Divorce & Family Law

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Hocus pocusEarlier this month, Florida’s Fourth District Court of Appeal released its opinion in the matter of Zelman v. Zelman, Case No. 4D14-1858 (4th DCA September 2, 2015).  This opinion is noteworthy because it holds that family members have the right to participate fully in guardianship proceedings, even if they are not the petitioner.  This ruling may make guardianship litigation more contentious and complicated, because more people will be able to participate in the litigation, but should also help ensure that guardianship proceedings are fair and comport with traditional notions of due process.

This issue arose in the Zelman case because of competing interests advanced by Martin Zelman’s wife and his children from a prior marriage.  Martin’s son, Robert, filed petitions with the probate court asking that Martin be ruled incapacitated and a guardian be appointed.  Robert and his two sisters contended that Martin’s wife of 13 years, Lois, was “trying to control Martin and his assets through mental abuse, neglect and isolating him from his children.”  An emergency guardian was appointed, who promptly sought and received an order from the trial court requiring Lois to move out of Martin’s apartment.

The trial court then held hearings regarding the issue of Martin’s capacity and the appointment of a permanent guardian.  However, the trial court ruled that Lois was not a party to the proceedings but merely an “interested person.”  Lois was not allowed to call witnesses, introduce evidence, or present rebuttal testimony.  One of the main issues during the incapacity and guardianship hearings was whether Martin had the capacity to divorce Lois, or if he even wanted to do so.  This issue was important because Martin and Lois had a prenuptial agreement that granted Lois $6 million dollars upon Martin’s death if they were married, but nothing if they were divorced.  But, the prenuptial agreement further provided that a divorce proceeding instituted by a guardian, rather than Martin in his own capacity, did not negate Lois’s gift.  This created a thorny legal problem for Martin’s emergency guardian and Robert:  while they sought a determination that Martin was incapacitated and the appointment of a guardian to protect him from what they alleged was Lois’s undue influence and abuse, such a finding would essentially guarantee that Lois would receive $6 million dollars from Martin’s estate because Martin would lack the capacity to seek a divorce.  In order to traverse this issue, Martin’s guardian argued that Martin should be declared incompetent but his ability to file a dissolution action should be preserved.  Consequently, the trial court ordered a limited guardianship which removed, among other things, Martin’s rights to marry, drive, work, or manage property, but preserved his rights to vote, contract, sue and defend lawsuits.  (The trial court also ordered that $3 million dollars that had been transferred from Martin’s account to Lois’s account be reversed.  This particular transfer was reversed in a separate ruling by the Fourth District Court of Appeal in an earlier opinion, Zelman v. Zelman, Case No. 4D14-1858 (4th DCA July 1, 2015).  In that case, the Fourth District Court of Appeal reversed the trial court’s transfer order because (1) none of the parties had actually requested in their pleadings that the money be returned, and (2) Lois was denied due process because she was not given notice or an opportunity to be heard on the issue during the guardianship proceedings.)

Lois appealed the trial court’s ruling in the guardianship proceeding.  The main issue on appeal was whether the trial court erred by not allowing Lois to participate fully in the guardianship proceedings, i.e., to present evidence and legal arguments.  The appellate court determined that Lois was an interested person with standing and the right to participate fully in the guardianship proceedings because she was Martin’s next of kin and the outcome of the proceedings would substantially impact her marriage and her finances.  The appellate court specifically cited to Section 731.201(21) of the Florida Probate Code (2014), which defines “interested person” as a person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  (The 2015 version of the statute is located here; the subsection defining “interested person” has been renumbered as subsection (23).)

The appellate court determined that Lois’s due process rights were violated when she was not allowed to participate fully in the proceedings.  Her due process rights extended beyond “simply being allowed to be present and to speak.”  The appellate court characterized the trial court’s ruling as “infected by legal hocus pocus” and containing “clearly erroneous” findings, in particular because the trial court found that Martin was incompetent  to marry, manage property or make gifts, yet, in contrast, found that he was competent to handle a complex lawsuit involving financial issues.  The trial court’s rulings were reversed and the case remanded for a new trial.

