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A recent 4th District Court of Appeal ruling highlighted the complicated issues involved in calculating alimony in a case where the wife, who was previously a successful professional, retired early and did not intend to return to work after the divorce. The appeals court rejected a trial court ruling imputing no income to the wife, determining that, because the wife was qualified for certain jobs and that her continued unemployment was her own choice, the lower court should have imputed some income to the wife in determining the amount of alimony the wife should receive.

When this Florida couple married, he was an attorney for a utility company and she ran a public relations and marketing firm. The husband’s employer laid him off in 2000, but provided him with such a generous severance package that both he and his wife decided to retire early. The husband told the wife that, as a result of the severance payment, neither of them would ever have to work again. After a year of retirement, though, the husband started a consulting business from which he earned a sizable income. The wife remained retired.

When the couple divorced after 17 years of marriage, one of the central items in dispute was alimony and the wife’s earning capacity. An expert witness testified that, with a few short classes in computer software and social media, the wife could obtain a job making $40,000-$50,000 per year. The trial court, though, decided the wife was not qualified for most of the jobs identified by the expert witness, imputed no income to her, and ordered the husband to pay her $11,648 per month in permanent periodic alimony. The court also did not require the wife to return to work.
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A South American mother’s attempt to relocate from Brazil to Florida became more complicated after the Third District Court of Appeal determined that an international convention regarding child custody applied to her case and required her to return with her two daughters to Brazil so that Brazilian courts could sort out the family’s custody dispute. While the mother had sole physical custody of the daughters, the mother and father had a joint right to determine the country in which the children would reside.

After the couple married in Ecuador in 2001, they moved to Brazil, where they had two daughters. The couple eventually split, and a Brazilian court entered a custody and visitation order. The order gave the mother sole custody and the father certain visitation rights. In December 2012, the mother took the girls and relocated to Miami.

The father went back to the Brazilian courts to seek the return of his daughters. He also filed a request in a Miami trial court for the same relief. The Miami court denied the father’s petition, concluding that he had only a right of access to the children and lacked the “rights of custody” needed to force the children’s return.
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In a victory for gay and lesbian parents, the 5th District Court of Appeal reinstated a lesbian’s parental rights regarding the child she had helped raise with her now former partner. The court’s ruling stated that the child’s biological mother could not invoke the authority of the court system to approve the other woman’s adoption of her son and then use those same courts to take those parental rights away simply because the women’s relationship ended.

The case centered upon the son of two lesbian women, identified in court records only as “C.P.” and “G.P.”, who were in a committed relationship from 2005 to 2012. In 2007, C.P. conceived and gave birth to a son. G.P. was present at the boy’s birth and was designated as a parent on all of the child’s medical and school documents. G.P. took on an equal role to C.P. in parenting the child for the first four years of his life.

In January 2012, G.P. legally adopted the boy. The couple had filed their request as a “step-parent adoption.” The couple then obtained an amended birth certificate naming both women as the child’s parents.
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A recent ruling by the Third District Court of Appeal sided against a Native American mother in her attempt to invoke the jurisdiction of the Miccosukee Tribal Court to resolve a custody dispute regarding two children she shared with a man who was not Native American. The decision has substantial impact for South Florida and the Miccosukee Tribe, which is situated in the Everglades just to the west of Miami and Fort Lauderdale.

While the issue of custody of children who are part Native American has been prominently litigated recently, including the “Baby Veronica” case which went all the way to the US Supreme Court, the dispute between a mother who was a member of the Miccosukee Tribe, and a father who was not Native American, involved a different aspect of the law. This case did not involve resolving custody based upon the Indian Child Welfare Act of 1978, as was the case in the “Baby Veronica” matter, but rather the the Uniform Child Custody Jurisdiction and Enforcement Act.

The case began when a custody dispute cropped up between the parents and the mother filed for custody in the Miccosukee Tribal Court. The court held a hearing and awarded custody to the mother. The father then filed in the 11th Circuit Court in Miami. The mother sought to shut down the father’s case, arguing that the tribal court had resolved the matter and that, under the terms of the UCCJEA, the Florida court lacked jurisdiction to adjudicate the dispute.
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A Tampa lesbian couple who married in Massachusetts in 2010 encountered a roadblock recently in their ongoing effort to get divorced. A trial court judge ruled that, because Florida law does not recognize same-sex marriages as valid, Florida courts lack the authority to dissolve them, the Tampa Tribune reported. The couple’s attorneys announced their intent to appeal the ruling, where they will argue that the state’s same-sex marriage ban is unconstitutional.

The lesbian couple in this case married in Sunderland, Mass. in 2010. The next year, they moved to Tampa. Unfortunately for the couple, the relationship deteriorated and they separated last fall. One of the women called the court clerk’s office in Franklin County, Mass. to inquire about obtaining a divorce. The clerk there explained that the woman could only file for divorce in Massachusetts if she had lived there for at least a year. She then filed for uncontested divorce in January in Hillsborough County.

In March, the couple completed a marital settlement agreement regarding the division of their assets. The woman’s lawyers argued that, if the legislature had desired to strip courts of the authority to grant divorces in cases involving homosexual couples, it could have explicitly stated this intent in the 2008 Definition of Marriage amendment to the state constitution. By contrast, Georgia’s constitution expressly forbids courts from granting divorces or maintenance in cases involving same-sex couples. Florida’s amendment has no such language.
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Sometimes, in divorce matters, a couple can seem to reach a mutual agreement on the distribution of their marital assets, only to uncover a sticking point later. Such was the case for one Florida couple, who battled over the division of the husband’s military pension. The Second District Court of Appeal threw out a trial court order regarding the pension because the terms of that order contained elements that were not part of the couple’s mutual agreement and allowed the wife to share in benefits the husband would earn after the marriage had ended.

