Child Relocation in Florida means a change in the location of a parent’s residence after a court has issued an order regarding timesharing, or after the commencement of an action involving timesharing. For there to be a relocation, this change of residence must be at least fifty (50) miles from the parent’s original place of residence, and it must last at least sixty (60) consecutive calendar days. Relocation does not include temporary absences for the purposes of education, vacation, or to receive healthcare.
The factors that courts are required to consider in reaching a decision on whether to permit or deny a request for child relocation in Florida are as follows:
The nature of the child’s relationship with each of the parents. The extent of the parent’s involvement in the child’s life. The nature of the child’s relationship with relatives, siblings, and other significant people which will be affected by the relocation.
The impact that the relocation will have on the child’s educational, physical, and emotional development. The court is required to consider whether a child has special needs.
The ability to preserve a meaningful relationship between the child and the parent who does not relocate.
The preference of the child if the child is of sufficient age and maturity.
Whether the relocation will enhance the quality of life of the parent and the child. This factor includes financial benefits, educational opportunities, and emotional benefits.
The reasons for seeking or opposing the proposed relocation.
The current economic situation of each of the parents. Whether the proposed relocation is necessary to improve the economic situation of the parent seeking to relocate.
Whether the relocation is sought in good faith.
Whether the parent objecting to the relocation has fulfilled his or her child support, alimony, and marital debt obligations.
The career opportunities available to the objecting parent if the relocation is permitted.
Whether either parent has engaged in domestic violence or substance abuse.
Whether a parent encourages a close relationship between the child and the other parent. Whether a parent honors the current parenting plan and is flexible when changes are required.
Which parental responsibilities are handled by each of the parents and which these responsibilities are delegated to third parties.
The demonstrated capacity of the parents to put the needs of the child before their own needs.
The amount of time that a child has lived in a stable environment and the desirability of maintaining continuity.
The amount of time that will be required to be spent traveling to effectuate the proposed time-sharing plan.
Each parent’s moral fitness.
Each parent’s physical and mental health.
Whether the child is performing well in school. Whether the child has disciplinary problems.
Whether a parent keeps the other parent informed about the child’s teachers, friends, and healthcare providers.
Whether a parent maintains a consistent routine for the child.
Whether a parent keeps the other parent informed about issues and events that involve the child. Whether the parents adopt a unified front on issues involving the child.
Evidence of domestic violence or abuse.
Whether a parent provides dishonest information to the Court about domestic violence or abuse.
The division of parental responsibilities prior to the filing of the action.
Whether a parent has been involved in the child’s schooling and extracurricular activities.
Whether a parent maintains an environment for the child that is free from substance abuse.
Whether a parent protects the child from ongoing litigation. Whether a parent disparages the other parent.
The capacity of each of the parents to meet the child’s developmental needs.
Any other factor that is in the child’s best interests.
There are significant penalties for relocating a child without obtaining permission from the court. A parent who relocates a child without obtaining permission from the court may:
It is the exceptional case where a couple’s resources are sufficient to maintain two separate households with the same standard of living. “The standard-of-living is not a super-factor” over the other considerations. Donoff v. Donoff, 940 So. 2d 1221, 1225 (Fla. 4th DCA 2006); see Pirino v. Pirino, 549 So. 2d 219, 220 (Fla. 5th DCA 1989) (‘Indeed, it is the exceptional case when a couple’s resources and earnings prove sufficient to maintain two independent households in the same manner as the original household.).” Beasley v. Beasley.
In awarding alimony, the calculation of income from investments should reflect current reality. In Tarkow v. Tarkow, the Florida Court of Appeal stated that: “(WALLACE, Judge.) Based on claims by Stanley A. Tarkow (the Former Husband) that his financial circumstances had changed substantially and that Miriam R, Tarkow, n/k/a Katherine Kofler (the Former Wife), is in a supportive relationship, the circuit court entered an order that substantially reduced the Former Husband’s permanent periodic alimony payments. The Former Wife appeals the order, and the Former Husband cross-appeals. On the appeal, we affirm in part and reverse in part; we affirm on the cross-appeal…
The circuit court also erred in using outdated information to calculate the Former Wife’s investment income. The final hearing before the GM was originally scheduled for April 12, 2011, but the parties could not conclude the matter within the time allotted on that day. Two months later, on June 16, 2011, the parties reconvened before the GM to complete the final hearing. At the continuation of the final hearing, the Former Wife proffered evidence that her investment accounts had been reduced in value in the amount of $61,146 during the period between the two sessions. Although the Former Husband did not dispute the accuracy of this evidence, he objected to its admission. The GM sustained the objection and refused to consider the updated information. As a result, the GM used incorrect information to calculate the Former Wife’s income from her investments. Thus the GM’s calculations substantially overstated the Former Wife’s investment income going forward. The GM’s calculations of the Former Wife’s income from her investments should have reflected current reality.”