Takeaways

The Fourth District Court of Appeal’s holding in this case means that, going forward, family members will have a strong argument that they are “interested persons” with full rights to participate in guardianship hearings, because they will be affected by the outcome of the proceedings.  This interest will be particularly strong in the case of next of kin and spouses.  This holding should lead to greater participation in guardianship proceedings, but also, perhaps, more contentious litigation as more parties are able to assert their interests in the proceedings.

Eric A. Bevan is an attorney with the law firm of Fox Rothschild LLP and a member of the firm’s Litigation, Financial Services Industry and Construction practice groups.  He represents clients in the resolution and litigation of complex commercial disputes, including federal and state court litigation as well as alternative dispute resolution methods such as private arbitration and mediation.  You can contact Eric at 561-804-4470 or ebevan@foxrothschild.com.

Purpose of Alimony

Florida law allows for several types of alimony, whether it be permanent alimony, rehabilitative alimony or bridge-the-gap alimony, among others. Regardless of the type, all alimony is intended to provide support for a spouse as a result of a divorce. Alimony preserves the economic status spouses enjoyed while married. Alimony is also intended to reduce the harm to spouses and children that may resolve from a divorce proceeding. Courts have several ways to accomplish this goal, whether it be through periodic alimony payments or payment of a lump sum amount.

Determining Whether Alimony is Appropriate

A court can award alimony on a temporary basis, during the course of a divorce proceeding, as well as on a permanent basis as part of a settlement or final judgment entered by the court. Florida courts are also empowered to enter an award granting or modifying alimony after a judgment granting divorce has been entered (i.e. on a post-dissolution basis). However, before a court can award alimony in any of these circumstances it must do two things: determine whether the requesting spouse has a need for alimony and decide whether the paying spouse has the ability to pay for alimony.

Factors Courts Consider in Deciding to Award Alimony

Under Florida’s alimony statute, Fla. Stat. § 61.08, once a court determines that the requesting spouse has a need for alimony and the paying spouse has the ability to pay, the trial court is required to consider “all relevant factors” before deciding whether to award alimony, and in what amount. These relevant factors include such things as the couple’s standard of living, the length of time the parties were married, the age and physical and emotional condition of each spouse, the parties’ financial resources, as well as the educational levels and earning capacities of each spouse. When considering the standard of living of the parties, the court usually relies on the standard of living the couple last shared before filing for divorce.

In addition to these factors, the court must also consider the contribution each spouse made to the marriage. Here, the court is required to give consideration to whether one spouse served as a homemaker, cared for the couple’s children or assisted with the education and “career building” of the other spouse. It is not uncommon in a marriage for one spouse to stay at home and take care of the household, including caring for the children, while another spouse improves his or her education and professional standing. Under Florida law, a court must take in to consideration the contributions of the stay at home spouse when awarding alimony.

Different Types of Alimony

Permanent alimony is a continuous allotment of payments to a spouse for regular support year to year. This form of alimony is not intended to make both spouses financially equal, but instead provide an appropriate level of support for a spouse based on need, an ability to pay and other relevant factors such as standard of living, duration of the marriage, etc.. In deciding whether to award permanent alimony, courts look to the length of the marriage. Marriages for seven years or less are considered short term marriages, while marriages between seven and fourteen years are considered moderate term. Marriages lasting fourteen years or longer are considered long term marriages.

A spouse seeking a divorce from a long term marriage has a presumption in favor of receiving permanent alimony. In contrast, a spouse in a short term marriage has a presumption against receiving permanent alimony. Those marriages of a moderate duration, lasting between seven and fourteen years, have no presumption for or against permanent alimony.

Bridge-the-gap alimony may be awarded to provide support for a spouse who is transitioning from being married to being single. Bridge-the-gap alimony cannot last more than two years. This type of alimony terminates when the party receiving alimony re-marries. Neither the amount or the length of time for bridge-the-gap alimony may be later modified.

Rehabilitative alimony, unlike bridge-the-gap alimony, may be modified or terminated when there has been a substantial change in circumstances that underlies the initial award of alimony. Rehabilitative alimony is intended to provide the requesting spouse with funds to establish the capacity for self-support, either through redeveloping previous skills or undergoing training or education need to develop new skills. Courts generally grant rehabilitative alimony for a certain period of time or until a specific educational or vocational goal has been met.

