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Palm Beach Florida Divorce & Family Law Blog

Durational Alimony in Boca Raton, Florida

A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Johnson v. Johnson. In this case, the husband and wife were married in 2006. They have two children. The husband worked in retail, and the wife was an auditor. The wife's income substantially exceeded the Husband's. In 2011, the husband stopped working in order to raise the children. In 2017, the husband returned to work. In the divorce proceeding, the Husband sought alimony from the wife. The lower court awarded durational alimony to the husband for a period of sixty months.

The wife appealed the trial court's ruling. The Florida Court of Appeal reversed the trial court's decision. The appellate court pointed out that the purpose of durational alimony is to provide funds for a set period of time. In awarding alimony, a trial judge is required to first make a determination as to the recipient's need and the payor's ability to pay. Once the court determines need and ability to pay, the trial court is to consider the following factors: (i) the parties' standard of living during the course of the marriage; (ii) the length of the marriage; (iii) the parties' ages and physical and emotional condition; (iv) each party's financial resources; (v) the parties' earning capacities; (vi) the parties' contribution to the marriage; (vii) the responsibilities for parenting that each party will have after the divorce; (viii) the tax consequences of the award; (ix) income available to each of the parties from all sources; and (x) any other factor that the court deems just.

Alimony in Boca Raton, Florida

An alimony case involving imputation of income was recently decided by the Florida Court of Appeal in a case captioned Jorgensen v. Tagarelli. In this case the wife appealed a final judgment in which the lower court incorrectly imputed income. In the case at bar, the wife earned $118,000, in 2016. The parties separated, and the wife voluntarily left her job and began working as a self-employed insurance broker, where she earned approximately $38,000. The husband asked the trial court to impute income to the wife based upon his contention that the wife intentionally caused the reduction her income.

The Florida Court of Appeal began by pointing out that parties asserting that their spouses are voluntarily underemployed or unemployed bear the burden of proof. The appellate court then stated that trial courts are required to impute income if they find that spouses are voluntarily underemployed or unemployed. In imputing income, courts are to determine the parties' probable earnings and employment potential based upon their occupational qualifications, recent work history, and the prevailing earnings level for similarly qualified employees in the community.

Child Custody and Visitation in Boca Raton, Florida

A child custody and visitation case was recently decided by the Florida Court of Appeal in a case captioned Frye v. Cuomo. In this case, the parties were married for nine-years. They had two minor children at the time of the divorce. The mother filed a Petition for Dissolution of Marriage, citing the father's history of alcohol abuse. As a condition to exercise timesharing, the trial court required the father to completely abstain from alcohol, and ordered the father to submit to blood alcohol testing at the beginning of every visitation and at the end of every visitation. The lower court also awarded the mother the authority to demand immediate and periodic testing of the father at any time, and required the Father to pay for the cost of the testing device.

In reaching its decision, the Florida Court of Appeal pointed out that restrictions on timesharing are usually disfavored, unless they are necessary to protect the children. Parents have a constitutionally protected right to have a meaningful relationship with their children. Custody and visitation should not be denied to either parent as long as they conduct themselves in a manner that does not adversely affect the children when they are in the presence of the children. Restrictions on custody and visitation must be in the best interests of the children before they will be upheld on appeal.

Divorce - Division of Property and Assets in Boca Raton, Florida

Appropriate division of property and assets in Florida divorce proceedings was recently explained by the Florida Court of Appeal in a case captioned Jackson v. Blazer. In reaching its decision in this division of property and assets matter, the Court turned to the statutory definitions of marital and nonmarital property in the State of Florida. In Florida, marital property includes: (i) assets obtained and liabilities incurred during the course of the marriage; (ii) the increase in the value of nonmarital assets that result from either party's efforts during the course of the marriage or from the use of marital funds; (iii) the reduction in the principal of any mortgages secured by real property that are nonmarital, and part of any passive appreciation in properties if the mortgages are reduced with marital funds; (iv) gifts that the parties give to each other during the marriage; (v) retirement benefits, annuities, insurance, deferred compensation, and pension and profit-sharing rights obtained during the course of the marriage; and (iv) property held by the husband and wife as tenants by the entireties is presumed to be a marital. This presumption is rebuttable.

Child Relocation in Florida

A child relocation case was recently decided by the Florida Court of Appeal in a case captioned C.G. v. MM. In this case, the mother appealed the trial court's decision concerning custody and visitation. The parents were unmarried and separated in 2010. They had one child. The parties did not enter into a formal parenting plan, however, they divided their timesharing equally. Eventually, the mother entered into a new relationship and had a second child with her boyfriend. The mother lived in Pinellas County. She decided that she was going to move to Hillsborough County at some time in the future.

At trial, the judge awarded the father majority timesharing and granted the parents shared parental responsibility. The trial court also ruled that when the mother moves to Hillsborough County, during the school year, the child was to spend more timesharing with the father. The mother received timesharing every other weekend, and the parties were to equally divide the holidays. The ruling was based upon the mother's anticipated move to Hillsborough County.

