST THE AGE OF 18?

YES.  There are 3 occasions when the Court may order parents to continue to pay child support for a child who is older than 18 years of age.

1.  When the parents agree and it is included in their marital settlement agreement and/or parenting plan.  Generally, once a child reaches the age of 18, the Court loses its authority to order a parent to pay support for the child.  However, if during the dissolution process the parents agree, for whatever reason, that child support should continue, then the Court may adopt their agreement and incorporated into a final judgment, which will then become enforceable.  Most often this is used to provide the child with assistance and support while they attend college, but can be used as a means for repayment of retroactive child support.  While parents cannot contract away, a child’s right to support, agreements to pay child support beyond the age of 18 become contracts, that the Court is fully authorized to enforce.

2.  If the child turns 18 while attending high school and is expected to graduate prior to his/her 19th birthday, child support will be ordered to continue until the child graduates.  The law is very clear that the child MUST graduate prior to turning 19 years of age.  Not a day later.

3. Finally, Fla. Stat.  Section 61.13(1)(a)(1)(a), provides that “the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent,” and this duty ceases after the “child’s eighteenth birthday unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to  by the parties.” In turn, section 743.07(2) empowers the court to require support “for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

If you need assistance with a child support issue, our office can help.  Call 407-343-4730 for a consultation.

Respectfully submitted,

Gail Linscott Silva
 
 

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UPDATE: THE 5TH DCA ALLOWS ADOPTION BY SAME SEX COUPLE TO STAND

THE FOLLOWING OPINION IS NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION 

G. P., Appellant, v. C. P., Appellee;Case No. 5D13-1766 COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 2014 Fla. App. LEXIS 7815, May 21, 2014, Filed

YOU MAY RECALL, THE BLOG I WROTE LAST YEAR ABOUT A SAME SEX COUPLE, WHERE ONE FEMALE CARRIED THE OTHER FEMALE’S FERTILIZED EGG AND GAVE BIRTH TO A CHILD WHO THEY RAISED AS THEIR CHILD FOR A NUMBER OF YEARS.  WHEN THEIR RELATIONSHIP ENDED, THE BIRTH MOTHER TRIED TO TERMINATE THE BIOLOGICAL MOTHER’S PARENTAL RIGHTS.  THE COURT SAID NO.

LAST WEEK, THE 5TH DCA  UPHELD A FINAL ADOPTION JUDGMENT WHICH IS CLEARLY CONTRARY TO FLA. STAT. 63.042 (3) BUT WHICH WAS CHALLENGED ON THE BASIS OF SUBJECT MATTER JURISDICTION AND ESTOPPEL. WHILE I DO NOT DISAGREE WITH THE 5TH’s REASONING AND RESULT, I CANNOT HELP BUT OBSERVE THAT IT APPEARS THE HIGHER FLORIDA COURTS DO NOT SUPPORT FLA. STAT. 63.042(3)’s PROHIBITION AGAINST HOMOSEXUAL ADOPTIONS AND ARE INTENT ON FINDING WAYS TO ALLOW THESE ADOPTIONS TO REMAIN INTACT ONCE ENTERED!

IN THE D.P.P. CASE, THE CHILD WAS CONCEIVED BY C.P., VIA AN ANONAMOUS DONOR. C.P. THEN CONSENTED TO THE ADOPTION OF THE CHILD BY HER SAME SEX PARTNER, G.P.  THE ACTION WAS ENTITLED “A STEPPARENT ADOPTION” AND IT WAS GRANTED BY THE TRIAL COURT WITHOUT TERMINATING C.P.’s PARENTAL RIGHTS.  ALMOST A YEAR AFTER THE FINAL JUDGMENT OF ADOPTION WAS ENTERED THE RELATIONSHIP BETWEEN C.P. AND G.P. ENDED.  C.P. FILED AN ACTION TO VACATE THE JUDGMENT, ARGUING THE ORIGINAL COURT LACK SUBJECT MATTER JURISDICTION AND THE JUDGMENT WAS VOID BECAUSE G.P. DID NOT QUALIFY AS A PROPER PERSON TO ADOPT. THE  SECOND TRIAL COURT AGREED, STATING THAT G.P. WAS NOT A STEPPARENT OR AN UNMARRIED ADULT SEEKING TO ADOPT FOLLOWING THE TERMINATION OF C.P.’s PARENTAL RIGHTS AND THEREFORE THE JUDGMENT WAS VOID BECAUSE THE COURT LACKED JURISDICTION OVER THE MATTER. 

