Here’s my take on a recent story about a man who almost got away with not paying $180,000 in child support. Almost.
Most everyone knows by now that Florida law forbids the permanent relocation of children by more than 50 miles when the parents aren’t married (including divorced parents) unless the other parent agrees in writing or unless a court agrees. If a parent wishes to move children, even if the other parent lives out of state, there is a complicated procedure that must be followed before children can be moved. And the failure to follow this complicated procedure can subject a parent to loss of majority timeshare (“custody”). But is the 50 miles by road or by air? Is the 50 miles as you drive or as the crow flies?
I remember discussing this when the statute was being drafted. Everyone meant to say that the 50 miles was by car. Most of us, after all, don’t travel by helicopter. But it was never specifically listed that way in the statute. (Whoops.)
So the appellate court in Orlando disagrees. They say that the fifty miles is as the crow flies, not “as the car drives.” That can be a long, long drive in a crowded, trafficky place like Tampa or Miami or, uh, Orlando. Until another appellate court disagrees–which probably won’t happen–or until the legislature changes the statute–which probably will happen–the law throughout Florida is that kids can’t be moved more than 50 miles as a compass would draw on a map.
Relocation is a complicated and tricky procedure in Florida. DO NOT try this at home (or without a lawyer). Call us if you want to relocate a child.
Personally, I don’t think kids have to be spanked to be disciplined, but that’s just me. I never spank my kids, and neither does their mother, from whom I’m divorced. But could anyone else spank them? It’s legal for babysitters to spank kids, but a parent can forbid it. Under the law, babysitters act “in loco parentis,” latin for “in the place of a parent.” A babysitter can do anything a parent could legally do, including spanking. It’s the same for teachers, day care workers, etc. If they want, parents should be clear with babysitters and explain that spanking is out of bounds, otherwise, babysitters may spank.
Custody cases and being pro se (without a lawyer) just don’t mix. I know we lawyers are expensive, but how much is your child’s future worth?
Here is a classic mistake made by unrepresented parties when trying to modify timeshare (the more modern term for “custody” and/or “visitation”): asking for 50/50, split, or rotating timeshare. Here’s why:
Once timeshare is set, either by the judge as part of a divorce or paternity case or by the parties in a settlement agreement, timeshare is pretty much locked in. It is very difficult to change timeshare. But it can be done. The person wanting the change has to prove to the judge that there is an unexpected and substantial change in circumstance.
“Unexpected” means there was no way to know it when the judge made the decision or when the agreement was signed. “The kids are now in school” or “the kids want to be with me more” or “inflation has gone up” are bad reasons because they are all predictable. “Mom is running a meth lab in front of the kids” is a good reason, because it probably couldn’t have been predicted.
A “substantial” change is a really big change. It can’t be “Dad moved to a new house across town” or “Mom had three more kids.” These might be big life events, but to change timeshare, a judge has to see something huge, something like, “Mom’s new boyfriend is a child molester who attacked my child.”
So if something has to be that big and that bad for timeshare to change, why a person ever ask for timeshare to go to 50/50? I see people alleging, “Mom is now a prostitute, living on the streets with the kids, hooked on drugs, and the kids are flunking out of school, therefore I want the kids half the time.” Half?! And you want this disaster of a mother to have them the other half?!
Judges aren’t dumb. Everyone knows child support gets gutted as the amount of timeshare increases, and that’s exactly what they’re thinking when they see a petition like this. Another deadbeat doesn’t care about the kids and just wants to reduce child support. If something is serious enough for timeshare to change, that is, for the old agreement or judgment to be completely broken, it’s probably serious enough that the other parent should be very restricted in seeing the kids.
Bottom line: be careful in seeking modification of timeshare, but if you do seek modification, speak to lawyers like us first, and never ask for 50/50, rotating timeshare, or “split custody.”
Durational alimony is something like permanent alimony, except that it is given a limited duration, usually a set number of years. Permanent alimony usually lasts until the death, remarriage or cohabitation (under certain circumstances) of the recipient, and it’s what we normally think of when we think of alimony. Durational alimony is the same thing, only it’s given a set duration. Durational alimony is usually set for a length of time equal to either the length of the marriage or half the length of the marriage. Florida law prefers durational alimony over permanent alimony under the theory that alimony should never outlast the length of the marriage and the idea that alimony should never last “forever.” Durational alimony is relatively new to Florida Statutes, although it has existed in some Florida appellate districts by caselaw for many years. If a judge orders permanent alimony in Florida, the judge must explain why permanent alimony was a better option than durational alimony.
Lump sum alimony is alimony paid all at one time, in one “lump sum.” It is very, very rare, and is usually used for creative tax purposes (alimony is always tax deductible to the payor), bankruptcy purposes (alimony can never be discharged in bankruptcy), or because there is no other way to obtain “equitable distribution,” that is, to fairly divide the parties’ assets.
Lately I have had a few divorces where “family money” is involved. The issue in those cases is whether the family/nonmarital funds are commingled with marital funds thereby making them marital . Most of the time these situations are reactive, not proactive. We don’t do anything on them beforehand, so I have given some thought to how to really protect the family money.
The solution I have come up with involves a prenuptial agreement in addition to an LLC where the protected spouse owns 51% and other family members own smaller percentages. The protected spouse would be the managing member of the LLC. All of the “family” money would go into the LLC and the prenuptial would have a provision that specified that any marital money that went into the LLC would be nonmarital.
These and other questions can be answered at the Orsini & Rose Law Firm.
If you are past your mid-thirties and going on your second marriage, it’s a pretty good idea to look at asset protection.
