Articles Tagged with Florida Divorce

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Attorney’s Fees

Attorney’s fees awarded in a Dissolution of Marriage depends upon the financial need of the

requesting party and the financial ability to pay of the other party.

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Florida Statute § 61.16 provides for attorney’s fees to be paid by a more financially abled party in Dissolution of Marriage cases. Florida Statute § 61.16 provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals,”

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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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There are several different types of alimony within Florida Law including permanent periodic alimony, rehabilitative alimony, bridge the gap alimony, and durational alimony.

Durational alimony is alimony for a set period of time.

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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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The vast majority of family law matters, whether a dissolution of marriage (divorce) or child related (paternity), cases resolve in a settlement. This means that the parties can avoid going to Court and having a Judge determine their fates. Sometimes the parties cannot amicably resolve their case and must go before a Judge. It is your right to have your case decided by the Judge.

The Judicial system must balance crowded dockets with the citizen’s right to have “access to the courts,” that is to say your right to have your case decided by the Judge. Often Judges will put time pressures on cases to clear up their docket. In one recent case from Miami, the Judge did not provide the Wife with adequate time to present her case. Specifically, telling her counsel that he needed to wrap up her testimony in fifteen (15) minutes. The appellate court found this to be a violation of the Wife’s right to due process and remanded the case to the trial court.

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In Florida Family Law Cases we always file a Family Law Financial Affidavit (for the short form affidavit: http://www.flcourts.org/core/fileparse.php/293/urlt/902b.pdf and for the long form affidavit: http://www.flcourts.org/core/fileparse.php/293/urlt/902c.pdf). These affidavits are very useful in determining the marital estate to be divided in equitable distribution and for determining the need and ability to pay for alimony purposes.

Florida Family Law Financial Affidavits are very important and should be taken very seriously by the parties. In one recent Second District Court of Appeal case the Appellate Court relied on the Husband’s financial affidavit in reversing the trial Court’s approval of alimony.

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