Florida Family Law, Divorce, & Child Support Blog

Identity Theft By A Spouse?

2011-08-18T16:11:00.000-07:00

When we think of identity theft, we typically think in terms of some unknown person utilizing our private information for personal gain. What about when your wife or husband misappropriates your information without your knowledge or consent and opens lines of credit in your name. If you report it to the police, chances are you will be told "There's nothing we can do for you sir, she's your wife." What do you do?

Well, I've had several cases over the years where clients have come to me totally frustrated because they are now on the hook to a creditor for charges, cash advances or purchases they did not make or authorize. In some instances, they've even been sued and now are embroiled in a lawsuit they must defend! We can address the fraud in a limited aspect in the divorce. The reality is the divorce Judge can do little in terms of the third party creditor. My first piece of advice to anyone facing this kind of a situation is to send a certified letter to Experian, Equifax and Transunion asking them each to put a security freeze on your credit. If you are a victim of identity theft, then there is no fee for this service. It is well worth the peace of mind of knowing there will be no further credit transactions allowed. Make sure you include your name, date of birth, social security number, address, addresses where you have lived for the past 2 years and the fee for the service. You will be allowed to seal your credit reports and be issued a personal identification number that you can use to temporarily access your credit to make legitimate applications for credit.

Feel free to contact me if you need further assistance with an identity theft issue. Call 407-898-3150 or go to my website: Family Law and Orlando Divorce Attorney

Know Your Judge

2011-07-30T16:09:00.000-07:00

Know your judge. It's a simple statement but it is perhaps more important in marital and family law than in any other area of the law. This is so because so much of what a judge can do by way of a ruling is based upon what we call "judicial discretion." Judicial discretion is nothing more than the power a judge has to do justice or equity as he or she sees fit within the parameters of the law and rules of procedure. Unfortunately, there are few bright line laws or guidelines in family and marital law. Most of what a judge is called upon to decide is ultimately subjective. Therefore, it becomes critical for your attorney to know the judge assigned to your case. Judges are people like the rest of us. Their subjective opinion or view of what is reasonable, wrong or right in family law is shaped by their own beliefs and life experiences. Having a judge decide any outcome in your case, whether on a temporary or permanent basis, is not ultimately what you should want. However, the hard facts are that some times despite all best efforts to settle issues and avoid a hearing or trial, it simply cannot be done and a judge must decide. Your attorney should be able to tell you about the judge assigned to your case, his or her experiences with that judge as well as that judge's predispositions and personal biases before you ever commit to having a judge decide any issue in your case. A very wise judge once told me, "A good attorney knows the law, a great attorney knows the judge."

Child Support Changes

2011-05-23T12:03:00.000-07:00

Effective October 1, 2010, there were much needed changes to child support orders. Many of you either pay or receive child support through an employer wage deduction. The Order mandating an employer to deduct child support is called an Income Deduction Order (IDO). All support orders must now provide:

a. For child support to terminate on a child's 18th birthday unless otherwise agreed to by the parties;

b. A schedule stating the amount of the monthly child support obligation for all the minor children at the time of the order and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to receive child support; and

c. The month, day, and year that the reduction or termination of child support becomes effective.

There are 2 other important changes in terms of how we calculate child support which took effect on January 1, 2011:

1. Substantial time-sharing adjustment:

The number of overnights a child spends with each parent are utilized in the child support guidelines. The theory has always been that the more time a child spends with one parent over the other, the more expense that child is to that parent for basic necessities of life and therefore, the more support the parent with less time sharing should be paying to the parent who has the child more of the time. It used to be that substantial time sharing was defined as a parent having 40% or more (146 nights or more) of the calendar year overnights with a child. No more. The new law changes have reduced the substantial time sharing from 40% to 20% or more of the calendar year overnights. This is important to each parent in terms of how many actual child support dollars will flow from one parent to the other for the use of the child. The 25% discount on day care to the paying parent has also been eliminated, thus leveling the playing field even further.

2. Imputation of Income to an unemployed or underemployed parent:

It is always a task dealing with determining the income to be used for the underemployed or unemployed parent. The law now provides a more bright line test and application for those parents who are under or unemployed.

Income shall now be automatically imputed. There is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census when:

a) Information concerning a parent's income is unavailable;

b) a parent fails to participate in a child support proceeding, or

c) a parent fails to supply adequate financial information in a child support proceeding.

In order for the court to impute income at an amount other than the median income of year-round full-time workers, the court must make specific findings of fact which are legal reasons for doing so. The party seeking to impute income has the burden to prove by competent, substantial evidence that:

a. The unemployment or underemployment is voluntary; and

b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties' time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

Except as set forth in above paragraph income may not be imputed based upon:

a. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or

b. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties' existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

The above may sound a little complicated and it can be; however, if you are faced with support being attempted to be set or modified and you or the other parent are either unemployed or underemployed, you need the advice of an attorney. Let me know if I can help and I'll be glad to in any way I can.

