Swanson Family Law and Probate Blog

The TRUTH about Florida's Alimony Laws - Part I

2012-01-21T12:56:00.000-05:00

Relief for alimony-paying ex-husbands whose ex-wives are living with their new boyfriends

Let's talk about Florida's actual alimony laws, and how they are applied.

There are four types of alimony provided for in Florida Statutes §61.08. About a year ago, the Florida Legislature made some changes, so if you're looking for the actual law, be sure to go to the most recent version. Today, I'll talk about and define permanent alimony, and later I'll discuss the other types, and then how the law is applied and actual awards are made.

The first type of alimony I'll discuss is the type most people think of when they hear the word "alimony," and that is "permanent, periodic alimony." This is provided for in Florida Statutes §61.08(8) which provides:

(8) Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2), following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are written findings of exceptional circumstances. In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s. 61.14.

As you can see, permanent alimony terminates automatically upon the death or remarriage of the receiving party, and upon the death of the paying party. So, that may seem draconian at first glance. However, the last sentence of that section provides that the amount of the alimony payment and the length of time it has to be paid may be modified or terminated for two reasons. One is that there has been a substantial change in circumstances of the parties. The other is that there is the existence of a supportive relationship.

Let's talk about the second situation - the existence of a supportive relationship. Florida Statutes §61.14 which governs the modification of alimony awards, provides that:

(b)1. The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.

Disgruntled alimony payors often complain that their ex-wife is living with a boyfriend while the ex-husband is having to support her. There is relief provided for him in this statute. It goes on to provide that:

The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.

b. The period of time that the obligee has resided with the other person in a permanent place of abode.

c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.

d. The extent to which the obligee or the other person has supported the other, in whole or in part.

e. The extent to which the obligee or the other person has performed valuable services for the other.

f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer.

g. Whether the obligee and the other person have worked together to create or enhance anything of value.

h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.

i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.

j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.

k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

So, if it is true that your ex-wife is living with a boyfriend who is supporting her in at least some of the ways described in the statute, there really is relief for you!! You don't have to keep paying alimony to an ex-wife who is being financially supported by a new boyfriend.

If you actually go to court, file a proper petition and have actual evidence - not just your personal beliefs -- that some of the conditions described by the Legislature actually exist, then you should prevail and your alimony obligation will be terminated. You should hire an experienced family law attorney, and you will have to pay attorneys' fees. That's how the judicial system works. But if you get out of paying permanent alimony, won't it be worth it?

If your ex-wife moved back in with her parents, or with your adult children, or with a roommate, cousin, or so-on, then this section won't help you. It is true that Florida's alimony laws place the obligation to help support divorced persons on their ex-spouses, not on their parents, children, friends, or the taxpayers. But you can get out of that obligation if your ex really is living with a boyfriend who is financially supporting her.

Parental Alienation

2011-11-06T09:49:00.000-05:00

There has been a good deal of scientific research on parental alienation in the last decade, including retrospective studies which have looked at young adults who rejected a parent long ago. These studies are done in an attempt to make recommendations for identification and intervention in alienating situations.
As with most things, there is a range of attitudes and behaviors on an attachment spectrum. At one end are children who have strong positive attachments to both parents. Moving closer to the middle might be a child who has a greater affinity for one parent, but evidences no rejection of the other parent and is actually attached to both parents. In the middle of the attachment spectrum is a child who is aligned with one parent for realistic reasons (the favored parent), but who will still have some positive contact with the other parent. Moving toward the other end of the spectrum is the child who evidences a justified rejection of the other parent, usually for reasons of abuse or neglect. At the far other end of the spectrum is a child who completely or nearly completely rejects a parent for reasons which are disproportionate and unrelated to the child’s actual experiences with that parent. This is the child who may be called alienated.

An alienated child is defined by some of the premier researchers in this field as “A child who freely and persistently expresses unreasonable negative feelings and beliefs (such as anger, hatred, rejection, and/or fear) toward a parent that are disproportionate to their actual experiences of that parent.” Johnston & Kelly et.al. 2001. Another well respected author calls irrational or pathological alienation “a disturbance in which children, usually in the context of sharing a parent’s negative attitudes, suffer unreasonable aversion to a person or persons with whom they formerly enjoyed normal relationships or with who they would normally develop affectionate relationships.” Warshak (2001, 2006)

Other researchers have identified alienation by an abusive parent, usually a father, who creates fear of the other parent in the children. This has been called sabotage or pathological bonding by Dozd & Olesen and Johnston. Those three researchers have also discussed “protective parenting,” which, when justified (because of actual abuse by the other parent) can also look like alienation. A less benign type of protective parenting is where the allegations of abuse by the other parent are false and the protective parent is only feigning protection as part of the act of alienation.

Gainesville family lawyers owe a debt of gratitude to Dr; Deborah Day, a clinical and forensic psychologist in Winter Park, who gave a special presentation to this group on this topic last month. Her most important point was the need for early identification and strong intervention by the courts in divorce and post-divorce matters where there are red flags of alienation. She pointed out that you can't know ahead of time which cases will become severe, so early intervention may help in heading off the development of severe alienation.

More info in my next post . . .

Challenge to journalists writing about Florida alimony reform

2011-09-01T07:12:00.000-04:00

I just read another so-called article in the Huffington Post about the need for alimony reform in Florida. While I generally enjoy most actual news articles on that site, I"m concerned that only one disgruntled spouse's side is being presented. Here's a link to the story I just read: Huffpost Story

I am a Florida attorney who handles many divorce and post-divorce cases, and I have to question whether this is an article written by a neutral journalist who actually did some investigation, or instead some type of paid advertisement for those pushing for so-called "alimony reform" in Florida. The actual fact is that Florida law regarding alimony is gender-neutral, and is mandated by the Florida Supreme Court to ensure that neither spouse pass from prosperity to poverty after a divorce.

The amount of an award of alimony is left to the sound discretion of trial judge who has the benefit of seeing the actual evidence of the payee's needs and the payor's ability to pay, and has actual evidence of the parties' lifestyle before their separation.

The Florida statutes provide for several types of alimony. One type is "bridge-the-gap," which may be for a few months to up to two years, and is intended just to provide a little help to allow the payee spouse to transition from being married to being single. Another type is rehabilitative alimony, intended to allow a spouse to increase her or her education, skills, and work experience in order to become self-supporting and thus not in need of alimony. Durational alimony is available in moderate term marriages (generally speaking, ones of 7 - 17 years in length) and may be awarded for no longer than a term equal to the length of the marriage. Finally, there is the traditional permanent alimony, generally awarded only in long term marriages (more than 17 years) and only where one spouse cannot be self-supporting, and only after a list of about ten other factors are also taken into consideration.

In every case, the trial judge must have evidence of the parties' actual incomes, expenses, and their assets, debts, and even non-marital assets. The trial judge is required to consider all the of the parties' financial circumstances in determining whether one party has an actual need for alimony and that the other party has an actual ability to pay alimony.

While it is possible that there might be a few apparently sensational and unfair alimony awards, it is more likely that the whoever is reporting that unfair award is not reporting the full set of actual facts, and instead is only giving the story from that person's point of view. Trial judges see both parties' points of view.

I really wish when I see stories touting some terrible alimony result that the reporter would contact that wronged spouse's ex-spouse and get that person's side of the story. I am sure it would be eye-opening. I have reviewed stories posted on the alimony reform website in an attempt to try to find the actual court cases of any of the posters, and have been unsuccessful. People don't give their real names, or their full names, so it could be anybody posting, or the same person posting over and over.

So, here's a challenge to actual journalists - try to get both sides of the story and report both sides fairly and neutrally. Then, you'll really have a story, rather than an advertisement.

Baby Selling Ring Busted

2011-08-13T15:05:00.000-04:00

An attorney in California, one in Maryland, and another woman who had been a surrogate mother worked together to recruit women to travel to the Ukraine to be implanted with embryos from anonymous donors. At least a dozen American couples paid $150,000 each for these babies. The brokers told their clients the babies had been part of a surrogacy contract and that the prospective parents had backed out at the last minute. In fact, there were never any such parents or contracts. The baby-broker ring instead was paying the surrogate mothers between $38,000 and $45,000 for each successful pregnancy and keeping the rest of the adoption money for themselves.

They also misled the parents into believing they knew who the sperm and egg donors were when they were anonymous. The California attorney also admitted to filing false applications for the surrogates to California's state insurance program to subsidize the medical costs of the deliveries of the babies.

It's very important for prospective parents who are going either the route of surrogacy or adoption to work with experience, well-credentialed attorneys who are knowledgeable in this area. The American Academy of Adoption Attorneys and the Academy of Assisted Reproductive Technology Attorneys are two very good resources.

Happy Sisters Day | August 7, 2011 | Thinking of my sister, sisters-in-law, step-sister | We're daughters, mothers, aunts, wives, and always sisters!

2011-08-06T11:44:00.000-04:00

Greeting customized with Smilebox

I have a few questions about the "Alimony Horror Stories"

2011-08-02T23:00:00.000-04:00

I read an article today on a website that purports to list off alimony horror stories as justification for the group's desire to reform the alimony laws in Florida. Some stories sounded pretty bad. For example, one guy wrote that his ex-wife had been arrested and incarcerated and petitioned for an alimony increase -- from jail -- which was granted. Can you imagine that? Of course, he's upset. But, really, you just know there has to be more to that story . . . something that the guy is not mentioning. Another guy wrote that his 45-year-old ex-wife "with strong work history" was awarded $2200 a month in lifetime alimony, and that the Judge admitted that alimony amount is more than the ex-husband can afford. Again - there has got to be something more.

A couple things I notice that seem to be a theme in the stories. First, the ex-wife is usually lazy and refused to work; and usually didn't work during the marriage. The headline on one story states, "While married, wife says: 'I don't want to work, and you can't make me.'" Another ex-wife "chooses to continue to work for a paltry $7.50 an hour," thus, needing alimony

Second, the complaining ex-husband's income and assets are pretty much never listed. For example, another guy pointed out that he is a physician and was through medical school, and already Board Certified when he married his wife; that the were divorced after a seven year marriage, and that he is paying permanent alimony to her. But he doesn't mention how much his income is.

Third, the judges who hear these alimony cases are reported to be biased, mean, and even moronic. For example, one fellow reports that the judge in his case said, “The husband wanted me to consider the [his] cash flow problem but I rejected it and put my head down and went right at it.” That doesn't even really sound like an English sentence. Another fellow presented evidence to the court, "but it was discounted because the judge here is overly biased towards women."

Fourth, these ex-husbands seems to get very poor legal advice. Or maybe they don't take good legal advice that they do get. Or maybe they're getting their legal advice from the internet. Most of them who have fallen in love with much better women have been told that if they get married, their new wives' income and assets will be taken to pay their ex-wives' alimony. That's just not true (unless there is some deceit going on by the ex-husband). Also, they are frequently told by the many lawyers they have consulted that they have no hope of reducing their alimony, even though they are "impoverished," going into foreclosure on their homes, and so on.