Durational alimony is intended to provide a spouse with economic assistance following a short or moderate term marriage. This type of alimony is appropriate when there is no need for permanent alimony. Durational alimony may not last longer than the length of the parties’ original marriage. Like with other forms of alimony, durational alimony may be modified or terminated due to a substantial change in circumstances. The length of the award for durational alimony is not modifiable absent a showing of exceptional circumstances.

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Below are some recent articles on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

The Statutory Guidelines

Florida courts determine the amount of child support a parent owes based on mandatory schedules, or “guidelines,” set forth in Florida Statute § 61.30. The guidelines establish the minimum needs of a child in relation to the parents’ level of income. Parties to a divorce proceeding sometimes misconstrue child support as an obligation imposed on one spouse for the benefit of another spouse. Instead, child support in Florida is a dual obligation owed by both parents to their child. The child support obligation begins the moment the child is born and continues until the child reaches adulthood. Child support is based on the idea that each parent is required to contribute to the wellbeing of their child.

Calculating Child Support Based on Net Monthly Income

Florida’s child support guidelines establish the minimum amount of support a parent is required to pay, based on both parents’ combined net income. Courts calculate the amount of support by adding the net monthly income of both parents together and look at the minimum child support need set forth in the guidelines. Next, the court calculates each parent’s individual percentage share of the child support by determining each parent’s separate net monthly income and dividing this amount by the total amount of both parents’ net monthly income. Each parent’s actual dollar share of the child support obligation is then calculated by multiplying the minimum child support need by the parent’s parentage share of child support.

Determining Net Income to Calculate Child Support

The child support guidelines are based on the parents’ combined net income. Under Florida’s child support statute, net income is determined by taking the parents’ combined gross income and subtracting certain allowable deductions. Under § 61.30(2)(a), gross include includes such things as salary, wages, bonuses, commissions, pension and retirement benefits, as well as social security benefits. Once you determine the parents’ combined gross income, you subtract allowable deductions which include items such as federal, state and local taxes; mandatory union dues and retirement benefits; and, health insurance premiums.

Court’s Ability to Deviate from Child Support Guidelines

The amount of child support provided for under § 61.30 is presumed to be correct unless the court decides to deviate from the scheduled amount. A court in a divorce proceeding may increase or decrease the amount of support mandated by the child support guidelines up to five percent (5%) if the court takes into consideration “all relevant factors” including the needs of the child and the age, standard of living and financial status of each parent. If the court wishes to deviate from the amount of support in the guidelines by an amount greater than 5%, the court can do so provided it makes written findings explaining why awarding support in the amount set forth in the guidelines would be unjust or inappropriate.

Modifying Existing Child Support Obligations

In order to modify child support, Florida requires a parent show there has been a substantial change in circumstances. When a court enters a child support order, it has continuing jurisdiction to modify the child support amount when doing so is in the child’s bests interests, there has been a substantial change in circumstances or the child is no longer a minor. The party that wishes to modify the child support order carries the burden of convincing the court that modification is necessary and appropriate.

To show a substantial change in circumstances that would warrant modifying a child support award, a parent must show the changed circumstances must be significant, material, involuntary and permanent in nature. For example, it is not appropriate to reduce a parent’s child support obligations where a parent voluntarily chooses to leave a high paying career for an occupation that pays less income. Instead, a court can “impute” income on to a parent where he or she voluntarily decided to become unemployed or underemployed.

Citations:

Fla. Stat. § 61.30(5 – 6) and (9 – 10); Wilcox v. Munoz, 35 So. 3d 136, 139 (Fla. 2d DCA 2010).

Fla. Stat. § 61.14(1); Overby v. Overby, 698 So. 2d 811, 813 (Fla. 1997).

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Below are some recent articles on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?

Florida Statute 61.13(2)(c)(1) provides that it is the public policy of the State of Florida that children under the age of 18 have “frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved …” Section 61. 13(2)(c)(1) further provides that Florida has abolished the “presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.”  Section 61.13 is important to parents in a divorce in several respects. First, under the statute, Florida has done away with the “tender years doctrine.” Under the tender years doctrine, courts used to recognize a preference for awarding custody to the mother when the child is young. See Kuutti v. Kuutti, 645 So. 2d 80 (Fla. 4th DCA 1994). Under current law, granting custody based upon the tender years doctrine is grounds for reversal. Cherradi v. Lavoie, 662 So.2d 751 (Fla. 4th DCA 1995).

