Articles Tagged with family law

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Usually, the court will impute an income to the non-working spouse. This means that in cases where child support, alimony, and equitable distribution of assets and debts are at issue, the court will decide a wage that should be attributed to the non-working spouse. This imputed income amount will serve as the amount the spouse should be making if they were working, and most calculations throughout the case will be made using this imputed income.

As a matter of law, trial courts should consider the non-working spouse’s work history, occupational qualifications, and the prevailing earnings in the community for that class of available jobs when finding an amount of imputed income. Evidence may be presented that the non-working spouse had earned the same amount prior to quitting a previous job, that the non-working spouse is capable of working, and that the non-working spouse has options to do so.

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Termination of Parental Rights is a serious issue in Florida Law. The Department of Children and Family Services often becomes involved in situations where a child’s welfare is in danger. Many times extended family members may be concerned about the parenting style or neglect by the child’s parents. If this becomes an issue, or if abuse is a concern, the Department of Children and Family Services will often take part in the case.

In temporary situations where children need to be provided care, family members may apply for Temporary Custody by and Extended Family Member, by petitioning the Court for an order allowing them to temporarily care for the children at issue. Many times this is a better situation for everyone involved, because the children are then able to be cared for in a familiar environment, and the Court is able to monitor the situation first hand.

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To answer this question briefly, a biological father has no rights to a child born while the mother was married to another man, unless the mother’s husband relinquishes his parental rights through proper procedure. In Florida, the “legal father” of a child is defined as the man to whom the mother is married when the child was born and whose name appears on the birth certificate. In the case of Slowinski v. Sweeney 38 Fla. L. Weekly D1418a (Fla. 1St DCA 2013), it was undisputed that the child was born within wedlock while the mother was married to another man and that the mother’s husband was listed as the father in the child’s birth certificate. The child resided with the maternal grandmother since birth. Upon the mother’s death, the grandmother, with the legal father’s consent, filed a petition for temporary custody, pursuant to Florida Statute section 751.03, which allows an extended family member to seek temporary custody of a child.

The biological father filed a petition for determinatin of paternity in the same county as the grandmother’s action using evidenced by DNA testing to show that he is the father and that he should have custody of the child. The biological father’s paternity action was ultimately dismissed on appeal because the court considered it a “nonexistant cause of action.” The biological father next filed a motion to intervene in the grandmother’s temporary custody case. After an evidentiary hearing on his motion, the trial court allowed the biological father to intervene in the case, finding that he qualieifed as an “extended family member” because his status as a biological father made him a “relative of a minor child within the third degree by blood or marriage to the parent.”

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In order to prevent jurisdictional disputes with courts in other states on matters relating to child support and time sharing, Florida has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Pursuant to the UCCJEA, the exercise of jurisdiction in making an initial custody determination lies with the child’s home state. “Home state” is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a proceeding involving a child.

Many jurisdictional disputes arise when one parent decides to remove the child from Florida and move to another state with the child. Then, either one or both parents will file a petition seeking establishment of timesharing and child support in their respective states. In this instance, the courts will have to decide whether Florida or the other state has jurisdiction to preside over the case.

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Pursuant to Florida statutes, alimony may be awarded when one spouse has a need for financial assistance and the other spouse has the ability to pay. If a court awards alimony, then the obligor may later seek to modify or terminate the alimony obligation if there is a substantial change in circumstances or if the obligee has entered into a supportive relationship. Pursuant to Florida statutes, the court has discretion to reduce or terminate an award of alimony if the court finds that since the granting of the divorce decree, a supportive relationship has existed between the obligee and a person with whom the obligee resides (“cohabitant”).

The burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists. In a recent case, Gregory v. Gregory, 39 Fla. Weekly D1A (Fla. 5th DCA 2014), the 5th DCA held that once the court finds that a supportive relationship exists, the burden of proof shifts to the obligee to prove that he or she has a continued need for the financial support. In that case, the Husband sought to reduce or terminate his alimony obligation based on the wife’s supportive relationship. Ultimately, the court held that the wife was living in a supportive relationship and she failed to prove that she had the continued need for alimony.

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In a dissolution of marriage involving property, the trial court must determine what asset is marital versus non-marital, what is the value of each asset, and decide how to split the assets. The date of determining the existence of marital versus non-marital assets is the date of filing of the petition. Because cases can take several months or even years to conclude, an asset may exit at the date of filing but not exist, or its value may substantially decrease, by the date of trial. A perfect example is a bank account. In this situation, what is a court to do?

In a recent case in Ballard v. Ballard, 39 Fla. L. Weekly 1670c (Fla. 1st DCA, 2014), the parties owned a bank account that was significantly diminished by the Husband during the dependency of the case. At the date of filing, the bank account had $42,012; by the trial date, the account had no funds. The Husband testified that he used some of the money to pay his attorney’s fees. The trial court did not find any misconduct on the part of the Husband but nonetheless included the $42,012 in the equitable distribution scheme.

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On Monday, January 5, 2015, Miami Dade became the first county in the state of Florida to recognize same-sex marriage, start issuing marriage licenses to same-sex couples, and officiate same-sex marriages. The decision came from Miami Dade Circuit Judge Sarah Zabel. Judge Zabel lifted a stay of her previous ruling from July of 2014 which found Florida’s ban on same-sex marriage unconstitutional. The ban was a result of the 2008 Constitutional Amendment which defined marriage as a union between one man and one woman.

On January 6, 2015, a similar ruling was set to apply to the rest of the Sunshine State. The American Civil Liberties Union of Florida filed a federal lawsuit on behalf of multiple individuals challenging the 2008 Constitutional Amendment as unconstitutional. On August 21, 2014, the presiding U.S. District Judge Robert L. Hinkle entered his initial ruling declaring the ban as unconstitutional. In his opinion, Judge Hinkle writes

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