In addition, even though the judges are biased against them, discount the ex-husbands' evidence, and make awards that appear to be against Florida law, these guys never file an appeal of the trial court rulings.

In my next post, I'll list out the questions I have for the authors of these stories, and then I'll mention some horror stories I'm familiar with.

Some blurbs about state budget cuts

2011-07-06T15:54:00.000-04:00

With the Minnesota state government shut down because of budget fights, the state's ICPC office is closed. Thus, parents who have adopted a child in Minnesota, but live elsewhere cannot get clearance to leave Minnesota and come home. So, they will have to decide whether to stay in Minnesota, running up hotel bills, losing time at work (any maybe their actual jobs), and being away from their home with a newborn . . . or to travel without ICPC clearance. Same goes for Minnesotans who have traveled to another state to adopt a child - they can't get clearance to return to Minnesota. Birth certificates can't be issued or amended. The state putative father registry can't be checked. Etc., etc., etc.
1300 state jobs in Florida were cut yesterday, most from the Department of Juvenile Justice and the Department of Children and Families. What do these two departments have in common? CHILDREN!

Some Minor Changes to Florida's Alimony Law Go Into Effect July 1st

2011-06-26T09:37:00.000-04:00

Some minor changes to Florida's statute regarding alimony go into effect July 1, 2011. The new law requires courts to be a little more diligent in making findings of fact when awarding alimony. In my experience in North Central Florida, I have found that our judges generally have long been quite diligent about making such written explanations in their judgments, so I don't see this as having much effect in our area.

Last year, the Legislature created a statutory definition of short, moderate, and long term marriages. Previously, different appellate court jurisdictions in Florida had slightly different definitions. Statewide, now, marriages of less than 7 years are considered short term; of 7 to 17 years are considered moderate; and of greater than 17 years are considered long term marriages. At the same time last year, the Florida Legislature created a new type of alimony, called "durational" alimony. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration. It may not be modified except upon exceptional circumstances, and may not in any event last for longer than the marriage lasted.

This year, the Legislature added a provision that durational alimony could be awarded after a long term marriage, also, "if there is no ongoing need for support on a permanent basis."

The Legislature also added a provision that an award of alimony may not leave the payor with "significantly less net income" than the payee, unless the court makes written findings of exceptional circumstances. Courts are now specifically required by statute to make written findings of fact (or explanations) when awarding permanent alimony that "no other form of alimony is fair and reasonable" under this family's circumstances. As I said, however, our circuit judges have been quite aware of the long time requirement to balance the needs of one spouse against the ability of the other spouse to pay support, and I am not aware of any awards being made locally which leave the payor with less net income than the payee.

Here's a link to the entire text of the bill. You have to scroll way down to the next to last page to find the provisions regarding alimony.

I realize I am not aware of every order that is entered in every court, obviously. If you do know of such a case, please consider commenting here and providing some (non-identifying) information about it.

Be Careful What You Wish For!

2011-06-25T10:16:00.000-04:00

In contested divorce actions, it is sometimes necessary to have a temporary relief hearing where one party has most of the income and is not paying an appropriate amount to support or help support his or her spouse, and where the non-affluent spouse needs some funds with which to pay his or her attorneys' fees and costs. There might also be issues related to child custody and child support, but for today's post, I will focus on a recent situation I had with a temporary relief hearing regarding alimony and attorney's fees.

I represented the wife in a 40 year marriage. She was a dutiful Army wife, staying home to raise their children and moving whenever the husband's service required a move. After he retired from the service, when his wife thought they would be enjoying the fruits of both their hard work all those years, instead, the husband left home and moved to another city and in with a new girlfriend. In addition to receiving his Army retirement, he was working full time at a new job, earning about $75,000 including his retirement. His wife, who was a stay at home mother and never worked, was not employed and had no income. While the husband was paying the mortgage on their marital home, he sent very little other cash to the wife for her to be able to pay her daily expenses. However, he was also helpfully paying his girlfriend's mortgage, utilities, pool service, and so on.

In an effort to settle things amicably, the parties went to mediation by themselves without their attorneys, and settled everything, including an agreement that the husband would pay the wife $900 per month in alimony as long as he still paid the mortgage on the marital home, which they agreed to sell as soon as realistically possible. They agreed the alimony amount would go up to $1,750 per month after the house was sold. After the mediation agreement was signed, the husband's attorney started bringing up issues that, IMHO, were not worth the attorney's fees to argue about. At his attorney's advice, the husband filed a motion to set aside the mediation agreement and, in one of those "be careful what you wish for" moments, the Judge granted the motion, set aside their mediation agreement, and, at my request, then set a temporary support hearing. He ordered us to go back to mediation before the hearing, but unfortunately, the husband would not even agree to pay the $900 per month he had previously agreed to pay. This time, I was with my client at mediation, and urged not to agree to accept any less, as I believed she was actually entitled to more.

And, indeed, at the temporary relief hearing, the Judge awarded the wife $2,650/per month in temporary support. In addition, the Judge ordered the husband to pay $8,000 toward the wife's attorney's fees and costs.

BE REALLY CAREFUL WHAT YOU WISH FOR!! This worked out well for my client, but it's a shame that the husband's lawyer was not more realistic about what the court was likely to do in a contested hearing. When you are looking for a divorce lawyer, you will be better served by a lawyer who provides you good information and a realistic assessment of what a court is likely to do given your particular circumstances, than with a lawyer who just follows along with your pie-in-the-sky ideas. Spouses who have realistic ideas of what could happen in court are much more likely to settle out of court.

Cynthia Swanson is now Board Certified in Adoption Law

2011-06-14T09:31:00.000-04:00

We're very proud to announce that Cynthia Swanson is now Board Certified in Adoption Law. She is one of only 17 such attorneys in the State of Florida. Board certification recognizes attorneys’ special knowledge, skills and proficiency in various areas of law and professionalism and ethics in practice. Certification is the highest level of evaluation by The Florida Bar of the competency and experience of attorneys in the 24 areas of law approved for certification by the Supreme Court of Florida. Established in 1982 by the Florida Supreme Court, board certification helps consumers identify specialists in various areas of law. Board certified Florida Bar members are the only Florida attorneys allowed to identify themselves as “Board Certified,” “Specialist,” “Expert” or to use the letters “B.C.S.” for Board Certified Specialist on business cards or letterhead, in legal directories or in advertising.

How would you find a lawyer when you need one?

2011-06-12T11:48:00.000-04:00

Just read an article in the May 2011 ABA Journal - "Folks still find lawyers the old-fashioned way." Fewer than 20% of survey respondents said they would consult Facebook, 15% said they would look at blogs, and 9% said they would use Twitter. A whopping 80% said they would turn to a "trusted source," such as a friend, colleague, or lawyer they had used before.

As you might imagine, however, the younger survey respondents were more likely to use social media, although those overall numbers were still low. Respondents from the youngest age group (18 to 24) were nearly twice as likely (at 13%) as the general population of respondents to use online searches to find a lawyer.

At our law firm, we try to provide some good, useful, although general, information about the different areas of law in which we are involved. But to obtain personal information and advice that is pertinent to your own situation, you really do need to talk to a lawyer personally. This is our website. Call us to see if we can help you.

Good news about adoption tax credits

2011-05-31T14:56:00.000-04:00

You may know that taxpayers may claim an adoption tax credit in the year their adoption is finalized - up to $13,170 for adoptions finalized in 2010. The amount of the credit was somewhat less for prior years. The good news now is that the credit is refundable. That is - if you had adoption expenses of $13,170 or more in 2010, but your tax liability was only, say, $10,000, then you not only owe no taxes, you can actually get a tax refund of $3,170. You can look at this as the federal government (or other taxpayers) subsidizing your adoption costs up to a total of $13,170.

The other good news is that the IRS has determined that you may go back and amend your prior years' tax returns if you didn't take the credit and would have been entitled to it. Ordinarily, the IRS only lets you amend returns for three prior years and no further back. However, in regard to the adoption tax credit, the IRS has determined that you may go back and amend your return back to 2005. While you can't actually benefit from the credit for years 2005 through 2007, you can still benefit if you can carryover the credit into at least 2008. Before 2010, the credit was not refundable, so if your total tax liability was less than the credit, you did not get any refund of the difference. However, the credit could be carried forward for six years, and used against your tax liabilities in those following years. So, now the IRS has determined that you can go back and amend your prior year's returns, to show the credit and to carry it forward. If you can carry it forward at least into 2008, you will still benefit from it. Tax years 2005, 2006, and 2007 are considered "closed years." This is why the IRS won't give you any refund for those years. But 2008, 2009, and 2010 are still "open." Thus if you can carry the credit into those years, it would be beneficial for you to consider amending your return.

You can look here for additional information: http://www.nacac.org/taxcredit/taxcreditbefore2010.html

Catholic Charities Fights Back Against Gay Adoptions

2011-05-28T12:37:00.000-04:00

A philosophical battle is going on in Illinois between the state legislature, which has approved civil unions for gay couples, and Catholic Charities, which does not want to be exposed to liability for discrimination against gay couples. Rather than possibly be sued for discrimination if the agency follows its own beliefs about not placing children with gay couples, the agency will get out of the foster care and adoption business all together. About 350 foster children will have to be placed in new foster families.

Shouldn't a private agency be able to place children in accordance with its own beliefs, as long as the families it DOES choose to place children with, are suitable? Why is Catholic Charities worried about gay couples suing it if it rejects them as adoptive families? Shouldn't Catholic Charities be allowed to place children only with Catholics?

Hmmm . . . but should a private landlord be allowed to rent its apartments to only the kinds of families it chooses? Should a private mortgage company be allowed to make loans only to the kinds of people it chooses? Should a city be able to grant a parade or event permit only to the kinds of groups it approves?

Catholic Charities Fights Back

DCF using Twitter to promote adoption of foster children

2011-05-22T14:22:00.000-04:00

The State of Florida Department of Children and Families has launched a Twitter page, called Explore Adoption, which it is using to promote the adoption of foster children. An AP news story stated that three DCF employees have been tweeting since mid-April to provide information about training programs and other support tools for potential adoptive parents. The state wants to spread the word about teenagers, groups of siblings, and other children for whom it is often difficult to find their forever families. The twitter page can be found at:
https://twitter.com/#!/ExploreAdoption

Your Last Will & Testament: Florida Homestead Real Property Restrictions

2011-05-15T16:10:00.000-04:00

It is really tricky in Florida to attempt to leave your homestead to somebody in your will. It's really important to discuss this idea with a lawyer who is well qualified in wills and estate planning. For example, do you own your homestead real property in your name alone? Even if you do, you are not free to leave it in your will to just anybody. You may be surprised to learn that if you have a spouse or minor children, Florida law imposes restrictions who can receive the homestead real property in your will.