The correct standard for temporary alimony balances needs, as fixed by the parties’ standard of living and the ability to pay on the other. In Hoffman v. Hoffman, the Florida Court of Appeal recently stated: “Although the order under review is a temporary support order in which the circuit court has broad discretion, we conclude that the circuit court abused its discretion in requiring the Husband to virtually exhaust his monthly income to make the ordered payments, leaving him with insufficient funds to support himself.
The order’s requirement that the Husband spend in excess of 80% of his income in monthly support and temporary attorney’s fee payments reflects an abuse of discretion on its face…'[t]he correct standard by which temporary support and alimony are to be assessed balances needs, as fixed by the parties’ standard of living on the one hand, and ability to pay, on the other.’ Fonderson v. Lairap, 98 So. 3d 715, 717 (Fla. 2d DCA 2012)…The Husband argues that the circuit court abused its discretion in ordering him to make support and attorney fee payments which consume more than 80% of his net monthly income and in requiring him to pay all of the Wife’s temporary attorney’s fees. We agree and reverse the order in part and remand for further proceedings…Finally, as argued by the Husband, it appears that the circuit court may not have considered the effect of the court-ordered spousal support on the Wife’s ability to pay her temporary attorney’s fees, particularly in light of the retroactive support award totaling $22,730. See Crick, 78 So. 3d at 699 (‘A trial court must consider all assets and sources of income in an award for attorney’s fees.’). Accordingly, on remand the circuit court shall reconsider the Wife’s entitlement to temporary attorney’s fees.”
The pending Florida Alimony Reform Bill was recently revised in the Florida Senate. The original version of the bill was replaced by a committee substitute. The revised bill creates new alimony guidelines. In calculating alimony, the Court is to first calculate the amount of each party’s monthly gross income. Included in a party’s monthly gross income are the actual income that a party earns and the potential income that a party could earn. Additionally, included in a party’s monthly gross income are the actual income that a party earns from nonmarital property and marital assets distributed to that party, as well as potential income that a party could earn from nonmarital property and marital assets distributed to that party. In calculating the difference between the parties’ monthly gross income, the income of the party seeking alimony is be subtracted from the income of the other party. If this is a negative number, the presumptive alimony amount is $0.
The legislation in the Florida Senate creates a presumptive range for the duration that alimony is to be paid and a presumptive range for the amount of alimony that is to be paid. The low end of the presumptive range for the amount of alimony that is to be paid is to be paid is calculated by using the following formula: (0.015 x the years of marriage) x the difference between the monthly gross incomes of the parties. The high end of the presumptive range for the amount of alimony that is to be paid is calculated by using the following formula: (0.020 x the years of marriage) x the difference between the monthly gross incomes of the parties. In calculating the presumptive alimony amount range, twenty (20) years of marriage is used to calculate the low end and the high end for marriages of twenty (20) years or more. If a court establishes the duration of the alimony award at fifty (50%) percent or less of the length of the marriage, the court shall use the actual years of the marriage, up to a maximum of twenty-five (25) years, to calculate the high end of the presumptive alimony amount range. The duration of a marriage is determined from the date of the marriage until the date of the filing of the divorce.
The low end of the presumptive range for the duration that alimony is to be paid is calculated by using the following formula: 0.25 x the years of marriage. The high end of the presumptive range for the duration that alimony is to be paid is calculated by using the following formula: 0.7 5 x the years of marriage.
In a recent alimony case captioned Gillette v. Gillette, the Florida Court of Appeal refused to impute income to a small business owner who chose to continue working in his own business rather than working for a larger employer.
The parties in this marriage were married for twelve years. The Husband was an engineer at a technology company. In 2001, the Husband started a computer storage business. He operated the computer storage business on a part time basis, and continued to work at the technology company until 2004. In 2004, the Husband resigned from the technology company and started working full time at his own computer storage business.
The Wife did not object to this arrangement until the divorce was filed. After the divorce was filed, the Wife objected to Husband working in his own computer storage business. She argued that the Husband was voluntarily unemployed and presented testimony from a vocational expert that Husband could earn significantly more as an employee of a larger company.
In a recent decided alimony case captioned Shimer v. Corey, the Florida Court of Appeal held that the lower court made a mistake when it required the Husband to purchase a life insurance policy as part of the alimony award in this case. The Florida statutes permit a court to require a party to maintain a life insurance policy to secure alimony payments. In making a decision as to whether a payor should be required to purchase insurance to secure an alimony award the trial court should consider the following factors.
