Posted by Nydia Streets of Streets Law in Florida Divorce
In a recent Florida family law appellate case, issues regarding alimony, child support and a parenting plan were appealed, leading to reversal of the trial court’s final judgment of divorce. Notably, the former husband successfully argued that the amount of alimony awarded to him was unsupported, that the child support calculations appeared to be arbitrary, and the agreed-upon parenting plan should have been adopted by the court. Today we review the case Garcia v. Espinosa, 3D20-265 (Fla 3d DCA January 6, 2021).
Posted by Nydia Streets of Streets Law in Florida Divorce
Before assets and debts can be divided in a Florida divorce, a court must make a determination of what is non-marital versus marital property or debt. The court must also value each asset and debt. Generally, the court starts with the proposition that each party should receive half of the marital estate. However, there are factors for the court to consider in deciding that distribution should be unequal. The case Rennert v. Rennert, 2D18-3906 (Fla. 2d DCA December 16, 2020) is one which reiterates this requirement for equitable distribution and examines the nature of non-marital property which is paid down with marital funds.
Posted by Nydia Streets of Streets Law in Florida Divorce
What happens if a party repeatedly fails to abide by a court order in a Florida divorce case? One of the most drastic sanctions a court can impose is a default or striking of a party’s pleadings. The entry of a default means the well-pled allegations of the petitioner’s complaint are accepted as true. A default can essentially prevent a party from asking for relief from the court and can prevent the assertion of defenses a party might have to accusations from the other party. The standard for entry of a default is examined in the case Aponte v. Wood, 4D19-3370 (Fla. 4th DCA December 16, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
When a spouse is thinking about filing for divorce in Florida, he or she may wonder what immediate rights each spouse has to property and to financial support. Many counties in Florida, including Miami-Dade County, has what is known as a status quo order which states that once a petition for divorce is filed, the parties must generally maintain the status quo by, for example, continuing to pay expenses that have been historically paid and maintaining insurance policies. But what about before a divorce petition is filed? If a spouse intentionally disposes of or hides assets in preparation for a divorce filing, this is a factor that can be considered in equitable distribution. Such was the case in Corrales v. Corrales, 3D19-2524 (Fla. 3d DCA December 23, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
How do you determine the county in which you should file your Florida divorce case when after separation, spouses move to different counties? Florida law states that venue is appropriate in the county in which the parties last resided together during their intact marriage. This was an issue in the case Huber v. Huber, 3D20-1228 (Fla. 3d DCA October 21, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
How does a divorce happen in Florida if one spouse is incarcerated? Being incarcerated does not stop a dissolution of marriage from proceeding in Florida so long as the imprisoned spouse is given the opportunity to participate in the case. In Weston v. Weston, 1D19-3727 (Fla. 1st DCA November 6, 2020) the issue of an incarcerated spouse’s opportunity to participate in the final hearing was at issue.
Posted by Nydia Streets of Streets Law in Florida Divorce
A Florida divorce case can involve multiple issues including alimony, child support, equitable distribution and attorney’s fees. When there is an issue as to how the court rules on these issues, a time-consuming and costly appeal can follow. In the case O'Neill v. O'Neill, 4D19-1721 (Fla. 4th DCA October 28, 2020), an appeal was taken regarding child support, equitable distribution and a life insurance requirement.
Posted by Nydia Streets of Streets Law in Florida Divorce
Most Florida jurisdictions require parties to a Florida family law case to attend mediation prior to their case being set for trial. Mediation is a meeting at which the parties and their lawyers, if any, try to reach an agreement on the issues in their case with a trained negotiator known as a mediator. Some parties prefer to save money and time, however, by negotiating directly between themselves or their lawyers. It is possible to resolve a case this way, and it is important to know when a binding contract is entered if this method is used. This was an issue in the case Thomas v. Thomas, 1D19-1259 (Fla. 1st DCA October 9, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
When parties to a Florida divorce discuss a settlement “on the record” or in the presence of the court and a court reporter, the court must ask both parties certain questions before ratifying the agreement. This is to ensure that both parties understand and fully agree to the settlement terms discussed. The case Frenkel v. Costa, 4D19-1841 (Fla. 4th DCA October 7, 2020) outlines what must be asked.