If you are married and don't have any minor children, then you can leave your homestead to your spouse, but to nobody else, not even your adult child. This requirement can be waived if you and your spouse execute a valid prenuptial or postnuptial agreement in which the spouse waives any interest in the homestead.

If you are not married at the time you die and don't have any minor children, then you can devise your homestead property to anyone. However, if the homestead is devised to someone who is not a relative who could have potentially inherited the property by intestacy, then the property loses its homestead status and is an asset of the probate estate subject to sale to pay the costs of administration and creditors' claims.

Also, if an owner makes no provision in his/her will for the owner's homestead property or makes an ineffective devise, then the surviving spouse receives a life estate and the remainder will be vested in the owner's lineal descendants who are living at the time of the owner's death. For people who die after October 1, 2010, instead of taking a life estate, the surviving spouse can elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent's descendants who are living at the time of the decedent's death.

Most married couples who have homes in Florida will probably own the property jointly. When a home is owned as tenants by the entirety (meaning they were married to each other when they bought it), then the property automatically passes to the surviving spouse, even if there are minor children.

Confused enough? Like I said, be sure you contact a lawyer who is well versed in Florida wills and estates when you're thinking of making your will.

Children's Passport Issuance Alert Program

2011-05-09T10:39:00.000-04:00

Since February 1, 2008, both parents are required to execute the passport application for a minor child under age 16. However, you may be concerned that your child's other parent may attempt to get a passport without your knowledge.

In an effort to prevent international child abduction, the U.S. Department of State has created the Children's Passport Issuance Alert Program (CIAP). The CIAP allows parents to register their U.S. citizen children under the age of 18 in the Passport Lookout System. If a passport application is submitted for a child who is registered in CPIAP, the Department contacts and alerts the parent or parents.

The passport lookout system gives all U.S. passport agencies as well as U.S. embassies and consulates abroad an alert on a child's name if a parent or guardian registers an objection to passport issuance for his or her child. This procedure provides parents advance warning of possible plans for international travel with the child. However, if the applicant can demonstrate that he/she has sole authority to apply for a passport under U.S. law, the passport may still be issued at any time.

This is not a system for tracking the use of a passport. Once a passport is issued, its use is not tracked or controlled by the Department of State. There are no exit controls for American citizens leaving the United States.

The Charleston Passport Center, which is part of Passport Services, is responsible for administering CPIAP. For more information, go to the U.S. Department of State web site: http://travel.state.gov
If you believe that your child, no matter his or her age, may be abducted internationally, immediately contact the Department of State's Office of Children's Issues and inform appropriate law enforcement officials. It is highly recommended that you also contact a family law attorney. You and your attorney can take action in your local court which will increase your child's safety and security. For example, the other parent may be required to have only supervised visitation, or may be required to post a bond before the child may travel with him or her. There are quite a few options which local courts can use to help provide security for your child.

Free Guardianship Options Workshop for Families

2011-04-29T13:03:00.000-04:00

Lighting the Way to Guardianship and Other Decision-Making Alternatives project is designed to increase the knowledge of individuals with developmental disabilities and their families about guardianship options in Florida, and to increase the knowledge of attorneys and other professionals about Florida’s disability communities and Florida law pertaining to guardianship and guardianship alternatives.

Lighting the Way is offering eight-hour training workshops in three separate locations throughout Florida. The workshops are conducted for two audiences in each location. On Fridays, the participants will consist of attorneys, judges and other professionals. On Saturdays, the participants will consist of self-advocates and family members.

Workshop Dates for Self-Advocates and Family Members:

July 9, 2011, Gainesville, Florida - Hilton University of Florida Conference Center

August 13, 2011, Ft. Lauderdale, Florida - Ft. Lauderdale Embassy Suites

October 29, 2011, Tampa, Florida - Tampa Airport Hilton Westshore

Training workshops will discuss: Guardianship, Guardian Advocacy, Decision-Making Options Other than Guardianship, Special Needs Trusts, Legal Resources

You may be interested in attending this training if you are:

A person with a disability,

Parent of a child with a developmental disability,

Family member of a person with a disability, or

Caregiver of a person with a disability

Individuals with disabilities and their families can attend this workshop at no cost. However, each location has limited seating, so it is important to register early.

See www.guardianshiptraining.com for information on registering.

Louisiana does not have to give full faith and credit to gay adoptions in other states

2011-04-13T13:34:00.000-04:00

Two men, named Oren Adar and Mickey Smith, a gay couple, live in the State of New York. They adopted a child in New York, but the child had been born in Louisiana. After the adoption was granted, they requested - as happens in all adoptions - that the State of Louisiana amend the child's birth certificate to show the two men as the child's parents. The Louisiana State Registrar refused to do so, stating that to do so would violate Louisiana’s public policy of not allowing joint adoptions by unmarried couples.

The fathers filed a suit against the Louisiana Registrar in federal court. Without the revised birth certificate, said Adar and Smith, it had been difficult for Smith to add their son to his health insurance. The couple also had difficulties with airline personnel, who suspected they might be kidnapping the child.

The federal district court ordered the registrar to issue a new birth certificate identifying both men as the boy’s parents. The state appealed to the 5th Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, and a three-judge panel affirmed the district court ruling and required the state to issue the amended birth certificate.

The state then appealed to the full 5th Circuit Court, where the state finally prevailed. The full court ruled that the Full Faith and Credit clause of the U.S. Constitution cannot be used to make states act contrary to their own laws in enforcing judgments from other states. Obtaining a birth certificate falls into the realm of enforcement, it said, “and therefore outside the full faith and credit obligation of recognition.” It also noted that the Louisiana Registrar agreed the state “is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with Infant J cannot be re-litigated in Louisiana,” and thus, “There is no legal basis on which to conclude that failure to issue a revised birth certificate denies ‘recognition’ to the New York adoption decree.”

Which came first?

2011-04-01T09:45:00.000-04:00

Which came first? Changes in attitudes or changes in family laws?

I think that this is not a one-way street, but rather it is more like one of the famous European roundabouts with about six lanes of traffic in, around, and out! A good example is in the area of custody. In Florida, our law has evolved from full custody of children going to one parent and "visitation rights" to the other, to changes in nomenclature where "shared parental responsibility" and "primary physical residence" substituted for custody. But attitudes were still pretty much the same - one parent had custody and the other had visitation. Then, more fathers pressed for more "rights." We have now morphed into using the terms "parenting plan" and "time-sharing." Neither parent is designated with any language that sounds like "primary" or "superior." So, more fathers are more intensely involved in parenting their children after divorce.

Did the law evolve to have a more balanced view of parenting after divorce because fathers pushed for it? Or did fathers step up and start doing more parenting because the law provided a vehicle for it?

My somewhat cynical view is that the change in Florida's child support laws get more credit than anything else. When the Florida Legislature changed the way child support is calculated to provide a significant monetary break when children spend 40% or more of their time with the "other parent," that's when fathers really started pushing for more "custodial" time. There was now a financial incentive for them to have their kids spend time with them - they would pay less child support to their former wife. Those less cynical than myself would say that the break in child support freed up cash so that the fathers could AFFORD to have their kids with them more often and for longer periods of time.

So, as I said, you see some back and forth and round and round here. It does appear that more fathers in the younger generations are more intensely involved in raising their children. Maybe that's because more mothers are working. Whether because they feel freer to do so because they have more help at home, or because we simply need two incomes now to support families, I'm not sure. But as this happened, laws changed. As laws changed, more fathers became more involved, and so on and so on and so on.

Turn your lights off tomorrow night at 8:30 pm - EARTH HOUR.

2011-03-25T17:30:00.000-04:00

http://earthhourblog.posterous.com/?tag=earthhour2011iconslandmarksglobal
Earth Hour debuted in Sydney, Australia in 2007 with 22 million Aussies and 2,000 businesses taking part. A year later the movement had gone global, with 50 million souls in 35 countries powering down for an hour. Last year was Earth Hour's biggest yet, with folks in 128 countries participating. Join the following places which will be powering down:

• The world's tallest building - Burj Khalifa, Dubai
• Times Square, New York
• Christ the Redeemer statue, Brazil
• National Monument, Indonesia
• London Eye
• National Mausoleum, Pakistan
• Boudhanath Stupa, Nepal
• Table Mountain, South Africa
• Brandenburg Gate, Berlin
• The Obelisk, Argentina
• Davis Station, in Antarctica
• Opera House, Sydney
• Government House, Hong Kong
• Royal Palace, Thailand
• Niagara Falls, Canada

Not all assets pass through an estate

2011-03-15T14:04:00.000-04:00

    Not all assets are subject to probate. For example, a bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death to another, or held jointly with rights of survivorship with another, is not a probate asset. A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent's estate is a probate asset.

    Also, homestead property and exempt personal property pass in a different manner from that described in the intestate laws. In addition, there is a statutory allowance to the surviving spouse. By having a will or a trust, you can ensure that your estate is distributed according to your wishes instead of the formula laid out in the intestate succession statutes.

     You can do some advance planning to make the passing of your assets upon your death smooth and straight-forward. For example, as mentioned, be sure to name a beneficiary of your life insurance policies, and your retirement accounts. Be sure to check those regularly and update them. A very sad case I had involved a fellow who really, really did not want a divorce, even though his wife was dead set on it. He was a helicopter pilot and involved in dangerous work flying to oil rigs out in the ocean. As a last ditch, if misguided, effort to prove to his wife how much he loved and cared for her, he bought and paid for a large life insurance policy on his life and named his wife as his beneficiary. The divorce went through anyway, and some years later, this fellow fell in love again and re-married. Unfortunately, he was later killed in a helicopter crash. Also, unfortunately, he had forgotten to update the beneficiary on that large life insurance policy, and so his first wife - the one who divorced him - received the proceeds, leaving his widow with none.

     Don't let something like this happen to you. Check all your beneficiary designations, the titles to your vehicles, the names on your bank accounts, even the names on the deeds to real estate you own. Be sure all those names are the names you want them to be! Of course, you can't just change the names on deeds to property or vehicles without the agreement of any joint owners. But you can change your beneficiaries with no notice to anybody. Don't put it off.

Florida Legislators: Help Florida women who are making an adoption plan and vote AGAINST HB 501

2011-03-11T14:33:00.000-05:00

Under HB 501, agencies that receive funds from the sale of the “Choose Life” license plates would no longer be required to direct at least 70% of the funds to assist pregnant women who have chosen adoption with material needs such as food and clothing. Rather, 100% of the funds generated could now be spent on billboards and yellow book ads, or could be spent in other states to help them obtain their own “Choose Life” plate. So, instead of ACTUALLY HELPING THE WOMEN WHO HAVE ACTUALLY "CHOSEN LIFE," and who desire to make an adoption plan for their child, money that we Floridians spend to buy this tag may be used 100% for more advertising or even be sent to other states.

What Happens if You Die Without a Will in Florida?

