Recent Posts in Enforcement Category

With the onslaught of celebrity coverage surrounding Mel Gibson's recorded telephone rants, many divorce clients have asked whether it is legal to record their spouse or ex-spouse's telephone conversations.  The answer depends on several different factors and often varies on a case by case basis.

The general rule is, no, unless you obtain express consent.  Florida wiretapping laws are complex and can carry criminal or civil punishments if violated.  In situations where your spouse would have a reasonable expectation of privacy, it is not proper to record your spouse's telephone conversations without permission.  I typically recommend always obtaining permission from your spouse or ex-spouse before recording any telephone call or communication.

However, there are several exceptions to this general rule, that would require an in-depth analysis of the facts and circumstances of your family law case. 

Contact your expert Tampa family law attorney to discuss whether these exceptions apply to you and your case.

It is never too early to start thinking about where your children will spend their holidays.  Most parents wait until November to start dialoguing with their former spouse about scheduling their holidays for their children.  If they do not have a set schedule in place, they find themselves calling their family law attorney after Halloween to settle their disputes.  Unfortunately, the judges have dockets that are already crowded.  So, last minutes hearings are rarely granted and usually quite expensive to litigate.

I recommend that clients start around the beginning of the school year to set out their requests for a holiday schedule.  That way, if there is going to be a disagreement, it can set sorted out without a last minute rush to the courthouse that quite possibly might not get resolved in time.

If you find that you and your spouse are unable to work something out, going to a mediator may be helpful.  Many jurisdictions have mediation services available for divorce cases at the courthouse for a relatively low cost.

Additionally, it may be helpful to know that many jurisdictions have a holiday guideline schedule that may be found on the courthouse website.  Ask your expert Tampa family law attorney for ideas as to how to get this problem served early in the year and avoid unnecessary expense.

We previously discussed in this space that, under Florida family law, the court can order one or both parties to a child time-sharing plan post a surety bond.  The purpose of this is to prevent one of the parties from fleeing the state with the children in an attempt to hide them.  We outlined some of the circumstances under which the court might order a bond.  What happens once one party posts a bond and what are the funds used for if the court orders the bond forfeited?

Florida family law states that the court can order the bond forfeited once it finds a material violation of the time-sharing plan by removing the child or children from the state or otherwise attempting to conceal their whereabouts.  It then gives three specific examples of how these funds are to be used:  1) to reimburse the non-violating parent costs associated with enforcing the terms of the plan, 2) to locate and return the children, and 3) to reimburse reasonable fees and costs as determined by the court.  This last item seems to give the court fairly wide discretion in covering expenses incurred by the non-violating parent.

Bottom line:  Always consult with an expert Tampa family law attorney to make sure the terms of your time-sharing plan are enforced as provided by Florida divorce law.

In a Florida divorce or a Florida paternity case, the law sets out a specific schedule that determines how much child support each party is responsible for based on the income of both parents and the number of children in the family.  However, we have previously discussed that Florida family law provides for certain exceptions from these guidelines, such as the demonstrated need for one party to financially support an elderly parent or certain extraordinary medical or educational expenses.

Another exception is seasonal variations in one or both parents' income.  What does this mean and how would a court interpret this provision?  One example might be a teacher who gets paid his salary during the school year when he's in class teaching but not over the summer.  Another example could be a salesman who gets paid mostly on commission and sees larger paychecks around the holiday shopping season. These are only two circumstances for which the court could deviate from the established guidelines - there are many others.

Bottom line:  If you find yourself having trouble meeting your child support obligations due to changes in your income from month-to-month, consult with the best Tampa family law attorney to make sure you receive the reasonable accommodation as provided by law.

Florida family law is very clear on how much each party will be responsible for in child support based on both parents' income and the number of children.  However, we have recently discussed that the court can deviate from the normal payment schedule for certain unusual circumstances like the care of an elderly parent.

What if the children are enrolled in private schools which can cost thousands of dollars per school year these days?  Are these expenses meant to be shared using the normal child support schedule laid out in the law?  Expert Florida divorce lawyers know that the answer is, "Not necessarily."

While the guidelines for payment are calculated using a clearly defined formula, the law states that the court can adjust one or both parents' share for a number of factors, one of which is extraordinary "medical, psychological, educational, or dental expenses".  Private school tuition fits under this exception and should be handled outside the normal guidelines.