The Florida Statues set forth the procedure to relocate a child. Unless the parties can agree to the relocation, the parent desiring to relocate must file a Supplemental Petition for Relocation. The parent desiring the relocation bears the burden of proof, by a preponderance of the evidence, that the relocation is in the child's best interest. Once that burden of proof is met, the burden of proof shifts to the objecting parent to demonstrate that the relocation is not in the best interest of the child. 

Child Custody and Visitation - Parenting Plans in Florida

A Child Custody and Visitation case was recently decided by the Florida Court of Appeal in a case captioned Scudder v. Scudder. The parties were married in 2001 in India, and have three children. When the husband and wife lived in the United Arab Emirates, they entered into a marital settlement agreement. The marital settlement agreement covered some financial issues involving the children, discussed child support, and set forth a timesharing schedule. The Husband then filed for divorce in Collier County, Florida. After filing for divorce in Collier County, Florida, the Husband and the children moved to Palm Beach County. The Circuit Court in Collier County, Florida transferred the case to the Circuit Court in Palm Beach County, Florida for purposes of resolving timesharing issues pertaining to the children. The parties agreed that a social investigation could be conducted. The social investigator filed a report and recommendation with the Court.

During the trial, the husband attempted to impeach the social investigator with his prior deposition testimony, however, the social investigator had not read and signed his deposition prior to the trial. Accordingly, the trial court rejected the husband's attempt to utilize the deposition for purposes of cross examination. After the trial, upon the husband's motion, the trial court permitted the husband to reopen the case to allow the husband to cross examine the social investigator. At the conclusion of the trial, the court awarded the husband 29.5% of the timesharing with the children, and awarded the wife 70.5% of the timesharing with the children. The Court also permitted the wife to relocate to New York.

Durational Alimony in Florida

A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Rhoden v. Rhoden. In this case the husband filed a Petition for Dissolution of a thirty-five year marriage. The husband denied that wife required alimony, and denied that he was able to pay it. The Court stated that the wife had several illnesses, and probably would not have been employable if she had not worked for her husband. The Florida Statutes enable trial courts to award several different types of alimony. In awarding alimony, a court must first find that one party has a need for support and that the other party has the ability to pay. Once the court makes this initial determination, the Court is required to consider other factors set forth in the Florida Statutes. In this case, the trial court awarded the wife durational alimony.

Modification of Child Custody and Visitation in Florida

A Modification of Child Custody and Visitation case was recently decided by the Florida Court of Appeal. In a case captioned Light v. Kirkland the mother appealed a judgment modifying her timesharing schedule with her child. The original divorce decree provided that the mother was to have timesharing with her child during the week, and the child was to spend three weekends per month with her father. The father filed a Supplemental Petition to Modify Timesharing. The trial court granted the father's Supplemental Petition, and awarded the father timesharing during the week. This modification required the child to transfer to a new school.

The Florida Court of Appeal reversed the trial court's decision. The Appellate Court pointed out that in order to modify custody and visitation, there must be a material, substantial, and unanticipated change of circumstances subsequent to the time that the divorce decree was entered. 

Children's Preferences in Child Custody and Visitation cases in Florida

A Child Custody and Visitation case involving a child's custody preference was recently decided by the Florida Court of Appeal. In a case captioned Talarico v. Talarico, the mother and father had two children. The parties divorced and negotiated parenting plans. Several years later, the father sought a modification of child custody and visitation, which the trial court granted. The Florida Court of Appeals reversed the trial court's decision.

The Florida Court of Appeal stated that in order to grant a modification of child custody, the moving party must prove that a material, substantial and unanticipated change of circumstances occurred which warrants the modification. This change of circumstances must adversely affect the children's welfare. One of the factors that the trial court is permitted to consider in reaching a custody decision is a child's reasonable preference. In order to consider a child's custody preference, the trial court must find that the child has sufficient experience, understanding and intelligence to express a preference. The Court of Appeal stated that trial courts ordinarily do not desire to have children testify in court against one of their parents. In the event that a trial court decides to permit such testimony, the preferred method to obtain such testimony is by an interview conducted by the trial judge outside of the presence of the parents. These interviews are either recorded (unless otherwise agreed to by the parties), or the judge provides a summary of the interviews.

Retirement - Modification of Alimony in Florida

A Modification of Alimony case involving a former husband's retirement was recently decided by the Florida Court of Appeal in a case captioned Befanis v. Befanis. In this case, a physician filed a Supplemental Petition for Modification of Alimony. The parties were divorced in 2010. At the time of the dissolution of marriage, the former husband was a successful ophthalmologist and owned his own practice. Five years after the divorce was granted, the former husband filed a Supplemental Petition for Modification of Alimony based upon the fact that he sold his business, was working as a salaried employee, and sustained a substantial decrease in his income. In his Supplemental Petition, the former husband also stated that he was preparing to retire, as he was almost 65 years of age. The former husband and former wife signed an agreed final judgment that reduced the former husband's alimony obligation.

Sixteen months later, the former husband filed a second Supplemental Petition for Modification seeking another reduction in his alimony. The basis for the former husband's second Supplemental Petition was that his employment contract ended and he retired.

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