First, is insurance needed? Second, is insurance available? Third, what will the policy cost? Fourth, what will be the financial impact on the payor of requiring the purchase of life insurance? In the case at bar, the lower court failed to conduct the aforementioned analysis, and the case was reversed. Additionally, the appellate court independently reviewed the record and determined that life insurance was not appropriately awarded in this case.
In an alimony case, a trial court may require a paying spouse to maintain life insurance under certain circumstances. In order for a court to require a paying spouse to maintain life insurance, the trial court must find that the insurance is available, it must state the cost of the policy, and it must determine the that paying spouse has the ability to pay for the cost of the insurance. The amount of the insurance required must be commensurate with the amount of the support obligation. Finally, in order to require a paying spouse to maintain life insurance to secure an alimony obligation, there must be “special circumstances” that justify this requirement. These special circumstances include situations where the recipient spouse would be left in severe financial condition after the death of the paying spouse due to his or her poor health, age, or lack of employment potential.
Additional alimony special circumstances include the paying spouse’s poor health, where minors are living at home, where the recipient spouse has a limited capacity to earn income, and where the paying spouse has failed to live up to his or her support obligations. Finally, a paying spouse can bind him or herself to purchase life insurance by agreeing to purchase life insurance on the record.
To speak with a divorce attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.
In a modification of alimony proceeding, a trial court can temporarily modify an alimony award while the award is being appealed. It cannot alter the actual alimony award during the pendency of the appeal. In Horowitz v. Horowitz the Florida Court of Appeal recently stated: “[T]he trial court may conduct a hearing on the modification petition and issue orders consistent with Rule 9.600(c). It may not, however, enter a final judgment disposing of the modification petition until the appeal is final and our mandate issues. Thompson v. Stewart, 569 So. 2d 1372 (Fla. 4th DCA 1990); Campbell v. Campbell, 436 So. 2d 374 (Fla. 5th DCA 1983); Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. 4thDCA 1974)…We begin with the principle stated by this court in Kalmutz: [W]hen the jurisdiction of the appellate court attaches it is exclusive as to the subject covered by the appeal; so that modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is. Kalmutz, 299 So. 2d at 32 n.l…
Citing Rule 9.600(c), we have noted “[w]hen the trial court temporarily alters the provisions in the final judgment for the purpose of protecting the welfare or rights of a party pending appeal, the terms of the judgment are not affected.” Goodman v. Goodman, 664 So. 2d 975, 975 (Fla.4thDCA 1995) (emphasis added)…To the contrary, the subsequent modification proceeding is neutral and indifferent as to the legal correctness of the prior adjudication and correctly proceeds on the theory that, whether or not the prior adjudication was correct on the facts then found and adjudicated, those facts have now changed and the present factual circumstances differ so substantially and materially from those underlying the prior adjudication that a different level of support is warranted as to the future…As outlined, the trial court can consider the former husband’s petition and, if appropriate, fashion a temporary order which may be revisited or reduced to permanent rulings once the pending direct appeal has been disposed of by this court. Horowitz v. Horowitz, 39 Fla. L. Weekly D987, 987-988 (Fla. 4th DCA May 14, 2014)
To speak with a divorce lawyer in Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.
Imputation of alimony was recently discussed by the Florida Court of Appeal in a case captioned Frerking v. Stacy. In this case, the former wife appealed a trial court’s decision that denied her request for permanent alimony and imputed income to her. The parties were married for nineteen years. The Florida Court of appeal pointed out that permanent alimony is intended to provide for the needs and necessities of life as they were established during the course of the marriage. Permanent alimony is presumed to be appropriate after a long-term marriage. A marriage that lasts seventeen years or more is considered to be a long-term marriage. A trial court errs when it fails to award permanent alimony where there has been a long-term marriage, unless the presumption favoring this award is overcome by competent substantial evidence.
In this alimony case, the trial judge found that former wife could be immediately employed as a full-time public-school teacher. The trial court overlooked the fact that the former wife had never been a full-time school teacher. Courts can impute income to unemployed and underemployed spouses when their loss of income is voluntary and the unemployment or underemployment is due to the party’s failure to use diligent and good faith efforts to find employment that pays a salary at a level that is equal to or better than the income that the spouse previously received. The party alleging that income should be imputed has the burden of proof. In imputing income, a court is required to look at the spouse’s occupational qualifications and recent work history and the prevailing level of earnings in the commun ity. The Florida Court of Appeal stated that a party’s use of diligent and good faith efforts to find employment does not include retraining. A party is only required to find a job for which the party is already qualified. Accordingly, the trial court was reversed in this case and the matter was remanded to the lower court for proceedings consistent with ruling contained in this opinion.
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