Florida Statute §39.202(7)(a) generally requires DCF to keep records of its cases until the child who is the subject of the record is 30 years of age.  You can submit a request for investigation records at: Public Records Center (mycusthelp.com)

Do not create your account anonymously. You must provide your contact information along with your identification before the DCF records can be released so that DCF can verify you are entitled to receive the records under governing law.

For case manager records, send a written request directed to the following address:

CBC of Central Florida
Attn. Records Custodian
4001 Pelee Street, Suite 100
Orlando, FL 32817

In August 2014, the Husband notified the Wife that he was seeking “dissolution of the community property.” He didn’t and couldn’t file a divorce action in Ecuador because, at the time, there was a three-year waiting period before a person who left the marital home could seek a divorce. Shortly thereafter, the Wife flew to Miami and filed a Petition for Support Unconnected with Dissolution of Marriage, pursuant to Florida Statute § 61.09, which provides:

If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.

Motion to Dismiss

The Husband was personally served in Florida, and he filed a motion to dismiss the Wife’s petition for lack of subject matter jurisdiction, lack of personal jurisdiction, and for “failure to file a maintenable action under Florida law.” An evidentiary hearing was held where the Husband withdrew all his motions to dismiss noticed for the evidentiary hearing except for his motion to dismiss based on forum non conveniens. In opposition, the Wife argued that his motion was untimely. Specifically, she claimed that Florida Rule of Civil Procedure 1.061(g) requires that “[a] motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.” (emphasis added).

The trial court denied the Husband’s motion to dismiss as untimely because it wasn’t raised within 60 days of service of process of the Wife’s original petition. In addressing the untimeliness argument, the trial court found that:

It is undisputed that personal service of process of Wife’s August 12, 2014 Petition for Alimony Unconnected to Divorce was made on Husband on August 13, 2014, in Miami-Dade County, Florida, while he was voluntarily in Florida looking at colleges with the parties’ son. It is undisputed that the first time Husband raised forum non conveniens as a defense was on July 20, 2015, in his ‘Motion to Strike Service of Process and to Dismiss Petitioner/Wife’s Petition for Dissolution of Marriage.

On appeal, Judge Barbara Lagoa wrote in her opinion that the law is well-established that where a motion to dismiss based on forum non conveniens is untimely, the motion is time-barred and must be denied. It was undisputed that the Husband was served with her petition on August 13, 2014, and that the Husband first raised the defense of forum non conveniens on July 20, 2015. Because he brought his motion to dismiss based on forum non conveniens more than 60 days after service of process, his motion was untimely under the plain language of Rule 1.061(g).

The Husband argued that Rule 1.061(g)’s 60-day timeframe doesn’t apply because a forum non conveniens defense wasn’t available to challenge the Wife’s maintenance action. However, in making this argument, the Court said he blurred the distinction between venue and forum non conveniens.

The Difference Between Venue and Forum Non Conveniens

Venue and forum non conveniens are not the same: venue is “[t]he proper or a possible place for a lawsuit to proceed, [usually] because the place has some connection either with the events that gave rise to the lawsuit or with the plaintiff or defendant.” In contrast, forum non conveniens is a broader concept that addresses “the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” In other words, the Court said the doctrine of forum non conveniens may be invoked where venue is proper but inconvenient.

The Husband failed to file a motion to dismiss based on forum non conveniens within the required time frame. The district court’s decision was affirmed. Topic v. Topic, 2017 Fla. App. LEXIS 8333 (Fla. DCA 3^rd June 7, 2017).

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DeVoe Law Firm can help you assert your rights to marital property. As this case shows, there are specific procedures and rules that must be strictly followed, or you may lose certain rights forever. Call DeVoe Law Firm to schedule a free consultation with an experienced divorce attorney.

The appellate court found that the trial court gave the husband the opportunity to appear by telephone at the final hearing—but he failed to appear. After the trial court entered its final judgment, the husband notified the court in a letter—which was treated as a timely motion for rehearing—that he tried to appear by phone from prison, but that prison official prevented him from doing so. The husband said that his classification officer failed to answer the phone when the trial court returned an earlier call from the officer. As a result, the husband couldn’t present his case at the final hearing.

The District Court of Appeal quoted an earlier decision which said, “[a]n incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephonically.”