2011-03-07T11:33:00.000-05:00

    When someone dies without a will or if the will is invalid, he or she has died “intestate” and the person’s assets that are subject to probate will be distributed according to the intestate succession statutes.

    Many people are surprised by the results of intestate succession where the decedent was married and had children. This is what the statute requires:

    *If your spouse survives you and you do not have any surviving lineal descendants (children, grandchildren), your surviving spouse receives all of your estate.

    * If you have a surviving spouse and lineal descendants, all of whom are lineal descendants of both you and your spouse, then the surviving spouse is entitled to the first $60,000.00 of the probate estate and one-half of the rest of the probate estate, and the lineal descendants share the remaining half of the probate estate.

    *If you have a surviving spouse and lineal descendants, one or more of whom are not also the lineal descendants of your surviving spouse, then your surviving spouse receives one-half of the probate estate and the lineal descendants share the remaining half of the probate estate.

    *If you do not have a surviving spouse and you have lineal descendants, the lineal descendants share the probate estate.

    You might be asking, “Who are my lineal descendants? Does this mean that all of my grandchildren will inherit from me if I don’t have a will?” The intestate succession statute is set up so that it is possible that some of your grandchild could inherit from you, while other grandchildren would not. It all depends on whether any of your children died before you did.

    Florida Statutes provide that all property distributed to heirs is passed “per stirpes.” If you have children and all of them are living, your children will equally receive their share your estate and your grandchildren will not inherit from you. However, if one of your children died before you died, your deceased child’s share will be divided equally among his or her children who are alive when you die.

    For example, if you had three children, one of whom had already died leaving two children, your estate would be divided into thirds, with each living child receiving a one-third share, and the two children of your deceased child receiving one-third of the estate, which they would equally share, so that they would each received one-sixth of your estate.

    Children includes legally adopted children, but does not include step-children that you have not adopted.

    If you don’t have a surviving spouse or lineal descendants, then the probate estate goes to your surviving parents, and if your parents have both passes away, then to your brother or sisters and descendants of any deceased brothers or sisters.

    If there is nobody who fits into the categories listed above, the estate is divided, so that one-half of it will go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:

    (a) To the grandfather and grandmother equally, or to the survivor of them.

    (b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

    (c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

    Only when a person dies leaving no will and without being survived by any person entitled to a part of it, do the person’s assets go to the state.

Even an old case should be continued when it would be injustice to deny a continuance.

2011-03-03T19:48:00.000-05:00

Florida's First District Court of Appeal released a case today which gives a good lesson on the balancing of justice to the parties and the desire to move cases along on court dockets. In the case of Garner v. Langford, Case No.: 1D-10-1032, which can be read here, the appellate court pointed out that it is within the trial judge's discretion to control his calendar and to decide upon requests for postponements of trials, but that discretion is not without bounds.

The appellate court first pointed out that a trial judge’s rulings on these motions are entitled to considerable deference. “The trial court’s determination of a motion for continuance is within [its] discretion and the court’s ruling thereon will not be disturbed ‘unless a palpable abuse of discretion is demonstrated.’” Robinson v. State, 561 So. 2d 419, 420 (Fla. 1st DCA 1990) (quoting Smith v. State, 525 So. 2d 477, 479 (Fla. 1st DCA 1988)). The panel wrote that it would accord “even greater deference to continuance orders than is required of other discretionary rulings.” See id. Given this highly deferential standard, we acknowledge that “a reversal for failure to grant a motion for continuance would be justified only in very rare situations.” Id.

But the Court went on to point out that the most important thing is justice, not time deadlines or the trial judge’s discretion to control his calendar. The Court noted that sometimes the appellate courts “ . . . have no alternative but to reverse, because the injustice caused by the denial of the motion outweighs the judicial policy of deferring to the trial judge.” Id.; Silverman v. Millner, 514 So. 2d 77 (Fla. 3d DCA 1987) (acknowledging that “[s]pecial circumstances sometimes exist . . . in which the denial of a motion for continuance creates an injustice for the movant”).

In this particular case, the trial was finally scheduled four years after the case was filed, so the trial judge was concerned about getting an end to the case. But, during those four years, there was the death of the Plaintiff, the Plaintiff's attorney being diagnosed with a life-threatening illness, the unforeseeable need for surgery by the second attorney’s son, the unavailability of two of the Plaintiff’s important witnesses, the fact that new attorneys for the Plaintiff came on board 13 days before the trial was scheduled, with the trial scheduled three days after Christmas, and, perhaps most importantly, the fact that the both parties requested a continuance several times. Given all the circumstances in this case, the appellate court wrote, “We respectfully do not see that the trial court could cite any sufficiently just reason to deny the motion, even given the age of the case.” The Court reversed the judgment and remanded the matter for a new trial.

Witness testimony via Skype

2011-02-23T19:06:00.000-05:00

I read a recent article about a judge in a Georgia criminal trial allowing a witness to appear via Skype in the defendant's jury trial. There was discussion about the fact that the defendant could not afford to pay for this out of state witness to travel to Georgia to testify in his defense. The prosecutor objected, because the Constitution guarantees parties in court the right to "confront" the witnesses. The judge ruled that confrontation via Skype did equal the type of confrontation guaranteed by the Constitution.

This use of technology is not news for me. I've had witnesses testify in family law trials via telephone, and more recently via Skype, from as far away as Cairo! It is a little different in a family law or other non-jury matter, because only the judge and the small group of attorneys and parties have to be able to see and hear the witness, rather than a whole jury. Thus, the TV screen or computer monitor can be set up closer to the "audience," and it can be smaller.

It can be tricky, though. Sometimes the connection is not great or gets dropped altogether. Sometimes the witness is confused by the technology, and has to depend upon somebody else to set it up. Sometimes the witness gets flustered by having to deal with the technology and then the testimony itself comes across as confused.

You also have to deal with the question of identifying and swearing in the witness. We try to have a stipulation that the witness actually is who she/he says she is. This is easiest to do where both parties know the person. Different judges have a more or less strict policy about the witness being sworn in by a notary or similar individual there with the witness - the same as when we have telephone testimony. Usually, if the parties know the person, then the Judge will just administer an oath over the phone or Skype, and not worry about having somebody THERE to swear in the witness. But if one of the parties does not know the person, then it's incumbent upon the judge to require independent identification of the witness - usually by a notary, who can then swear in the witness. I try to arrange for a notary to be there with the witness, and for the notary to send in a copy of his or her notary certificate ahead of time so it can be provided to the judge and filed in the court file. We then ask the notary to identify the person, describe the type of identification (driver's license, personally known, etc.) and then administer the oath.

It's important to check your local rules, and to know your judge's policies. As with most things, it's always best to get a stipulation from the opposing attorney about all this ahead of time.

I love tennis and my iPad

2011-02-21T11:57:00.000-05:00

Now that it's come to an end, it's safe to celebrate my recent tennis winning streak. I played four matches in four days, winning the first three in a row (many thanks to my three different partners). Had a great day league win Thursday with Marcia (6-1, 6-0); a very sweet USTA 4.0 win Friday night with Carla (6-2, 7-6); and a gritty USTA 3.5 win on Saturday morning with Maria (7-5, 6-2). Yesterday, though - bummer.

I am a captain of USTA Senior 4.0 team, and as captain have the duty of entering scores on the USTA web link after each match. The USTA has recently updated their website, and you know how they say "if it ain't broke, don't fix it?" Unfortunately, the USTA didn't follow that rule, and the new website stinks. However, there is an app for that!! There is a very nice little app for iPhones and iPad, and even entering match scores is very straightforward. You can also check your team's (and the other team's) roster, schedule, past match results, and so on.

Now, this does not mean that I am not using my iPad for work, 'cause I am. Just this morning, I was in court for a status conference in a divorce case. I used the "Evernote" application to take notes on the date for which the trial was set, notes about what my client will do before that, and brief notes for my paralegal to use to prepare my motion for attorney's fees. That note is now syncced (sp?) to my computer at work. If only we weren't having server problems right now, my paralegal could use that to prepare the needed documents. But as it is, she can look at my iPad.

Now, I know what some may be thinking - I could have just written it all down on a yellow legal pad. (Interestingly, legal pads are the same color as tennis balls.) But then I would tear off that sheet and add it to the multitude of similar such sheets attached in my client's file. When I might go looking for it in the future, I'd have to look at every sheet in the file to find it. But in Evernote, I add some tags, including my client's name, something like "trial" or "trial date," and so on. That'll make it very easy to find in the future.

So, for every non-work use for my iPad, like entering tennis match scores, I'm going to find a good work-related use. And if our network server goes out at work, like it's threatening to do, before we get it replaced, I may be doing pretty much all my work on my iPad!

Follow my blog!

2011-02-15T14:19:00.000-05:00

All you have to do is click on the "Follow" button in the side bar on the right side of this page.

New 1st DCA Ruling Clarifies Basis for UCCJEA Jurisdiction

2011-02-14T08:58:00.000-05:00

In a decision released last week, Florida's First District Court of Appeal has given a good lesson to attorneys and parties who represent themselves to be very careful about admissions and waivers. In Holub v. Holub, Case No. 1D10-1345, the appellate court ruled that, even where the parties where very well traveled, and even where they had cooperated between themselves to rotate custody of the child, where one party avers that the child lived with her in Florida for the six months preceding the filing of the lawsuit, and the other party admitted that allegation, jurisdiction under the UCCJEA is established based upon that admitted allegation.

Here, the mother filed a UCCJEA affidavit which alleged that the child had lived with her for the six months preceding the filing of her petition. The father filed a waiver of his right to be served with the petition, and he filed no response to the petition, resulting in an admission of the factual allegations in the petition.

"A party is bound by his or her admissions under oath, . . . [and] also bound by factual concession made by that party’s attorney before a judge in a legal proceeding." Dicus v. Dist. Bd. of Trustees for Valencia, 734 So. 2d 563, 564 (Fla. 5th DCA 1999). Likewise, the parties are bound by their pleadings -- admissions in pleadings need not be proven further. City of Deland v. Miller, 608 So. 2d 121 (Fla. 5th DCA 1992); Carnell v. Kinsey, 87 So. 2d 577 (Fla. 1956). Pursuant to rule 1.110(e), Florida Rules of Civil Procedure, "[a]verments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading." See also Fla. Fam. L. R. P. 12.110." Holub v. Holub, supra, at pg. 4.

The father never contested the jurisdiction of the Florida court until the appeal. While the subject matter jurisdiction of the court, determined pursuant to the UCCJEA, can be challenged at any time and even for the first time on appeal, because the father himself admitted the factual basis for the jurisdiction, the judgment was affirmed.

If it looks like a final order, and says it's a final order, still it may not actually be a final order.