Bottom line:  Speak with the best Tampa family law attorney you can find if your children are subject to expensive private school tuition costs and you are involved in a divorce or paternity case.

The court system uses guardians ad litem to assist in cases involving children.  In order to be appointed by the court to perform this task, you must meet one of three qualifications.  You must be officially certified by the Florida Guardian Ad Litem Program, certified by a not-for-profit legal aid organization or be an attorney who is a member in good standing of The Florida Bar.

There are a number of specific criteria within the Florida Guardian Ad Litem Program and within any not-for-profit legal aid organization which we will discuss in a later blogpost.  All of the requirements are geared toward obtaining guardians ad litem who will dedicate their time to diligently representing the best interests of the children they are appointed to represent.

If you have questions about these qualifications, contact an expert Tampa family law attorney.

Bottom line:  A guardian ad litem can be appointed to represent a child in a child custody dispute.

In a Florida child custody case, if the court sets a parenting plan designating timesharing rights for each parent and there is a reasonable and foreseeable risk that one parent may violate this plan or remove the child from the state or country, the court can take certain measures to ensure that this does not happen.

One of these measures is requiring the parent who is presenting the threat of violation to put forth a security or a bond.  This bond can be cashed in, either in part or in whole, upon the parent's violation of the parenting plan, depending on the decision of the court.  A family law court will first determine whether or not there is a need for a bond.  If there is a need, then the court will set the amount for the bond.   In Florida, a number of factors are taken into consideration when deciding this. 

One of these considerations is whether or not a parent has taken or threatened to take a child out of Florida or any other state in violation of an agreement.  For example, if a parent has previously violated a parenting plan by taking a child out of Alabama in a previous custody matter, there is a good chance that a judge may require a bond in the current Florida case.

Bottom line:  Your expert Florida family law attorney can guide you through the process of requiring a bond to protect your children.

In determining the amount of child support to be paid in a Florida divorce case, courts have established a precise numerical formula for calculating those payments.  The Florida child support guidelines are based on factors such as the children's health care expenses and the number of days the child stays overnight at each parent's house.  Ultimately, Florida family law courts are confined to this formula to establish payments. 

However, a parent can request that the court deviate from this formula as detailed by the Florida Child Support Guideline Statute.  One of these reasons is if the child earns an independent income.

For example, a child may possibly hold a job as a hostess or a bus boy at a local restaurant.  If this child is earning enough income to purchase his or her own clothes, or pay for his or her own car insurance or medical expenses, child support payments may be lower than the formula establishes.

A board certified Tampa family law attorney can guide you through court proceedings in this scenario.  While a modification or deviation from the formula is not guaranteed, the court will take your situation into consideration when calculating payments.

In every family law case involving parenting, there will be a timesharing plan ordered by the court.  That plan will include a time schedule for when each parent will be with the children.  What do you do if you find out that the other parent may be planning to take the children out of state, in violation of the plan?

The Florida statutes provide a way that you can ask for help before the other parent is already gone for parts unknown with your children.  They set up a procedure where you can present "substantial competent evidence" to the court that there is a risk of the other parent violating the court order by removing the child from the state.

If the court agrees that the risk exists, an order can be entered that the other parent may not remove the child without a notarized written permission statement from you.  In addition, the court can require the posting of a money bond which will be forfeited if the child is removed.  The court can also require the surrender of the child's passport.  Your expert Florida custody lawyer can help you through the process.

Bottom line:  Talk to your Florida divorce attorney about the steps you can take to ease the worry of your children being taken out of state without you knowing about it.

A dispute over child custody in a Florida divorce or paternity case can often become very emotional and divisive.  The more animosity there is, the more it hurts the children involved.  The Florida family law system has a way to try to ease some of the tension that is placed on the children.

In a Florida divorce where there is a request for creation or modification of a parenting plan, the court may appoint a guardian ad litem to act as "next friend of the children, investigator or evaluator, not as attorney or advocate."  This is typically done when a judge feels that it would be appropriate to hear what the child has to say about the proposed parenting plans, but wants to keep the child from feeling alone in the process.

If there are allegations of abuse, abandonment or neglect, the court has no alternative.  It must appoint a guardian ad litem.

