Question:

My Wife and I have been separated for about three months now.  We have a five year old son, who pretty much lives with his Mother.  I get to see him on alternating weekends from Friday afternoon until Monday morning and some Thursday overnights (although my Wife says the Thursday overnights will stop once school starts latter this month).  I have been giving her $ 500.00 per month since we separated.   I have just been served with divorce papers.  Can I get additional visitation time?  What is my child support?

Answer:

Florida now requires parents to establish a “Parenting Plan” which includes “time sharing”.  If the parties are not able to agree upon a Plan, then the Court will establish one.  Under current Florida law, the courts will no longer designate one parent as the “primary residential parent” (custodian) and the other “secondary residential” with rights of visitation.  The parties will have “time sharing”, which may be specifically set out in the Parenting Plan during the school year, school breaks such as Spring Break, holidays, summer and telephonic access.  If you have been an active participant in your son’s life, live relatively close to his current residence and have a good rapport with your Wife, then I do not see any reason why you could not ask for what is called, “substantial” time sharing (currently defined as 40% or more of the overnights).

This brings me to my second point.  The Child Support guidelines were recently amended.  Effective January, 2011, if a parent has “20% or more” of the overnights, then this time sharing arrangement would reduce that parent’s child support (as opposed to 40% or more of the overnights).    I would still inquire of your Wife’s counsel as to applying the amended statute even though it is not effective until January.  You could argue that by applying the statute now, we are saving you and your then-Former Wife from having to go back to Court in January, 2011 to modify downward your support obligation.

In order to calculate the parents’ support obligation, then I would need to know the parties’ respective incomes;  the cost for any health insurance coverage for the parent and to add family to his/ her coverage;  and whether the parties’ child(ren) have any day or after care expense incidental to employment or an educational pursuit.   Both parties have to make mandatory disclosure, which would include provision of this information.  Upon receipt of this information, I would then apply same to the child support guidelines.  Again, I would also seek to apply the amended child support statute at this time in order to reduce your obligation based on the amount of your time sharing with your son.

The foregoing is not intended as legal advice.  If you are in need of legal advice and/ or more information on the recent amendments to Florida’s alimony statute (section 61.08), the please feel free to schedule a free initial consultation.

Question Of The Month – July 2010

Issue: Types of alimony and who is entitled.

Question: I am curious about recent amendments to Florida alimony law and whether I am entitled to permanent alimony.   My Husband and I were married for thirteen years.  We are now separated and our two children (11 and 8 years of age) primarily reside with me in the marital home.   During the marriage, I did work except brief periods of maternity leave.  I currently am 40 years of age, have a BS degree in business management, and currently earn approximately $ 50,000 per year.    On my salary and raising two boys, I can barely meet my living and household expenses not to mention child-related expenses.  My Husband is 43 years of age, good health, has a Masters’ Degree in engineering and currently earns about $ 125,000 per year with benefits.  Am I entitled to permanent alimony?  I need support.

Answer: Effective July 1, 2010, recent amendments to Florida’s alimony statute took effect.    In regards to your question, Florida law now defines a long term marriage as 17 years or longer in length; a moderate term as being 7 years but less than 17 years; and a short term as being less than 7 years.   Your marriage falls within the moderate term and permanent alimony may be awarded to you.  For example, you may argue that your Husband has a significantly higher earning capacity than you as well as a higher education level.  Further, you may argue that the most you can earn is $ 50,000 in today’s market whereas your Husband may be able to earn even more than his current level in light of his employment skills.

In the event you are not awarded permanent alimony, Florida law now provides for “durational alimony” which may also be awarded in moderate-term marriages.   Durational alimony is awarded to “provide a party with economic assistance for a set period of time” when permanent alimony may not be appropriate.   Section 61.08(7), Florida Statutes.   I would argue that, in light of your living/ household expenses as well as standard of living expenses, such as grooming, social clubs, entertainment and vacations, you are a candidate for durational alimony.

Another form of alimony is “bridge-the-gap” alimony, which is awarded “to assist a party by providing support to allow the party to make a transition from being married to being single.”  Section 61.08(5), Florida Statutes.         The length of such an award may not exceed two years.  Again, based on the information provided by you, I would argue that you have a claim to permanent alimony, in the alternative, durational alimony for a period of time exceeding more than two years.

The foregoing is not intended as legal advice.  If you are in need of legal advice and/ or more information on the recent amendments to Florida’s alimony statute (section 61.08), the please feel free to schedule a free initial consultation.

Question Of The Month – June 2010

Issue: Division of marital assets (or liabilities).

Question: Is my spouse entitled to the condominium that I purchased with my own funds after we separated? We have been separated for over four years!

Answer: I would argue that you are entitled to an unequal distribution of the condominium and that same should be awarded to you. If you purchased your condominium after you and your spouse separated, but BEFORE either of you filed for divorce, then the condominium is a marital asset subject. According to Florida Law, the starting point for a division of the marital assets and liabilities is an equal (50/50) division, but a lengthy separation is a justification for disparate treatment of any marital asset purchased post-separation.

If you and your spouse have been living separate and apart for over 4 years and have separate households and finances, then I would argue the condominium should be awarded as part of an unequal distribution to you, and that your spouse is not entitled to any portion of the condominium.

Can the Court put a lien on a spouse’s non-marital asset(s) in order to secure a child support or alimony obligation?

Question:    My Wife and I are divorcing.  We were married for twelve (12) years and she was pretty much a stay-at-home mom.  She is seeking both child support and alimony.  I was recently laid off and I remain unemployed.  At the time I was laid off, I was making about $ 50,000.00 per year with benefits.  Although I am hopeful I will find a job, I do not have any certifications or other marketable skills such as computer technology or an ability to speak a foreign language.  I was with my former employer for 12 years and my only skills were acquired on that job.    In order to secure the child support and whatever alimony may be awarded by the court, my Wife is seeking a lien on my non-marital asset (a home that my brother and I inherited about three years ago).    I was told that she has no claim to my share of this Property since it is not a marital asset.  Can the court impose a lien on my share of the Property or any other non-marital asset to secure a support obligation?

Answer:   Under certain circumstances, a court may impose a lien on a spouse’s non-marital property to secure a child support or alimony obligation.   Simply because your Wife was a stay-at-home and you were making $ 50,000 does not automatically result in a lien.  In order for a lien to be imposed on your non-marital asset(s), there must be “special circumstances”.   For example, your Wife may argue that she has limited earning capacities inasmuch as she stayed home to raise the children; that the children are primarily residing with her and are in need of your support; and that you have limited marketable skills and were recent laid off.     In this regard, a lien does not give your Wife an ownership interest but security in the event you are not able to obtain employment any time soon and/ or she is unable to financially provide for the household without your assistance.   

I recommend that you perform a diligent job search, which amounts to at least one job application or interview per day.  As part of the search, I would also recommend that you keep a Journal consisting of the name/ contact information for each prospective employer; the position applied for and rate of pay/ benefits; and any follow up information.   This information may prove useful if you are unable to obtain comparable employment to the $ 50,000 previously earned and to minimize any support obligation.   Let’s say you do find a job but are only able to earn $ 30,000.   If you performed a diligent job search and the highest rate of pay for any one job was approximately $ 30,000, then  you will be able to defend against any claim that you are voluntarily under-employed.  Further, your $ 30,000 level of pay would be applied to the child support guidelines in arriving at your child support obligation (not the rate of $ 50,000).  If you have no available income after you pay your own fixed living expenses and the child support, then I would further argue that you have no ability to pay any alimony.  This may obviate the need for any lien on your non-marital asset(s).