No Fault Divorce/ Child Custody


Question

My Husband recently threatened to take custody of our two children because he found some emails between myself and a boyfriend. I have not introduced the children to this person. When the Children are with me, I do not leave them with a babysitter so that I can go out with my boyfriend. If the Court finds out I have a boyfriend, will I lose custody of my children?

Answer

Answer: Florida is a "no fault" state which basically means that, in order to obtain a divorce, you must allege that the marriage is "irretrievably broken". You do not need to allege and prove a basis for a divorce such as adultery, cruelty or abandonment. The fact that you have a significant other does not, in of itself, mean you will lose custody (timesharing). If, at some point, you decide to introduce this person to the Children, then your Husband would be within his right to know of this person, to ask for a background check and to perhaps meet him. The Courts will expect the parents to have an open line of communication in this regard. This is all a part of what is called "shared parental responsibility". Your Husband should not confuse this with a right to object to who you decide to date but he is within his right to know. So, no you do not automatically lose custody of your children simply for dating and having a romantic relationship with a significant other.

Equitable versus Unequal Distribution


Question

Prior to my Marriage, I purchased the Home in which my Wife and I are now residing. During the Marriage, we paid the mortgage out of our joint account but I paid more because I earn more. We also improved our kitchen and master bath. We have been married for almost 10 years and, during this time, the Home has gone from $137,000 in value to around $325,000. The House remains titled in my name. Is my Wife entitled to any of the equity in the Home?

Answer

Let's start with the most obvious. You did not add your Wife's name to the deed so you did not "gift" the Property to her. The Property remains your non-marital property. However, during the Marriage, the Home's increase in value is the result of principal reduction of the mortgage , and may further be the result of both improvements and passive appreciation (market forces). Any such increase in value as a result is a "marital asset" subject to equitable division. You keep the House but would either need to refinance draw out more equity to buy out your Wife's ½ share of said increase in value and/ or she gets a greater share of another asset (or you take a greater share of the marital debt). The starting point for equitable distribution is a 50/50 division of all marital assets. I would need to know the value of the Home at the date of marriage and the balance of the mortgage at that time as well as the value of the Home and the remaining balance of the mortgage at this time. With this said, I would also need to know if you have re-financed the mortgage during the marriage. I would then be able to determine the "marital" portion of the increased value.

Equitable Distribution/ The Marital Home


Question

My Husband and I have two children, ages 9 and 11, respectively. The Children have lived in the Home since my eldest child was 2 years old. The mortgage payment on the Home is $1,265.00 per month which includes escrow (for taxes and insurance). My take home is around $3,250.00 per month. My Husband's take home is around $3,800.00 per month. I have no other place to live and would prefer to stay in the Home with the Children. If I am awarded majority timesharing of the Children, will I be able to stay in the Home?

Answer

The Court may award you an unequal distribution of the marital home if you prove that maintaining the Home is "economically feasible". At a minimum, you would need to prove that the mortgage(s) is comparable to local rental rates for similar properties of like size and that the fixed household expenses (including the mortgage) is affordable. In this regard, the Court will also inquire of the parties' respective economic circumstances. For instance, your Husband may argue that he is in great need of his share of the equity out of the Home in order to establish himself in another residence. Assuming the Home is the most significant asset of the parties and further assuming you are not able to re-finance to buy your Husband out of his share, then the Court may order the sale of the Home. Notwithstanding, the Court will consider the best interests of the child(ren) in rendering this decision such as a consideration of whether this is the Home in which the children have lived for some time; the particular school district; etc.

Alimony/ Spousal Support


Question

My Husband and I have been married for 19 years. I did not work after our two children were born. I went back to work last year. I earn $11.75/ hour with no benefits. My Husband earns over $100,000.00 per year and he covers my health insurance. Am I entitled to alimony?

Answer

In Florida, a "long term" marriage is one which is 17 years or longer. Since your Marriage is over 17 years, a presumption of entitlement (to alimony) arises. Your Husband would now have to come forward with why you should not be awarded alimony. In this instance, I believe you would be awarded long term alimony either in the form of permanent periodic or durational alimony given the length of the marriage, the earning disparity between you and your Husband, and the extraordinary contribution(s) to the marriage of raising the two children. The amount of alimony would be based on your quantified "need" and your Husband's "ability" to contribute towards your support.