2011-02-08T09:54:00.000-05:00

Reminding us again that the parties cannot confer jurisdiction when jurisdiction does not actually exist, the First District Court of Appeal dismissed an appeal for lack of jurisdiction. In this case, the Department of Children and Families notified Appellant of its intent to terminate her "Road to Independence" scholarship because she had not attended school full time or made satisfactory progress during the preceding year. The notice informed Appellant of her right to request a “fair hearing” to contest the Department’s decision. Appellant requested a hearing, and the matter was referred to a Department hearing officer, who conducted an evidentiary hearing. The hearing officer entered an order affirming the Department’s decision to terminate Appellant’s RTI scholarship. The order was denominated as a “final order” and included a “notice of right to appeal” informing Appellant of her right to seek judicial review of the decision by filing a notice of appeal with the clerk of the Department and a copy with the appropriate District Court of Appeal. Appellant thereafter timely filed a notice of appeal seeking review of the hearing officer’s order in this court.

The Appellant timely filed the notice of appeal and DCF did not object to the notice of appeal or to the appellate court having jurisdiction.

However, the appellate court held, in Wade v. DCF, Case No. 1D10-2502, Feb. 7, 2011, that the judicial hearing officer’s “final order” did not bring the administrative process to a close and thus did not constitute final agency action. This is because Fla. Stat. § 409.1451(5)(e)2 provides for another level of appeal to the Department's Secretary. Because there was additional administrative relief available to the Appellant, the order was not yet final, and thus, the appellate court did not have jurisdiction to consider this appeal. You can read the case here.

Remember the news story about the little boy who was put on a plane and sent back to Russia?

2011-02-01T16:39:00.000-05:00

This story made a lot of news in April 2010. A single American woman, named Torry Hansen, had adopted a young boy from Russia, but found him unmanageable and violent. She said that she got some advice from a lawyer online, and as a result of that advice, she put him on a plane and returned him to Russia, with a note that he was psychologically unfit and asking that the adoption be canceled. Torry Hansen's mother, Nancy Hansen, was quoted as saying the child was "psychotic" and "violent," and that the family's safety was threatened. Nancy Hansen said that when her daughter adopted the boy from a Russian orphanage the year before, she asked the doctor there if he had any physical or mental problems. The doctor answered "'He's healthy,' and turned and left," she said. Once the child learned enough English, he told his new American family about the horrors of his previous life, including being beaten at the orphanage after his mother abandoned him. She said that he also told of an incident in which he burned down a building near the orphanage.

On the other hand, the Russian officials are now saying that the child was subjected to abuse in the Hansen household, and that Torry Hansen purposely won't agree for her parental rights to be terminated. This is needed in order to free the child for adoption in Russia. The agency who placed the child with Torry Hansen filed a petition in civil court in Tennessee, where Hansen lives, seeking to be named the child's guardian, and requesting a determination of whether there had been abuse, abandonment, or neglect by Hansen, and seeking an order requiring her to pay child support.

There was a story today in the Moscow Times (side note-how amazing that I can read newspaper stories from the Moscow Times?) that Torry Hansen has testified that she was just sending the boy home for a visit because he wanted to see his biological mother. The Russian authorities say this is a line she has just come up with in order to avoid having to pay child support.

It's hard to know exactly what happened. And it can be very hard to really know what a child who has lived in an orphanage overseas has been through, and how those experiences have affected him or her psychologically. The story also reports that: U.S. families have adopted more than 14,000 children from Russia over the past five years, including 1,500 in 2009. Another 3,500 Russian children are awaiting adoption by U.S. parents after the adoption process essentially halted in May 2010 after this incident, according to the Joint Council on International Children’s Services, which represents many U.S. adoption agencies. About 120,000 Russian children are placed in orphanages every year.

Exactly who are this child's legal parents?

2011-01-30T11:17:00.000-05:00

Here's a link to a very nice article which gives a good overview of the different types of parentage in today's world - artfiicial insemination, donor sperm, donor eggs, surrogacy, second parent adoption, etc. - and discusses how states are grappling with determining who is a parent, and how the states should support those parents (in terms of legitimizing the parent-child relationship).

http://www.huffingtonpost.com/liz-mandarano/alternative-reproduction-parents_b_807898.html

Adoption Tax Credit for 2011

2011-01-25T14:06:00.000-05:00

In order to encourage adoptions, Congress has provided an adoption tax credit for the payment of adoption expenses. For 2011, the credit goes up to $13,360. Phase out of eligibility begins at AGI of $185,210. Phase out is complete at $225,210. The credit is refundable for those with lower tax liabilities.

This means that if your adjusted gross income is less than $185,210 for the tax year 2011, you may receive a credit against your tax liability equal to the amount of qualifying expenses you paid for an adoption up to a total of $13,360. As your income goes up from there, your credit becomes less. If your income is $225,210 or greater, you get no credit.

On the other hand, if your income is low enough so that your tax liability is lower than the amount of credit you qualify for, then the difference between the total credit and your tax liability will be received by you as a tax refund. So, for example, if you paid $10,000 of qualifying adoption expenses, but you actually only owe $7,000 in total income taxes, then you don't have to pay that $7,000 tax bill AND you will receive a check from the IRS for $3,000.

What to do if you're thinking about a divorce?

2011-01-21T11:52:00.000-05:00

This article is NOT about counseling. But if you have decided or are pretty close to deciding that you want a divorce, here are some steps you can take to get started.

First, try as hard as you can to keep a respectful attitude toward your spouse, and not only if you have children. But if you two adults can keep a peaceful, respectful attitude, you can keep tensions, anger, fear, and uncertainty to a minimum.

Second, sit down and write a list of every single asset and liability you and your spouse have. Then, obtain copies of legal and financial paperwork. You need to know exactly what your financial and legal situation is -- so obtain the last several months' worth of bank account, investment account, and credit card statements, statements about your and your spouse's retirement accounts, information about how much health insurance costs, copies of car titles or registrations. You and your lawyer will need a very good picture of your overall financial condition, and to know exactly how the titles to your assets are held (your name, your spouse's name, both names?) and whether there are debts encumbering the assets. Are your cars paid off? If not, get together the information about who the loan is owed to, how much the monthly payments are, and what is the total balance left to pay.

Third, start thinking about where you want to live, and how much that will cost. If you don't own a home, or you know you will be one who will move out of the marital home, or you know the marital home must be sold, then actually go out and start looking at apartments or other houses. You need to have a realistic idea of what your next place to live will cost.

Think seriously about collaborative divorce. I've written some previous articles about this. It's a great way to achieve a good settlement for both parties. But not everybody can do it. It really does require mutual respect, and a commitment to open and straightforward dialog about the future. Are you able to do that?

Will Florida's governor challenge court ruling about gay adoptions?

2011-01-20T15:12:00.000-05:00

Florida's new Republican governor stated clearly that he believes that only married couples should be allowed to adopt. I'm not sure if by this statement he meant to say he does not approve of any single parent adoptions, say by a grandparent or other family member, or by an unrelated single person who is not married or in any relationship (gay or straight). Also, I'm not sure if the views of his newly appointed head of the Department of Children and Families will carry the day. David Wilkins served as the finance chief for the Florida Baptist Children's Home, a private agency that allows only "professing Christians'' to adopt children in its care.

Governor Scott's spokesperson said the governor is more interested in creating jobs than worrying about Florida's adoption laws.

Sounds like that's good for Florida's adoption laws.

I got an iPad for Christmas

2011-01-05T11:19:00.000-05:00

Now I have to figure out what to do with it. I would really love to hear any suggestions and about the experiences of others. I”m searching for the best apps for lawyers.

I have never had an iPhone, so I am not a big consumer of apps. I have long had a smart phone with a Palm operating system, because the legal practice manager software we use at work (Amicus Attorney) has long been able to sync with Palm phones. Even just a few years ago, when standing in a judge’s chambers to set a trial date, I was the only one with a phone on which I could check my calendar. Now, most everybody can do it - but they mostly use Blackberries and Outlook. Me, personally, I can’t stand Outlook, and am a loyal disciple of Amicus. So, sticking with the Palm phone has always been my choice. And while I am totally happy with my Palm Centro, and there are apps for it, it is not really great for playing games, reading books, or providing navigation instructions.

But, now I have an iPad, which means getting apps! I really decided that I had to get an iPad because of that most basic of human emotions - envy. Only lawyers will understand this particular model of envy, though. I serve on the Florida Bar’s Adoption Law Certification Committee. This is an inaugural committee which is setting policies and rules for certifying lawyers who practice adoption law. We created the applications, are writing the exam, and so on. First, let me say, it’s a huge honor to have been selected to serve on this committee, and I appreciate the help from our local Board of Governors member, Carl Schwait, as well as Judges McDonald and Nilon, in recommending me. Second, however, let me say that this is a “be careful what you wish for” thing. I have never done so much un-paid work. This committee has met every month (and occasionally twice a month) since its inception in several different cities (never Gainesville!). We need to have access to statutes, rules of procedure, case law, Bar rules, etc. every time we meet.

So, one of the other lawyers on the committee is an “early adopter,” and had an iPad almost before I even knew they existed. While I’m lugging a briefcase with my statutes, rules (could that book be any larger? - and, yes, I realize its gargantuan size is due almost exclusively to the proliferation of forms for use by pro se parties in family law cases - but don’t let me get on my soapbox about that right now), and a binder full of Florida bar rules and policies, copies of our proposed exam questions which we all had to review and mark up, and so on . . . this other lawyer has her nice, slim, relatively lightweight iPad. While I’m thumbing through my copy of Florida Statutes Ch. 63 (one of the most opaque chapters of any legislation you will ever have to deal with), which is so thoroughly annotated with different colored highlighters and post it notes that it is almost unreadable, this other lawyer is gracefully flicking one finger across her iPad’s shiny, friction-free surface, and lightly tapping her finger tip when she quickly finds the exact section we are talking about.

That ease of reading and searching statutes, reviewing essay questions, finding rules and policies was my motivation for wanting an iPad. NOT the need to play “Angry Birds,” which is apparently the #1 most popular app for iPhones and the Pod Touch. This is a game where players use a slingshot to launch birds at pigs and the pigs’ castles. People pay money to download this. This game has its own Wikipedia article. Can you imagine that? Of course, I imagine that most of the people who do use their iPhones and iPods to play “Angry Birds” can’t really imagine using them to look up adoption statutes.
In the top 10 lists of apps for the iPad in 2010, more productivity (read “work-related”) apps made the list, including some mentioned below. So, maybe iPad owners are less fun loving that iPod owners?

I did some searching on the internet to find some ideas for useful apps for lawyers. I found one or two I already knew about and have used for a while. Plus, some recommendations for others I have at least heard of. Plus more recommendations for others I have not even heard of. So, here is some stuff I found:

First, of course we lawyers need some word processing functions. It appears that virtually the only app to get is Pages. You can download iWork for iPad, which includes a word processor (Pages), a spreadsheet application (Numbers), and a presentation application (Keynote). This suite of applications will enable you to create fairly sophisticated documents, although it’s probably a better for editing documents, rather than creating full-fledged contracts or agreements on the fly. And if you’re really going to be typing documents, you might want to add a real keyboard. The iPad does have a virtual keyboard that can appear and disappear like magic, and it’s not terrible - certainly way better than the tiny keys on my Palm Centro. But for real typing, you can get a bluetooth wireless portable keyboard. But, then, you will look more geeky, than cool. As a WordPerfect use, I am not sure I will use Pages. I also don’t think I am likely to really ever want to type out long documents on my iPad anyway.

