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Q: My Husband recently threatened to take custody of our two children because he found some emails between myself and a boyfriend. I have not introduced the children to this person. When the Children are with me, I do not leave them with a babysitter so that I can go out with my boyfriend. If the Court finds out I have a boyfriend, will I lose custody of my children?

A: Florida is a “no fault” state which basically means that, in order to obtain a divorce, you must allege that the marriage is “irretrievably broken”. You do not need to allege and prove a basis for a divorce such as adultery, cruelty, or abandonment. The fact that you have a significant other does not, in and of itself, mean you will lose custody (timesharing). If, at some point, you decide to introduce this person to the Children, then your Husband would be within his right to know of this person, to ask for a background check, and to perhaps meet him. The Courts will expect the parents to have an open line of communication in this regard. This is all a part of what is called “shared parental responsibility”. Your Husband should not confuse this with a right to object to who you decide to date but he is within his right to know. So, no you do not automatically lose custody of your children simply for dating and having a romantic relationship with a significant other.

Q: Prior to my Marriage, I purchased the Home in which my Wife and I are now residing. During the Marriage, we paid the mortgage out of our joint account but I paid more because I earn more. We also improved our kitchen and master bath. We have been married for almost 10 years and, during this time, the Home has gone from $137,000 in value to around $325,000. The House remains titled in my name. Is my Wife entitled to any of the equity in the Home?

A: Let’s start with the most obvious. You did not add your Wife’s name to the deed so you did not “gift” the Property to her. The Property remains your non-marital property. However, during the Marriage, the Home’s increase in value is the result of principal reduction of the mortgage, and may further be the result of both improvements and passive appreciation (market forces). Any such increase in value, as a result, is a “marital asset” subject to equitable division. You keep the House but would either need to refinance draw out more equity to buy out your Wife’s ½ share of said increase in value and/ or she gets a greater share of another asset (or you take a greater share of the marital debt). The starting point for equitable distribution is a 50/50 division of all marital assets. I would need to know the value of the Home at the date of marriage and the balance of the mortgage at that time as well as the value of the Home and the remaining balance of the mortgage at this time. With this said, I would also need to know if you have re-financed the mortgage during the marriage. I would then be able to determine the “marital” portion of the increased value.

Q: My Husband and I have two children, ages 9 and 11, respectively. The Children have lived in the Home since my eldest child was 2 years old. The mortgage payment on the Home is $1,265.00 per month which includes escrow (for taxes and insurance). My take home is around $3,250.00 per month. My Husband’s take home is around $3,800.00 per month. I have no other place to live and would prefer to stay in the Home with the Children. If I am awarded majority timesharing of the Children, will I be able to stay in the Home?

A: The Court may award you an unequal distribution of the marital home if you prove that maintaining the Home is “economically feasible”. At a minimum, you would need to prove that the mortgage(s) is comparable to local rental rates for similar properties of like size and that the fixed household expenses (including the mortgage) is affordable. In this regard, the Court will also inquire of the parties’ respective economic circumstances. For instance, your Husband may argue that he is in great need of his share of the equity out of the Home in order to establish himself in another residence. Assuming the Home is the most significant asset of the parties and further assuming you are not able to re-finance to buy your Husband out of his share, then the Court may order the sale of the Home. Notwithstanding, the Court will consider the best interests of the child(ren) in rendering this decision such as a consideration of whether this is the Home in which the children have lived for some time; the particular school district; etc.

Q: My Husband and I have been married for 19 years. I did not work after our two children were born. I went back to work last year. I earn $11.75/ hour with no benefits. My Husband earns over $100,000.00 per year and he covers my health insurance. Am I entitled to alimony?

A: In Florida, a “long term” marriage is one which is 17 years or longer. Since your Marriage is over 17 years, a presumption of entitlement (to alimony) arises. Your Husband would now have to come forward with why you should not be awarded alimony. In this instance, I believe you would be awarded long term alimony either in the form of permanent periodic or durational alimony given the length of the marriage, the earning disparity between you and your Husband, and the extraordinary contribution(s) to the marriage of raising the two children. The amount of alimony would be based on your quantified “need” and your Husband’s “ability” to contribute towards your support.

