Recent Blog Posts

Biological vs. Birth Mother: On The Cutting Edge Of The Law

Kim Byrd — Tue, 14 Feb 2012 18:50:00 GMT

A Florida appellate court recently decided a case involving the parenting claims of two women for the same child. The women were same sex domestic partners who decided to have a child together. One of the women contributed her egg for the other to become pregnant. At birth the child was given a last name that was hyphenated combination of the last names of the two women. The two demonstrated in many additional ways their intention that each of them be a parent to the child. Even after the couple broke up, they shared custody of the child on an equal basis. However, the relationship of the women continued to deteriorate and the birth mother took the child and moved to Australia. The biological mother filed a law suit in Florida asking the court to grant her timesharing rights with the child. The trial court determined that the biological mother had no parental rights as a result of Florida's donor statute, Florida Statutes, Section 742.14. This statute provides that someone who donates sperm or an egg relinquishes their parental rights. In making its decision the trial judge described the actions of the birth mother as "morally reprehensible" and said that he hoped he would be overruled by the appellate court.

The decision by the appellate court was a three part decision. The judge who wrote the majority opinion focused on how the biological mother's contribution of the egg wasn't really a donation as described in the donor statute. The judge who wrote the dissenting opinion focused on how it was a donation covered by the statute. The concurring opinion was the most interesting. Instead of focusing on what the law did or did not provide, the judge who wrote the concurring opinion talked about what the law should provide. The concurring judge suggested that maybe the law should place more emphasis on the best interest of the child in such cases.

Of course, the rule of law is the foundation for civilization. It is essential that courts apply the existing law in making their decisions. Still, the application of existing law to new circumstances can sometimes yield results not contemplated or intended by the lawmakers. Certainly, or at least hopefully, the Florida legislature did not intend to deprive a three year old child of its mother even if the child has two mothers. Although this case is being reviewed by the appellate court, at least for now the child has continuing contact with both mothers.

Will I Have To Purchase A Life Insurance Policy To Secure My Child Support Obligation?

Tue, 07 Feb 2012 21:40:00 GMT

The Florida legislature has enacted a statue that authorizes a court to order a parent to carry a life insurance policy to secure his or her child support obligation. The statute also states that the party may alternatively be ordered to secure their child support obligation with a bond or any other asset that may be suitable for that purpose, although that is less common than an order to carry a life insurance policy.

A recent case law decision, Beharry v. Drake, 52 So. 3d 790 (Fla. 5^th DCA 2011)) held that a court cannot order a party to carry a life insurance policy that is higher than the amount of child support that party is obligated to pay. So, for example, in the Beharry case, the trial court ordered the party to carry a life insurance policy totaling $100,000. But, the party was only obligated to pay approximately $73,000.00 in child support payments. (Essentially the Father totaled his monthly child support payments for the entire span of years he had to pay child support to figure out that number). The appellate court held that the trial court abused its discretion and reversed the decision with instructions to limit the amount of life insurance coverage required to the amount of the obligation it secures. Further, appellate courts have stated that since the parties total child support obligation decreases over time, the amount of life insurance required should correspondingly decrease over time. The court must consider the availability and cost of such insurance and the financial impact it will have on the party before entering such award.

So, the general answer is yes, you will have to purchase a life insurance policy to secure your child support obligation, but contact your expert family law attorney to discuss this matter further and how it will affect your case.

Divorce Can Take Time

Kim Byrd — Thu, 19 Jan 2012 21:35:00 GMT

During the last few months of 2011, our family law firm was inundated with new clients who were anxious to have their divorces finalized before the end of the year. Whether these clients wanted to be able to file their 2011federal income tax return as single or whether they just wanted to start the New Year off as single is unknown, but they were definitely in a hurry. Of course, finalizing a divorce in such a short time requires that both parties be in complete agreement about the resolution of the issues in their case, including issues related to children and division of property and debts. Fortunately, most of them were. If the parties are in complete agreement and fully cooperate, the divorce can be filed as uncontested and finalized in a month or so.