In 2008, the Florida Legislature abolished the concept of custody and replaced it with the concept of parenting plans and time-sharing. Schwieterman v. Schwieterman, 114 So. 3d 984, 986 (Fla. 4th DCA 2012), citing Bainbridge v. Pratt, 68 So. 3d 310 (Fla. 1st DCA 2011). Equally important, through the 2008 amendments, the Legislature also eliminated any presumption against rotating custody or time-sharing. Schwieterman at 986; see also, Mudafort v. Lee, 62 So. 3d 1196, 1197 (Fla. 4th DCA 2011)(holding that under 61.13 as amended, “there is no longer a presumption against equal timesharing.”)

Given that Florida has abolished presumptions for or against particular time-sharing schedules, courts now must base their decisions regarding time-sharing arrangements on the “best interest of the child” factors. Schwieterman at 987, citing Fla. Stat. § 61.13(3) (2010). Section 61.13 requires that a determination of the best interests of a child include consideration of several factors such as (1) the capacity of each parent to consider and act on the needs of the child; (2) the geographic viability of the parenting plan with consideration given to the amount of travel time required to implement the plan; (3) the moral fitness of the parents; (4) the home, school and community record of the child; and (5) the ability of a parent to be informed about the child’s circumstances, such as the child’s friends, teachers and medical providers.

In Schwieterman, the trial court made several references to the need for equal time-sharing of the child. On appeal, the wife argued that the trial court committed reversible error by presuming that the child’s time had to be split equally between the parents. The Fifth District disagreed, noting that the trial court found in its written order that the time-sharing plan was in the best interest of the minor child. Significantly, the trial court found that an equal split in time-sharing would promote the parent-child relationship. Under Schwieterman, a court can still consider the benefit of an equal time-sharing arrangement so long as doing so is in the best interest of the child. Presumptions in favor of equal time-sharing arrangements, however, are no longer permissible.

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Below are some recent articles on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?

 

In a Florida divorce, does property that is otherwise non-marital become marital property merely because one spouse added the other spouse to a deed? Florida’s First District Court of Appeal addressed this issue recently in McKee v. Mick, 120 So. 3d 162 (Fla. 1st DCA 2013). In McKee, the trial court classified a wife’s burial plot as non-marital property. On appeal, the First District reversed based on the evidence presented at trial.

The wife in McKee received two burial plots during the marriage as gifts from a family member. After receiving the burial plots, the wife added the husband to the deed on the property. During the divorce proceeding, the wife claimed the burial plots were non-marital property. However, at trial the wife testified that she added her husband’s name to the deed “believing the parties’ marriage would last.” Id. at 163. On appeal, the First District found that the trial court incorrectly deemed the burial plot as non-marital property. The appellate court noted that for purposes of equitable distribution, marital assets include “[i]nterspousal gifts during the marriage.” Id., citing Fla. Stat. 61.075(6)(a)(1)(c). According to the appellate court, the wife’s testimony that she added the husband’s name to the deed because she thought the marriage would last established the property as a gift. Id.

In addition to relying on the testimony, the First District in McKee cited to Fla. Stat. 61.075(6)(a)(2) which provides that “[a]ll real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage shall be presumed to be a marital asset;” see also, Beal Bank, SSB v. Almand & Assoc., 780 So. 2d 45, 54 (Fla. 2001)(holding that “[i]n the case of ownership of real property by husband and wife, the ownership in the name of both spouses vests title in them as tenants by entireties.”) This presumption, however, can be overcome. As the McKee court recognized, the party claiming that property held by husband and wife is non-marital carries the burden of proof.

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Below are some recent articles on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?

 

In November, the Florida Supreme Court issued a decision addressing the parental rights of two women who conceived a child through assisted reproductive technology. The case, DMT v. TMH involved two women who were in a long-term relationship when they decided to conceive a child. To do so, TMH (the “Biological Mother”) provided an egg which was carried by DMT (the “Birth Mother”) following fertilization through to birth. After the child was born, the couple raised the child together until problems arose and they separated. Following the separation, the Birth Mother “absconded to an undisclosed location with the child …” Opinion at *3.