J.F. filed for divorce in 2011. His wife asked for a division of the couple’s retirement accounts as part of equitable distribution of their assets. The couple arrived at a settlement agreement, which they conveyed orally to the court on the record. At the hearing, some confusion emerged when the spouses’ attorneys attempted to recite the agreement about the husband’s military pension to the trial court. The parties later disagreed on the precise terms of the division of the military retirement, and the trial court held another hearing. The husband later challenged the resulting “Order for Division of Military Retirement Pay”, claiming it did not reflect the couple’s true agreement.

The appeals court agreed with the husband. The order suffered from two fatal flaws. First, it gave the wife a share of several future benefits, including the husband’s post-retirement cost-of-living adjustments, a portion of any retroactive payments the husband might receive if he chose to remain active after his normal retirement date and a piece of the husband’s exit bonuses, voluntary separation incentive pay or special separation benefits. This was problematic because the husband would not accrue any of these benefits until after the marriage ended and none of these benefits were discussed in the couple’s oral recitation of their agreement before the trial court. As a result, the wife had no claim to a share of those benefits and the order should not have included them.
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When going to court for a determination of timesharing, it is important to understand what the judge can and cannot do. Florida’s law regarding the establishment of a timesharing plan for a divorcing couple’s children is based upon a public policy that strongly favors giving a child “frequent and continuing contact” with each parent unless evidence exists showing that this contact poses a risk of harm to the welfare of the child. Absent this danger to the welfare of the child, courts cannot cut off one parent. This rule is what led the 4th District Court of Appeal to reject a recent timesharing plan created by a Broward County trial court.

The case involved the child of R.L. and E.D. R.L. (the mother) filed for divorce and sought primary physical custody of the couple’s only child. The mother requested that the father receive only supervised visits with the child, claiming a concern about emotional and physical abuse by the father. At a hearing on timesharing, the mother told a trial court magistrate judge that the father had not been in Florida in more than a half-decade and knew nothing about the child’s education, activities or medical condition. The father did not show up for that hearing.

The magistrate judge awarded the mother 100% timesharing of the child. The magistrate judge’s recommendation concluded that the father did not know the child and the child did not know who the father was, so it would be inappropriate for the father to have any timesharing. The trial judge approved the magistrate’s recommendation.
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A wife’s effort to claim to claim two burial plots as belonging solely to her failed as a result of an unfavorable 1st District Court of Appeal decision. The court concluded that, although the two plots were her separate assets when her aunt gave them to her, one of the plots became marital property when she chose to transfer ownership of that plot from her name to the names of her and her husband collectively. This transfer constituted a spouse-to-spouse gift that changed the status of that plot.

In happier times, the couple decided to add the husband to the deed of one of two burial plots the wife had received as gifts from her aunt. Some time later, the couple’s marriage deteriorated and the pair sought to divorce. As part of that proceeding, the trial court considered how to classify the burial plot co-owned by both spouses. The trial court ultimately declaring the burial plot as non-marital property that belonged to the wife.

The husband appealed this decision, and the 1st DCA agreed with the husband. In resolving the question, the court decided that the wife’s decision to add the husband to the deed of one of the plots changed that asset’s status. Florida Statutes Section 61.075(6)(b)2 says that an asset acquired by one spouse as a result of “noninterspousal gift,” even during the marriage, is nonmarital property belonging to the spouse who received the gifted asset. That is what happened when the wife’s aunt gave the plots to the wife, meaning that, at that point, both plots were nonmarital assets belonging to wife.
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A father’s desired move with his two sons from Florida to New Jersey fell flat because, although he persuaded a trial court judge to OK the relocation, the trial court order failed to make findings that the move benefited the children. The 5th District Court of Appeal reversed the ruling, stating that the evidence in the case demonstrated a move in the best interest of the father, not the children.

After the husband and wife separated early in 2013, a trial court entered an order establishing the pair’s equal time-sharing of their two children. A few months later, the husband sought the court’s permission to relocate, with the children, to New Jersey, so that he could continue pursuing his pharmacy degree. The husband stated that the move was in the children’s best interest because he could provide the children with an excellent home and education in New Jersey, and that the completion of his pharmacy degree would greatly increase his earning potential and ability to provide for the children.

Both parents agreed to allow the court consider a custodial evaluation report prepared by a psychologist. The doctor advised against moving the children away from their Brevard County home, where they’d lived their entire lives. Nevertheless, the trial court sided with the husband and approved the move. The court found that, despite the extraordinarily contentious nature of the couple’s divorce, the husband sought the relocation “in good faith.” The court did not find, however, that the move would be in the best interest of the children.
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A magistrate judge modified a husband’s child support obligation, in part, due to the magistrate’s own opinions about the wife’s true income as a nail salon worker, in addition to relying on outside sources like an IRS tax guide. Because these were not proper bases for making a determination, the 4th District Court of Appeal reversed the lower court’s ruling favoring the husband.

When this Florida couple divorced, their marital settlement agreement that listed several events that would terminate the father’s child support obligation for the couple’s two children, including eighteenth birthdays and high-school graduations.

After the couple’s son turned 18 in 2008 and graduated from high school in 2009, the husband asked the trial court to modify his child support based upon the changes regarding the son’s status. As part of this hearing, the magistrate judge received evidence from both spouses regarding income. The wife, who worked in a nail salon, testified under oath about her income. The magistrate, using her knowledge from three decades of patronizing nail salons and overseeing family law cases in Palm Beach County, concluded that the wife’s testimony was not truthful. The magistrate, based upon these conclusions and her taking judicial notice of an IRS tax guide and another resource, imputed extra income to the wife and the trial court adopted the magistrate’s determinations.
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