Even in cases where the parties are not in complete agreement, our clients frequently want to have their divorce finalized as quickly as possible. However, it can take time to work out the financial and emotional entanglements resulting from a marriage. It is important to remember that these entanglements have taken time to develop, in some cases 20 years or more. It is sometimes unreasonable to expect that these issues can be sorted out in as little as a month. Sometimes giving one or both parties some additional time will help them come to grips with the new reality. Allowing them to approach things more logically and reach a more reasonable resolution.

This is one of the advantages of the Collaborative Divorce process. Parties in the Collaborative Divorce process have the assistance of a financial expert to help them sort out their finances and a mental health expert to help them deal with the emotions. The process progresses at a rate that is tailored to the parties, making sure each of them have time to process the transition. Whether you participate in a Collaborative Divorce or not, getting your divorce finalized as quickly as possible may not result in the best resolution. I am not suggesting that it should take years, but giving it a few extra months can help.

I Don't Believe In Vaccinating My Child, Will A Court Use That Against Me?

Damien McKinney — Tue, 17 Jan 2012 20:30:00 GMT

A recent Florida family law case dealt with a Mother whose religious beliefs opposed vaccinating her child but the Father believed the child should receive traditional medical care, including vaccinations. In Winters v. Brown, 51 So. 3d 656 (Fla. 4^th DCA 2011), the trial court held a hearing and awarded the Father ultimate responsibility to make health care decisions for the parties minor child. The Mother in this case did not believe in vaccinations or traditional western medicine and presented testimony regarding her religious beliefs. The Court additionally heard testimony from several expert witnesses, including doctors who testified to the effectiveness of vaccinations and the potential harm associated with not vaccinating a child. Usually appellate courts will overturn a trial court's restrictions on exposing a child to a parent's religious beliefs and practices, but they make an exception where there is a clear, affirmative showing that these religious activities will be harmful to the child. The trial court found the doctor's testimony to be credible in this case and that not vaccinating a child could cause physical and serious harm to the minor child. The appellate court upheld the trial court's ruling and found it was based upon competent and substantial evidence. An issue of this magnitude can be very complex and require testimony from numerous sources. If you believe your divorce case might present issues such as this, contact your expert child custody attorney to discuss whether the Winters case may apply to you.

Recent Relocation Decisions

Kim Byrd — Fri, 09 Dec 2011 16:10:00 GMT

A parent has well founded right to have timesharing with her or his child. This is the main reason Florida family law provides that a parent who wants to relocate more than 50 miles from their current residence must obtain either the other parents permission or the permission of the court. Whether to permit a parent to relocate with the minor child is a difficult decision for the court to make. Although the factors the court should consider in deciding whether a parent can relocate are set forth in the Florida Statutes, it can be difficult to predict whether the court will permit relocation in any particular case. For guidance, it can be helpful to look to actual cases that have been decided. Here are a couple of recent cases.

The Circuit Court for Dade County recently permitted the mother of a 10 year old daughter to move to California over the objections of the father. The mother's new husband was in the United States Coast Guard and had been reassigned to a station in California. The mother was not working as the parties had agreed that she would be a stay at home mom. The court referred to the nice home in California where the mother and child lived. In reviewing the factors, the court mentioned the close relationship between the mother and the child and the mother's offer to pay all of the travel expenses for the child to visit the father. The court stated that the relocation would enhance the general quality of life for the mother because her husband would be able to support her while she stayed at home. The court said that it was an extremely difficult decision but stated that the mother had met her burden of showing that the relocation was in the best interest of the child.

The Circuit Court for Orange County, in deciding a dissolution of marriage case, permitted a mother to relocate to the United Kingdom with her 7 year old daughter. Both the mother and the father were from the United Kingdom and both of them had family there. The parties were married in the United Kingdom. They had moved to Canada where they were both employed and earned roughly the same incomes. The father had received a job offer in Orlando and a visa that allowed him to work in the United States. The mother however was not able to obtain a work visa for the United States and decided to return to the United Kingdom with the child. The father then filed for divorce in Orange County. The court first ordered the return of the child to Florida, but then permitted the mother to relocate to the United Kingdom on a temporary basis and finally on a permanent basis. In reviewing the factors the court stated that the child had adapted well in her new school, that she was involved in horseback riding and in activities involving the families of both the mother and the father.

