Miami family law attorney blog
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Divorce
Posted by Nydia Streets of Streets Law in Florida Divorce
An agreement or order is only as good as the ability to enforce it. In a Florida divorce, parties may enter a settlement agreement. Both parties usually intend to honor the terms of the agreement and make certain promises in good faith reliance on the other party's compliance with the agreement. When a party does not uphold his or her part of the contract, the court must intervene to force compliance in most cases.
Posted by Nydia Streets of Streets Law in Florida Divorce
Commingling refers to what happens when non-marital funds are mixed with marital funds. Commingled money, in most cases, makes the non-marital funds marital since it is presumed the spouse intended to gift the money to the other party. As we see in the case Knecht v. Palmer, 5D17-533 (Fla. 5th DCA 2018), however, a Florida court's powers of equity can overcome this gift presumption.
Posted by Nydia Streets of Streets Law in Florida Divorce
Requiring a paying party to maintain life insurance to secure an alimony or child support award is subject to the court making certain findings. Ultimately, a party cannot be forced to maintain life insurance that is not affordable, nor can a party be made to pay for insurance coverage that does not match the amount to be secured.
Posted by Nydia Streets of Streets Law in Miami Divorce
Before you file your Miami divorce case, you want to make sure a court has jurisdiction to enter a final judgment. Otherwise, you may spend a lot of time and money only to find at the end that all of it was for nothing because the court has no power to sign a final judgment. How do you know if the court has jurisdiction?
Posted by Nydia Streets of Streets Law in Miami Divorce
Generally, property purchased during marriage in Florida is considered marital property and both spouses may have a claim to that property. Title to the property is not controlling - meaning an asset that was purchased during the marriage but titled only in one spouse's name does not mean the asset belongs to the titled spouse alone. As seen in the appellate case Lopez v. Hernandez, 4D17-3495 (Fla. 4th DCA 2018), the court must make specific findings if it decides to award one spouse an asset purchased during the marriage.
Posted by Nydia Streets of Streets Law in Florida Divorce
Divorce can be expensive when you consider changed living arrangements and attorneys' fees. There may now be two attorneys to pay and two separate households to support. For that reason, while the parties may have savings or other bank accounts at the time of filing for divorce, those accounts may be depleted by the time a case goes to trial. According to the appellate case Bellows v. Bellows, 4D16-3745 (Fla. 4th DCA 2018), the court is required to treat the depletion of those assets a certain way.
Posted by Nydia Streets of Streets Law in Florida Divorce
Sometimes, believe it or not, the court gets it wrong and errors must be corrected on appeal as was the case in Davis v. Davis, 4D17-1644 (Fla. 4th DCA 2018). In a Florida divorce case, a court is required to make certain findings related to equitable distribution, child support, alimony and child custody. In the Davis case, the trial court failed to make certain findings on multiple issues, resulting in the appellate court having to reverse the final judgment.
Posted by Nydia Streets of Streets Law in Florida Divorce
While Florida law states a court has discretion in awarding temporary relief, that discretion can be abused and is subject to review. In De La Piedra v. De La Piedra, 1D17-3203 (Fla. 1st DCA 2018), the husband appealed an order requiring him to pay temporary alimony, child support and attorneys' fees, and he won.
Posted by Nydia Streets of Streets Law in Florida Divorce
Entering a Florida marital settlement agreement is one of the best ways to save money and time, while resolving your case on terms that you can live with. To avoid expense that may be incurred as a result of unclear terms in your agreement, studying real appellate cases helps to avoid the pitfalls others have encountered in not including certain terms in their agreement. One such case is Kirschner v. Kirschner, 4D17-851 (Fla. 4th DCA 2018).
Posted by Nydia Streets of Streets Law in Florida Divorce
The future may be unpredictable, which is why it is good that Florida divorce courts are guided by principles of equity. When parties enter a Florida divorce agreement, they agree, as much as possible, based on the circumstances they can foresee at that time. It is difficult, if not impossible, to plan for every possible future outcome, so Florida law allows room for this difficulty in considering how to interpret provisions of a marital settlement agreement.