Because of this, the husband had “the due process right to be heard” at the final hearing, the Court said. Because he argued that he attempted to appear but was prevented from attending by the actions of prison personnel, the trial court erred in summarily denying his motion. He should have been given an opportunity to prove that the officer prevented him from getting to the phone.

Accordingly, the District Court of Appeal reversed and remanded the case for the trial court to reconsider the motion for rehearing and to give the husband the chance “to prove . . . that he attempted to appear telephonically at the final hearing but that he was denied the opportunity to do so.” Feducia v. Feducia, 2017 Fla. App. LEXIS 10682 (Fla. DCA 1^st July 26, 2017).

As Judge Warner observed, in her special concurrence in Rogers v. Rogers (Fla. 4th DCA 2008):

Unlike the state’s obligation in criminal cases to ensure the defendant’s presence at critical stages of proceedings, in civil court no corresponding duty is imposed on the state. A prisoner involved in civil litigation (including family law cases) has the right to be heard but must take the initiative to secure the opportunity to appear and present his version of the facts.

The prisoner must tell the court of his or her desire to appear personally or telephonically at hearing or trial.

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There can be a lot of stress and questions in the divorce process. Some spouses don’t understand their legal rights and obligations. A spouse in prison can add more complexities to the case. You need an attorney with the experience to protect your rights and work for the best possible outcome.

Call DeVoe Law Firm to schedule a free consultation with an experienced divorce attorney.

The couple had lived in Virginia for 15 years prior to moving to Florida in 2012. They were here in Florida for only two years before the wife filed for divorce in 2014. She alleged the relocation back to Virginia would be in the children’s best interest and that it would eliminate her need to constantly travel for her job, which required her to meet with clients near her employer’s office in Virginia.

The family moved to Florida in 2012 after the husband lost his job in Virginia; however, the wife continued to travel to Virginia for work. She also claimed alleged that the husband suffered from mental health issues related to compulsive gambling. That’s what led to the wife to file for divorce and to return home to Virginia.

The bench trial included testimony on the wife’s request for relocation to Virginia and the husband’s gambling addiction. She testified that the marriage began to deteriorate in 2011 when she discovered that he’d gambled away the family’s savings. However, there was also substantial evidence presented on his mental health issues. The wife said that when he was unhappy, he’d have periods of non-communication and would stay in bed for days at a time. The husband acknowledged his mental health issues and said that he needed to get better so that he could be a part of the family. At first, the wife gave the husband another chance if he’d quit gambling and get some help. But when she twice caught him gambling, she’d had enough and filed for divorce.

The husband’s behavior and mental state got progressively worse between when the wife filed for divorce and the trial. This included continued compulsive gambling and an incident right before trial in which the husband was pulled over by the police. He called the wife in the early morning hours to pick him up, appearing to be drunk.

Trial Judge Gives Husband Another Chance

The trial court evaluated the evidence based on the statutory factors provided in Florida Statute § 61.13001 and held that the wife proved by a preponderance of the evidence that relocation was in the best interest of the children. However, the trial judge noted that pursuant to the statute, after the burden is met by the wife, it then shifts to the husband to overcome the wife’s proofs. The husband claimed he’d give up his gambling and work harder on his mental health issues. Would the judge give him another chance?

The trial court found that, although the wife did meet her burden of proof, “the husband will be able to overcome the wife’s burden of proof, provided the following takes place,” and then listed several conditions. Some of these were that he not gamble or enter any casinos, attend Gamblers Anonymous, tell his ex-wife about his therapist, have regular therapy, take any prescribed medication for his mental health, and to actually exercise his timesharing with the children. The trial court said that “if the husband does all of those things,” the best interests of the children will be enhanced. The trial court noted that the wife’s burden of proof had been met “absent the husband meeting his conditions.” Based on this, the trial court denied the wife’s petition for relocation to Virginia.

On appeal, the wife argued that the trial court abused its discretion by letting her ex rebut the trial court’s finding that relocation was in the best interests of the children with nothing more than the promise of a change to his future behavior.