If you are considering relocation, you should consult with your Family Law attorney to see how the facts of these cases might apply to your circumstance.

Are You Entitled to Equal Timesharing?

Kim Byrd — Mon, 05 Dec 2011 23:00:00 GMT

In years past, there was a legal presumption against equal timesharing or what used to be called rotating custody. Florida family law courts faced with the responsibility of making custody decisions in divorce or paternity cases were not likely to order equal or rotating custody. New legislation in 2008 did away with that legal presumption and today courts are more likely to order equal custody or timesharing as part of an overall parenting plan. For the court to order equal timesharing it must first find that such a parenting plan is in the best interest of the child. Florida family law cases have given some guidance as to when equal timesharing is in the best interest of the child.

You are more likely to get equal timesharing if your child is older and more mature or if your child has expressed a preference for equal timesharing. If you live near the other parent or if your child hasn't yet started to school, equal timesharing might be appropriate. Equal timesharing should not be disruptive but should be related to the child's schedule and should result in reasonable periods of time with each parent. Days with one parent and nights with the other would probably not be in the child's best interest. The court may consider these and other factors in determining whether equal timesharing is in your child's best interest.

Together Can Be Cheaper Than Apart

Joanna Chapman — Mon, 07 Nov 2011 15:15:00 GMT

It comes as a shock to many couples going through a divorce. Suddenly the money you and your family once lived on comfortably isn't going as far.

When a spouse moves out of the marital home, often new expenses associated with additional housing become necessary. Rent, utilities, and insurance for a second home can be a significant expense. If the family budget does not have much cushion from month to month, this new expense can add to the stress of an already emotional time. Both parties often feel they should not have to change the way they live, but the simple fact remains that you and your spouse are now maintaining two households on the same amount of collective income.

If you are considering filing for dissolution of marriage, prepare yourself for this likely reality and come up with a plan to secure financing for these expenses or work with your spouse to reduce other aspects of the family's budget.

If you and your spouse are unable to agree on how to provide for this new circumstance, you can sink deeper into debt or begin dissipating savings and other assets. An experienced family law attorney can assist you navigate the options available to you.

The sooner both spouses can embrace the idea that their family's money is going to have go further than it once did the better off their overall financial health will be.

Your Marital Settlement Agreement is a Contract

Kim Byrd — Thu, 03 Nov 2011 21:00:00 GMT

A Marital Settlement Agreement is an agreement that resolves all of the issues that must be addressed by a court in a dissolution of marriage or divorce case. Your Marital Settlement Agreement (MSA) is also a legal contract. It is a contract that is much more significant than most of the other contracts you will sign such as your cell phone contract, cable television contract, or maybe even the contract for the purchase of your car. Your MSA can address issues concerning your home and create obligations to pay money to your spouse for many years. Because your Marital Settlement Agreement is such a significant contract, it is important that you review the MSA with a Florida family law attorney before you sign it.

Many people feel that they do not want to hire an attorney to represent them during the dissolution of their marriage and many people can't afford an attorney. These people use the standard forms that are approved by the Florida Supreme Court. Over the past 10 years I have seen these people make significant mistakes in preparing their Marital Settlement Agreements. In one case the parties called the monthly payments the wife was supposed to receive for her share of the family business alimony. The monthly payments should not have been modifiable, but because the parties called them alimony, the husband was able to get them modified.

Even if you choose not to retain an attorney in your dissolution of marriage, you can and should consult with a family law attorney before you sign a Marital Settlement Agreement.

Passive Appreciation of Nonmarital Property

Damien McKinney — Mon, 31 Oct 2011 13:35:00 GMT

Many clients purchase a home before they get married and are curious about whether their spouse is entitled to any of the equity in that home during a divorce. The answer, as it very often is, depends on numerous circumstances. The Florida Supreme Court recently addressed this issue in a case entitled Kaaa v. Kaaa.

The Husband in Kaaa bought a home six months before the parties were married. The parties were married for 27 years before filing for divorce. During the marriage, they enhanced the value of the home by paying down $22,279 on the mortgage and renovating the carport increasing the value of the home by $14,400. The trial court held that the parties active contributions to enhancing the value of the home was marital property and subject to equitable distribution. The Wife argued that the passive appreciation of the marital home was marital property as well.