Next, I can recommend Evernote. This is a very cool program which you can use on your computer, iPad, iPhone, etc. to take notes of any kind and store them in any way you want. You can record things and store audio files, take photos and videos and store them, type text notes, scan documents, etc. You give each note a name, and tag it with some useful descriptors. They are stored on Evernote’s servers. It automatically synchronizes all your devices and you can access your notes any time from any where. And it’s free! It has a cool “web clipper” function, also. If you see something you like on a web page, you click the little green elephant which is installed in your browser and it automatically “clips” the page and creates a note. The image of the page is saved for you forever!

Another app to check out is Aji Annotator. Many legal documents come in PDF format. This app lets you mark-up, annotate, and add notes to PDF documents, which you can then save and re-share with other people.

I haven’t used DropBox, but it is very often cited as a very good and very useful app. DropBox, which is free, allows you to share files via the “cloud” with multiple users on multiple different platforms. Obviously, highly confidential material needs to be treated with more care, and so this may not be appropriate for all documents you use. But for commonly used forms, standard agreements, standard documents, this is recommended as a good solution.

The #1 most downloaded free app for iPad in 2010 was iBooks, a free e-book reader. That was the first thing I downloaded, too. But the second thing I downloaded was the Kindle app for iPad. I have had a Kindle for about two years, and I love, love, love it. There is one distinct difference between reading books on a iPad and reading books on an actual Kindle - the lighting. The iPad’s screen is lit; the Kindle’s is not. So, to read in bed at night, you don’t need an external light source for the iPad. You can even turn the backlit screen slightly brighter or less bright, as needed. For the Kindle, you need a lamp or little clip on light. However, for reading during the day, outside, at the beach, etc., you cannot beat the Kindle. It is smaller, much lighter, and you can read it very easily in bright sunlight. You know how you can’t really see your phone’s screen outside or in bright light? The iPad is just like that. In my opinion, the page turning is smoother in the Kindle, although that is hardly something to base your purchase decision on. With the Kindle app for iPad, I can really be ridiculous, and use my Kindle to read outside, during the day, etc. and the iPad to pick up where I was and read in bed at night. Except that I don’t . . I still turn to the Kindle and my little clip on light.

Minimally Invasive Divorce

2010-12-13T11:48:00.000-05:00

Collaborative Divorce is gaining a little more notice as more news articles are written about it. While it can be fun to read about celebrities who utilize different methods for their divorces, including collaborative divorce, it's often more useful to learn more about the actual collaborative process. Here's an article that was recently published in the Huffington Post:

http://www.huffingtonpost.com/curtis-harrison/what-is-collaborative-law_b_794435.html#postComment

I like one quote in particular near the end of the article: "Collaborative Law isn't a fit for every case. It's not well-suited for cases involving substance abuse, domestic violence, or mental illness. Some also suggest that the Collaborative Law model cannot adequately deal with a party who is willing to lie or conceal matters of substance. On the other hand, as Pauline Tesler notes in her book, Collaborative Divorce, "Litigation doesn't make a liar honest, cure an addict, or make an immature spouse grow up." "

It can be very difficult to go through a divorce when your spouse is a liar, an addict, immature, or has a mental disorder. But those are NOT the vast majority of situations. And it may be just as difficult, or perhaps even more difficult and definitely more expensive, to litigate a divorce in those situations. It would take extra work to collaborate in those situations. With knowledgeable professionals involved, it might be able to be done.

But if you are like the majority of families, and you and your spouse, as the article points out, want to do the right thing . . . then a Collaborative Divorce is probably a very good and a pretty easy fit!

Re-Birth of Parenting Coordinators in High Conflict Custody and Visitation Cases

2010-12-08T13:19:00.000-05:00

While parenting coordination has been around for a number of years, it’s generally been thought of by many family law practitioners locally as ineffective, costly, and actually counter-productive. I have asked pretty much every family lawyer I know to let me know of any case they’ve had where they thought parenting coordination was successful. So far - no takers.

In my view, it always comes down to this: People who can’t agree that the sun rises in the east will have no success with a parenting coordinator, and they really just need a judge to make a decision and not extend the agony of the parents fighting over everything. On the other hand, parents who can work successfully with a parenting coordinator probably never come to the attention of a parenting coordinator, because they already worked out everything between themselves or in mediation or in a collaborative procedure. Parenting coordination is doomed to failure because only “failing” parents get referred.

So, if parenting coordinator have no power - that is, if they can’t settle disputes, but can only work to educate and help parents try to listen, and all of a sudden develop respect and empathy for the other – then, really, what purpose does parenting coordination serve? It’s just another layer of “bureaucracy.”

In an effort to convince me and other family lawyers that parenting coordination can be very helpful to high conflict families, Florida's 8th Judicial Circuit Family Law Section had a well-attended meeting on October 19, 2010, and heard a presentation by Jacksonville attorney Lawrence Datz. Mr. Datz was instrumental in working with the legislature in its enactment of F.S. §61.125. Six local parenting coordinators (PCs) also attended the meeting, and added their thoughts and insights to the discussion.

Under this section, a parenting coordinator must be a licensed attorney, a physician licensed under F.S. Ch. 458 and certified by the American Board of Psychiatry and Neurology, or a Florida Supreme Court certified mediator, or a mental health professional licensed under F.S. Ch. 490 or Ch. 491. In addition, parenting coordinator must also complete three years of postlicensure or postcertification practice, and a family mediation training program certified by the Florida Supreme Court, and a minimum of 24 hours of parenting coordination training in parenting coordination concepts and ethics, family systems theory and application, family dynamics in separation and divorce, child and adolescent development, the parenting coordination process, parenting coordination techniques, and Florida family law and procedure, and a minimum of 4 hours of training in domestic violence and child abuse which is related to parenting coordination. Whew! That’s a lot of training for a process that is doomed to failure!! Or is it?

The matter of confidentiality in parenting coordination sessions is one of great importance. The PCs who attended our meeting pointed out that very high conflict parents often need the threat of their unreasonableness being exposed to the court in order to persuade them to a reasonable behavior. However, they also pointed out that if the PC does testify in court as to the unreasonable behavior, communications, etc., then the parenting coordinator is no longer neutral and thus can’t continue as a parenting coordinator. Thus, PCs believe that they can only appear in court in order to identify or authenticate a written agreement, or to verify compliance with a a court order.

The statute actually provides a few more instances in which PCs are authorized to testify: The testimony or evidence is necessary to identify an issue for resolution by the court without otherwise disclosing communications made by any party or the parenting coordinator; to report domestic violence, child or elder abuse or that a parent is wrongfully removing a child from the court’s jurisdiction; and to report that the case is no longer suitable for parenting coordination or that the parenting coordinator can no longer continue.

The statutes does allow the parenting coordinator to request that the parties waive the requirements of confidentiality and if they do, then can testify. However, that would not seem to assuage the concern of PCs that the act of testifying, in and of itself, removes the PC’s neutrality and thus the ability to continue as the PC.

The Florida Supreme Court has adopted new Fla.R.Fam.L.P. 12.742 and Forms 12.984 and 12.998 to carry out the intentions of F.S. 61.125. That opinion is In re Amendments to the Fla. Family Law Rules of Procedure, 27 So. 3d 650 (Fla. 2010).

An order of referral must set forth the role, responsibilities, and authority of the parenting coordinator. Rule 12.742 also sets forth a number of powers a parenting coordinator may have if the parties consent. If the order of referral does not clearly specify the duties and authority of the parenting coordinator, but the parties later agree to certain areas of authority, then it seems likely that the court would consider any agreed decisionmaking authority of the coordinator and, if the court approves the agreement, either include the authority in its original order of referral or in an addendum to that order.

The statute provides that PCs may make limited decisions within the scope of the court's order of referral, if the parties and court give their prior approval to such authority. However, the new rule prohibits a parenting coordinator from making decisions concerning substantive disputes between the parties. A "substantive dispute" under the Rule is one whose resolution would significantly change the quantity or decrease the quality of time a child spends with either parent or would modify parental responsibility. Accordingly, the only type of decision making authority that the Rule allows parties to confer on a parenting coordinator is temporary authority to resolve "specific, nonsubstantive" disputes between the parties. The temporary decision of parenting coordinator stands unless and until a court enters an order modifying the PC’s decision.

There is a conflict between the statute and the rule as to whether PCs may make recommendations to the court. In a case decided prior to the 2009 enactment of §61.125 and the adoption of Rule 12.742, a parenting coordinator submitted a report and recommendations to a trial court, which ordered that custody of the parties' child be modified, based primarily on the parenting coordinator's submissions. The appeals court reversed, holding in part that a trial court may not delegate its fact finding duties or otherwise allow a parenting coordinator to perform judicial functions by effectively "rubber-stamping" the coordinator's report. Hastings v. Rigsbee, 875 So. 2d 772, 777 (Fla. 2d DCA 2004). The new Rule 12.742 expressly prohibits a parenting coordinator from making recommendations to the court unless the parties consent.

So, to sum up - PCs must be highly educated and trained, but have no authority to make any decisions except as to any non-substantive dispute and then only if the court and parties have agreed to provide that authority to the PC, and the PCs may not testify in court about anything the parties do or say, and may not make any recommendations to the court.

So – I’m not sure if that qualifies as a re-birth?? What do you think?

November is National Adoption Month

2010-11-02T18:57:00.000-04:00

President Barak Obama has declared this month to be National Adoption Month, saying, "I call upon all Americans to observe this month by answering the call to find homes for every child in America in need of a permanent and caring family, as well as to support the families who care for them." The proclamation also states,

As we observe National Adoption Month, we honor the loving embrace of adoptive families and the affirming role of adoption in the lives of American families and our country. Let us all commit to supporting our children in any way that we are able -- whether opening our hearts and homes through adoption, becoming foster parents to provide quality temporary care to children in crisis, supporting foster and adoptive families in our communities and places of worship, mentoring young people in need of guidance, or donating time to helping children in need. Working together, we can shape a future of hope and promise for all of our Nation's children.

You can go to http://adoptuskids.org/ and to http://www.childwelfare.gov/Adoption/index.cfm for information and resources on adoption, including adoption from foster care.

Decision is final: ban on gay adoptions in Florida is unconstitutional

2010-10-23T12:41:00.000-04:00

Florida Attorney General Bill McCollum has made a final decision not to appeal the ruling by Florida's Third District Court of Appeal that Florida's statute prohibiting homosexuals from adopting children is unconstitutional. This means that this court decision is final, and gays can no longer be prohibited from adopting based only their sexual orientation. "The constitutionality of the Florida law banning adoption by homosexuals is a divisive matter of great public interest,'' McCollum said in a statement. "As such, the final determination should rest with the Florida Supreme Court, not a lower appellate court.