Husband Didn’t Show that Relocation Wasn’t in the Children’s Best Interest

Judge Burton Conner of the Florida District Court of Appeal, Fourth District agreed with the wife and in his opinion for the appellate court said that an appellate court reviews whether there’s competent substantial evidence to support the trial court’s findings of fact, but doesn’t engage in reweighing the evidence. Judge Conner explained that § 61.13001(8) of the Florida Statutes governs the burden of proof for rulings on relocation. That law says:

The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

The Court of Appeal said that the trial court made no finding that the husband met his burden of proof by a preponderance of the evidence that relocation was not in the children’s best interest. Instead, the trial judge made clear that the husband hadn’t met this burden, stating that the “husband will be able to overcome the wife’s burden of proof, provided the following takes place.” The trial court denied the petition for relocation based on events that had not yet occurred in hopes that the husband could change his ways. This was an error, Judge Conner said.

The husband could only satisfy his burden of proof by actually producing evidence sufficient to meet the standard set forth in the statute, and not just his promise to behave better. A court can’t consider potential, future, or even anticipated events as a substitute for evidence, the appellate court held. In this case, the trial court essentially relieved the husband of meeting his burden of proof altogether because it denied the motion for relocation even after finding that the husband didn’t otherwise rebut the wife’s showing that relocation was in the best interests of the children.

Relocation Decisions Must be Made at Final Hearing

In addition, Judge Conner said that the trial court’s ruling violated the Florida Supreme Court mandate that best interest determinations concerning petitions for relocation be made “at the time of the final hearing” and be supported by competent substantial evidence. The Supreme Court rejected a “prospective based” analysis concerning petitions for relocation, and found that:

Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.

As a result, the Court of Appeal reversed the judgment and remanded the case for an order authorizing the wife’s relocation to Virginia with the minor children. Solomon v. Solomon, 2017 Fla. App. LEXIS 8300 (Fla. DCA 4^th June 7, 2017).

Parental Relocation Experts

Parental relocation involves a request by one parent to move more than 50 miles away from the other parent that has a right to child timesharing. Reasons a parent may have for relocating may include a new job or being closer to extended family that can help with child care and provide financial assistance.

The procedure for seeking judicial approval for relocation over the objection of the other parent can be expedited…it may include short deadlines, and both parties need to be aware of these or risk forfeiting their rights. Make sure you meet every deadline. Call DeVoe Law Firm for a free consultation about your parental relocation case.

The parties in the case waived their right to alimony in a properly signed prenuptial agreement. Even though there was an alimony waiver, the prenuptial agreement stated that upon the entry of a final judgment of dissolution of marriage, the Former Husband or one of his companies would pay the Former Wife $6,000 per month for 24 months.

When “Alimony” is not Alimony

Judge Robert M. Gross noted in his opinion for the Fourth District Court of Appeal that, although the trial court found the parties waived their right to alimony in the prenuptial agreement, it found that the parties intended the salary payments “would be a form of alimony e.g. durational alimony.” This find was an error, the appellate court found.

The Florida Supreme Court has said that when deciding whether to enforce a prenuptial agreement, trial courts must carefully examine the circumstances surrounding the agreement because parties to a prenuptial agreement are not dealing “at arm’s length,” as opposed to a business contract. The Supreme Court has held that valid prenuptial agreements regarding post-dissolution support are contracts, and these contracts are to be construed to give effect to the intent of the parties. The Supreme Court also explained that while Florida courts recognize a vast difference between a contract made in the market place and one dealing with marriage, those courts enforce valid prenuptial agreements regarding post-dissolution support as a matter of contract. But the difference is in the standard used to determine the contract’s validity. Although contract principles play a role in dissolution proceedings, courts must remember that proceedings under Florida Statute Chapter 61 are in equity and governed by basic rules of fairness—not the strict rule of law.

Prenup Waiver Means Salary Payments Outside Chapter 61

In this case, neither party questioned the validity or enforceability of the prenuptial agreement. However, Judge Gross explained that in waiving the right to alimony, the parties intended to take the gross salary payments outside Chapter 61 and outside the power of the trial court to hold Former Husband in contempt if he failed to pay. Instead of enforcement by contempt, the employment prenuptial agreement contemplated that the non-payment of “salary” would be enforceable as any other employment contract, by a traditional breach of contract action. Because this wasn’t in effect a marriage contract but an agreement more of a business nature, the trial court erred in failing to give the prenuptial agreement the effect intended by the parties.

The judgment was reversed and remanded because the trial court erred by treating the gross salary payments set forth in the prenuptial agreement as a form of alimony. Whissell v. Whissell, 2017 Fla. App. LEXIS 10059; 42 Fla. L. Weekly D 1533 (Fla. DCA 4^th July 12, 2017).

