Florida  Statutes Section 61.08 also provides the following for the Court to consider:

“(2) In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.”

Noteworthy is that there is no savings component for alimony (i.e. a party is not required to pay alimony to another party in any amount above their “need” so that the receiving party has additional funds to put away for savings, even if the parties historically were able to put away money for savings.  It is not the obligation of the payor spouse to provide the payee spouse with more support than is necessary to meet the payee spouse’s need.

The Florida Supreme Court has determined that “[i]n awarding alimony, the court may *610 not factor in speculative post-dissolution savings based upon a marital history of frugality.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). Put another way, “alimony may not include a savings component.” Id. at 1141. In Donoff v. Donoff, 940 So.2d 1221, 1224 (Fla. 4th DCA 2006), this court cited Mallard and stated that trial courts may not “increase the amount of alimony by adding an investment (i.e., growth) allowance….”  Rosecan v. Springer, 985 So.2d 607 (Fla. 4th DCa 2008).

There are also several forms of alimony that may be available to a party, depending on the length of the marriage of the parties, as well as other factors. Those forms of alimony are durational, permanent periodic, lump sum, bridge-the-gap, and rehabilitative. Alimony can also be ordered on a temporary basis.

Finally, for purposes of calculating child support, a party’s gross income is reduced for any payment of alimony, thereby possibly reducing the amount of child support.  If an alimony obligation ends before the minor children obtain the age of majority, child support should be recalculated to take into account this change.

If you are unsure of the amount of alimony you may be entitled to receive or the amount of alimony you may be required to pay, set up a consultation with McNeal Legal to discuss possible outcomes of your case.

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(a) Gross income shall include, but is not limited to, the following:

1. Salary or wages.

2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.

3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.

4. Disability benefits.

5. All workers’ compensation benefits and settlements.

6. Reemployment assistance or unemployment compensation.

7. Pension, retirement, or annuity payments.

8. Social security benefits.

9. Spousal support received from a previous marriage or court ordered in the marriage before the court.

10. Interest and dividends.

11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.

12. Income from royalties, trusts, or estates.

13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses.

14. Gains derived from dealings in property, unless the gain is nonrecurring.

In determining what deductions a party can take from their gross income to get to a net income, the Court looks at the following (61.30(3)):

(a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities.

(b) Federal insurance contributions or self-employment tax.

(c) Mandatory union dues.

(d) Mandatory retirement payments.

(e) Health insurance payments, excluding payments for coverage of the minor child.

(f) Court-ordered support for other children which is actually paid.

(g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.

For purposes of mandatory retirement payments, the Court can only consider what is required by the party’s employer to be deducted for retirement.  Any voluntary retirement payments made by a party are not used for reducing a party’s net income.

Additionally, any child support paid, pursuant to a court order, by a party for a child not involved in the instant case, is deductible from that party’s gross income.  For example: in a paternity action, an order is entered in 2010 requiring the father to pay child support in the amount of $500.00 per month, for child A.  The mother of child B brings a paternity action in 2012. In calculating the Father’s net income, the $500.00 per month paid for child A is deducted from the Father’s gross income. This is true even if child A is younger than child B.

For information on imputing income to a party who is not working or who is earning less income than they have historically earned or are capable of earning, see our previous blog on Imputation Of Income.

If you have any concerns or questions about how the courts are calculating child support or how it should be calculated, contact McNeal Legal for help.

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Pursuant to Florida Statutes §61.30(2)(b):

“Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. If the information concerning a parent’s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census. However, the court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation or as set forth below:

1. In order for the court to impute income at an amount other than the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:

a. The unemployment or underemployment is voluntary; and

b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

2. Except as set forth in subparagraph 1., income may not be imputed based upon:

a. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or

b. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

(c) Public assistance as defined in §409.2554 shall be excluded from gross income.”

In Bronson v. Bronson, 793 So.2d 1109 (Fla. 4th DCA 2001), the Court imputed income to a party who had lost their job due to excessive absenteeism.  The Court noted that a claim that a spouse has arranged his financial circumstances so as to avoid paying the payee spouse is a valid matter to be considered by the trial court in determining the payor’s real ability to pay. See Smith v. Smith, 737 So.2d 641, 644 (Fla. 1st DCA 1999).  In such a situation, an award of alimony entirely exhausting the husband’s actual income may be a proper exercise of the trial court’s discretion. Maddux v. Maddux, 495 So.2d 863 (Fla. 4th DCA 1986). See also Avery v. Avery, 548 So.2d 865 (Fla. 4th DCA 1989).

In Rabbath v. Farid, 4 So.3d 778 (Fla. 1st DCA 2009), the Court cited to prior decisions to note that the child support guidelines require income to be imputed on a monthly basis to an unemployed or underemployed parent, where the parent’s work status is found to be voluntary rather than the result of circumstances beyond the parent’s control. See § 61.30(2)(b), Fla. Stat. (2005); Smith, 737 So.2d at 643, 645. In such instances of voluntary underemployment, the statute states:

[T]he employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for a parent to stay home with the child.