Passive appreciation refers to the natural market forces that appreciate (or depreciate) the value of the home over time. The Florida Supreme Court held that the passive appreciation of the marital home was indeed marital property subject to equitable distribution when 1) the value of the home appreciated during the marriage while marital funds were being used to pay the mortgage and 2) the Wife made contributions to the home. The Court reasoned that because paying the mortgage is a prerequisite to enjoying the appreciation in value of a marital home, they concluded that principles of equity do not allow an owner spouse to receive the full benefit of the passive appreciation when the nonowner spouse contributed to the property, and marital funds were used to pay the mortgage.

The Florida Supreme Court went on to set forth the ways a trial court should determine an award of passive appreciation. If you think you might have contributed to a nonmarital property and should be awarded an equitable interest in the passive appreciation of your home, contact your expert family law attorney to discuss this issue and whether it might apply to your dissolution of marriage case.

Who Claims the Dependency Exemption After a Divorce?

Ellen Ostman — Thu, 27 Oct 2011 14:15:00 GMT

The IRS has finalized the regulation on the right of divorced or separated parents or parents who have lived apart at all times during the last 6 months of the year to claim a child as a Dependent. The final regulations apply to tax years beginning after 2008.

A taxpayer can only claim a dependency exemption for a qualifying child or qualifying relative. Under the final regulations, the "custodial parent" is the parent with whom the child resides for the greatest number of nights during the calendar year.

If the child resides with each parent an equal number of time then the depedency exemption goes to the parent who has the highest adjusted gross income.

Regulation 1.152-4(c) defines custody as follows: a child is in the custody of one or both parents for more than one-half of the calendar year if one or both parents have the right under state law to physical custody of the child for more than one-half of the calendar year.

For further information on how timesharing in your divorce may affect your taxes, contact your local Florida family law attorney.

Getting Credit for Child Support

Kim Byrd — Mon, 24 Oct 2011 22:50:00 GMT

I have said it before. If you have fathered a child with a woman to whom you are not married, you need to be proactive about getting your parental rights and child support established by a court order. If you are not and the mother of your child seeks the assistance of the state in establishing child support, you can end up with the obligation to pay support without any rights to visitation or contact with your child.

Here's another reason you should contact a family law attorney to establish your parental rights and child support obligation through a court order. If you don't you, may not be able to get credit for these child support payments when calculating child support payments for children from another relationship. Child support in Florida is calculated pursuant to Child Support Guidelines published in the state law. These Guidelines use the net incomes of the parents. The net income is the gross income minus certain deductions that are permitted by state law such as taxes and health insurance premiums. Included in the list of allowable deductions is child support paid for children from another relationship. However, in order to get this deduction the child support must be court ordered. Even if the child support is required by military regulations, it may not be treated as court ordered and you may not be able to deduct it from your gross income. In fact, you may not be able to get any credit for these other support payments at all. Contact a Tampa family law attorney to find out how you can establish your parental rights and obligations through a court order. This can save you money and frustration in the future.

Alimony or No Alimony? That is the Question.

Kim Byrd — Thu, 20 Oct 2011 22:45:00 GMT

Whether you are entitled to alimony or will be obligated to pay alimony is one of the most difficult questions for your family law attorney to answer. Your rights concerning the payment of alimony, also called spousal support, are set out in the Florida Statutes. This law sets forth the types of alimony that the court may award and the factors the court must consider in making an award of alimony. One of the factors is the length of the marriage. The Florida alimony statute was recently changed to include an explanation that long term marriages are marriages of at least 17 years. Short term marriages are marriages that are less than 7 years in term. Moderate term marriages are those between 7 and 17 years in term.

The new statute also includes the types of alimony, including a new one called durational alimony. According to the statute, durational alimony may be awarded when permanent alimony is not appropriate under the circumstances of the case. Durational alimony cannot be awarded for a period longer than the term of the marriage. Because durational alimony is a new type of alimony, there are very few court decisions to guide your family law attorney in answering your questions about it.