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One of the most difficult and complex areas of divorce is the division of marital assets and liabilities. The divorce process is supposed to be much easier with a prenuptial agreement; however, that’s not always the case. You need to understand your legal rights and obligations in enforcing this contact. Hire an experienced divorce attorney to advise you about your rights, especially as they relate to a prenuptial agreement and alimony. Call DeVoe Law Firm to schedule a free consultation with an experienced divorce attorney.

If an ex-spouse has the ability to contribute to support, he or she must try to do so. Florida law says that that income can be imputed to a person who’s voluntarily unemployed or underemployed unless the court finds that their situation is due to circumstances beyond that parent’s control.

There’s no statute requiring the imputation of income for alimony purposes, but Florida courts generally will impute income in those cases. Income can be imputed to either spouse or both parties. Usually, income is imputed to the paying spouse when their ex is seeking child support or alimony.

Here’s a recent case as an example…

A Recent Example

Two years ago, the Florida District Court of Appeal, Fifth District sent a case back to the trial court to reconsider the imputation of income to a former wife, alimony, child support, and for partition of the marital home. On remand, the trial court imputed a smaller amount income to the wife, but she again appealed that decision.

The Court of Appeal recently explained that Florida Statutes § 61.30(2)(b) says that once a trial court finds a party is underemployed, it must consider the party’s “employment potential and probable earnings level” based on “recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.” The court may impute income to a spouse earning less than she could with the use of her best efforts, but there has to be competent, substantial evidence supporting the determination that the spouse could earn the imputed amount. In this case, the trial court’s imputation of income wasn’t supported by substantial, competent evidence. The Court of Appeal instructed the trial court to recalculate alimony and child support without imputing any income to the wife.

In addition, the Court of Appeal found that the trial court erred in rejecting some of the wife’s monthly expenses in computing her need. With no explanation, the trial court omitted the amounts the wife listed for payments on her car, entertainment for her and the children, club dues and memberships, monthly gifts, religious contributions, education expenses, and tax liability on alimony. However, the trial court allowed similar expenses for the husband in computing his net income. On remand, the trial court was directed to re-compute the wife’s monthly need, including these expenses, unless it provides a specific explanation for their exclusion.

Finally, the Court of Appeal noted that the trial court complied with its instructions in 2015 to order the partition of the martial home, but it determined the wife’s share of the equity based upon the assumptions made under its prior order granting the husband possession of the home. As a result, the appellate court ordered the trial court to compute the wife’s equity share based on the home’s actual selling price. Dottaviano v. Dottaviano, Case No. 5D16-1322 (DCA 5^th June 2, 2017).

Imputing Income in Florida Divorce Settlements

As the Court of Appeal explained, Florida Statutes say that the party seeking to impute income has the burden to present competent, substantial evidence that:

1. The unemployment or underemployment is voluntary; and

2. 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.

Aside from this, the statute explains that income may not be imputed based upon:

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

2. 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.

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As you can see from the Dottaviano case, a spouse may need to wrestle with the court and their former spouse to receive a fair settlement. And in some cases, it can take more than one try.

Protecting a spouse’s rights and representing his or her interests in receiving a fair property settlement and sufficient alimony is the goal of the DeVoe Law Firm in Orlando. Hire an experienced divorce attorney to advise you about your rights in divorce, especially as they relate to your property, alimony, and expenses. Call DeVoe Law Firm to schedule a free consultation with an experienced attorney.

In her petition, Susan claimed that Jared had commingled their marital assets with assets owned by Isaac and by the corporate parties she brought into the suit. She also asserted that Jared and Isaac were receiving distributions from these corporations in what they called “loans,” in an effort by Jared to deplete the marital estate. Susan sought partition of the marital assets, recognition and equitable distribution of her interest in the corporations that Jared formed during the marriage, to have the court “claw” back and then equitably distribute to the spouses any marital assets previously transferred to the corporations, as well as injunctive relief.

Susan asserted that she had a “marital interest” in certain properties now held by her ex, Isaac, and the corporations… and she alleged they were all involved in a scheme with her ex-husband to minimize or conceal his net worth to defraud her from any interest in millions of dollars of marital assets that Jared transferred to these parties. She asked that the trial court identify all properties that should be classified as marital assets and require the other parties to “account” for their receipt of these marital properties. Finally, she requested that the court then equitably distribute all marital assets between the spouses.