Q: My Wife just filed a Motion for Contempt because I cannot pay her alimony. I just lost my job in which I had been earning $100,000.00 gross annually exclusive of performance bonuses. In 2018, I received about $25,000.00 in bonuses. Since I am not working, do I have to pay her the alimony awarded?

A: An attorney cannot advise you to not abide by a court order. The short answer to your question is, yes, you have to continue to pay your alimony obligation until further order of the Court. Although you have no present income, you can be found in “willful” contempt if you have some ability to pay the alimony out of savings and/ or the liquidation of assets. In the interim, you would need to keep a diligent job search journal of where you are applying for employment, the position being applied for, and the rate of pay and benefits available.

If you are not able to find comparable employment after a diligent job search and take a job making $60,000.00 gross annual, your former wife may believe you have used less than diligent effort to find comparable employment. In order to “impute” income to you at a higher rate than $60,000.00, your former wife would have to prove that you are “voluntarily” under-employed and that, given your recent work history, qualifications, and the local job market, jobs are available to you earning more than $60,000.00 gross annual. If you lost your job due to your position becoming obsolete or to downsizing, then this may be considered “involuntary” in which event the Court may modify your alimony obligation (downward) given you are making about 50% less than what you were previously earning at the time of the Final Judgment.

Q: I was recently let go from my job because of my employer lost two major contracts which rendered my position within the Company as non-essential and obsolete. I was earning $144,000.00 gross annual after having worked for the Company for the past 9 years. My employer did give me a 6 month severance which I am currently using to pay alimony to my former wife in the amount of $3,500.00 per month. I cannot find a job earning anything close to $144,000.00 gross. I finally found a full time job earning $84,000.00 gross annual with health insurance benefits with at least 2 months left to my severance pay. All the other jobs I have found were no more than $60,000 gross annual. After my severance runs out, I will no longer be able to afford the alimony of $3,500.00 per month. I intend on paying her $2,050 per month which is about 58% of my alimony obligation (my income decreased by 42% to $84,000 gross annual). Can I reduce my alimony to $2,050.00?

A: You cannot unilaterally reduce your alimony obligation. In order to modify an alimony or child support obligation, you would have to file a supplemental proceeding and prove that a substantial change(s) in circumstance has arisen warranting a downward (or upward) modification. A substantial change in circumstance is defined as one which is involuntary, material, permanent, and unanticipated.

If you have performed a “diligent” job search of at least one application or interview per day and have been unable to find comparable employment, and assuming the job you took at $84,000.00 is the best job you can find as far as salary and benefits, then I would opine that you have shown “permanency” (lost earning capacity). Further, a reduction in income of around $60,000.00 per year is a material change in your earning capacity. Your position was no longer necessary as a result of two lost contracts by your Employer. This does not sound as if you “voluntarily” lost your job, such as a resignation. Under the circumstances, you would have a case for a downward modification of your alimony obligation.

Q: My former spouse and I have three children. We have equal timesharing including holidays and summer. As far as co-parenting, we work relatively well together. I just received a job offer in NY State. I want the kids to move with me to NY because the school system is much better and I will be making about $20,000.00 more annually. My ex and I have family in the area. Our kids have a very good relationship with our families. Now that I am making more, can I relocate the children to NY?

A: The Court will evaluate a variety of factors to determine if the best interests of the children are served by the relocation to NY. Given that you both co-parent well, then your ex may not be able to argue that you have frustrated her relationship with the children and that you would continue to do so if permitted to relocate. This is a positive. Let’s assume you have some credible evidence that the school in which the children would attend in NY is better than the school they are currently attending. This, too, is a positive.

Although $20,000.00 is a lot of money, could you make that type of money in Florida if you searched? Further, what is the cost of living in NY State versus Florida? Does the COLA negate your $20,000.00 increase in salary? Even if you have family in NY, if your children have an existing bonded relationship with both sets of families in Florida, you may have a difficult time convincing a Judge that taking the children away from their home and families is in their best interests.