"But after reviewing the merits of independently seeking Supreme Court review, following the decision of our client the Department of Children and Families not to appeal the decision of the Third District Court of Appeal, it is clear that this is not the right case to take to the Supreme Court for its determination.''

Not long after the decision by the appellate court, the state's Department of Children and Families had announced that it would no longer questions adoption applicants about their sexual orientation and was changing its forms to reflect that decision.

International adoptions on the decrease; adoptions from Ethiopia on the rise

2010-10-17T12:21:00.000-04:00

International adoptions are decreasing significantly. In 2006, Americans adopted almost 23,000 children from other countries. This year, it's been about half that number. But there have been about 10 times as many children from Ethiopia adopted this year as in 2006. This is an interesting article on adoptions from Ethiopia, but what is more interesting are the comments on the article.

People seems to fall into two camps: (1) If you want to adopt, why don't you adopt American children? We have about half a million children living in foster care, and most all of them need "forever families." Or (2) But American children in foster care always have food and a roof over their heads, clothing and education, while many, if not most, international orphans have none of those things. In most countries, there is not even an organized foster care or orphanage system. Those children are hungry, homeless, and likely to die from disease and abuse. So, they have a greater need.

International adoptions are sometimes at the mercy of corrupt international governments or local officials, or at the mercy of the American government deciding to "shut down" adoptions from a certain country in order to avoid such corruption - sometimes leaving Americans in the middle of their adoption process, out time, money, energy, and emotions and with no child.

Here's a link to the HeART Gallery of Florida, showing lots of Florida kids looking for their forever families.

Gainesville Colaborative Divorce Team has Retreat

2010-10-10T12:51:00.000-04:00

Gainesville professionals who have been trained and certified as collaborative divorce practitioners met for an all day retreat on Friday, October 8, 2010. The Gainesville Collaborative Divorce Team consists of mental health professionals, financial professionals, and attorneys, all of whom are located in the Gainesville, Florida area. 21 members of the team got together to hone their collaborative skills, and used those skills to decide upon some local conventions for collaborative cases.

In a collaborative divorce, the parties agree not to go to court, and sign a contract that says they will work diligently, fairly, openly, and respectfully to settle all the issues engendered by their separation and divorce. They agree that if the process really does completely break down, then the professionals who had been involved with them during the collaborative process cannot represent them in any court matter.

When a couple agrees to a collaborative divorce, there are very high success rates of completely settling all their issues, and with less animosity and often at less cost than in a traditional, adversary process.

In a collaborative divorce in our area, each party will have their own attorney. In addition, there will be one financial neutral person, usually a CPA or financial planner, who will provide neutral financial and tax advice to both parties. In addition, each party will have a divorce coach, a mental health professional who will help guide the parties through the emotional process of divorce. In addition, in appropriate cases, there will be a child specialist. This is also a mental health professional who will provide information to the team from the children's points of view. All of these professionals, together with the husband and wife, are considered the collaborative team.

While it may seem expensive to have this many professionals involved, in fact, most collaborative cases are settled more quickly, and at less overall cost, than an adversarial, litigious divorce. In the collaborative process, the needs and interests of each party and the children can all be considered fairly and respectfully. More information about the collaborative process can be found here.

Family Lawyers as the Bearers of Bad News

2010-10-08T13:08:00.000-04:00

Of course, we all start out wanting to be good advocates for our clients’ interests and their positions. But sometimes, what they want just isn’t possible. And isn’t it better to let them know that as early on in the case as possible? Isn’t it better for clients to be dealing with reality - and the sooner, the better? Don’t we do a disservice to clients when we promise them pie-in-the-sky results?

We family lawyers have all had cases in which one parent, faced with a divorce, all of a sudden wants to make up for all the things he or she hasn’t done over the last several years. A stay at home mother wants to go back to school. A working father wants to be a 50-50 parent. And so on. As much as a divorce may be the end of one thing, some parents look at it as the beginning of another thing. Is that bad? Isn’t it good for them to be looking forward, wanting to do better? Well, maybe. But maybe not.

As lawyers, we know that there is only a limited range of possible outcomes on most issues. It is true that, other than in the setting of a child support amount and the presumption that marital assets and liabilities will be distributed equally, everything else is left to the discretion of the trial judge. That might seem, to some, that the case is then rife with possibilities to advocate for your client’s position. However, the trial judge’s ruling is still subject to the “abuse of discretion” test on appeal. Was the decision a reasonable one, given the body of law on the topic . . . and given the full development of all the facts?

The stay at home mother’s desire to go back to college is not one that can be satisfied in a vacuum. Her husband has to have the ability to pay some rehabilitative alimony; she has to have a reasonable plan which appears capable of completion, and the plan has to have a reasonable likelihood of providing her the ability to support herself.

The working father has to have the time available to be a 50-50 parent. If he has to leave Gainesville at 7:00 am every day to drive to Ocala to work and his children’s school doesn’t start until 8:00 or 8:30 am, what reasonable way can he have those children spend the night at his house on a school night?

Last December, a disgruntled, frustrated inventor broke into a law firm’s office in Chicago and killed a patent lawyer and two others, believing that the invention he had worked on for ten years, but never received a patent for, had been stolen from him. Comments from lots of other patent attorneys in the media centered upon the unrealistic expectations which build up year after year, when nobody says, “Wow - you’re really not likely to ever make any money from this idea.”

On the other hand, at least one patent attorney was quoted as saying something like, “Hey, if we’re negative all the time, we’ll just squash dreams, and then where will our society be?”

In another incident in June 2006, a divorce judge was killed in Nevada, apparently by a man who felt that the financial remuneration that was awarded to his wife was totally unjust and unfair, according to a relative of his quoted by ABC News. I couldn’t find any stories about or quotes from the alleged killer’s lawyer, or the opposing lawyer in the case. But you have to wonder if the guy’s lawyer had been giving him a realistic understanding of the Nevada equitable distribution and support laws.

On the other hand, there is a major proliferation of pro se parties in divorce actions. They don’t have any lawyers giving them any advice. Instead, they have full access to websites where disgruntled family court litigants can rant all they want. It seems both men and women felt the Nevada judge was “corrupt.” One woman’s comments: “If judges getting shot scares other judges into actually following the law and not destroying families and lives that is just the logical result of what happens when little girl state legslatures [sic] ignore their duty to impeach for judical [sic] misconduct.’ One man’s comments: “It is amazing that this doesn't happen more often. Until children and fathers are treated as equals in divorce, shootings will continue. No intelligent person wants war but there are times when going to war is the only way to stop evil and misguided people. My prayers go out to the father and his children. I am only sorry that the father was terrorized by the courts who support inequality.” Oh, by the way, this father, in addition to apparently shooting his judge, was also wanted for shooting and killing his soon-to-be ex-wife while their 8 year old daughter was in the house.

If we family lawyers, mediators, divorce coaches, and so on do the best job we can do to keep divorcing parties realistic about the possible outcomes in their cases, we’ll do a better job for them and for the whole family court system, than if we worry about “squashing their dreams.” Better to be realistic than live in a dream world (or a nightmare), when it comes to family court.

Choosing the right divorce attorney

2010-10-05T15:20:00.000-04:00

http://www.basilandspice.com/love-and-relationships/102010-choosing-the-right-divorce-professional-is-crucial.html

Florida Supreme Court declares passive appreciation in value of a non-marital assets may be marital

2010-10-05T15:07:00.000-04:00

The Florida Supreme Court adopted the reasoning of the First District Court of Appeal in its very recent decision in Kaaa v. Kaaa . There, the parties had been married 27 years. Before their marriage, the husband purchased a home for $36,000, making a down payment of $2,000 from his separate funds. The parties married soon thereafter. Although they refinanced the house several times, the wife's name was never added to the deed. They used marital funds to pay the mortgage payments throughout the marriage, and they also used marital funds to renovate their carport.

At the time of their divorce, the trial court in the Tampa area determined that the house, still titled only in the husband's name, was a non-marital asset, and that the wife was entitled to a one-half share only of the amount of the reduction in the mortgage balance and the value of the carport renovation, which was a total of $36,679. The husband was only ordered to pay to the wife the sum of $18,339, and the balance of the home's present value of $225,000 was awarded all to the husband. Upon appeal to the Second District Court of Florida, the award was affirmed. However, the District Court certified a conflict with a decision of the First District Court of Appeal, and the Florida Supreme Court undertook to resolve the conflict.

Florida Statutes §61.075(5)(a)(2) [since renumbered to §61.075(6)(a)(1)(b)] provides that "The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both..." is a marital asset. The Second District Court of Appeal, however, had considered that the use of marital funds to pay a mortgage which encumbers a nonmarital asset would mean that the increase in net value of the non-marital asset due to the reduction the mortgage balance would be a marital asset, but NOT that any passive appreciation in value would become a marital asset.

In Kaaa, however, the Florida Supreme Court set out a five step test for a trial court to use to determine whether passive appreciation in value of the non-marital asset should be considered marital:

(1) Determine the overall fair market value of the home;

(2) Determine whether there has been any passive appreciation in value of the home;

(3) Determine whether the passive appreciation is a marital asset, which must include findings of fact by the trial court that marital funds were used to pay the mortgage and that the non-owner spouse made contributions to the property. Moreover, the trial court must determine to what extent the contributions of the non-owner spouse affected the appreciation of the property:

(4) Determine the value of the passive appreciation that accrued during the marriage and is subject to equitable distribution.

(5) Determine how the value is allocated. The Court specifically approved of the methodology espoused by the First District Court of Appeal in Stevens v. Stevens, 651 So. 2d 1306, 1307 (Fla. 1st DCA 1995): "...the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage."

Thus, if the balance of the mortgage encumbering a non-marital home at the time of the marriage was 90% of the value of the home, then the portion of the passive appreciation in value (if the other steps are satisfied) which should be considered a marital asset is 90%. Although this case specifically dealt with a marital home, there is no language in the opinion which would restrict this reasoning only to a marital home.

More changes in Florida's child support statute

2010-10-04T11:01:00.000-04:00

I wrote earlier about some changes to Florida's child support statute which were made by the Legislature when they passed HB 907 in the last session. One of the changes now allows for a “credit” for 100% of the child care costs, instead of only 75%. This means the person actually paying for the child care expenses will get a greater credit for paying those expenses.

Also, now, for purposes of adjusting any award of child support, "substantial amount of time" is changed from 40% to 20% of the overnights of the year. I prepared some child support guideline calculations myself in a few sample cases using the old guideline formula and the new one. I found that the child support amount paid by the payor parent actually goes UP at the lower percentage of overnights than what it would be with no adjustment; it goes DOWN at the 30% - 35% range, and stays the same at 40% - 50%.

These provisions of HB 907 take effect on January 1, 2011.