Posted by Nydia Streets of Streets Law in Florida Divorce
Time and time again, we see the effect of not having clear provisions in a marital settlement agreement. When parties disagree as to the meaning of a provision of an agreement, it becomes necessary for the court to intervene in interpretation. If the provision of the agreement is clear and unambiguous, the court must interpret the provision as written. Otherwise, the court is permitted to review evidence to determine the parties' intent in the wording used.
Posted by Nydia Streets of Streets Law in Florida Divorce
Words matter in Florida marital settlement agreements because the court must enforce the agreement exactly as written. Therefore, it is important that you say what you mean, and mean what you say in your contract.
Posted by Nydia Streets of Streets Law in Florida Divorce
A common issue in many Miami divorce cases deals with calculating alimony when a spouse is underemployed or unemployed. This issue was on appeal in the case Dottaviano v. Dottaviano, 219 So.3d 990 (Fla. 5th DCA 2017) where the wife objected to the court imputing income to her and rejecting some of her monthly expenses.
Posted by Nydia Streets of Streets Law in Florida Divorce
A common issue when it comes to self-employed parties is difficulty in ascertaining the party's income. When it comes to calculating child support and/or alimony, a Florida family court can impute income to a party who is found to be under reporting income. Such was the case in Newman v. Newman, 221 So.3d 642 (Fla. 4th DCA 2017) where the wife appealed the trial court's denial of alimony.
Posted by Nydia Streets of Streets Law in Florida Divorce
Attorneys' fees may be a sore spot for some parties in a Miami divorce and it seems they keep coming up in recent appellate decisions. Generally, the analysis for who pays attorneys' fees and costs in a Florida divorce revolves around need and ability to pay - that is the need of the spouse asking for fees to be paid and the ability of the other spouse to pay them. In the case Richards v. Weber, 221 So.3d 714 (Fla. 2d DCA 2017), a court's decision to make the husband responsible for 70% of the wife's attorneys' fees and costs is reviewed.
Posted by Nydia Streets of Streets Law in Florida Divorce
While divorce itself can be an unfortunate event, the rift that can sometimes occur in families as a result of the divorce is just as unfortunate. Take the case of Martinez v. Martinez, 219 So.3d 259 (Fla. 5th DCA 2017) where the wife had to also sue her adult stepson as part of the divorce case because she alleged her husband was transferring marital assets to his son in an effort to deprive her of them.
Posted by Nydia Streets of Streets Law in Florida Divorce
Equalizing payments are ordered in Florida divorces when a party is awarded certain assets that may not be capable of immediate liquidation. In the case of a house, for example, if one spouse is awarded the house and that award in light of all other equitable distribution in the case provides for an inequitable split of the marital estate, the spouse keeping the house would owe the other spouse an equalizing payment to cover the other spouse's share of equity in the marital estate. If this is ordered, the court must make sure certain parameters are covered in ordering the payment.
Posted by Nydia Streets of Streets Law in Florida Divorce
A Florida divorce can be expensive when you consider attorneys' fees and fees spent on experts such as forensic accountants, vocational evaluators, etc. For this reason, parties sometimes agree to sell marital assets and split the proceeds even before the divorce is finalized so that each can free up cash to pay for the divorce proceedings. The parties in the case Rosaler v. Rosaler, 219 So.3d 840 (Fla. 4th DCA 2017) agreed to do just that with a pricey diamond, but how the court classified the proceeds of the sale at the end of the case brought on disagreement.
Posted by Nydia Streets of Streets Law in Florida Divorce
Parties involved in a dissolution of marriage case in Miami should be aware that a local administrative rule is in place which generally requires the parties to maintain a financial status quo with some exceptions. This essentially means a party cannot pull the financial rug from under the other party, so-to-speak, until there is a court order entered stating otherwise. Part of the financial status quo may include joint bank accounts. The case Gotro v. Gotro, 218 So.3d 494 (Fla. 1st DCA 2017) shows us how Florida family courts handle funds in a joint account that have been spent during a pending divorce case.
Posted by Nydia Streets of Streets Law in Divorce
A recent appellate case shows us once again in a Florida divorce how the court determines who pays attorneys' fees and costs. The basic standard for making this decision is need and ability to pay - the need of the spouse requesting fees to be paid and the ability of the other spouse to pay them. In Hanson v. Hanson, 217 So.3d 1165 (Fla. 2d DCA 2017), we review a court's decision to order the husband to pay over $80,000 to the wife for her attorneys' fees and costs.