The guardian ad litem will typically meet with the children and make them feel more at ease with the idea that their parents are divorcing.  The guardian ad litem will assure them that the breakup of the marriage is not because of anything that they have done.  Then the children will be asked what they would like to see the parenting plan look like.  Finally, the guardian ad litem will inform the court of the thoughts of the children.

Bottom line:  Your expert Tampa family law attorney can assist you in seeking a guardian ad litem to assist your children.

When the court calculates how much child support will be paid in a Florida Divorce or a Florida Paternity case, there are many factors which are taken into account.  One of these is the cost of childcare.

First, your expert Tampa Family Law Attorney will assist the court in determining how much basic child support should be paid based upon the net incomes of the parents under the Florida Child Support Guidelines.  Then the court will add the cost of health insurance for the children. 

Many people pay some sort of childcare for their children.  This will be considered in the child support calculation, but only if it is necessary to enable one parent or the other to get to work.  The next step, then, would be to add this cost to the required full child support of the children after deducting a straight 25% amount.  The reason for the deduction is that the Internal Revenue Service allows a tax credit for a portion of health insurance attributable to the children.

Once this is added to the basic child support amount, the court is closer to giving the final Florida child support amount to the parents.

Bottom line:  The mathematical child support calculation includes the cost of childcare for the children and your expert Florida Family Law lawyer can assist in this calculation.

Before the court finishes calculating how much child support will be paid in a Florida divorce or a Florida Paternity case, the court will take into account the amount of health insurance premiums for the children.

First, your expert Tampa family law attorney will assist the court in determining how much basic child support should be paid based upon the net incomes of the parents under the Florida Child Support Guidelines.  Many people pay some sort of health insurance for their children, so the court will next add the cost of those health insurance premiums. 

Once this is added to the basic child support amount, the court is closer to giving the final Florida child support amount to the parents.

Bottom line:  The mathematical child support calculation includes the cost of health insurance for the children and your expert Florida family law attorney can assist in this calculation.

Suppose that a Florida family law court has ordered that the other parent of your child must pay child support to you until your child reaches the eighteenth birthday.  What if the other parent, over the years, has steadily become farther and farther behind in payments and your child is approaching age eighteen?  Is it time to worry that you will never get your money?

In Florida, the law allows you to continue to collect child support from the other parent if there is a delinquency in the support due when the normal child support period ends.  Your expert Tampa family law attorney can ask the court to order the full amount to be paid from funds available to the other parent or order that the monthly regular payments must continue.

If there is a court order that the regular child support payments should be paid out of the other parent’s paycheck, the court can even order that the paycheck deduction continue until the child support arrearage is made up.

Bottom line:  Just because your child reaches age eighteen before all of the child support is paid doesn’t mean that you can’t collect it.

When there is a court order requiring someone to pay child support or alimony in a Florida divorce or paternity case, there are consequences for non-payment.  If you are involved in a court proceeding of this type, the first thing to keep in mind is that a court order is not just a suggestion.  It is a binding obligation requiring that the order be followed or that consequences shall occur.

If there is a delinquency in the payment of court ordered child support or alimony in your court proceeding, a paper will typically be filed with the court asking that the delinquent person be required to live up to the obligation or face those consequences.  If the person is not paying, the court will typically order the person to pay or to suffer a punishment.  If the person still does not pay, then the court can order that the person funds be garnished or that the person go to jail until the delinquent amount is paid.  In addition, the court can assess a further penalty against the person by requiring that the attorney’s fees of the enforcing party be paid.

Not all cases are subject to incarceration, however.  In order to send someone to jail for non-payment, the court must have proof that the person actually has the money to pay the amounts ordered.  So if someone is required to pay, but has no income or assets from which the order can be paid, then the court will fashion an enforcement order that persuades the delinquent person to pay what is available but which falls short of jail time.

Bottom line:  If there are alimony or child support payments which have not been made, contact your expert Florida family law attorney to ask what can be done in your case.

After the divorce is over and the former spouses have moved on with their lives, often the spouse receiving alimony develops a new love interest.   Sometimes that leads to another marriage.   What happens to the alimony award required in the Florida divorce court order?

