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.

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.