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. 

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:

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;

2. Separate property of the non injured spouse: Includes loss of consortium;

3. 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.

4. 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.