Strangely, I get a lot of questions about asset protection from people who don’t have any assets and aren’t planning on marriage. Well, first, get the assets. There’s not much point in speaking with a family lawyer about asset protection until you actually have assets to protect. But once you have assets, consider putting them into an irrevocable living trust. Then meet the new spouse.
The next step should be prenuptial agreement, then the marriage.
Sounds simple doesn’t it? The nuts and bolts are that the irrevocable living trust protects your assets from non-purchase money, third party creditors. A “non-purchase money, third party creditor” is someone who doesn’t have a lien on something you own. For example, a hospital debt: the hospital is a third-party (not you or someone you signed off with on the loan), non-purchase money (they don’t have a lien) creditor (someone you owe money to).
But an irrevocable living trust does not protect your house from a mortgage holder. They’re a purchase-money creditor because they have a lien on the house. They gave you money to purchase the house.
The trust is basically an artificial person that you control. So when you get married, if your assets are in a trust, you don’t technically own anything. The “artificial person” does. (Actually, Brent says his ex-wife was pretty artificial, but that’s another story.)
The prenuptial agreement is basically icing on the cake so that if you contribute to the trust during your marriage, the trust doesn’t become comingled and a marital asset. (Your new spouse can’t say, “Marital money was put in to the trust during the marriage, so I want half of the trust when we divorce.”)
For a more detailed explanation or if you are interested in protecting your assets, contact us directly.
There are a couple of ways that one can be entitled to a portion of the proceeds of spouse’s lawsuit or recover from a spouse’s negligence claim or malpractice injury in Florida. One is that you could sue for “loss of consortium” (companionship, sex, etc.) because of the negligence. But my friends who are medical malpractice and personal injury lawyers tell me these lawsuits aren’t often filed because they don’t result in good recoveries (that is, you can only get crappy money from them) and they cause conflicts in the lawsuits (one spouse wants to settle and the other doesn’t).
Another means of recovery from a spouse’s injury happens in a divorce. In a divorce, a spouse of an injured person is usually only entitled to half the portion of the money recovered that would be a “marital asset.” The “marital asset” part of a recovery would be things like lost wages, lost contribution to a 401(k), etc. The spouse doesn’t usually share in the “big money” part of the lawsuit, which is the money for things like pain and suffering and loss of enjoyment of life. And, of course, when they hand out settlements, they just give one big check to the law firm; they don’t divide the money up or demarcate it into “lost wages,” “pain and suffering,” etc., so sometimes we have to fight about how much a spouse is entitled to.
So it works like this: Dick and Jane are married. Jane is in a horrible car accident and is out of work for a year. She normally makes $100,000 per year and her company normally puts $10,000 per year in her 401(k). She settles with the insurance company for $300,000, of which her personal injury lawyer takes $100,000. She gets a check for $200,000.
Dick’s divorce lawyer (of course they filed for divorce after the horrible accident and the year they’ve had) is asking for half of the $200,000 check. But we know Dick’s not entitled to half. Most of that money is “pain and suffering.” How do we know? Well, we don’t. We’re just guessing because we know that most of an injury settlement or verdict is usually pain and suffering. The lawyers will just have to argue it out. But, well, that’s what lawyers do.
It goes by a couple of weird names (like “legally separate maintenance” or “support unconnected with dissolution”), but Legal Separation does exist in Florida. I get so mad because I hear all the time, not only from clients but from other lawyers, about how Florida doesn’t have legal separation. I was even at a family law Continuing Legal Education seminar a couple of months ago where a lawyer proudly pronounced that she had developed some techniques for obtaining alimony and child support in Florida where, “as we all know, there is no legal separation.” It’s just not true.
I do have to admit that filing for legal separation is rare. For one thing, if one spouse files for separation (which is basically saying, “I don’t want to divorce you, but I want you to pay me alimony and/or child support”), that other spouse normally just counterclaims for divorce.
But there are good reasons for filing legal separation as opposed to divorce. The obvious one is that one spouse may want to move out, yet still take time to work on the marriage. If the moving spouse can’t afford to live on his or her own while the couple attends counseling (or does whatever they need to do to work on the marriage), the court can set up temporary alimony or support for the interim.
And there are legal reason not to divorce, too, like collecting a spouse’s social security credits or remaining on a spouse’s health insurance.
The other upside to separation as opposed to divorce is that filing separation has no residency requirement in Florida. Remember, you have to be a Florida resident for six months before you can file divorce here. But you can move to Florida and file for legal separation the next day. That way, you could start collecting alimony or child support and convert your legal separation case to a divorce case after you’ve lived in Florida for six months.
So not only does legal separation exist in Florida, it’s downright useful in a lot of circumstances. Give us a call or send an email if you want to know more.
I recently had a discussion with a mediator of many years’ experience, and he told me that many large companies don’t see Florida as a business friendly state due to the fact that spouses can get permanent alimony. That’s right; there are other states where spouses in long term marriage can no longer get alimony. He claims that large companies don’t want to relocate here because they may potentially subject their management and workforce to paying alimony. So I got curious and googled “States that have abolished alimony” and found a veritable plethora of websites devoted to ending lifetime alimony. There is even one in Florida (www.Floridaalimonyreform.com). Not surprisingly, there is a bill pending in the Florida Legislature to abolish Permanent Alimony. It will be interesting to see if it passes and what it does to current cases where former spouses are paying.
The argument for ending lifetime alimony is that it legalizes lifetime servitude and also treats women as if they are the weaker sex and not as employable as men. There is talk of expanding unequal distribution to compensate for the elimination of some forms of alimony.
If you are seeking divorce and alimony with a long term marriage, you may want to contact us and file quickly. If you are already divorced and are paying alimony, you should contact us as well.