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Divorce & Family Law
The area of family law encompasses a multitude of various issues
and concerns; however, the majority of the matters involve Dissolutions
of Marriage addressing equitable division of property and
debts, parenting and time-sharing plans with children, and alimony
and/or support obligations and entitlements.
Dissolution of Marriage: Florida is a no-fault state. The effect is that
there need not be a specific bad act or reason to obtain a Dissolution
of Marriage. The statute merely requires that the "marriage is
irretrievably broken".
Equitable Division of Marital Assets: The statute provides that upon
Dissolution, the Court will seek to make an "equitable division of
assets". Equitable Division does not necessarily mean "equal";
however, the Court must start from the premise that the distribution
should be equal. This same consideration is involved in the division
of liabilities that may exist.
Marital Assets: Not all assets held by a party are necessarily "marital".
In this area there is perhaps the most confusion among parties
involved in the dissolution of marriage process. "Marital Assets" are
generally assets acquired during the marriage, by either party, either
together or separately. Even though one party buys or acquires
something in his or her name during the marriage, it will still likely be
considered a marital asset and subject to equitable division. It's generally
not who acquired the asset or the debt that controls; it's when
and from what source was the asset acquired that controls.
Non-marital Assets: Many times, parties enter the marriage with
assets they owned prior to the marriage. If the assets are not commingled
with marital assets, and retain their clear, separate and
distinct identity, they may remain non-marital. This is a difficult area,
and much depends on the facts and circumstances of the situation.
Any identified "non-marital" assets are to be set aside to the owner
spouse, regardless of their value, and not considered in reaching an
equitable division of the marital assets.
Many times assets that may have been brought into the marriage
have been commingled and /or gifted to the marriage, and may
lose their separate identity as non-marital. For example, a person
may own a home prior to the marriage, but later transfer it into joint
names with the spouse. Was it a gift? There is a presumption under
the law that property held in joint names are marital assets, and a
party making a claim to the contrary has the burden of proof to establish
otherwise.
Pension / IRA / Retirement Plans: Assets accumulated in retirement plans during the marriage, like other assets, are marital assets and subject to equitable division. In this area, pre-marital portions of these plans are attempted to be valued and placed apart to the plan participant as a non-marital asset. However, the contributions and growth on the contributions into such plans during the marriage are clearly marital and subject to division. Some plans are “defined benefit plans", where there isn’t an immediate cash value. The years of creditable service toward a retirement benefit, which is earned during the marriage, is a “marital asset". These issues can be very complex, and specific orders must be entered by the Court to apportion plan assets or retirement benefits to ensure the party receives their determined share.
Debts: Just as assets are marital or non-marital, so are debts. The party who incurred the debt, or in whose name the debt exists, does not make the debt non-marital. Debts accumulated during the marriage are generally marital and taken into consideration in fashioning an equitable division of the assets and liabilities of the parties.
Parenting Plan / Time Sharing Plan / Minor Children: Recently the State has amended the statutes dealing with children of divorce. The State is concerned with the welfare of the children, both economically and emotionally. To avoid or minimize the parties fighting over “title", the legislature has adopted the concept of “Time sharing" and “Parenting Plan". Certainly, the children must continue to be children of their parents, and the former spouses, parents of their children. The Dissolution of Marriage does not end this relationship. The idea of a “parenting plan" is to direct the parties to consider how they will address the various issues of parenting after the divorce and not living together. Schooling issues, outside activities, health and welfare issues are a few of those considerations. Incorporated into these considerations is the “time sharing plan": how often and under what circumstances will the parents see and hopefully maintain a meaningful relationship with their children. Each situation poses its own set of problems, and the children’s ages also play an important part. The Courts seem more and more willing to consider equal or substantially equal time sharing between the parents and the children if the parties schedules will allow, and it seems to be in the best interest and welfare of the children. Of course, the location of the residences of the parents, their work schedules, and financial ability to provide for the children all are important considerations. Further, it is understood and contemplated that given the passage of time, as circumstances change and the children age, changes in the time-sharing and parenting plans would be warranted.
Child Support: In this area, the legislature has spoken fairly clearly. There exists a table and calculation method for determining the parents’ obligations of financial support. Included in the calculation are both parties’ net incomes, and expenses for health care and /or day care for the children, among other things. The calculations further provide for adjustment to the child support should each parent exercise at least 40% of the overnights with the children. The calculations presume additional support costs associated with substantial time-sharing at or above 40% of the time, and accordingly modify the support obligations. It is not a one-way street in regard to support. The calculations presume financial contribution from both parents.
Parents should understand that child support, being based on the financial condition of the parties at the time of the calculation, is also subject to modification increasing or decreasing the amount, based on a substantial change in circumstances that may occur after the initial order was made. Also, child support is generally compelled only during the period of a child’s minority, extending beyond the 18th birthday only when the child has not graduated high school but is expected to graduate prior to the child’s 19th birthday. There may be considerations that compel support beyond the age of majority, but generally those would involve situations of mental or physical disability of the child.
Alimony / Spousal Support: There are various forms and types of “alimony". Most people think of alimony as the indefinite payment of money to the ex-spouse. That is a form of “permanent periodic alimony".
A. Permanent Periodic Alimony: Often the divorce occurs after a long-term marriage. One spouse may be substantially more financially secure than the other. There isn’t a hard a fast rule for a spouse's entitlement to Permanent Periodic Alimony. The length of marriage, the contribution to the marriage of each spouse, and the financial need and financial ability to pay are but a few factors to consider. If a spouse is awarded Permanent Periodic Alimony, the payer spouse will make support payments as established by the Court for an indefinite period of time. This form of alimony generally terminates on remarriage of the recipient spouse, but can also be changed, modified, or terminated in future proceedings should a substantial change in circumstances occur warranting the change.
B. Rehabilitative Alimony: This is a form of support generally for a limited or specified period of time. The idea is to provide financial support while the former spouses “rehabilitate" themselves, and return to the workforce and adapt to being independent. A spouse may need to return to school to regain certifications or other credentials to re-enter the work force at a position similar to what they may have previously possessed. Some form of rehabilitation plan is the basis for this form of post dissolution support.
C. Bridge-the-gap Alimony: This form of support is almost self-explanatory. Often a spouse needs financial assistance for a period of time to become self-sufficient. There may not be a specific re-education plan; however, the move from financial inter-dependence to one of sole responsibility can be difficult and some financial support may well be needed.
D. Lump Sum Alimony: On occasion it may be appropriate to award a sum of alimony in “lump sum". The award can be used to achieve an “equitable division" of assets, but it may also be used to provide support for a fixed period or in a fixed amount. Lump Sum alimony may be paid out in full, or may be paid out in periodic amounts. Generally this form of alimony is non-modifiable, although there is no hard and fast rule that can be stated.
There are too many variations and considerations to discuss alimony fully at this time. Most forms of alimony are subject to modification based on a substantial change in circumstances of one or both parties. One of the biggest mistakes people make is not seeking legal advice about a possible modification of the alimony obligation, should a substantial change in circumstances occur making either the financial need greater (so as to seek an increase in support), or making the payment of the support unsustainable and compelling a reduction in the obligation. |
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© 2012 Henderson & Futchko, P.A., Attorneys At Law. All Rights Reserved. | 1735 West Hibiscus Blvd., Suite 300 | Melbourne, Florida 32901 | Map Directions
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