Effective October 1, 2008, Florida Law no longer provides that either parent or both may be designated as the “primary residential” parent (custodian) and the other parent as the “secondary residential”.   If the parties cannot agree, then the Court will establish a “parenting plan” which will set forth a “time sharing arrangement”.  Each case is unique and the amount of time each parent spends with his or her child(ren) may be tailored to fit their particular situation.  For example, parent “A” may have each consecutive Monday and Tuesday overnights; and parent “B” would have each consecutive Wednesday and Thursday overnights; and the parties would then alternate weekends (Friday, Saturday and Sunday overnights).  This would be an example of “equal” time sharing (each parent has 7 overnights per two weeks).

The question is whether the amount of time one parent spends with his or her child(ren) impacts the amount of child support?  Yes.  This aspect of Florida Law has not been changed.  Let’s say parent “B” in the example above has at least 40% of the overnights throughout the year, then his/ her child support obligation would be reduced.  This is called “substantial” parenting time.   Section 61.30, Florida Statutes provides for this reduction in “B’s” child support obligation.

Although neither parent is to be designated as the “primary residential” parent, parents still have disputes over  ”time sharing” because of the impact on child support (among other possible reasons).  Let’s say the parties have been living separate and apart for several months and, during this time, “B” rarely exercised any time sharing with his/ her child(ren).  Assume further that “A” has not concealed the child’s location and has even encouraged “B” to spend time, including overnights, with the child.  Now, “A” files for child support.  In turn, “B” counters with his/ her own petition for the establishment of a parenting plan to include EQUAL time sharing.  One could argue that “B” is fully aware of the impact “substantial” parenting time has on his/ her child support obligation and is, therefore, now asking for additional time with the child.  “A” may consider raising the argument that “B” should have limited overnights with the child so as not to disrupt the child’s routine and that the time sharing should be more reflective of “B’s” historical involvement (or the lack thereof) with the child.

Again, each case is unique.  Parents should try to find some common ground when discussing the terms of their parenting plan.  The concern is always the “best interests” of the child!

Here is a basic Florida parenting plan and a supervised parenting plan.

Situation:

During their Marriage of several years, let’s say 8 years in length, the Husband contributed significant funds from his premarital assets towards the purchase of the parties’ Marital Home.   The Home is titled jointly in both parties’ names as “Husband and Wife”.  Let’s further say that the Wife did not have any assets at the date of marriage and, therefore, the Wife did not contribute any separate, non-marital funds towards the purchase of the marital home.  Further, the Wife did not work during the Marriage except for brief periods of part-time employment and pretty much was a stay-at-home mom raising the parties’ two children.   The parties are now getting a divorce, and among other issues, the Husband claims that the Marital Home should be awarded to him as his separate, non-marital property or that he should receive the Home as part of an UNEQUAL distribution.  

Does the Husband prevail on this issue?

Answer:

Based on the foregoing, probably not.   The Court will first separate out the parties’ non-marital assets from those that are “marital”.  In this case, the Home was purchased during the parties’ marriage and is jointly titled (“tenants by the entireties”, or as “Husband and Wife”).   During the marriage, the parties’ earnings (including the Wife’s part-time employment earnings) were applied towards the mortgage, maintenance, repair and improvement of the Property.   Let’s assume arguendo that the Court finds the Property to be a marital asset.  “All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.”  Section 61.075(6)(a)2., Florida Statutes.

But, is the Husband entitled to an “unequal distribution” of the Marital Home as a result of his acquiring it with his pre-marital (non-marital) funds?   Once the Court identifies the marital assets and liabilities, including the marital home and the mortgage encumbering it, the starting point is an equal division (50- 50).  However, the Court may award an unequal distribution of a marital asset(s) if justified.  In this case, the Court may consider the Husband’s contribution of non-marital funds towards the acquisition of the Home in determining whether the Husband is entitled to an unequal distribution of that asset.  The burden would be on the Husband to prove his entitlement to an unequal distribution. 

Given the facts as stated herein, Florida case law suggests that the Husband will probably not prevail on this argument.   Let’s say the Husband could prove that the purchase of the Home was from a significant contribution of his non-marital funds.   However, the Wife may argue that the Husband’s non-marital funds used towards the purchase of the Home were, in essence, “commingled”, especially in light of the fact that the parties took title to the Property as “Husband and Wife” and, thereafter, both parties contributed to the maintenance and upkeep of the Property.    The Wife may further argue that the Husband’s contribution, as commingled, is untraceable and/ or was a gift from the Husband to the Wife.   Further, even though the mortgage principal was reduced primarily as a result of the Husband’s marital earnings, this does not give him any further legal basis for an unequal distribution.  