Imputation of income for support purposes


Question

My Wife just filed a Motion for Contempt because I cannot pay her alimony. I just lost my job in which I had been earning $100,000.00 gross annually exclusive of performance bonuses. In 2018, I received about $25,000.00 in bonuses. Since I am not working, do I have to pay her the alimony awarded?

Answer

An attorney cannot advise you to not abide by a court order. The short answer to your question is, yes, you have to continue to pay your alimony obligation until further order of the Court. Although you have no present income, you can be found in "willful" contempt if you have some ability to pay the alimony out of savings and/ or the liquidation of assets. In the interim, you would need to keep a diligent job search journal of where you are applying for employment, the position being applied for and the rate of pay and benefits available.

If you are not able to find comparable employment after a diligent job search and take a job making $60,000.00 gross annual, your former wife may believe you have used less than diligent effort to find comparable employment. In order to "impute" income to you at a higher rate than $60,000.00, your former wife would have to prove that you are "voluntarily" under-employed and that, given your recent work history, qualifications and the local job market, jobs are available to you earning more than $60,000.00 gross annual. If you lost your job due to your position becoming obsolete or to downsizing, then this may be considered "involuntary" in which event the Court may modify your alimony obligation (downward) given you are making about 50% less than what you were previously earning at the time of the Final Judgment.

Modification of Alimony and/ or Child Support


Question

I was recently let go from my job because of my employer lost two major contracts which rendered my position within the Company as non-essential and obsolete. I was earning $144,000.00 gross annual after having worked for the Company for the past 9 years. My employer did give me a 6 month severance which I am currently using to pay alimony to my former wife in the amount of $3,500.00 per month. I cannot find a job earning anything close to $144,000.00 gross. I finally found a full time job earning $84,000.00 gross annual with health insurance benefits with at least 2 months left to my severance pay. All the other jobs I have found were no more than $60,000 gross annual. After my severance runs out, I will no longer be able to afford the alimony of $3,500.00 per month. I intend on paying her $2,050 per month which is about 58% of my alimony obligation (my income decreased by 42% to $84,000 gross annual). Can I reduce my alimony to $2,050.00?

Answer

You cannot unilaterally reduce your alimony obligation. In order to modify an alimony or child support obligation, you would have to file a supplemental proceeding and prove that a substantial change(s) in circumstance has arisen warranting a downward (or upward) modification. A substantial change in circumstance is defined as one which is involuntary, material, permanent and unanticipated.

If you have performed a "diligent" job search of at least one application or interview per day and have been unable to find comparable employment, and assuming the job you took at $84,000.00 is the best job you can find as far as salary and benefits, then I would opine that you have shown "permanency" (lost earning capacity). Further, a reduction in income of around $60,000.00 per year is a material change in your earning capacity. Your position was no longer necessary as a result of two lost contracts by your Employer. This does not sound as if you "voluntarily" lost your job, such as a resignation. Under the circumstances, you would have a case for a downward modification of your alimony obligation.

Relocation

Relocation


Question

My former spouse and I have three children. We have equal timesharing including holidays and summer. As far as co-parenting, we work relatively well together. I just received a job offer in NY State. I want the kids to move with me to NY because the school system is much better and I will be making about $20,000.00 more annually. My ex and I have family in the area. Our kids have a very good relationship with our families. Now that I am making more, can I relocate the children to NY?

Answer

The Court will evaluate a variety of factors to determine if the best interests of the children is served by the relocation to NY. Given that you both co-parent well, then your ex may not be able to argue that you have frustrated her relationship with the children and that you would continue to do so if permitted to relocate. This is a positive. Let's assume you have some credible evidence that the school in which the children would attend in NY is better than the school they are currently attending. This, too, is a positive.

Although $20,000.00 is a lot of money, could you make that type of money in Florida if you searched? Further, what is the cost of living in NY State versus Florida? Does the COLA negate your $20,000.00 increase in salary? Even if you have family in NY, if your children have an existing bonded relationship with both sets of families in Florida, you may have a difficult time convincing a Judge that taking the children away from their home and families is in their best interests.

If you can show that the $20,000.00 is an actual increase in salary not negated by COLA and that you have career advancement opportunities with large increases in salary, that your children have a bonded relationship with the your NY family, and that alternative timesharing arrangements can be made and are economically feasible, then you have a better argument for proving that the relocation is in the children's best interests.