Many practitioners feel that durational alimony is an appropriate type of alimony to request for clients with moderate term marriages. Recently, a Florida State Representative who was involved in drafting and passing the new statute said that this was not necessarily the intention of the legislature. According to the representative, durational alimony was intended as an alternative to permanent alimony for long term marriages.

Although the new statute clarifies some of the issues concerning the courts ability to grant alimony, it remains difficult to predict whether the court will award alimony and how much the award will be.

Attorney's Fees and the PreNup

Kim Byrd — Mon, 17 Oct 2011 22:40:00 GMT

There are over a thousand rights and obligations that come along with marriage. Among those are the right to inherit from your spouse, the right to a share of the property acquired by either party during the marriage, and, if you are married long enough, the right to be supported by your spouse after you divorce. These rights are established in the written laws of Florida, the Florida Statutes. Sometime the parties to a marriage enter into a pre-nuptial or a post-nuptial agreement. In most cases, the purpose of this agreement is to make the written laws inapplicable to the marriage thereby taking away many of the rights. Frequently the pre-nuptial agreement will provide that you will only inherit from your spouse if your spouse names you as the beneficiary in their will, that you will only get your share of property if you are on the title to the property or that you will either get no support from your spouse after divorce or a limited amount.

There are some rights that can't be waived or given up by signing a pre-nuptial or post-nuptial agreement. Florida family law provides that, so long as you are married, you have a duty to support your spouse. This means that you cannot waive your right to receive support prior to divorce and while your divorce case is pending. You also cannot waive your entitlement to attorney's fees during your divorce. Even if you signed a pre-nuptial or post-nuptial agreement in which you waived alimony or attorney's fees, you may still be entitled to receive temporary alimony and your attorney's fees from your spouse

The LGBT Family Law Institute

Kim Byrd — Fri, 30 Sep 2011 20:56:00 GMT

I recently attended the Lesbian Gay Bisexual and Transgender (LGBT) Family Law Institute. The Family Law Institute is a joint project of the National LGBT Bar Association and the National Center for Lesbian Rights. It is held every year in conjunction with the National LGBT Bar Annual Career Fair and Conference, which occurs in a different city each year. This past year it was in Hollywood, California. Attendees of the Family Law Institute are experienced LGBT family law attorneys from throughout the United States and abroad. Many of the attendees are from states where marriage between persons of the same sex is legal or from states with Civil Unions or Domestic Partnership registration for same sex couples. Although the laws in these states are not directly applicable to the practice of family law in Florida, it is interesting to hear how the change in the law has affected the practice of family law in those states where relationships between persons of the same sex are legally recognized. It is also helpful for me to be familiar with the laws in those states when advising my LGBT clients who are moving to or from one of those states.

This year's keynote speaker talked about the challenges faced by elderly LGBT people. LGBT people sometimes face discrimination, harassment and even physical violence at the hands of their caretakers in assisted living facilities and nursing homes. This causes these older LGBT people to return to the closet they had left decades before. Older LGBT people are also sometimes separated from their friends when they become dependent on family members who may not understand or approve of their sexual orientation or transgender status causing them to become isolated and depressed. This is a troubling reality that must be addressed by those of us who are concerned with the needs of the elderly.

Even though the programming at the Family Law Institute is not always directly applicable to my clients, it enhances my ability to represent my clients now and in the future.

What Does "Right of First Refusal" Mean?

Damien McKinney — Mon, 26 Sep 2011 12:40:00 GMT

Often your parenting plan will include language regarding a "right of first refusal". The essential premise behind a right of first refusal is the idea that a parent should have a superior right to care for their children over a third party or babysitter. For example, if during your regular time sharing you are not able to exercise the time sharing with your children for an extended period of time (you have to work late, you have a social engagement, etc.), instead of hiring a babysitter, you would offer the other parent the opportunity to care for the children until you got home.

Right of first refusal language can vary significantly depending upon the circumstances that surround your Florida family law case. Some will require that you offer the other parent the right to care for the children if you will be away for more than 4 hours. Some of them restrict it to 24 hours. As always, a parenting plan should be tailored to your families individual needs and concerns. Contact your specialized family law attorney to discuss your parenting plan and whether a right of first refusal would benefit your case.