The Biological Mother eventually located the Birth Mother in Australia wherein she served her with a petition to establish parental rights. The Biological Mother also sought a declaration of statutory invalidity regarding Florida Statute 742.14, Florida’s assisted reproductive technology statute (the “ART Statute”). Under the ART Statute, an egg or sperm donor must relinquish any claim to parental rights or obligations to the donation or resulting child. The statute makes an exception for a “commissioning couple,” which it defines as the intended mother and father of a child who will be conceived through assisted reproductive technology.

At trial, the Circuit Court judge found that the Birth Mother and Biological Mother, as a same-sex couple, could not meet the ART Statute’s definition of a “commissioning couple.” As the trial judge recognized at the time, “[t]here really is no protection for [the Biological Mother] under Florida law because she could not have adopted this child to prevent this current set of circumstances. I do not agree with the current state of the law, but I must uphold it. …” The Biological Mother appealed to the Fifth District Court of Appeal, which reversed the trial court, instead finding that the trial court’s interpretation and application of the statute violated the biological mother’s constitutional rights. The Fifth District went on to hold that the Biological Mother is “entitled to constitutionally protected parental rights to the child and that the statutory relinquishment of those rights under section 742.12 is prohibited by the Federal and Florida Constitutions.”

The Fifth District certified a question “of great public importance” to the Florida Supreme Court regarding the constitutionality of the ART Statute. The Supreme Court found the statute unconstitutional as a violation of the Due Process Clause and the Equal Protection Clause of both the Florida and United States Constitutions. The Supreme Court provided a thorough analysis for why it found the statute unconstitutional. However, the Court’s primary basis for its ruling centered on “long-standing constitutional law that an unwed biological father has an inchoate interest that develops into a fundamental right to be a parent … when he demonstrates a commitment to raising the child by assuming parental responsibilities.” Opinion at *2.

The Court reasoned that Florida’s ART Statute violates the Florida and United States Constitution’s Equal Protection Clause “by denying same-sex couples the statutory protection against the automatic relinquishment of parental rights that it affords to heterosexual unmarried couples seeking to utilize the identical assistance of reproductive technology.” Id. The Court when on to state that “[o]ur decision does not deny [the Birth Mother] the right to be a parent to her child, but requires only that [the Biological Mother’s] right to be a parent of the child be constitutionally recognized.” Id.

Through its decision, Florida’s Supreme Court recognizes that same sex parents have parental rights. Still, the Supreme Court noted that its decision was “based on the circumstances of this case …” The Court found it significant that the Biological Mother had assumed full parental responsibilities until the Birth Mother took the child away from her. Opinion at *9. The Court analogized the situation to a heterosexual couple. There, “an unmarried man who impregnates an unmarried woman does not automatically have a fundamental right to be a parent to the child, his right to be a parent develops substantial constitutional protection as a fundamental right if he assumes responsibility for the care and raising of the child.” Id., citing In re Adoption of Baby EAW, 658 So. 2d 961, 966 (Fla. 1995). There was no disputing that both the Biological and Birth Mothers had assumed responsibility for the care and raising of the child. For the Court, the ART Statute presented a “substantial equal protection problem” to deny an unwed mother the right to assert parental rights, yet allow an unwed father to assert those same rights under the ART Statute. Opinion at *10.

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Below are some recent posts on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?

 

What is the purpose of a parenting plan in a Florida divorce proceeding? The legislature answered the question, in part, when it passed Fla. Stat. § 61.13(2)(c)(1). That section provides:

It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

A parenting plan is intended to encourage “frequent and continuing contact” between both parents and their child during and after a divorce proceeding. To achieve this, Florida courts are tasked with approving or implementing a parenting plan that addresses issues fundamental to raising a child. By that, parents in a divorce who have a minor child can develop and agree to a parenting plan which the court can, in its discretion, approve, reject or modify. However, if the parents are unable to agree to a parenting plan, then the court can establish a plan on its own which will dictate the terms of the relationship and responsibilities between the parents and the child.