The best Tampa family law attorneys will tell you that the alimony will end when there is a remarriage by the receiving spouse unless there is an agreement and court order specifically to the contrary.   Those types of agreements and orders are extremely rare.

Suppose, though, that there is no remarriage.   Suppose instead that the alimony receiving spouse merely becomes involved in a live-in arrangement with the new love interest.   What happens then?

Florida divorce law allows that alimony can be reduced or even terminated if the receiving spouse becomes involved in a “supportive relationship” with another person.   The court will look at a number of factors: whether the two people in the relationship have held themselves out as husband and wife even though not married, used the same last name, shared a mailing address, lived together for a long time, pooled their assets, supported each other, performed valuable services for each other or for the other’s company or employer, worked together to create or enhance something of value, purchased real or personal property together, or provided support to each other’s children.

In the distant past it was not nearly as common for people to live together without marriage.   Because it is now so common, the law recognizes that the circumstances of living together can justify termination of an alimony obligation just as in a case of the spouse getting married again.

Bottom line:   If there is alimony involved with your former spouse, you need to contact the best Florida family law attorneys if you are receiving the alimony and are thinking of moving in with someone else or if you are paying alimony and your spouse has moved in with someone.

In a Florida divorce or paternity case, sometimes the person required to pay child support fails to pay.   When that happens there are a number of ways to punish the non-paying parent and inspire that parent to resume payments and make up any past missed payments.

In previous blog posts, we have discussed suspension of driver’s licenses and suspension of professional licenses as a means of punishing someone for non-payment of child support.   Of course, the most direct influence to pay child support is an order of contempt of court and requirement that the non-paying spouse go to jail by a certain date if the arrearages are unpaid.

The Florida Statutes provide that someone who is behind in child support payments may have that reported to a credit reporting agency.   It provides that, before reporting it to such an agency, the state would give the delinquent parent notice ahead of time and an opportunity to pay the delinquency current.   If it is not then paid current, then the agency of the state which keeps track of child support arrearages is free to notify all credit reporting agencies.

As with any unpaid debt, notification to a credit reporting agency has the effect of changing your credit rating and reducing your chances of obtaining a loan of any kind.   Before that happens, you may wish to consult your Tampa family law attorney to find out what you can do to avoid the harm you may be causing yourself.

Bottom line:   Failure to pay child support can seriously affect your lifestyle and may affect your freedom and your ability to borrow money.

If you feel that a modification of alimony might be appropriate, you have a choice where you file your motion to modify alimony.  You can file a motion to modify alimony in either the circuit court of the circuit in which either you or your ex-spouse resided at the date of the execution of your original agreement, or in which the original alimony order was rendered, or where either of you currently reside.

If it has been a few years since alimony was originally ordered in your case, chances are you may not know the amount of income your ex-spouse currently earns.  The rules of Florida family law courts provide that your ex-spouse must complete a new financial affidavit if you request a modification of your current support amount.  If you have reason to believe that either your circumstances or those of your ex-spouse have substantially changed, and a modification of alimony might be appropriate, contact an expert Florida alimony attorney to discuss your case.

If the other parent of your child fails to make timely child support payments, there are several ways that you can try to persuade them to pay.   The first thing that you can do is speak to your expert Florida divorce lawyer about filing a motion for contempt where you ask the court to hold the other parent in contempt of court.   There are a number of things that a court can do in that setting.   The first thing the court can do is require the delinquent parent to pay within a certain set period of time or else go to jail.  

After that, the court can also require that the various state licenses issued to the delinquent parent be suspended until the parent pays the child support current.   The most damaging penalty for most parents would be the loss of a driver’s license.   The court can go even further.   The state issues many other types of licenses.   The parent could have a license to practice medicine or law, a license to be an engineer or a contractor or school teacher.

A very inspiring penalty to persuade a parent to pay child support current is to take away the parent’s ability to earn a living.   In our experience, these types of orders are very persuasive and result in immediate payment of past child support amounts due.   Just imagine being faced with a choice of paying your child support obligation or losing your ability to make a living.   The choice is pretty clear.   Most people are not going to risk their livelihood when they can simply borrow some money to pay the support obligation up to date.

Bottom line:   If the other parent is behind in payment of child support, ask your expert Tampa divorce lawyer how to take the proper steps to make sure that the support is paid up to date.