One other noteworthy matter.   The parties have two minor children.  Let’s say that the children have lived in the marital home since birth; that the Home is within their school district; and the note/ mortgage payment with taxes and insurance, is “financially feasible” (for example, the monthly mortgage payment including taxes and insurance is relatively affordable and rent for a leased property would be the equivalent cost).   Let’s assume the Husband gets a majority of overnights with the children as part of the parenting plan.  Can the Husband obtain an unequal distribution of the Home in this instance?    A parent may obtain the exclusive use and possession of Home (not ownership) if maintaining the Home as a residence for the children during their minority is desirable and same would otherwise be in their best interests and, further, to do so is “financially feasible”.  Section 61.075(1)(h), Florida Statutes.    The Wife may argue that the Home is the parties’ only significant asset, that it has equity and she is in need of her 1/2 share of the equity to re-establish herself in another residence.   If the Court agrees with the Wife’s position, then the Husband may not be awarded the exclusive use and possession of the Home during the minority of the children (although he may refinance and buy out the Wife’s interest).

Alimony Modification:  “Supportive Relationship”

Situation:        

The Wife was awarded permanent periodic alimony in the initial divorce proceeding.    At the time of the trial, the Husband and Wife had been married for 17 years and had one minor child.  The evidence showed that the Husband, an accountant, was earning a gross annual salary of $ 75,000.    Although the Wife was 47 years of age and in relative good health, she had not worked outside the marital home during the marriage except for brief periods of part-time employment as a child-care provider.   The Court awarded the Wife the amount of $ 2,000 per month as and for permanent periodic alimony until she died or remarried.   Two years after the Final Judgment was entered, the parties’ child turned 18 and graduated from High School.   The Former Wife then commenced living with a male “roommate”.  The Former Husband now seeks to modify or terminate his alimony obligation to his Former Wife based on the allegations that she is living with another person, who is supporting her and she, therefore, is no longer in need of the alimony. 

Argument: 

An award of spousal support (“alimony”) is based on one spouse’s NEED for the support and the other spouse’s ABILITY to pay it.  Let’s assume that the trial court correctly determined that the Former Husband had the ability to pay $ 2,000 per month in light of his earnings; and that the Wife was in need of $ w,000.00 per month permanent periodic alimony based on her then-living expenses and lack of a comparable earning capacity (to that of the Husband) not to mention the length of the marriage.    

Alimony is modifiable.  In order to downward modify or terminate his alimony obligation, the Former Husband will need to prove that a material, permanent and unanticipated substantial change in circumstance has arisen since the date of the Final Judgment.    The Former Husband may prove a substantial change with evidence that his Former Wife is no longer in need of the support because she is in a “supportive relationship”.   The Former Husband will bear the burden of proving that the Former Wife is in a supportive relationship.   Section 61.14(1)(b), Florida Statutes.    

During the discovery phase of this modification proceeding, the Former Husband may inquire of his Former Wife as to the nature and extent of her relationship with the roommate.   Section 61.14(1)(b)2. lists out circumstances the court will consider in determining whether a “supportive relationship” exists, such as:

a.         The extent to which the obligee (here, the Former Wife) and the other person (here, the “roommate”) have held themselves out as a married couple.  By way of example, have they used a common mailing address or referred to themselves as “Husband” and “Wife”?

b.         The period of time the obligee and the other person  have resided together in a permanent place of abode.  By way of example, have they lived together for, let’s say, over one year in his or her home and share the same bedroom?

c.          The extent to which the obligee or the other person have pooled their assets or income.  By way of example, have they deposited their income into a joint checking account and paid common household/ living expenses out of this Account?

d.          The extent to which the obligee or the other person has supported the other, in whole or part.  By way of example, has the other person paid over a relatively significant period of time for the obligee’s living expenses and/ or made major purchases of assets for the obligee (such as a vehicle)?

e.          The extent to which the obligee or the other person has performed valuable services for the other.  By way of example, have they shared in all household chores, such as cooking, cleaning, laundry, etc.? 

f.          The extent to which the obligee or the other person has performed valuable services for the other’s company or employer?  Similar to subparagraph e., above, has the obligee assisted in an employment capacity with the other person’s business without remuneration?

g.          Whether the obligee and the other person have worked together to create or enhance anything of value?  By way of example, has the obligee used her income including alimony to improve the real property of the other person, such as adding a swimming pool or room addition?

h.          Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property?

i.          Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support (similar to a pre-nuptial agreement but without any expressed intention to marry).

j.          Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support?

k.          Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so?

At the time the Former Husband filed this modification proceeding, the Former Wife and her roommate were in an intimate relationship and shared the same bedroom for 18 months.   The evidence further showed that they used their residence as a common mailing address and the address was on their Florida drivers’ licenses.  Although they did not co-mingle their funds into a joint checking account, they did add the other onto their respective checking accounts as a signer.   The Former Wife only works part time, and her roommate pays for a majority of the household living expenses including the rent, utilities, cable, telephone and food.  Further, they purchased a vehicle which is held in joint names.   In light of these circumstances, the Former Husband may prevail upon the court as to the existence of a “supportive relationship”, of which “ . . . provide[s] economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances . . .   .”  Section 61.14(1)(b)3., Florida Statutes.

Remember, each case is unique and stands on its own facts.  No litmus test exists in determining whether a “supportive relationship” exists.