Isaac asked to be dismissed from the case, arguing that Susan hadn’t alleged a cognizable cause of action against him to entitle her to any relief and that her claims were barred by the statute of limitations. The trial court granted Isaac’s motion for summary judgment and dismissed him from the case.

The Court of Appeal explained in its opinion that in a dissolution of marriage proceeding, § 61.075 of the Florida Statutes requires the trial court to equally distribute the marital assets and liabilities between the spouses unless there is a justification for an unequal distribution based on the factors listed in that statute. The Court noted that one subparagraph of the statute was relevant, providing that a spouse’s “intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition[,] or within two years prior to the filing of the petition,” must be considered by the court in distributing the marital assets. Under this statute, if a spouse intentionally dissipates a marital asset, the trial court has the authority and discretion to assign the dissipated asset to the dissipating spouse as part of that spouse’s equitable distribution.

Susan alleged that Jared’s fraudulent dissipation of some of the marital assets to or through her stepson Isaac and the corporate parties took place more than two years before her petition for dissolution of marriage was filed. The Court explained that in an earlier case they held that § 61.075(1)(i) wasn’t a two- year statute of limitations (or deadline) to bar a spouse’s efforts to subject marital assets dissipated by the other spouse to equitable distribution. In cases of dissipation of marital assets occurring more than two years before the filing of the petition, § 61.075(1)(j) allows a trial court to consider “any other factors necessary to do equity and justice between the parties…” However, it doesn’t require the court to consider more remote dissipation of marital assets when equitably distributing the marital assets and marital liabilities to the spouses.

As far as Isaac, the Court of Appeal said that under principles of equity, a trial court may determine whether a third person has acted with a spouse to deprive the other spouse of his or her share in the marital estate. However, for the court to make a complete determination of the case before it, that person (Isaac in this case) must be joined as a party to the action where, as here, he was claiming an interest in the marital assets because in a dissolution action, the trial court doesn’t have jurisdiction to adjudicate the rights of nonparties. In addition, § 61.075(1)(j) gives the trial court the discretion to claw back marital assets that may have been remotely dissipated by Jared more than two years before Susan’s dissolution of marriage petition was filed. Because of this, it would be inconsistent to preclude the court from making a full and complete adjudication of the spouses’ marital property rights to those dissipated assets by dismissing Isaac from the litigation based on his statute of limitations defense.

Here, it wasn’t in any way clear whether the trial court would exercise its discretion under § 61.075(1)(j) to consider assets allegedly remotely dissipated by Jared to make a complete determination of the cause to achieve equity and justice between the spouses. If, after receiving evidence and argument at trial, the court elected to exercise its discretion and distributed remotely dissipated assets in its equitable distribution of the marital assets and marital liabilities to Susan and Jared, then those parties whose property rights would be affected by the distribution (like stepson Isaac) would be indispensable to the complete adjudication of the case. Isaac shouldn’t have been dismissed from the case.

Thus, the final summary judgment for Isaac was reversed, and the case was remanded for further proceeding. Martinez v. Martinez, Case No. 5D16-795, 2017 Fla. App. LEXIS 7183 (Fla. Dist. Ct. App. 5th Dist. May 19, 2017).

Florida laws states that couple should have an “equitable distribution” of marital assets and liabilities. The marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held based on a long list of factors. If you have questions about the “equitable distribution” of marital assets in your divorce action, contact DeVoe Law Firm to schedule a free consultation with an experienced divorce attorney.

Typically, courts shouldn’t deprive brother and sisters from growing up together with some common denominator of discipline and the advantages of sharing mutual experiences within the home and family unit.

Recently a former husband in Florida appealed his divorce judgment and order for relocation that separated the three minor children between the parents. The final divorce decree partially granted his relocation allowing the couple’s 15-year-old twins to relocate to Virginia with him…but denied the request concerning their other child (a nine-year-old son), who was ordered to remain with the former wife in Florida.

The husband argued on appeal that the trial court erred by separating the siblings without a compelling reason.

When the couple filed for divorce, both parents lived in Florida. The original parenting plan approved by the trial court set out rotating timesharing between the parents. The husband later lost his teaching job in Florida. He then received a job offer in Virginia, where his extended family resides. He asked the trial court to relocate the minor children to Virginia pursuant to Florida Statute § 61.13001. After an evidentiary hearing on the petition, the trial judge separated the children between the two parents, ordering that only the two oldest children to reside with the Father.