Parenting plans address issues commonly referred to as “custody,” “parental responsibility” and “visitation.” Florida Statute § 61.13(2)(b) sets out the minimum requirements for the issues that must be addressed in a parenting plan. These include:

1. A description “in adequate detail” on how the parents will share daily tasks associated with the upbringing of a child;

2. A time-sharing schedule that spells out the time the child will spend with each parent;

3. A designation of who will be responsible for healthcare, school-related matters and other activities;

4. Methods and technologies the parents will use to communicate with each other and with the child; and,

5. File a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) form.

When establishing a time-sharing schedule, the parties must agree (or the court will establish) the time that the minor child will spend with each parent, including overnight visits and holidays. See Fla. Stat. § 61.046(22). Regardless of whether the parties agree, the court ultimately decides whether to approve the time-sharing schedule.

Under a parenting plan, parents can have either shared or sole parental responsibility. Shared parental responsibility is preferred and encouraged. Through shared parental responsibility, both parents retain full parental rights and responsibilities concerning the child. Further, both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly. See Fla. Stat. § 61.046(17). Sole parental responsibility, on the other hand, exists where a court orders one parent to make decisions regarding a minor child. Fla. Stat. § 61.046(18).

When discussing the terms of a parenting plan, there are a couple of important points to consider. For instance, on several occasions courts have rejected parenting plans that improperly delegate decision making authority to a third party. In Grigsby v. Grigsby, 39 So. 3d 453 (Fla. 2d DCA 2010), the appellate court found it improper to allow a father, in consultation with third party professionals, to decide when or whether to allow the mother to have time-sharing of the child. Also, parents are entitled to procedural due process protections when a court is considering a parenting plan. For example, in Douglas v. Johnson, 65 So. 3d 605 (Fla. 2d DCA 2011), the Second Circuit reversed an order concerning a parenting plan where the trial court did not give both parents the opportunity to present witnesses or testimony on their own behalf.

Parenting plans provide parents with the opportunity to agree between themselves as to how they will raise their children during and after a divorce. However, if the parties cannot agree on a parenting plan, the court will order one for them. It is clearly in the parents’ best interest to try to reach a consensual parenting plan that both parents can live and is in the child’s best interests. Regardless of whether the parties agree to a parenting plan or the court drafts the plan, a parenting plan must address the minimum requirements called for in the statute, including time-sharing, healthcare and methods of communication.

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Below are some recent articles on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?

 

Florida Statute § 61.13(2)(b) governs the contents of a parenting plan following a divorce proceeding. Under chapter 61, parties to a divorce are required to submit a parenting plan in all cases involving time sharing of minor children. Parties are required to submit a parenting plan even when the time-sharing arrangements for children are not an issue in a divorce.

Section 61.13(2)(b) provides:

A parenting plan approved by the court must, at a minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of health care, school related matters include the address to be used for school-boundary determination and registration, and other activities; and the methods and techniques that the parents will use to communicate with the child.

Florida’s parenting plan statute requires the court-approved parenting plan to spell out how key decisions will be made regarding the day-to-day affairs of a child. There have been instances, however, where trial courts approved parenting plans which delegated certain decision making authorities. For example, in Letorneau v. Letorneau, 564 so. 2d 270 (Fla. 4th DCA 1990), the trial court entered an order delegating to the mother the authority to approve the times the father could exercise his time sharing rights. On appeal, the Fourth District Court of Appeal found that the trial court had improperly delegated the court’s decision making authority (i.e. when the father could exercise timesharing) to the mother.

In Clark v. Clark, the trial court entered a time-sharing plan that provided the couple’s 10 year-old child with discretion on whether to spend time with her mother. On appeal, the Fifth District held that the delegation of decision making to the couple’s child was improper. Clark v. Clark, 35 So. 3d 989 (Fla. 5th DCA 2010). Courts have also found it improper to delegate decision making authority under a parenting plan to a therapist, guardian ad litem and parenting coordinator. In Larocka v. Larocka, 43 So. 3d 911 (Fla. 5th DCA 2010), the Fifth District held that it was the responsibility of the trial court, not a counselor, to determine a parent’s timesharing schedule with a child. See also, Lovell v. Lovell, 14 So. 3d 1111 (Fla. 5th DCA 2009). Similarly, in Shugar v. Shugar, 924 So. 2d 941 (Fla. 1st DCA 2006), the First District found a trial court’s orders were improper where they placed decision making authority concerning time sharing with the guardian ad litem.

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Below are some recent posts on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?

