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Is it lawful for a court to excuse an arrearage from past due child support to the date when the children respectfully reach the age of majority rather than the date of filing the petition to modify?

Posted on Thu, Apr 27, 2017

 

Is it lawful for a court to excuse an arrearage from past due child support to the date when the children respectfully reach the age of majority rather than the date of filing the petition to modify?

A hypothetical situation: Client made unsuccessful attempts to modify his child support obligation at the time each of the three children involved reached the age of majority. While a petition to modify the child support amounts should have been filed earlier, the law does not preclude the court from excusing the support arrearages that have recently accumulated. These arrearages only recently began to accumulate and all the arrearages are for children that have attained the age of majority. The language of the final judgment clearly indicates it was not the trial court’s intention, at that time, for respondent to still be paying support for the children. 

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Child Custody & Psychotherapist Patient Privilege

Posted on Mon, Mar 27, 2017

Can a parent in a time sharing modification proceeding waive their minor child’s psychotherapist patient privilege and if an exception to the psychotherapist patient privilege exists when there is an ongoing social investigation involving time share with the minor child?

Florida statute 90.503 concerns the psychotherapist patient privilege. One applicable definition of a psychotherapist is “a person licensed or certified as a…family therapist, or mental health counselor under the laws of this state, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition…” “A ‘patient’ is a person who consults, or is interviewed by, a psychotherapist for purposes of diagnosis or treatment of a mental or emotional condition…” A communication between a psychotherapist and a patient is generally confidential. A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition between the patient and a psychotherapist. 90.503(2), Florida statutes (2013). The privilege may be claimed by, among others, the patient or guardian of the patient. There is no privilege in the course of a court ordered examination of the mental or emotional condition of the patient. 90.503, Florida statutes.

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Alimony & Standard of Living

Posted on Fri, Feb 17, 2017

When calculating alimony, should the former wife’s standard of living be based upon income that the former husband began earning after the marriage has ended or upon the income of the former husband earned during the marriage?

The purpose of alimony is well settled in Florida, to provide the needs and necessities of life to a former spouse as they were established by the marriage of the parties.  It follows that in fixing the amount of support payments, the standard of living to be used is that last shared by the spouses during the marriage. 

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In-Kind Payments

Posted on Fri, Feb 03, 2017

When determining income for support, whether it is child support of alimony or whatever, the Court’s look to all sources of income. You have the normal sources of income which are easily identifiable, such as W-2 type salary, hourly rates etc. Overtime also gets included in income especially if it is a consistent reoccurring overtime that a person gets every week, or month, what have you. Things get a little trickier when the income originates from disability sources or from family members. There’s actually of law out there that says that if you get a consistent payment from a family member, that can possibly be included as income for Court purposes. This Blog is specifically about what is called “in-kind” income. Basically, if you get a car free and clear from your company that you do not have to pay for, the Court most likely will consider that as an income source and put a value on that. 

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Emergency Motions During Divorce

Posted on Tue, Jan 24, 2017

Emergency motions

Florida court allows the trial court to enter temporary emergency modifications to post dissolution time sharing orders. In any chapter 61 action involving children, the court is authorized to enter an emergency temporary order on its own motion if the court deems the order necessary to protect the child. For example, if the court, in a proceeding, initiated to enforce time sharing perceives that the movements, conduct while spending time with the party’s child may be harmful to the child, the court may modify the final judgment and restrict time sharing on its own motion. However, the modification may only be temporary, pending a full evidentiary hearing. Longo versus Longo. 

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Recording Another Person in the State of Florida

Posted on Mon, Jan 23, 2017

Is it legal to record another person in the state of Florida without their consent? As always, with any law, everything is grey. For the most part, this is not a practice I would engage in. Recording someone without their consent, if done improperly, is actually a crime in the state of Florida. Florida statutes prohibit the use of recorded communications obtained without the consent of both parties involved, and case law is clear that such unlawful recordings are not admissible in hearings involving domestic relations. Different states, do allow this, however, so don’t be confused. Just because one state allows it doesn’t mean that Florida will. When judging whether a recording is allowed, the court will look to “an expectation of privacy.” This has been defined as “an expectation of privacy does not contemplate merely a subjective expectation on the part of the person making the uttered oral communication, but rather contemplates a reasonable expectation of privacy.

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How Does A Personal Injury Settlement Affect Equitable Distribution?

Posted on Thu, Jan 19, 2017

The court should take an “analytical approach” to look at the nature of a Worker’s Compensation or personal injury damage award to determine whether property is separate, belonging to one of the spouses, or marital property subject to distribution. Under this approach, the damage award is allocated in accordance with the following:

  1. Separate property of the injured spouse: Includes the non economic compensatory damages for pain, suffering, disability, and loss of ability to lead a normal life and the economic damages which occur subsequent to the termination of the marriage of the parties, including the amount of the award for loss of future wages and future medical expenses;
  1. Separate property of the non injured spouse: Includes loss of consortium;
  1. Marital property subject to distribution: Includes the amount of the award for lost wages or lost earning capacity during the marriage of the parties and medical expenses paid out of the marital funds during the marriage.
  1. Effect of commingling of settlement award.
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The Rights of a Legal (Not Biological) Father in a Dissolution of Marriage

Posted on Mon, Jan 16, 2017

If a person who has been acting as the father of a child, even though the child is not biologically his and non-biological father is married to the mother, the facts of the case comes into play. It basically depends on how long the nonbiological “father” has been acting in the capacity as a father. The doctrine of equitable estoppel precludes a person from maintaining inconsistent positions to the detriment of others. Equitable estoppel may preclude a husband from avoiding support of a child who is not biologically his child. The doctrine may also preclude a wife from denying her husband’s paternity. A court may estop the wife from denying her husband’s paternity after accepting the benefits of marriage, including the husband’s financial and emotional support of the child.

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Domestice Violence & Injuctions

Posted on Mon, Jan 02, 2017

The State of Florida takes domestic violence seriously, as it should. But, too often in a family law or divorce case, Injunctions are used as tools to help one person in litigation. This blog is not intended to lessen the importance of protecting people who are truly being abused. It is a fact, however, that Injunction Court is used by people who are not being abused many times just to get an edge in litigation specifically and especially if there are custody issues involved. In order to file a Petition for an Injunction, the petitioner must be a victim of domestic violence or be in imminent danger of becoming a victim of domestic violence. This is found under Florida Statute 741.30. Domestic violence includes: any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking (including cyberstalking), aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death of one family or household member by another family or household member.

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VA Disability & Child Support

Posted on Tue, Dec 27, 2016

Florida law requires courts to include VA disability benefits received by a party when calculating child support.  Florida statutes 61.30 specifically enumerates “disability benefits” to be included as “gross income:”  (2) income shall be determined on a monthly basis for each parent as follows:  (a) gross income shall include, but is not limited to, the following:  (4) disability benefits.

In Maslow vs. Edwards, an appellate court specifically ruled on this issue, and found that Veteran’s disability benefits should be included in child support calculations.  The Maslow court further specified the proper procedure for cases where VA disability benefits are paid directly to a minor child, as well as to the other parent.  “When a parent is receiving Social Security disability due to the disability and, as a result, his or her children receive independent benefits, the total benefits received by or on behalf of that parent are attributed to the disabled parent as income in the child support guideline calculation.  The dependent benefits are then credited toward the disabled parent’s obligation, that is, they are a payment of the obligation on behalf of the disabled parent.  If the benefits are less than the support obligation, the disabled parent must pay the difference.  If they are more, the benefits pay the obligation in full, but any excess INAUDIBLE to the benefit of the children.”

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