If you can show that the $20,000.00 is an actual increase in salary not negated by COLA and that you have career advancement opportunities with large increases in salary, that your children have a bonded relationship with your NY family, and that alternative timesharing arrangements can be made and are economically feasible, then you have a better argument for proving that the relocation is in the children’s best interests.

Q: Why should I keep paying alimony to my former wife now that she is living with someone else?

A: In a Florida post-judgment divorce proceeding, alimony may modified assuming the parties did not agree to make it non-modifiable in writing. The general rule in a Florida post-judgment divorce proceeding is, when the former spouse who is receiving alimony remarries, then his/ her right to receive alimony may be terminated. Likewise, in Florida, when the former spouse who is receiving alimony starts living with someone in a “supportive relationship” (as if married), then his/ her right to receive alimony may be decreased or terminated altogether. The burden would be on you to prove that your Ex is in a supportive relationship, for example, has your Ex made major purchases with the other person? Do they have joint bank accounts and/ or lines of credit? These are just a few of the types of questions to be asked.

Q: I need alimony from my soon-to-be-ex. My Ex makes more than me. I do not know how I will survive without alimony. How much should I expect to receive as alimony?

A: In a Florida Divorce, a spouse in need may ask the other spouse, who has the ability, to pay alimony, for his/ her support. The first question is entitlement and what type of alimony. The Court will look at a variety of factors to determine entitlement such as, without limitation, the age and health of the spouse, the length of marriage, extraordinary contributions made to the marriage, and the earning capacity of the spouse(s). In a Florida Divorce proceeding, a Court may award different types of alimony such as permanent periodic, durational, rehabilitative or bridge-the-gap. If the Court determines that a spouse is entitled to a specific type of alimony, then the Court will quantify that spouse’s need by looking at his/ her separate household and living expenses and, in some instances, the parties’ standard of living.

Q: I can’t keep paying alimony. I just lost my job and I am now living off of my savings. I need to get rid of my alimony obligation.

A: In Florida, alimony may be modified up or down. You would need to prove that a “substantial change(s) in circumstance” has arisen that requires your alimony to be modified (down). A substantial change of circumstance is defined in a Florida post-judgment Divorce proceeding as something that is: (1) material and significant; (2) that is involuntary; (3) that is permanent; and (4) was unanticipated. By example, if you are approaching retirement age and have used your best faith efforts to find other employment, but you cannot find any position earning what you previously earned, then you may be entitled to a downward modification. I would anticipate that your Ex will seek to “impute” income to you and argue that your unemployment is voluntary. Your Ex would have this burden to prove you are voluntarily under- or unemployed.

Q: Can my ex withhold the children from me just because one of them has a fever or when we get into an argument?

A: “Parenting Plans” are either agreed upon by the parents or established by the Court after hearing. Either way, the Parenting Plan becomes a court order and neither party can unilaterally withhold the children although some exceptions may apply. The whole point of a Parenting Plan is to provide the parents with a specific “plan” which then takes away the control of either parent to make unilateral decisions. Regardless of whether you have a Parenting Plan, both parents are presumed to know how to take care of their children. Neither parent should unilaterally decide to keep the child home and not allow the other parent timesharing. The expectation is for the parents to “co-parent” and share information such as the administration of any prescription medications. Sometimes, parents have a very acrimonious relationship which complicates co-parenting. I would recommend that the parents use a platform such as Talking Parents or Our Family Wizards so that the parents can keep track of their communications without having to speak in-person or by telephone.

Q: I want equal time with my Children. Can I ask the Court to give me more time with my kids? The current Parenting Plan was written when I worked the midnight shift, but now I am working the day shift and can be home by 6 PM, Monday through Friday. The Parenting Plan also does not specify holiday or summer timesharing and only provided for alternating weekends. My ex refuses to give me more time. Can I ask the Court for more visitation?

A: Parenting Plans can be changed (modified) if a “substantial change(s) in circumstance” arise. This means that something has arisen since the Final Judgment which is significant and which was unanticipated. If you had no reason to know that your job hours could or might change when the original parenting plan was established, then the change to daytime hours would be “unanticipated”. Each case is unique. Sometimes parenting plans no longer work. If your ex is unilaterally making the rules of when you may or may not see your children because no summer or holiday timesharing was provided, then may also require the Court to change the original Parenting Plan and provide you with specific holiday and summer timesharing.

