The Marks Law Firm Blog and New Updates
Does Child Support Automatically End When a Child Turns 18 Years of Age?
Answer: It depends.
Section 743.07(2) Florida Statutes, states:
“This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.”
Additionally, § 61.13 Florida Statutes, states:
1. All child support orders and income deduction orders entered on or after October 1, 2010, must provide:
a. For child support to terminate on a child’s 18th birthday unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to by the parties;
b. A schedule, based on the record existing at the time of the order, 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.
However, many support orders entered prior to October 1, 2010, provide for a “lump sum” of child support for multiple children. For example, if a support order only states that the obligor parent must pay $1,200.00 per month in support for the parties’ three (3) minor children, this order provides for a lump sum of child support. As such, the obligor parent would have the affirmative duty to seek a reduction as each child reaches majority.
Furthermore, even when a child support order allocates the amount of support per child but does not have a specified termination date, the trial court can retroactively terminate child support based on the emancipation of a child prior to the date such relief is requested. Thus, while the obligor parent must still request the court modify the child support amount, the court has the authority to do so retroactive to the date the child reached majority. As a result, the obligor parent may be able to receive a credit for “overpayment” of child support.
What About a Post-Nup Marital Agreement?
Everyone is familiar with at least the general idea of a pre-nuptial agreement—a contract you enter before your marriage that governs what will happen to certain assets and liabilities if things don’t work out.
But did you know you can still take advantage of those same protections AFTER you say “I do?”
Florida law allows married parties to enter into a post-nuptial agreement—a contract after you’ve been married that has basically the same impact as a pre-nup would. Most people don’t consider this option, either because of taboo or because they simply don’t know it exists. However, a post-nuptial agreement can be a great way to alleviate financial concerns that arise after your wedding day.
How to Avoid Divorce – Part I
Wow! This seems like a strange topic coming from a Family Law Attorney who has practiced law for over 25 years and who has handled hundreds of Family Law Cases. including Divorce which in Florida is known as Dissolution of Marriage. However, who would be in a better position to have seen so many of the causes of Divorce.
Not getting married, although one option, is not the answer either because the impecunious “significant other” in the “living together” arrangement misses out on many of the protections otherwise afforded them under Chapter 61 of the Florida Statutes had they been married. They get no alimony, spousal support, or Equitable Distribution rights.
So starting with the assumption of being married, which I am actually a strong proponent of, how do you avoid divorce after you are married? Obviously, this is a huge topic which hundreds of books if not more have been written, seminars given and counseling sought. All of those are good and are certainly part of the answer. The Attorneys at The Marks Law Firm, P.A. regularly encourage reconciliation in the right circumstances when done correctly and safely. We have a list of excellent Christian Counselors and others we can refer our clients to.
So you are married-what now?
But how do you avoid getting to the point of having to walk into a Divorce Lawyer’s office in the first place? The following is certainly not an exhaustive list and so should be considered instructive and a good starting place. Let’s begin with the assumption that you have taken the time to really get to know your potential spouse by building on a solid friendship and not just a lot of emotion and feelings that will fade over time. Let’s also assume that you have common goals and beliefs going into the marriage as a foundation. Now let’s assume you are married and facing a myriad of stressors and temptations around you at work, in social settings and from your past.
Danger-danger: the Internet?
Let’s work our way backwards here starting with your past and working our way forward. I have come to see the Internet and Social Networks, like Facebook, as the most significant current threat to marriages. How’s that? Well of course it starts at home. If you are not connecting and spending time growing together with your spouse, they may seek out affirmation in a former relationship from college, high school or other setting, like work. I can’t tell you how many Divorces I’ve seen where one of the spouses felt neglected and sought out affirmation or simply a connection from someone in their past. For some reason former high school sweethearts end up being the most frequent choice I see. Maybe it is about reliving our past and glorifying how wonderful a former relationship was when we are in the midst of bills, kids, jobs and all the other real life stressors.
It is easy to fall into this trap when you are feeling unappreciated, under stress and alone. I can tell you the grass is not greener on the other side of the hill. All the statistics bear this out. If about 50% of first marriages end in divorce, the percentage of failed marriages increases with each subsequent remarriage, i.e. 2nd, 3rd and 4th marriages until about 90% of 4th marriages fail. And yes, I see those too.
So what’s the Answer?
So stay connected, spend time with each other, grow in the same direction together, develop or enhance your shared beliefs and remember and reaffirm your wedding vows regularly in deed and in word. I am out of space here and so will have to get to the next major observation from my practice to help you avoid divorce. You may be asking why someone who handles divorces and whose Firm handles exclusively Family Law related matters from Adoption, Alimony, Custody, Enforcement, Modifications, Paternity, Domestic Violence Injunctions to Divorce, would write a blog to help people avoid having to see a Divorce Lawyer?