Compelling Reason Needed to Separate Siblings

Judge Eric Eisnaugle of the Florida Fifth District Court of Appeal found that the trial court erred when it separated the siblings without stating a compelling reason for the split. Judge Eisnaugle noted that there are circumstances that justify separating siblings, but children in a family shouldn’t be separated from each other and distributed about in different homes, except “for the most compelling cause.”

The District Court of Appeal found that the trial court judgment lacked a compelling reason to separate the siblings. The judge’s finding that the younger son was doing well in his current placement didn’t, by itself, justify separating him from his siblings. In the same vein, the trial court’s finding that there was no evidence that relocating to Virginia will be an improvement for him, by itself, wasn’t a compelling reason. Instead, to overcome the requirements of Florida law, any reason to separate the younger son from his siblings must necessarily be based upon evidence that relocating to Virginia would be detrimental to him. The Court of Appeals ordered on remand that if the trial court again separates the siblings, it must make findings of a compelling reason to do so.

The judgment was reversed, and the Court of Appeal remanded the case for the trial court to determine whether there was a compelling reason to separate the siblings. Sickels v. Sickels, Case No. 5D16-2399 (Fla. DCA 5^th June 30, 2017).

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Talk to an experienced family law attorney about your rights, especially as they concern your children. Call DeVoe Law Firm to schedule a free consultation with a qualified family law attorney.

Chief Judge Craig C. Villanti of Florida’s Second District Court of Appeal wrote that when the parties initially filed for divorce, the trial court granted them roughly equal time-sharing with their children. However, in the course of the proceedings, time-sharing between the children and the Father was temporarily suspended based on allegations made by the Mother. After the allegations were determined to be false, the court ordered that the parties return to the original equal time-sharing.

Despite the judge’s order, the Mother continued to prevent the Father from seeing the children. As a result, the trial court found the Mother in contempt, gave primary residential custody to the Father, and permitted the Mother supervised time-sharing only.

As part of the contempt order, the trial court required the parties to undergo a social evaluation. After the evaluation was completed, the Mother filed an emergency motion to modify the temporary order so she could return to having unsupervised time-sharing with her children. After a hearing, the trial court denied this motion… but the judge failed to identify—either on the record or in the written order—the steps the Mother would have to take to reestablish unsupervised time-sharing with her children. The Mother argued that the court’s failure rendered the order legally deficient.

Chief Judge Villanti explained that while termination of visitation rights is disfavored, the trial court has discretion to restrict or deny visitation when necessary to protect the welfare of the children. However, when the court exercises this discretion, the chief judge noted, it’s required to clearly state the steps the parent must take to reestablish time-sharing with the children. “Essentially, the court must give the parent the key to reconnecting with his or her children,” he wrote.

An order without those specific steps deprives the parent of that key and is deficient because it prevents the parent from knowing what’s expected. In addition, it prevents any reviewing judge from monitoring the parent’s progress. The steps required to reestablish time-sharing will be different in every case because they should be designed to assist the parent in remedying the problems that led to the loss of time-sharing in the first place. While a trial court that’s identified the steps maintains the discretion to determine whether the parent has made sufficient progress to justify restoring time-sharing, the court doesn’t have discretion at the outset to refuse to tell a parent what he or she must do to restore full parental rights, Chief Judge Villanti added.

In this case, the Father acknowledged that the trial court’s order didn’t state the specific steps the Mother had to take to reestablish unsupervised time-sharing with the children. Because of this, the Court of Appeal reversed the trial court’s order to the extent that it failed to include those steps. On remand, the trial court was instructed to issue a new order detailing the steps the Mother had to take to reestablish unsupervised time-sharing. Curiale v. Curiale, 2017 Fla. App. LEXIS 8499 (Fla. DCA 2^nd June 9, 2017).

DeVoe Law Firm can help you assert your rights to parental decision-making, establish timesharing and visitation schedules, modify timesharing and visitation schedules, and receive sole parental responsibility where appropriate. Contact DeVoe Law Firm to schedule a free consultation with an experienced child custody and timesharing attorney.

Back in 1996, a trial court ordered the couple’s divorce with a post-nuptial agreement. They agreed that the Husband would pay the Wife $5,000 per month in alimony until his or her death, or until she remarried; that he’d give her the marital home; and that he’d maintain a $750,000 life insurance policy.