Equitable distribution and lump sum alimony issues

2010-10-01T11:58:00.000-04:00

Last week, our associate attorney, Mary-Ellen Cross, conducted a two day trial regarding some complex issues of equitable distribution. There were two main questions: One was whether the deposit of a lump sum payout of a marital retirement account into a non-marital account made it impossible to separate the non-marital funds from the marital, and thus require equitable distribution of the entire non-marital account. Commingling is a difficult issue and required some expert help in tracing the marital funds. Jody Davis, CPA and Certified Financial Planner, analyzed the accounts and gave expert testimony that was very helpful.

The second main issue was the wife's request, after a 40 year marriage, for a lump sum alimony payment instead of a monthly payment. Because the husband had not chosen survivor benefits with his pension, had canceled his life insurance, and had cashed in his marital 401(k) accounts, there was no easy way to secure the wife's future support. Howard Rosenblatt, a Gainesville attorney and life insurance expert, testified regarding the cost of life insurance and annuities that might be utilized to provide security for the wife. Using this information, Jody Davis proposed a financial plan that would provide life long retirement security for both the husband and the wife, utilizing the husband's non-marital account.

This proposal still left it to the Judge to decide whether marital assets had been sufficiently commingled that the husband's non-marital account had lost its non-marital character. Or whether, even if that was not the case, the non-marital account could be used as a source for the payment of lump sum alimony to the wife.

We haven't received a judicial ruling yet.

Our law firm's website

2010-09-30T17:48:00.000-04:00

www.swansonlawcenter.com

Should state funded professors weigh in on either side of important issues?

2010-09-30T17:23:00.000-04:00

That question has caused a flap at the University of Florida Levin College of Law. A law professor was a primary author of an amicus brief in the recent Third District Court of Appeal case referred to in my previous post. Should the state-paid law school faculty be allowed to take a stand in favor of or against any particular legislative, judicial, or political decision? The law school's dean, Robert Jerry, was quoted by The Gainesville Sun as saying that "academic freedom allows all faculty members to take positions or file briefs in a case in their personal capacity. For a UF center to be officially involved or university resources used, he said, the brief has to not just be a personal opinion but based on scholarly research." On the other hand, another law professor, Jeffrey Harrison, is quoted as questioning whether a public university should be taking a position that might be at odds with public opinion in a court case.

Another law school professor, Danaya Wright, was quoted as saying "that taxpayer money is also being used to support a law that violates the rights of gay citizens. It's the role of law professors to be as neutral as possible in researching such issues . . . and then providing that information to judges who make the ultimate decisions. 'If we didn't weigh in, I would say we're shirking our duty,' she said."

http://www.gainesville.com/article/20100928/ARTICLES/100929501/1002?p=1&tc=pg

Florida's ban on adoption by homosexuals is unconstitutional

2010-09-28T16:46:00.000-04:00

Florida's Third District Court of Appeal (an intermediary appellate court for the Miami area) has ruled that Florida Statutes §63.042(3) is unconstitutional, because the statute has no rational basis. That is, there is no rational basis for classifying homosexuals differently in adoptions than other persons. This case came to the appellate court with many stipulations from both sides. The State of Florida, though its Department of Children and Families, stipulated that the prospective adoptive father "provides a safe, healthy, stable, and nurturing home for the children meeting their physical, emotional, social and educational needs." Nevertheless, the State recommended against the adoption being finalized because the prospective adoptive father is a homosexual.

The appellate court upheld the trial court's ruling that "It is clear to this Court that [the prospective adoptive father] is an exceptional parent to [the two children] who have healed in his care and are now thriving." The prospective adoptive father argued that the statute impermissibly denies him equal protection of the law because it creates an absolute ban on adoption by homosexuals while allowing adoption by others, for example, with criminal or substance abuse histories if considered on a case-by-case basis.

You can read the entire opinion here.

Collaborative Divorce in the U.K.

2010-09-22T13:59:00.000-04:00

Here's a nice article extolling the virtues of collaborative divorce from the perspective of Sir Nicholas Wall, England's most senior family law judge. This judge makes clear that the children's interests, rather than the parents' interests, are paramount.

http://www.telegraph.co.uk/comment/columnists/rowanpelling/8017596/The-child-friendly-divorce-has-arrived.html

Child support to be allocated among several children

2010-09-06T13:14:00.000-04:00

A new law passed by the most recent session of the Florida Legislature (HB 907) provides some amendments to the calculation and determination of child support. For example, Florida Statutes §61.13(1)(a) now requires that a court must allocate child support among the children where support is awarded for more than one child. The order must determine what the child support amount will automatically change to when the obligation for the oldest child terminates, and when the second one does, and so on. This does not prevent either party petitioning for a modification under proper circumstances at any time. But for those cases where neither party ever goes back for a modification, the support will automatically decrease so that the payor parent will not rack up large arrearages unfairly. These provisions are effective October 1, 2010.

Don't use your employer's email for your attorney-client communications

2010-08-25T17:10:00.000-04:00

Usually, information communicated between attorney and client is confidential and privileged, meaning that the attorney cannot be forced to reveal client communications. However, where a third party could be reasonably anticipated to be aware of those communications, then the privilege may not attach. So, if you are using your work email account, it may be that your employer is tracking, logging, storing, and reading your email. If you email with your attorney on your work email, then it may be that such communications are actually being read by a third party, and that, along with all your employers' other policies, you are deemed to be on notice of that. Thus, it can be said that, by using your work email, you are waiving any attorney-client privilege.

This is an emerging area of the law. There are some cases where courts have found a complete waiver of the privilege where employers' policies allowed no private email during the work day or from work computers and email accounts. In other situations, where employers have allowed personal email, the privilege night not be waived. This would also apply to email sent and received via Blackberries, smart phones, etc., as well as from your work desktop computer.

So - a word to the wise - set up a separate, private, password protected email account with Yahoo or Google, etc. that you can access via the internet and use that account only for all communication with your attorney. Consider whether you want to take any chances that your confidential emails could be read not only by your employer, but my your soon-to-be-ex-spouse and his/her attorney.

New change to Florida's alimony statute

2010-08-24T18:28:00.000-04:00

The Florida Legislature made some changes to Florida's alimony law in the last session. Briefly, the new law defines short term marriages as seven years or less in length, moderate term marriages as more than seven but less than 17 years in length, and long term marriages as 17 years or longer. Before the 2010 legislative session, Florida law provided for awards of "bridge-the-gap" alimony, rehabilitative alimony, and permanent alimony. The first is for a very short term marriage, where one party just needs some short term support to get on his or her feet, to adjust his or her finances to not being married. This was usually awarded for a few months or maybe a year or so. The law now provides that it may not be awarded for longer than two years.

In addition, Florida courts can award rehabilitative alimony where one spouse needs financial support for several years, usually, in order to go back to school or to otherwise improve his or her ability to be financially self-supporting. Courts can also award permanent alimony in a long term marriage where one party really can never achieve the ability to be self supporting. Permanent alimony is paid until either spouse dies or the receiving spouse remarries.

The new law created a new type of alimony in Florida called "durational alimony." This type of alimony is for moderate term marriages, where permanent alimony is not appropriate, but where there is no likelihood of a successful rehabilitative plan, so that rehabilitative alimony is not appropriate either. It automatically terminates upon the death of either party or the remarriage of the receiving spouse. It may be modified upon a showing of a substantial change in circumstances, but may never last longer that the length of the marriage. It is most often appropriate in "moderate" length marriages (7 - 17 years).

The new law also makes it clear that courts must go through a two pronged analysis of alimony issues. First, the court must consider the "need and ability to pay" test. That is, does one party have an actual need for financial support and does the other party have the actual ability to provide financial support. Only if that test is answered yes on both sides, should the court proceed to consider the type of alimony, the length of the award, and the amount of the award.

These alimony provisions went into effect on July 1, 2010.

Attorney Mary-Ellen Cross teaches seminar

2010-08-18T10:33:00.000-04:00

Associate attorney Mary-Ellen Cross taught a webinar as a volunteer for Three Rivers Legal Services, Inc. on the topic of Guardianship Advocacy. Approximately 50 attorneys in the 5th and 8th Judicial Circuits had the benefit of Mary-Ellen's expertise in this area. A guardian advocacy is a type of guardianship for persons with developmental disabilities who lack the capacity to do some, but not all, of the tasks necessary to care for his or her person or property. In a guardian advocacy, the court delegates some of the rights of the person with a developmental disability to another person without declaring them incapacitated.

Guardian advocacies are governed by the Developmental Disabilities Act, Chapter 393 and by portions of Chapter 744, of the Florida Statutes. Chapter 393 defines a developmental disability as a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial disability that can reasonably be expected to continue indefinitely.A guardian advocacy is less intrusive and easier to implement, than a "regular" guardianship for an adult which requires an incapacity proceeding.

Should You Represent Yourself in Your Divorce or Other Family Law Matter?

2010-08-10T19:23:00.000-04:00

News reports abound that more people are acting as their own lawyers. “The number of people serving as their own lawyers is on the rise across the country, and the cases are no longer limited to uncontested divorces and small claims. Even people embroiled in child-custody cases, potentially devastating lawsuits, and bankruptcies are representing themselves, legal specialists say,” the AP reported, as quoted in the Wall Street Journal’s Law Blog. That blogger goes on to say, “Worse yet, these do-it-yourselfers are apparently making things worse for the professionals. The trend has resulted in court systems clogged with filings from people unfamiliar with legal procedure. Moreover, some of these pro se litigants, as they are known, are making mistakes with expensive and long-lasting consequences - perhaps confirming the old saying that he who represents himself has a fool for a client.”

As the courts see more pro-se litigants, the courts are also suffering budget cuts. Support services are dwindling. There are fewer court resources to help pro se litigants figure out what the heck they are supposed to do.

If it is difficult for courts to handle pro se litigants, it is even more difficult for a lawyer on the other side of a pro se litigant. Most bar associations have gone to great lengths to publish manuals, handbooks, and forms to help pro se parties. The Florida Supreme Court has approved what must be hundreds of forms for use by pro se parties (and anybody else). The Florida Bar’s Appellate Practice Section has published a 238 page handbook for self-represented appellants and appellees. So, there is a plethora of forms available, but that doesn’t always mean that a cause of action will be properly stated, or that there is any evidence to support it.

If the future of your family, your finances, your well-being is important to you, you should have a skilled and experienced lawyer represent you. I don't try to fix my own air conditioner or my car or a broken leg. Are you sure you should try to fix your legal situation without a good lawyer?

Inauguration of Swanson Law Center Blog

2010-08-10T19:14:00.000-04:00

Our small law firm in Gainesville, Florida wants to provide interesting updates to matters involved in family law, adoptions, and probate and guardianships. For more information about us and our law firm, please check out our website: Swanson Law Center . We intend to provide regular notes about interesting updates to the law, new case law, and sometimes just some fun facts. We hope you'll find some interesting things to read.