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Just three short months after Miami Heat guard Dwyane Wade’s divorce became final, a Florida appeals court was again called upon to enter a decision in the half-decade long legal contest. The 3d District Court of Appeal overturned a trial court’s order requiring the NBA star’s ex-wife to undergo a mental evaluation and also removed the trial court judge from the case, citing his denial of the “most basic right of due process” to the ex-wife, Siohvaughn Funches.

Many of the facts of Wade’s ill-fated marriage are well-known by now. Wade and Funches married in 2002, had two sons, and filed for divorce in 2007. The divorce proceeding turned into a marathon affair, becoming final only three months ago. In the property settlement, Wade agreed to pay Funches $25,000 in alimony, with another $10,000 in travel and living expenses. The basketball star also agreed to pay Funches’ mortgage and gave her the use of four cars.

This outcome apparently displeased the ex-wife, as Funches took to the streets of her hometown of Chicago. Funches stages a public protest claiming that the divorce had left her “on the streets.” Wade’s legal team fired back, returning to court to argue that Funches’ protest demonstrated her mental instability and dangerousness and requested that the court order a psychological evaluation of the woman and reduce her contact with the boys. Trial court judge Antonio Marin ordered the evaluation.
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One of the central underlying concepts of divorce and marital property settlement is something called equitable distribution. Equitable distribution, which is required by the Florida Statutes, means that each spouse should receive a fair portion of the marital estate, and each should share in both the marital assets and the marital liabilities. In a recent case, the 4th DCA rejected a trial court’s division of a 401(k) because it unfairly shared the account proceeds between both parties without similarly sharing the financial obligation for the outstanding account loan the couple took out during the marriage.

In 2011, a couple underwent mediation to reach an agreement regarding distribution of their property as part of their divorce. In addressing the husband’s 401(k) account with his employer, the couple agreed that the wife would receive one-half of the “the amount accumulated from the date of the marriage through January 1, 2008.” The agreement also stated that “loans and [withdrawals] taken during the marriage and not repaid will be taken into account for distribution purposes.”

The Qualified Domestic Relations Order (QDRO) the trial court entered, however, stated that the wife’s distribution would “not be reduced by the value of outstanding loans.” As a result, the wife received a payment of $47,505, while the husband’s remaining balance, which factored in an outstanding loan in excess of $30,000, stood at less than $13,700.
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With marital settlement agreements, much like any other form of contract, even the smallest of details can become extremely important. A case recently decided by Florida’s First District Court of Appeal highlights this point. In a recent case, the court concluded that an ex-wife could receive a portion of the 2010 value of her ex-husband’s 401(k) and Army pension, even though the couple divorced in 1994. The court ruled that, if the couple did not intend the wife to share in the account’s gains or losses, the agreement should have awarded her a fixed amount, not a portion of the account.

This couple ended their 20-year marriage in 1994. The divorce decree incorporated the couple’s marital settlement agreement, which they reached three months earlier. That agreement stated that the wife received 10/23 of the husband’s Army pension and half of his 401(k) “as of July 24, 1993”. The agreement called for entry of QDROs (special court orders governing pension and retirement funds) regarding the accounts, but the couple delayed for several years.

The wife finally filed for entry of the QDROs in 2010. The trial court awarded the wife $18,111 from the 401(k) and $18,922, plus $401 per month, from the Army pension. The trial court calculated these amounts based upon the 1993 values of each account.
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On September 5th, the public got even more insight into the now very public life of George Zimmerman (acquitted of the murder of Trayvon Martin) when his soon-to-be ex-wife filed divorce papers in Seminole County. In August, Shellie Zimmerman was found guilty of perjury and ended up with probation, plus 100 hours community service for her false statements regarding the couple’s finances during George’s bail hearings.

Sheila explained that the couple has been under intense scrutiny from “both sides” and identified the weakness of their marriage as two people fighting their own struggles to be heard by the other. She described their lives around the time of the trial and after as “living like gypsies” for security purposes with constant “babysitter” bodyguards looming over them.

The Zimmerman divorce, despite already being filed, likely hit a snag when on September 9th, Lake Mary police detained Zimmerman for a domestic dispute incident, which was resulted in a panicked 911 call by Sheila claiming George was threatening her and her father with physical violence and a gun. She further alleged George punched her father in the face during the confrontation. Sheila ultimately withdrew some of her statements, and charges were dropped against George.
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A recent case, involving a Pennsylvania man and his biological child living in Florida, demonstrated the significant differences that sometimes exist between science and the law. A Florida appeals court both denied the biological father’s effort to litigate his custody dispute in his home state, and foreclosed his efforts to make a claim anywhere regarding custody of the child. The man’s resounding defeat resulted from several shortcomings, including his flouting custody orders and, in particular, his lack of legal relationship to the child because the mother was married to another man at the time of the child’s birth.

The case revolved around a child born to a couple in 2004. The child’s birth certificate listed the husband as the father; however, he was not the father. The child was the product of the mother’s relationship with another man. The child resided with the maternal grandmother from birth. The mother died in 2008, still married to the husband. After the mother’s death, the grandmother sought custody and the husband consented. At this point, the father sought to intervene and asked the court to declare him the child’s father and award him custody. The trial court concluded that the husband had severed his parental rights by abandoning the child, declared the biological father the father and awarded him custody.