ON APPEAL, THE 5TH DCA REVERSED THE SECOND TRIAL COURT’S VACATING AND LET THE ADOPTION STAND, ESSENTIALLY BECAUSE THE ISSUE ON APPEAL WAS JURISDICTION, NOT ERROR.  I WANT TO BE CLEAR, THE DICTA RENDERED IN THIS CASE IS, IN MY HUMBLE OPINION, THE REAL REASON THE 5TH DCA SUPPORTED THE ORIGINAL JUDGMENT OF ADOPTION.  HERE IT IS:

THE COURT SAID: “it would be unconscionable to allow C.P. to invoke the jurisdiction of the court for the sole purpose of creating a parent-child relationship between G.P. and D.P.P. and then to allow her to destroy that same relationship because her relationship with G.P. has ended. See Parker v. Parker, 950 So. 2d 388, 393-94 (Fla. 2007) (“The law should discourage adults from treating children they have parented as expendable  [*15] when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.”); T.M.H. v. D.M.T., 79 So. 3d 787, 802-03 (Fla. 5th DCA 2011) (“Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults[.]”), approved in part, disapproved in part, 129 So. 3d 320 (Fla. 2013); Perez v. Perez, 769 So. 2d 389, 392 (Fla. 3d DCA 1999) (“Children should not be ‘played’ as if in a game of ping-pong . . . .”).

For all these reasons, we conclude that the final judgment of adoption is not void and that C.P. is estopped from challenging the adoption judgment. We reverse the order vacating the final judgment of adoption and reinstate it. On remand, the circuit court will conduct further proceedings to establish a parenting plan, including child support and related matters.

I WHOLE HEARTEDLY AGREE  THAT WHEN ADULT RELATIONSHIPS FALL APART, IT IS THE ADULTS WHO CAN AND SHOULD ABSORB THE PAIN OF BETRAYAL RATHER THAN INFLICT ADDITIONAL BETRAYAL ON THE INVOLVED CHILDREN.  AS A FAMILY LAW ATTORNEY, I SEE THE PAIN OF DIVORCE AND BROKEN FAMILIES EVERY DAY! IT IS NOT AN ISSUE EXCLUSIVE TO SAME SEX COUPLES, IT IS PREVALENT IN TRADITIONAL FAMILIES AS WELL.  I APPLAUD THE 5TH DCA FOR PROTECTING THIS CHILD’s PARENTAL RELATIONSHIPS WITHOUT REGARD TO THE SEX OF THE PARENTS.

I BELIEVE WE WILL SEE MORE AND MORE OF THESE OPINIONS IN THE COMING MONTHS…HOW LONG WILL IT TAKE FOR THE FLORIDA LEGISLATURE REPEAL FLA. STAT. 63.042(3)?… OR… WILL THE FLORIDA SUPREME COURT GET INVOLVED AND REVERSE THE 5TH DCA’s PROTECTION OF THIS CHILD’S PARENTAL RELATIONSHIPS? 

IF YOU WOULD LIKE A COPY OF THE FULL OPINION, CONTACT ME AT gsilva@glsilva.com.  IF YOU HAVE OTHER QUESTIONS OR CONCERNS ABOUT YOUR FAMILY RELATIONSHIPS, YOU MAY CONTACT MY OFFICE AT 407-343-4730 AND SCHEDULE A CONSULTATION WITH MYSELF OR WITH ATTORNEY ALLEN.

RESPECTFULLY,

GAIL LINSCOTT SILVA

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“Crucify him..crucify him”

Emotions often lead to bad decision making, in life and in your divorce or custody case.  I could not help but think about the biblical context of this Easter season when I decided to write this article.  Last Sunday was Palm Sunday in the Christian realm.  It is the story of joyful emotions and awesome expectations leading to crazy celebrations.  People cried out, danced, sang and threw themselves at the man on the donkey riding through town.  They wanted him, would do anything for him, he was their King and rescuer.  Five (5) days later, their emotions lead them to cry “crucify him..crucify him”;  several hours later, we are told an innocent man died a horrific death.