CHANGES TO ALIMONY LAWS

2010-07-20T14:59:00.000-07:00

Florida Statute 61.08 is the alimony statute for Florida. Governor Christ recently signed legislation which made significant changes which may affect you. These changes took effect on July 1, 2010 and apply to all cases filed and undisposed of as well as all new filings. What follows is a rather long blog, but if you are facing divorce or have been ordered to pay alimony, it is important that you read what follows. If you need any further help or want discussion about how these law changes affect you, please call my office at (407) 898-3150 and schedule a confidential appointment to discuss your case in detail.

Legislative changes:

Length of marriages now defined
The alimony statute now provides for the following presumptions: a short term marriage is one of less than 7 years in length, a moderate term marriage is one of 7 years but less than 17, and a long term marriage is one of 17 years or greater. This is huge since we now have a bright line application to follow to assist in determination of what exactly is a short, moderate or long term marriage. This is also important in terms of determining what type of alimony, if any, is appropriate.

Types of alimony now defined
The legislation also now sets forth 4 different types of alimony in Florida that a Court may award. They are as follows: 1) Bridge-the-gap alimony: designed for short or moderate term marriages, to assist the lower income earning spouse in transitioning from married life to single life, is of a duration of not more than 2 years and is non-modifiable. 2) Rehabilitative alimony: designed for short to moderate term marriages, to help the lower income earning spouse up-date his or her skills, education and credentials or obtain new education, skills or credentials, for a term of years which can be modified upon a substantial change of circumstances. 3) Durational alimony: when permanent alimony is not appropriate, to assist the lower income earning spouse to meeting day to day living expenses, the duration can be no longer than the marriage, term of the award cannot be modified unless exceptional circumstances exist but you can modify the amount by showing a substantial change in circumstances. 4) Permanent alimony: designed for a long term marriage to assist the lower income earning spouse in meeting expenses to maintain standard of living as established during the marriage, the duration and amount is modifiable upon a showing of a substantial change in circumstances and the term of the award is until the recipient spouse dies, remarries or is in a supportive relationship.

Factors used in considering if alimony appropriate
F.S. 61.08 also sets forth several factors that a court is to consider in determining whether there is an entitlement to alimony. They are as follows: a) the need of the recipient spouse and the ability to pay of the payor spouse; b) adultery; c) standard of living established, d) duration of the marriage; e) ages and health of the parties, f) financial resources of the parties; g) education, training and employability of the parties; h) contributions of each party to the marriage; i) responsibilities during marriage to the children; j) tax treatment of the alimony award; k) all sources of income; and l) any other factor the court needs to consider to do fairness between the parties.

How is amount determined?
Unlike child support, there's no magic formula or way to determine the amount of alimony once an entitlement has been found. Generally, Courts take into consideration each party's incomes from all sources, financial resources available to them and reasonable expenses before settling upon an amount. What I tell people is that if one spouse makes in excess of twice the income of the other spouse, then we need to analyze your case in detail to determine what exposure, if any, there is to an alimony award. I've been practicing family and marital law for over 18 years and have tried many alimony cases over the years. I know the law and have the experience to tell you what you can expect from local judges. A well-respected local judge once told me, "A good lawyer knows the law, a great lawyer knows his judge." Since so much of Marital and Family Law is judicial discretion, this statement rings very true.

Why do people divorce?

2010-07-20T12:22:00.000-07:00

"When two people decide to get a divorce, it isn't a sign that they don't understand one another, but a sign that they have at last begun to". Helen Rowland, Author

There are many reasons people decide to get a divorce. Does "Men are from Mars, women are from Venus" belong on the list? Probably, but breaking that down further leads to an interesting look into the causes of divorce.
Most problems in a successful marriage don't get resolved through arguing, instead they get managed through compromise. In a marriage filled with stress however winning your argument is the tactic most often used. Up to 60% of respondents in a survey taken by marriage researchers in England claim failure to resolve key problems were the number one reason people divorced.

Marriage infidelity among men is high on the list as well. 25% of men report having at least one affair in their marriage.

Poor Communication: Money is the one thing that people say they argue about most in marriage, followed by children (Stanley & Markman, 1997). But, of greater importance is not what people argue about but rather how they argue. Communication between you and your partner regarding a disagreement must be resolved through negotiation and compromise. Winning an argument cannot be viewed by a spouse as a victory.

Certainly there are numerous reasons for divorce not mentioned above: religion, interference by third parties, differences in culture, intimacy issues, drug and alcohol use, money and careers to name only a few.

When the decision is made that the married couple would lead happier more productive lives if they were not together, a divorce handled by a competent experienced attorney will help make the dissolution of the marriage as painless as possible.