Special thanks to Peter L. Gladstone, Esq., for his recent presentation at the 2014 Marital and Family Law Review Course.  Peter’s materials during his presentation referenced the cases referenced in this post.

 

In a Florida divorce proceeding, courts agree that when considering whether to award attorney’s fees “need and ability to pay” is the primary consideration by the court.  The purpose of the fee statute, Fla. Stat. § 61.16, is to insure that both spouses in a divorce proceeding will have a similar ability to obtain competent legal counsel.  The Florida Supreme Court addressed the issue of need versus the ability to pay in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).  In Canakaris, the court held that “it is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay [attorney’s] fees.”  Id.  The purpose of awarding a spouse attorney’s fees is to insure the spouse with greater financial resources does not gain an unfair advantage over the spouse with less financial resources.  See Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988).

The court’s analysis of the parties’ need versus ability to pay attorney’s fees remains the same regardless of whether a party is seeking fees on a temporary or final basis.  See Pedraja v. Garcia, 667 So. 2d 461 (Fla. 4th DCA 1996).  Florida courts sometimes differ in how they assess a party’s need for attorney’s fees.  By that, some district courts of appeal require the party requesting fees to demonstrate an actual need for fees.  Other districts, however, look at the relative difference in resources between the parties.

Satter v. Satter, 709 So. 2d 617 (Fla. 4th DCA 1998) is an example where the court focused more on the actual need of the requesting spouse versus the relative financial positions of the parties in deciding whether a spouse established a need for attorney’s fees.  In Satter, the Fourth District denied a wife’s request for attorney’s fees  based upon a lack of need.  The court in Satter noted that the wife requesting fees had a net worth of $1.1 million, yet the husband had a net worth of at least $13 million.  In contrast, the Fifth District in Kelly v. Kelly, 925 So.2d 364 (Fla. 5th DCA 2006) applied a different approach when addressing a spouse’s need for attorney’s fees.  In Kelly, the court focused on the requesting spouse’s relative financial condition compared to the paying spouse.  On appeal, the Kelly court found that it was error for the trial court to deny attorney’s fees where the husband was in a vastly superior financial position when compared to the wife.

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Below are some recent posts on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?

Florida Statute § 61.16 authorizes courts to award attorney’s fees “after considering the financial resources of both parties.” Section 61.16 permits a court to award only a “reasonable amount of attorney’s fees.” This reasonableness requirement applies to both attorney’s fees and costs associated with litigation during a divorce. The critical issue for the court is whether the spouse seeking attorney’s fees has a financial need and whether the other spouse has an ability to pay. See Robbie v. Robbie, 591 So. 2d 1006, 1009 (Fla. 4th DCA 1991). Although need and ability to pay are primary considerations, Florida courts nevertheless have broad discretion to do “equity,” or what is fair, under section 61.16.

The Florida Supreme Court’s decision of Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) is a frequently cited case when considering whether to award attorney’s fees in a divorce proceeding. Under Rosen, when considering a request for attorney’s fees under section 61.16, Florida courts should liberally, not restrictively, construe the statute to allow “consideration of any factor necessary to provide justice and ensure equity between the parties.” Id. Rosen instructs courts to consider such factors as (i) the scope and history of the litigation between spouses; (ii) the duration of the litigation; (iii) the merits of the parties’ legal positions; (iv) whether one party’s legal position is intended to harass, frustrate or delay another party; and (v) the existence of prior or pending claims.

The reasonableness of the attorney’s fees is yet another factor a court must consider in deciding whether to award fees in a divorce proceeding. See Duncan v. Duncan, 642 So. 2d 1167 (Fla. 4th DCA 1994). In deciding whether fees are reasonable, the trial court must give opposing spouse an opportunity to challenge the reasonableness of the fees. Id. at 1169. This may be accomplished by a trial court conducting an evidentiary hearing where evidence is presented on whether the attorney’s fees and costs incurred were for a reasonable value.

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Below are some recent posts  on Florida divorce law:

What are Florida’s Residency Requirements for a Divorce?

Temporary Alimony in Florida (Part 1): Maintaining a Standard of Living.

Understanding Equitable Distribution in a Florida Divorce.

When Will a Florida Court Award Rehabilitative Alimony?

How Do Florida Courts Determine a Spouse’s Ability to Pay Alimony?