A few years later, he asked the court to modify the amount of his alimony responsibility. The judge said no and termed the request “somewhat disingenuous,” since he hadn’t paid anything to his ex-wife. In addition, the judge found the ex-husband in civil contempt for “willful and deliberate failure to comply with the alimony provisions” of their post-nuptial agreement. The judge said he owed alimony arrearages of nearly $130,000 and ordered him to pay half of that amount within 30 days.

A few months later, the ex-husband filed for bankruptcy, but the court rejected his petition, finding his alimony arrearages were not subject to bankruptcy discharge. The bankruptcy court recorded the judgment as a lien on the ex-husband’s property.

Before he asked the court to modify his alimony, the ex-husband remarried. After this and after he’d been held in contempt, he transferred the title to his home (which was just in his name) to he and his new wife as tenants-in-common. They took out a second mortgage, but the money was used for “remodeling,” not to satisfy his obligations to his ex-wife. Likewise, he transferred title in a life insurance policy to his second wife—who then borrowed against the entire value of the $200,000 policy. She candidly told the court that she was shielding money from the ex-wife, and that none of her husband’s alimony obligations were satisfied with these funds.

When she heard about this, the ex-wife brought the new wife and the insurance company into the dispute. After an evidentiary hearing on the matter, the trial court held that both the life insurance policy and real property were protected from creditors prior to the transfers. Further, the court accepted the new wife’s claim that because the assets were completely protected from creditors prior to the transfer, their transfer wouldn’t have any effect on a creditor. The trial court concluded that “as a matter of law, the transfer was not fraudulent.” As a result, the ex-wife couldn’t get at those funds to satisfy the alimony owed to her.

Judge Jeffrey T. Kuntz of the Fourth District Court of Appeal wrote that Florida’s homestead rules shield a homestead from a forced sale. Generally, the judge noted that a homestead protection can only be breached in these situations:

1. Government entities with a tax lien or assessment on the property;
2. Banks or other lenders with a mortgage on the property which originated from the purchase of the property; and
3. Creditors with liens on the property which originated from work or repair performed on the property.

The ex-wife argued that a fourth exception, alimony creditors, has long been recognized. The Court of Appeal agreed. Judge Kuntz explained that the exception concerning alimony creditors is founded upon the Florida Supreme Court’s conclusion more than 100 years ago that the homestead protections “should not be so applied as to make it an instrument of fraud or imposition upon creditors.” The Supreme Court also said that the homestead exemption can’t “be construed to enable the husband to claim its benefit against the very persons to whom he owes the obligation of support and maintenance, and that to construe the statute otherwise, would, at least in part, defeat its avowed object.”

Since these early cases, Florida courts have clarified the rule to say that the forced sale of homestead property is permitted when the former spouse claiming the homestead protection acted egregiously, reprehensibly, or fraudulently. Judge Kuntz noted that the circuit court has “the legal authority to foreclose the lien” when an ex acts in that way. Thus, the appellate court found that the homestead protection doesn’t protect a former spouse when he or she acts egregiously, reprehensibly, or fraudulently.

As far as the insurance policy, Judge Kuntz said that the trial court may look to the insurance policy, because the protection for the insurance policy is statutory. And § 222.29 removes the statutory protection if the exemption results from a fraudulent transfer or conveyance. Similarly, § 222.30 removes property from the statutory exemption if a conversion by the debtor resulted in the property becoming exempt. The law is clear, the Court explained, that the exemptions don’t apply when they’re being used for a fraudulent purpose.

Thus, the trial court erred in its conclusion that the transfer of the real property and insurance policy couldn’t be fraudulent as a matter of law due to constitutional and statutory exemptions. The trial court’s decision was reversed and remanded for the trial court to determine if the ex-husband acted egregiously, reprehensibly, or fraudulently to justify a forced sale of the protected property. Spector v. Spector, 2017 Fla. App. LEXIS 7547; 42 Fla. L. Weekly D 1164 (Fla. DCA 4^th May 24, 2017).

Distribution of Marital Assets and Liabilities in Divorce

Florida statutes and case law provide for an “equitable distribution” of marital assets and liabilities. Marital property should be divided fairly or equitably (not necessarily equally), regardless of how the title is held. Get help you with all the issues you will commonly face in divorce, such as property division, alimony, and child support. Our legal representation will help you get better results more quickly. Call the DeVoe Law Firm for a free consultation.