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.
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.
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.
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:
- 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;
- Separate property of the non injured spouse: Includes loss of consortium;
- 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.
- Effect of commingling of settlement award.
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.
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.
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.”
A party many times cannot understand why they have to pay attorney’s fees to the other side in a family law matter. As previously stated in blogs on this website, there are ways on a dissolution action or any other action and under Chapter 61 that makes it equitable for a party to pay attorney’s fees. We may not like it, but it is in the law. Many times, however, one party goes crazy with the litigation. They basically fly off the handle and are not reasonable because they believe the other side will have to pay the attorney’s fees anyway. This is called “vexatious litigation”. A party’s behavior may be used to limit/reduce the fees requested or support an award of fees. Pursuant to §61.16 Florida Statutes the Court may not award fees, suit money or costs to a non-compliant party. The Court may consider violations of Court Orders as the basis for limiting or denying a fee award regardless of need and ability to pay. A party’s financial circumstances should not shield them from paying their own fees and possibly the other party’s fees when having engaged in frivolous litigation.
Military divorces have special considerations. For example, in a military divorce, a spouse can go directly to a service member’s commanding officer to get support. Usually a commanding officer will give some support to a spouse until a temporary needs hearing or a Judge orders a certain amount. Obviously on a service member’s LES, they do get extra money for a spouse or a dependent. Sometimes however, a spouse will attempt to get more than their allotted share. There are many other issues regarding a military divorce, but probably the most complicated and misunderstood is retirement. Many people believe that the non-military spouse is not entitled to any retirement until they have been married 10 years. This is absolutely incorrect. The non-military spouse is entitled to 50% of the marital share of the service member’s retirement no matter how long they are married.
Occasionally a non-parent will get some type of Temporary Order gaining custody of a minor child. This happens many times in dependency actions or when someone is charged of a crime or other situations where the child is better to be with a person not that child’s parent. When there has been an Order making another person the guardian or giving that other person temporary custody, a parent can get custody back. The natural parent must be shown to be a “fit parent” to terminate or modify the Temporary Custody Order. The standard can be found in Florida Statute 751.05, Temporary Custody of Minor Children by Extended Family: 751.05(6) “At any time, either or both of the child’s parents may petition the Court to modify or terminate the Order granting temporary custody. The Court shall terminate the Order upon finding that the parent is a fit parent, or by consent of the parties. The Court may modify an Order granting temporary custody if the parties consent or if modification is in the best interest of the child.”