Posted by Nydia Streets of Streets Law in Florida Divorce
Equitable distribution in a Florida divorce is governed by Fla. Stat. 61.075. which states in pertinent part: “the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors [. . .]”. In the case Legere v. Legere, 1D19-3324 (Fla. 1st DCA October 7, 2020), the trial court entered a final judgment which awarded more equity in the marital estate to the former wife than to the husband.
Posted by Nydia Streets of Streets Law in Florida Divorce
The distinction between marital assets and non-marital assets in a Florida divorce is important because it determines what assets a spouse will keep and/or what payments need to be made from one spouse to the other to equalize the distribution. In the case Street v. Street, 2D18-283 (Fla. 2d DCA September 30, 2020), the trial court’s equitable distribution determination resulted in the former husband being ordered to pay almost $1 million to the former wife.
Posted by Nydia Streets of Streets Law in Florida Divorce
A primary question in a Florida divorce when it comes to dividing marital assets and debts is what is everything worth? Since the court starts with the presumption that each spouse should be awarded an equal share of the marital estate, knowing the values of each asset and the amount of each debt owed is necessary to arrive at this equal division. The case Frett v. Frett, 5D20-187 (Fla. 5th DCA August 28, 2020) sheds light on this.
Posted by Nydia Streets of Streets Law in Florida Divorce
Obtaining a final judgment of divorce in Florida which grants a party financial relief is the first step in getting support payments or property distribution. The next step is collecting the money due. Since there may be time limits which preclude a party from collecting on a judgment, collections should be sought right away. This time limit was an issue in the case Webb v. Webb, 2D19-3089 (Fla. 2d DCA August 28, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
When a party requests that the other party pay his or her attorney’s fees and costs in a Florida divorce case, what is considered by the court? If the request is based on a disparity in income levels between the parties, the court will look at the need of the spouse asking for fees to be paid and the ability of the other spouse to pay the fees. It is important to understand what is considered income for purposes of determining need and ability to pay. This was at issue in the case Gonzalez v. Reyes, 2D19-1841 (Fla. 2d DCA August 28, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
If a party earns less money than the other spouse in a Florida divorce, the lesser earning spouse may be entitled to have his or her attorney’s fees paid by the higher earning spouse. However, if the spouse asking for his or her attorney’s fees to be paid commits misconduct during the case, this may affect his or her ability to have those fees paid. This was an issue in the case Root v. Feinstein, 4D19-0701 (Fla. 4th DCA August 26, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
When a third party creditor is owed money by a husband and wife, that creditor may be able to intervene in a Florida divorce case to preserve his or her rights. An example is when a relative lends money to a married couple and the couple defaults on the payments. Once a divorce is filed, the creditor may become a party to the case to pursue repayment of the loan. This was an issue in the case Frank v. Frank, 3D19-1525 (Fla. 3d DCA August 26, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
When a divorce case is filed in Florida, and a divorce case involving the same parties is also filed in another country, which court has jurisdiction to decide the issues in the case? The answer is not always simple, but the case Vicario v. Blanch, 3D19-1044 (Fla. 3d DCA August 19, 2020) is an example of how a Florida court may analyze competing petitions for divorce in different jurisdictions.
Posted by Nydia Streets of Streets Law in Florida Divorce
When a Florida divorce case includes issues of equitable distribution and alimony, there must be specific findings made in the final judgment regarding these issues. Without these findings, a final judgment of divorce may be susceptible to being overturned on appeal. Such was the case in the matter Ortiz v. Ortiz, 3D19-2232 (Fla. 3d DCA August 12, 2020).
Posted by Nydia Streets of Streets Law in Florida Divorce
Is rental income included for purposes of calculating Florida child support? The general answer is yes. Florida Statutes Chp. 61.30 define what should be considered income in determining a parent’s child support obligation. In the case Marenco v. Marenco, 2D18-1664 (Fla. 2d DCA July 29, 2020), the former wife appealed the trial court’s calculation of her rental income.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Attorney’s fees can be requested in a Florida divorce based on need and ability to pay. A spouse who has not worked during the marriage, for example, may ask that the court require the working spouse to pay his or her attorney’s fees and costs. This is to “even the playing field” so-to-speak, so that each party has the opportunity to obtain competent legal counsel for the proceedings. In the case Bolliger v. Fries, 2D19-2587 (Fla. 2d DCA July 31, 2020), the former husband appealed a denial of his request for attorney’s fees and costs.