I’ve always said I want to be able to come home at night and look my Wife and Kids in the eye and say I helped someone today. I want to act with integrity and my own personal beliefs based on sound principals to do what is right and to help people in any way I can. Whether you have to walk into my office for help or whether I can help you avoid the trauma of Divorce or maybe at least help the Parties avoid damaging their kids by lowering conflict and seeking what is in the best interest of the minor children.
How Do I Get Alimony During My Divorce?
Florida Statute 61.071- Alimony Pendente Lite (aka Temporary Alimony); Suit Money
“In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor. If a party in any proceeding for dissolution of marriage claims alimony or suit money in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefor.”
Often times there is a great disparity in incomes between spouses. This becomes even more apparent once a Petition for Dissolution is filed, and the spouse with the greater earnings, refuses to support the other spouse. To assist the spouse with the lesser of the two incomes from becoming destitute, one spouse may be ordered to provide necessary support for the other spouse while dissolution proceedings are ongoing.
The criteria for ordering such alimony are the need of one spouse and the other’s spouses to pay. The obligation to support one’s spouse if able is imposed by law while the marriage is still in existence and not extinguishable by contract or conduct.
Thus, while the parties can contract away post dissolution support by executing a prenuptial agreement, any agreement waiving temporary support prior to the entry of the Final Judgment is void. The procedural requisites for temporary support orders are not as demanding as a permanent alimony order would necessitate. This is due to the fact the one of the spouses may need immediate support prior to the completion of mandatory disclosure.
Health Issues, Medical Care, Health Insurance and Divorce
As the pink ribbons blanketing Central Florida reflect, October is Breast Cancer Awareness Month! Like most of you, The Marks Law Firm has been touched by the destructive impact breast cancer can have, both on a family’s personal relationship and its finances. That’s why we wanted to take this opportunity to remind our extended family (you guys!) that Florida’s Statutes governing family law are aware of, and make provision for, the costs that accompany breast cancer and other medical struggles you might face.
Unfortunately, the development of significant medical issues can leave a family or individual in financial straits. Medical issues normally arise unexpectedly, putting an unplanned strain on finances that can be difficult to overcome. If you are a spouse preparing for a divorce, or a former spouse who faces growing medical bills, you are not alone.
No parent should have to make healthcare decisions for herself or her children based solely on the cost of the care involved. If you’re struggling with these costs and worried that your family may not be able to get the care it needs, call The Marks Law Firm to schedule a consultation and discuss your options.
Is One Party’s Student Loan Acquired During the Marriage a Marital Asset?
Yes! Even a student loan debt incurred during the marriage by one party is considered a marital asset under Florida Law. Due to its classification, as a marital asset, the student loan debt is subject to equitable distribution between parties.
A student loan debt can be unequally distributed only with sufficient factual findings to advise the parties or the reviewing court of the trail court’s reasoning and rationale for the unequal distribution.
Despite a frequent argument that one should not be required to pay the other’s student loan debt because of the benefit gleaned from the education; that alone is not a factor to be considered when allocating the student loan debt.
Furthermore, controlling Florida case law forbids a trial court from awarding the student loan debt incurred during the marriage solely to one party or the other. However, if the student loan debt was incurred prior to the marriage it is non-marital therefore remains with the indebted party and is not subject to equitable distribution.
If you have any questions regarding the above as it relates to your case, either submit an online inquiry for a consult or call The Mark’s Law Firm at 407.872.3161.
When Does My Spouse Get Rights to My Property in Marriage?
Florida Statute 61.075 controls how the parties’ assets and liabilities are to be distributed. As previously discussed, the court must first determine which assets and liabilities are classified as “marital” (see previous blog for more information on this topic).
Upon said identification, the Courts must begin with the premise that distribution should be equal, unless there is justification for same. The statute provides factors for the Court’s consideration for an unequal division of the marital assets and liabilities as follows:
- Contributions to the marriage by both parties, including care of both the children and the home.
- The economic circumstances of both parties.
- The duration of the marriage.
- Any interruption of personal careers or educational opportunities of either party.
- The contributions from one spouse to the other spouse’s career or educational opportunities.
- The desirability of retaining any assets, including an interest in a business, corporation or professional practice, intact and free from any claim or interference from the other party.
- The contributions of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and non-marital assets of the parties.
- The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or the party, and it is financially feasibly for the parties to maintain the residences. In making this decision, the court will examine whether it is in the best interest of the dependent child to remain in the marital home; and, if not, it will look at whether other equities would be served by giving one party exclusively use and possession of the marital home.
- The intentional dissipation, waste, depletion, or destruction of marital assets after filing of the petition or within 2 years prior to the filing of the petition.
- Any other factors necessary to do equity and justice between parties.