So long as these statutory factors are properly taken into account, the trial court has discretion to impute income in the amount the parent was earning before voluntarily reducing his or her income. Smith, 737 So.2d at 645.

The burden is on the party wanting to impute income to prove the amount that the Court should impute.  McNeal Legal can help a party apply the current law to their facts to determine if imputation of income is available, and what amount is possible.

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Obviously, Cobain could have protected herself better had she had a prenuptial agreement to list and determine marital versus non-marital assets and liabilities, as well as a provision for alimony.  In prenuptial agreements, the parties can determine and agree to amounts of alimony for a party depending on the length of the marriage.  Also important in the case of Ms. Cobain is the protection of her father’s estate.  In a prenuptial agreement, the parties can determine, what, if anything, a spouse is entitled to from non-marital funds.

Oftentimes, parties decide to get married without a prenuptial agreement.  This does not preclude the parties from entering into an agreement on how to divide marital and non-marital assets after the parties are married, without a prenuptial agreement.  A post-nuptial agreement is entered after the parties have married, and gives the parties peace of mind if they neglected to have a prenuptial agreement, or have acquired assets or liabilities since the date of marriage.

McNeal Legal can help guide you regarding a prenuptial or postnuptial agreement and protect you and your assets.

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(7) NO PRESUMPTION; FACTORS TO DETERMINE CONTESTED RELOCATION.—A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the non-relocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the non-relocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

(c) The feasibility of preserving the relationship between the non-relocating parent or other person and the child through
substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent or other person; and the likelihood
of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

(d) The child’s preference, taking into consideration the age and maturity of the child.

(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

(f) The reasons each parent or other person is seeking or opposing the relocation.

(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.

(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.

(j) A history of substance abuse or domestic violence as defined in §741.28 or which meets the criteria of §39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

(k) Any other factor affecting the best interest of the child or as set forth in §61.13.

Question that often arise are:

What facts and circumstances warrant a relocation?  What are some facts where the Court has denied a relocation?

Kelly R. McNeal can meet with you to discuss answers to these questions and the specific facts of your case to determine if relocation is a feasible option for you and your family.

Photos in this blog are courtesy of: wikimedia.org

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(2) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
(3) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

In Florida, if someone believes he or she is a victim of domestic violence, an injunction should be sought. In filing for an injunction, it is important to note the language in Florida Statutes §741.30(3) (h) Petitioner is either a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence because respondent has (mark all sections that apply and describe in the spaces below the incidents of violence or threats of violence, specifying when and where they occurred, including, but not limited to, locations such as a home, school, place of employment, or visitation exchange):

____ committed or threatened to commit domestic violence defined in s. 741.28, Florida Statutes, as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another. With the exception of persons who are parents of a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
____ previously threatened, harassed, stalked, or physically abused the petitioner.
____ attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
____ threatened to conceal, kidnap, or harm the petitioner’s child or children.
____ intentionally injured or killed a family pet.
____ used, or has threatened to use, against the petitioner any weapons such as guns or knives.
____ physically restrained the petitioner from leaving the home or calling law enforcement.
____ a criminal history involving violence or the threat of violence (if known).
____ another order of protection issued against him or her previously or from another jurisdiction (if known).
____ destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner.
____ engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.

Importantly for a victim, the language of this statute contains the catchall: “or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence”. This allows an individual to pursue protection before any physical action takes place.

However, Courts have ruled that although an act of domestic violence need not be completed before one may seek injunctive relief, if fear alone is the “reasonable cause” alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well. Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999). Absent this objective reasonableness, a petitioner’s belief is unsubstantiated speculation that does not support the entry of an injunction. See id. at 615-16. An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. See Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011); Randolph v. Rich, 58 So.3d 290 (Fla. 1st DCA 2011); Gustafson v. Mauck, 743 So.2d 614 (Fla. 1st DCA 1999); Young v. Smith, 901 So.2d 372 (Fla. 2d DCA 2005); Giallanza v. Giallanza, 787 So.2d 162 (Fla. 2d DCA 2001).

This statute provides important considerations in seeking an injunction for protection for domestic violence. Domestic violence can take many forms. Many communities provide safe, temporary housing for victims of domestic violence (and many also allow the victim to bring their children). The University of Florida College of Law has an Intimate Partner Violence Assistance Clinic (IPVAC), where victims can also gain assistance in seeking an injunction.

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Utilizing the Equal Protection Clause and the recent holding of United States v. Windsor, 133 S. Ct. 2675 (2013), the Court held that Florida Statute §741.212 and Article I, Section 27 of the Florida Constitution were unconstitutional, as applied to Mr. Simpson, and would not be enforced against him, thereby giving him the right to serve as Personal Representative for Mr. Bangor’s estate, as his spouse. The Court held that the marriage laws “unnecessarily discriminate against this spouse who is recognized by other states as a spouse”. The Court further held that “same sex couples are entitled to respect, dignity and protection as any other spouse requesting to be a Personal Representative.”