Q: What is a Guardian ad Litem?

A: A guardian ad litem (“GAL”) is a neutral, third person appointed by the Court to conduct an investigation and then make a recommendation to the Court as to the “best interests of the child(ren)”. The GAL can speak with “collaterals” who should be able to provide first-hand, personal knowledge regarding the parents and the parents’ relationship with their child(ren), such as teachers, other parents, family, neighbors, coaches, and the like. The GAL will also speak with the parents as to the circumstances giving rise to his/ her concerns. The GAL may also speak with the Child(ren) which usually depends on age and maturity. The GAL is not supposed to be perceived or looked upon as an ally or foe of either parent. The GAL is neutral. Generally, parents waive “hearsay” so that the GAL can share his/ her communications with third persons and the children. Parents are not required to waive hearsay. The attorney must explain the pros and cons of waiving hearsay and the possible ramifications of doing so in relation to the services of a GAL.

Q: What is a typical parenting plan?

A: Florida does not provide for a typical parenting plan. No presumption favors equal timesharing or any other timesharing arrangement. If the parents are unable to establish their own parenting plan, then the Court will establish it. The Court will evaluate a variety of factors to determine the “best interests of the child(ren)”. For example, which parent has demonstrated a willingness to foster a meaningful relationship between the child and the other parent”? The general rule is for the parents to have “shared parental responsibility” and with each parent having timesharing (what used to be called “custody and visitation”). Florida public policy provides that both parents are to have a continuing and meaningful relationship with their child(ren). The parenting plan will set out specific timesharing during the regular school year, holidays and summer break. The parenting plan will also provide specifics as to how the parents are to communicate with each other and the child (when the child is with the other parent) and other specifics as to where the children are to be picked up/ dropped of; the right to travel within or outside the U.S. with the Children; extra-curricular activities for the children; and what is commonly referred to as a “right of first refusal”. The Court cannot allow an expert to determine the parental responsibility and timesharing. This is the domain of the Court.

Q: I owned my house before I married. Is the house mine or do I have to sell it and give my spouse ½ of the value?

A: If you owned the House before you married, then it may be your “non-marital” asset and your spouse would not get ½ of the equity. However, a non-marital asset can become marital. For example, if you put your spouse’s name on the deed during the marriage as a joint owner, then you may have “gifted” the house to both you and her, jointly. If the house has remained in your name, but the value of the home increased, then your spouse may be entitled to ½ of the principal reduction and appreciation in value. In this event, if other marital assets exist, you can give your spouse your ½ share of those to offset your spouse’s ½ share of the appreciation in value.

Q: My spouse has a 401k retirement account. Am I entitled to ½ of my spouse’s 401k?

A: Retirement plans such as a 401k, 403b, or IRA, can be partially or totally marital. If your spouse worked during the marriage and invested into a 401k during this time, then that portion earned during the marriage plus any interest on it is marital. You would be entitled to ½ of that portion. However, any portion earned before the marriage plus interest on that portion would be non-marital.

Q: I am panicking. I just inherited $250,000 from my Father’s estate. Is my spouse entitled to any of it because we are married?

A: The simple answer is “no”. The Court would not award your spouse any of the inheritance as if it were a marital asset. You received the $250,000 from a “non-interspousal” source. However, if you put the $250,000 inheritance into a joint account with your spouse or if you co-mingled marital monies with the inheritance, then you may have converted the inheritance into a marital asset.

Q: My spouse is going to receive upwards to $1M of the marital assets most of which is cash (liquid). She will be earning interest income on her $1M. Does the interest income reduce the amount of alimony my spouse is asking for?

A: Divorce law flows in accordance with the acronym P.E.A.C.E. The first “E” is equitable distribution of marital assets and liabilities. The “A” (alimony) then follows. Yes, interest income is included in your spouse’s income and thereby reduces the amount of alimony she may need. Alimony also factors in income from your spouse’s non-marital assets (if any).

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