Matthew Lane & Associates, P.A.

September 2013 Archives

Child Custody and Visitation Palm Beach Gardens

In a child custody and visitation matter, a party seeking a stay pending appeal must demonstrate a likelihood of prevailing on appeal, irreparable harm to the movant if the motion is not granted, or a showing that a stay would be in the public interest. In Lampert-Sacher v. Sacher, the Florida Court of Appeal recently stated that: "Appellant Maxine Lampert-Sacher has appealed a supplemental final judgment regarding time sharing entered in response to the second amended supplemental petition for modification filed by Mark Sacher, her former husband and appellee. Appellant's motion for stay pending appeal was denied by the trial court. Appellant now files an emergency motion for stay in this court. We treat appellant's motion as one seeking review of the trial court's denial of a stay pursuant to rule 9.310(f), Florida Rules of Appellate Procedure... 

Alimony, Palm Beach Gardens, Durational Alimony

Lump sum alimony payments are not deductible by the payer or taxable to the recipient. In Kuchera v. Kuchera, the Florida Court of Appeal recently stated that: "We reverse the trial court's decision declining to characterize the payments to the former wife in the parties' post-reconciliation marital settlement agreement ("MSA") for federal tax purposes, and we remand for the trial court to make a ruling on that issue and amend the final judgment. In all other respects, we affirm the Third Amended Final Judgment. The parties' MSA, under a provision titled 'Lump Sum Alimony and Equitable Distribution,' requires the former husband to pay the former wife one-half of his salary after payment of child support for ten years, to be followed by yearly payments...The former husband and the former wife agreed that the provision would be non-modifiable. The MSA is silent as to whether these payments would be deductible by the former husband, or includible in the income of the former wife.

Divorce 401(k) Retirement Accounts Wellington, FL

In making a division of property and assets in a divorce proceeding in Florida, the award of a ½ ownership interest in property as of a particular date entitles the recipient to share in the gains and losses in the account on the date of distribution. In Graham v. Graham the Florida Court of Appeal stated that: "JoAnn Graham appeals an order granting post-judgment relief on grounds it fails to effectuate the marital settlement agreement she and Nathaniel Graham entered into in September of 1994 in anticipation of the dissolution of their marriage later that year. She maintains the trial court erred both in calculating her share of the former husband's 401 (k) account and in calculating her share of his Army pension. Persuaded she is right in both instances, we reverse and remand. 

Alimony, Palm Beach Gardens, Durational Alimony

In awarding durational alimony, the Court should consider the disparity in the parties' incomes and the parties' proximity to retirement. In Packo v. Packo, the Florida Court of Appeal stated that: "The former husband, Richard G. Packo, appeals the final judgment that dissolved his marriage to the former wife, Kimberly S. Packo. We reverse and remand for the trial court to make the necessary valuations for the equitable distribution of marital assets and to reconsider the life insurance obligation imposed on the former husband or support such obligation with the requisite findings. We affirm the final judgment in all other respects. We review the trial court's final judgment dissolving the parties' marriage for an abuse of discretion. Vitalis v. Vitalis,799 So.2d 1127, 1130 (Fla. 5th DCA 2001). The trial court's discretion, however, is curtailed by certain statutory and judicially created requirements. E.g., id. at 1131 (reversing final judgment of dissolution for failure to make statutorily required findings). 

Alimony - Wellington, FL - Requirement to Purchase Life Insurance

In making an award of alimony, the amount of life insurance ordered must be related to the support obligation. It is error for a court to order a party to purchase a life insurance policy that is greater in value than the support obligation.

Alimony Martin County, Florida

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... 

Alimony Palm Beach Gardens, Florida

In awarding alimony, the court shall consider the tax treatment and consequences to both parties of the award. In Tarkow v. Tarkow the Florida Court of Appeal stated that: "Unfortunately, the GM's calculations fail to take into account the effect of federal and state income taxes on the Former Wife's needs. The Former Wife raised this issue in her exceptions to the Recommended Order. Along with her exceptions to the Recommended Order, the Former Wife submitted a 'FinPlan Schedule' that she asserted reflected 'the necessary amount of alimony needed to pay the State and Federal Income Tax liabilities attendant with the investment and retirement incomes found by the [GM].' The Former Wife also raised the income tax issue in her motion for rehearing.

Divorce Child Support - College Expenses

In a divorce proceeding, an agreement to provide for a child's college expenses includes an agreement to provide for room and board. In Weaver v. Corey the Florida Court of Appeal stated that: "The Former Wife and Former Husband entered into a marital settlement part of the dissolution of their marriage....By the terms of the agreement, the parties contracted to use their best efforts to provide for the expenses of sending their children to private or parochial school, college, and graduate school. 

Alimony Wellington, Florida

In divorce proceedings, lump sum alimony is not a third type of alimony, but a means to accomplish rehabilitation or permanent support. It establishes a non modifiable and non-terminable obligation. "Section 61.08(1), Florida Statutes (2008), authorizes permanent alimony "payments in lump sum."

Division of Property and Assets Treasure Coast, FL

In awarding a division of property and assets in a Florida divorce proceeding, all real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. The party claiming otherwise has the burden to prove the property is a nonmarital asset.

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Palm Beach Gardens Office
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