The date for determining the assets and liabilities as marital is the earliest of: the parties’ entry of a valid separation agreement, a date agreed upon by both the parties, or date of filing a petition for dissolution of marriage. The value of said assets and liabilities is to the judge’s discretion as to what is just and equitable under the circumstances. In many cases, the valuation date of marital assets is as close to the time of Trial as possible to produce the most fair distribution for both parties. However, in same cases a valuation date is identified as prior to Trial because of an extreme increase or reduction in value of the assets by a spouse since filed.
If you have any questions regarding the above as it relates to your case, either submit an online inquiry for a consult or call The Mark’s Law Firm at 407.872.3161.
How Does Property Get Distributed In Divorce?
For those who being the dissolution of marriage process an initial concern commonly arises regarding how the belongings and finances will be divided: who gets what?
In the state of Florida the two parties can either agree among themselves, or the court will hold a hearing and impose its own decision on them regarding the division of their property. If the two parties choose to reach an agreement between themselves, the court will ratify the agreement with a Court Order.
The basic principle of property division in the state of Florida begins with the identification of assets and liabilities. Property includes everything that can be considered an asset such as a house, cars, timeshares, investment property, investment accounts, retirements accounts, retirements assets, stocks, bank accounts, a business, cash-value life insurance policies, furniture, and jewelry.
Liabilities generally include the home, credit card debt, etc. The next step is to determine whether the assets and liabilities are considered marital or non-marital property. Although martial and non-marital properties can sometimes be difficult to clearly determine, below are some examples of both.
- Non-martial property may include:
- Property acquired by either spouse prior to the marriage
- Property acquired by either spouse via a non inter-spousal gift or inheritance
- Income derived from non-marital assets during the marriage, unless that income was used or relied upon as a martial asset
- Assets and liabilities excluded from martial property via a valid written agreement, such as a pre-nuptial agreement
- Marital property may include:
- Property acquired by either or both spouses during the marriage
- Enhancement of value of a non-martial asset, as a result of efforts by either spouse during the marriage or from a contribution of marital funds to an expenditure of marital funds or assets
- Inter-spousal gifts during the marriage
- All vested or non-vested benefits or funds occurred during the marriage such as retirement, pension, profit sharing, annuity, deferred compensation, and or insurance plans or programs
- Property held by the parties in tenancy by the entirety or otherwise commingled or acquired during or prior to the marriage.
If you have any questions feel free to contact our office.
Divorce on a Dime: Part IV
“Kitchen Table” Negotiations commonly occur when parties represent themselves and negotiate their divorce issues without the assistance of attorneys and outside of the mediation setting. This may occur prior to filing, such that an executed Agreement resolving all issues can be filed with the Uncontested Petition for prompt finalization of the case.
This form of negotiation can also occur during suit whereby the parties expedite the proceeding by coming to an Agreement, ratifying same in written form, and proceed in an expedited manner to finalization.
Kitchen Table Negotiations are often most effective for Parties who do not have children and have very few assets and liabilities to divide. Generally speaking, the higher the conflict level amongst the Parties, the less likely it is that these types of negotiations will be effective.
Though this form of divorce is cost effective, Parties who participate in these types of negotiations should be cautious as there may be legal implications of the proceedings that could be detrimental to both individuals if not properly addressed. As a general rule of thumb, it is advisable to seek legal counsel at some point during your Dissolution of Marriage proceeding.
If you have reached an Agreement and would like to have same reviewed prior to execution, or you would like assistance with the process of ratifying your Agreement with a Court Order, please contact The Marks Law Firm at 407.872.3161.
Mediation Divorce on a Dime: Part III
Mediation in Family Law cases can happen either pre-suit or during the litigation process. Pre-suit Mediation is where a neutral mediator is used to help settle the dispute between both parties before the lawsuit is initiated, which means before the initial Petition for Dissolution of Marriage is filed.
Family Law Mediators go through a lengthy training and are certified by the State of Florida to participate in Family Law Mediations. They are objective professionals who can help both parties overlook trivial disputes and clearly focus on the important issues at hand. They help develop solutions by offering ideas, identifying and framing issues, and when appropriate, proposals for settlement.
Parties who know they want to file for divorce have an opportunity to work out the details related to the division of assets and liabilities, Child Support and Parenting Issues before the filing of any Petition for Dissolution. If the Parties can agree on all of the details relating to their case, the process of filing an uncontested Petition and proceeding to a Final Hearing is much quicker than typical litigation.
Mediation may also be engaged in after the initiation of the lawsuit. In Florida, parties to domestic relations case must attempt to resolve the issues in their case through Mediation before appearing before a judge.
When successful, mediation can be appealing because the parties can bring forth an acceptable outcome and compromised resolution without having to rely on a judge to determine the results. To seek more information regarding the use of mediation to address your family law dispute, please visit our website or call our office for more information.