Perhaps you cannot relate the emotional roller coaster ride of your divorce with the emotional roller coaster of the Easter story, but as a lawyer, I can.  I see it all too often. Clients ready to throw in the towel, tired and emotionally drained decide to give away the store, sign agreements based on their emotions or conversely, clients so full of emotional anger  they decide to cut off their nose to spite their face and not to sign an agreement which provides for their best interests.  Know that you are the boss of your case, but as your lawyer, it is my job to think rationally without emotions;  give you options, scenarios and alternatives based upon what you will likely need in the future.  I always tell my clients there is a value to emotional peace, but weigh that value carefully before you sign any agreement because emotions can lead to bad deals.

Once you sign an agreement, Florida law says you are bound by that agreement unless it was reached through fraud, deceit, duress, coercion or overreaching involved.  I have often heard, “I signed it under duress”, when what they really are saying is “I signed it under stress”!  Stress and duress are not the same.  Duress is defined in Blacks Law Dictionary as:  any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would). A recent case from Florida’s lst DCA, Pierce v.Pierce, 128 So.3d 204, (Fla. lst DCA 2013) agreed with the 5th DCA in Hahn v Hahn, 465 So.2d 1352, (Fla. 5th DCA 1985) and said “a settlement agreement may be emotionally stressful, but “emotion is not grounds to set aside an otherwise duly-executed property settlement agreement.”  In the Hahn case the Wife testified she was “emotionally abused” at the time she signed the agreement.  The Courts have recognized that it is normal for parties in a dissolution proceeding to be emotionally upset. Buyer’s remorse is not a sufficient basis for overturning a settlement agreement freely and voluntarily entered into just because it is a “bad” deal.

I say all this in hopes you will give great thought to your attorney’s advice, if he or she tells you an agreement is not in your best interest.  Weigh that advice carefully against your emotions, otherwise you may be crying “crucify him…crucify him”!

Our office knows you are often treading water to survive and your thinking is not always based on reality but rather on your emotions that day.  You may be confident that if  you ask us to help you, we will do it with compassion and understanding BUT we will not be reacting or making decisions based on your emotions.

Respectfully submitted,

Gail Linscott Silva, Esquire

 

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Are you entitled to the tax exemption?

Its that time of the year and the question always arises as to whether a parent can claim their child as a tax exemption if the other parent is not current in paying their child support.

Florida Courts have said that where a final judgment provides that a parent may claim a child as a deduction on their Federal Tax Return so long as they are current in their child support obligation.  Many parents believe “current” means as long as they are current on December 31st of their tax year, then they are entitled to claim the child.  NOT TRUE

Florida Statute § 61.30(11)(a)(8),  provides that the court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments.

In December 2013, the 4th DCA reversed a trial court’s order for the Mother to execute a tax exemption waiver on behalf of the Father because his child support was current as of the date of the hearing.  See, Williams v. Lutrario, 131 So. 3d 801, 4th DCA, 2013,

“At the hearing on the father’s Second Amended Motion for Contempt, the trial court also heard testimony regarding the tax exemption dispute. The father claimed he was entitled to the IRS tax exemption for 2011, testifying that he “faithfully paid” child support of   $226 plus $100 in arrearages every month since he received the final judgment. After hearing conflicting testimony from both parties regarding whether the father was current in his child support, the trial judge stated that she would take judicial notice of the clerk’s child support registry/ledger. The ledger reveals that the father was never current on his child support payments throughout the entire year of 2011. He was current on his child support payments only by the time of the November 2012 hearing.”

Current means that child support has been paid each month as ordered through December 31st of the tax year you wish to claim the child.

If you have questions concerning your entitlement to claim your child on your taxes, call our office  at (407) 343-4730 and we will be happy to meet with you to discuss questions.

Respectfully,

Gail Linscott Silva, Esquire

 

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