While the Court did state that Florida Statutes 741.212 is unconstitutional “as applied” to the facts of this case, specifically, a probate case, the language used by the Court and other cases cited to be the Court offer glimmers of hope for the rights of same sex couples in Florida.

A link to the full opinion can be found here.

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But, what someone posts on social media sites may or may not be admissible in court. In order for evidence to be admissible, under Fla. R. Civ. P. 1.280(b)(1), the party seeking discovery must establish that it is (1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court. In Root v. Balfour Beatty Const. LLC, 132 So.3d 867 (Fla. 4th DCA 2014), the Court noted that trial courts around the country have repeatedly determined that social media evidence is discoverable. See Christopher B. Hopkins & Tracy T. Segal, Discovery of Facebook Content in Fla. Cases, 31 No. 2 Trial Advoc. Q. 14, 14 (Spring 2012). However, in Root, a parent filed a lawsuit against a city, contractors, and construction companies after her son, Gage, was injured at a construction site. In response, the Defendants sought the following information from Root:

1. Any and all postings, statuses, photos, “likes” or videos related to Tonia Root’s
a. Relationships with Gage or her other children, both prior to, and following, the accident;
b. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
c. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;
d. Facebook account postings relating to any lawsuit filed after the accident by Tonia Root or others[.]

The Court noted that the discovery relates to Root’s past and present personal relationships with all her children, other family members, and significant others; Root’s past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by Root or others after the accident. Id. at 870.
The Court held that, the scope of the discovery compelled in the foregoing requests, regarding Root’s relationships with her entire family and significant others, her mental health history, her substance use history, and her litigation history appears to be the type of carte blanche discovery the supreme court sought to guard against in Langston. See Russell v. Stardust Cruisers, Inc., 690 So.2d 743, 745 (Fla. 5th DCA 1997) (observing that while an individual’s health, life expectancy, and habits are at issue and broad discovery is allowed, a court must still determine which records would be relevant and the court should take protective measures, such as an in camera inspection, to prevent disclosure of irrelevant matters. Id. The Court did state that if developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery. Id. at 871.

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Florida Family Law Rule 12.407 provides: “No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.”

Florida Statute 61.13(3)(i) also provides a factor for the Court to consider in determining a parenting plan for minor children. It provides, in part: “Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to… The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

In Monteiro v. Monteiro, 55 So.3d 686 (3rd DCA 2011), the trial Court evaluated whether or not the children would be permitted to testify in camera (with the judge present without parties or witnesses) over the husband’s objection. There, the Court held: “In addition, the father’s request in this case for submission of the minor children to examination in the presence of counsel and/or parties, effectively superimposes his right to due process upon the best interests of the children. This is impermissible. The father’s request is particularly at odds with the truth-finding process where, as here, he is the subject of the minor children’s testimony. Thus, the only way to obtain the truth from the minor children is to conduct the interview outside the presence of the father. Clearly, the Florida Legislature has recognized that in situations such as the one before us today, the best interests of the minor children are paramount. As such, we find that the trial court’s decision was not a departure from the essential requirements of law. On remand, the father can request that a court reporter be present so that the children’s testimony is transcribed, thus permitting judicial review.”

Court have wide discretion in considering a party’s request for children to testify in a dissolution or time-sharing matter. As appellate courts have noted, the best interests of the minor children are paramount.

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61.13(3), in relevant part, provides: For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

In an interesting case, Abbo v. Briskin, 660 So.2d 1157 (Fla. 4th DCA 1995), prior to the marriage, the mother converted to Judaism. After the parties’ divorce, she reverted back to Catholicism. In the parties’ divorce, the trial court ordered that the mother “should not interfere in the development of the child’s Jewish religious training and upbringing, nor should she actively influence the religious training of the child in any other direction, other than the Jewish faith.” The appellate court noted that the trial judge’s injunction is not expressly founded on any fact relating to the physical or psychological welfare of the child. Rather it seems to flow from the court’s finding that the mother had agreed before marriage to convert to the Jewish faith. Thus the restriction is not grounded in a factual finding that an attempt to expose the child to Catholic teachings or to raise the child as Catholic would adversely and detrimentally affect her well-being or welfare. Equally, it is not based on any finding that it would beneficially promote her health or welfare if she were raised in Judaism.

The appellate court went on to note that, as with married parents who share diverse religious beliefs, the question of a child’s religion must be left to the parents even if they clash. A child’s religion is no proper business of judges. Id. at 1161. Clearly, a party would have to show the detrimental effects of a parties’ religion as it relates to their ability to parent the child or children. Also, as the appellate court notes, courts should be cautious in interfering with parents’ choice or religion, or their choice of religious instruction for their children.

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