Following a reversal of the ruling by the 1st District Court of Appeal, the grandmother re-obtained legal custody. The father, however, refused to hand over the child, and the child remained in his physical custody for a 12 month period during which he had no legal rights regarding the child.
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A Florida appeals court recently ruled that the interests of “justice and … equity” necessitated requiring an ex-husband to pay his ex-wife’s attorney’s fees in the child support action the wife initiated. The court’s ruling highlighted that, because the husband had a substantially greater ability to pay, and prolonged the trial court litigation through his failure to engage in full and prompt disclosure of his wealth, an award of attorney’s fees was proper under the statutory law.

The dispute began five years after the parents of two children divorced in 2005. The couple’s marital settlement agreement required the husband to pay family support in a flat amount from 2005-2010, and in accordance with the Florida guidelines thereafter. Unable to reach a negotiated agreement in 2010, the couple returned to court to determine the new amount of support. Despite having a net worth of nearly $5 million, the husband told the trial court he had little to no income. The trial court ultimately concluded that the husband had a monthly income of $25,000 and the wife’s income was less than $3,800.

The Orange County Circuit Court ordered the husband to pay $2,608 per month, but declined the wife’s request for an award of attorney’s fees. The trial court concluded that the wife’s 2010 action was an enforcement action related to the settlement agreement, and Florida law directed that she not receive attorney’s fees.
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Just five months after the death of Broward Circuit judge Susan Aramony, the South Florida community suffered another loss, as Amy Karan, a former Miami-Dade judge, passed away on Sept. 8. Karan, known as a judiciary leader in the area of domestic violence, was 54.

Karan, a Long Island native, received both her undergraduate and law degrees from the University of Miami. Karan’s professional career began as a family law practitioner, and she also served as an Assistant City Attorney in North Bay Village. She moved to the bench in 1997. There, she served for a dozen years before retiring in 2010. Karan retired early as her battle with the effects of Multiple System Atrophy, a rare form of Parkinson’s Disease, had begun to affect her ability to speak. In addition to her work on the bench, Judge Karan taught multiple courses at the National Judicial College and St. Thomas University.

A central piece of Karan’s legacy involved her leadership in the area of domestic violence, particularly the intertwining of domestic violence and guns. In 2007, while on the bench, Karan began requiring individuals subject to domestic violence injunctions to surrender not only their weapons but also their concealed weapons permits.
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Florida is one of only a minority states with laws that allow rape victims to avoid potentially complicated and difficult child custody battles with their attackers in cases where the rape results in the birth of a child. However, that number could rise substantially if Congresswoman Debbie Wasserman Schultz has her way. The Florida Democrat led a bipartisan group that proposed the Rape Survivors Child Custody Act, which would use the lure of federal grant dollars to incentivize states to pass laws allowing rape victims to obtain sole custody over the children born as a result of their rapes, CBS Miami reports.

The bill, sponsored by Wasserman Schultz and Tom Marino, a Pennsylvania Republican, would make states eligible for federal grant funds flowing from two programs established under the Violence Against Women Act, but would limit that eligibility to those states with laws that permit rape victims to go to court to prevent potential custody battles with their rapists.

A thinkprogress.org report stated that estimates place the number of rape pregnancies at approximately 32,000 annually, with more than 10,000 of those victims electing to raise their children. At a press conference related to the bill, Shauna Prewitt, a rape victims’ rights advocate, explained that rapists can use a pregnancy or child as leverage against the victim’s reporting or pursing her attacker by threatening to pursue joint custody of the child if the woman participates in a criminal prosecution of the rape.
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Under Florida law, an ex-spouse can request a legal modification of alimony. In a recent case, a couple had divorced after 28 years of marriage. On an appeal of the divorce judgment, the court reduced the husband’s alimony payments. In 2010, about a decade after the divorce, the former husband filed a petition requesting a reduction or termination of the payments, which were then $6,000 per month.

He argued that an order requiring him to pay permanent periodic alimony payments should be modified because (1) his financial circumstances had changed significantly and (2) his former wife was in a relationship with someone supportive. The former wife denied the material facts underlying the petition.

A general magistrate made a recommended order, finding a substantial change of circumstances since the husband’s income had been reduced. In his findings, he noted that he did not think this change was contemplated at the time of divorce and that the former wife was in a committed relationship. He recommended the alimony payments be reduced significantly, down to $1,294.06 per month.
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Father’s rights and paternity issues are hotly contested in Florida as in other jurisdictions. More weight is placed, in some cases, on Florida’s statutory definitions of family than on DNA tests, making it critical to get the help of an experienced Florida attorney.

In a recent case, a mother had given birth to a child in 2004 while married. The child was not born out wedlock and lived with his mother’s parents from birth. The parental rights of the mother’s husband were never terminated and he had an obligation to support the child. The mother died when the child was four. Her mother (the child’s grandmother) filed a petition for temporary custody. The mother’s husband gave written consent. The trial court awarded her temporary custody.

Meanwhile, another man filed a petition for determination of paternity in the same court. He did not meet the definitions of “parent” under Florida’s statutes, but he claimed DNA testing showed him to be the biological father of the child.
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