SUBSTANTIAL CHANGE IN CIRCUMSTANCES IN TIME-SHARING CASES-NOT ALWAYS AN EASY HURDLE TO OVERCOME

 

            In the State of Florida, once the Court has entered a Final Judgment regarding a dissolution, paternity or child support case, and a party seeks changes to the time-sharing decision (or even the child support amount), generally a Petition for Modification must be filed with the Court.  In order to prevail on the initially filed case regarding time-sharing determination, the Court made its decision based upon the best interest of the child.  Not so for a modification action.  In order to prevail in a modification action, the party seeking modification has the “extraordinary burden” of proving a substantial change in circumstances occurred since the previous Final Judgment that warrants modification of the Final Judgment.  After overcoming this burden, the party seeking modification must then show that the modification would be in the child’s best interest.

 

            The Florida Legislature and the Florida courts have defined a substantial change in circumstances to be one that is substantial, material, unanticipated at the time of the Final Judgment, and permanent in nature.  See Fla.Stat. 61.13(2)(c).  The moving party must prove each and every one of these elements to prevail.

 

            There are many instances where the courts have determined that a substantial change in circumstances did not exist, thus proving my point that this is not an easy hurdle to overcome.  For example, temporary changes in the child’s living arrangements (i.e. child used to live with the mother for a majority of the time, but the parties agreed that for the next school year the child would live with the father) is not a substantial change in circumstances.  See: Smoak v. Smoak, 658 S.2d 568 (Fla. 1^st DCA, 1995) and Evans v. Evans, 490 So.2d 1035 (Fla. 1^st DCA, 1986).  The courts have also held that a modification cannot be based solely on the parties’ informal agreements (when the mother permitted an additional overnight visit) as this would discourage parents from making decisions in the child’s best interest.  See.  Sidman v. Marino, 46 So.3d 1136 (Fla. 1^st DCA, 2010).   Often, even when one party relocates, the Court still find this is not enough for a substantial change in circumstances.  See: Halbert v. Morico, 27 S.3d 771 (Fla. 2^nd DCA, 2010) (denied modification action that was filed when father moved 45 minutes away) and Ragle v. Ragle, 36 Fla.L.Weekly D 1790 (Fla 1^st DCA, 2011) (holding that mother’s move 28 miles away, coupled with parents’ inability to effectively communicate, was not a substantial change in circumstances).

            However, the hurdle can be overcome.  The Courts have held that parental alienation, coupled with contempt and violations of shared parental responsibility are enough to meet the substantial change in circumstances test.  See: Wade v. Hirschman, 903 So.2d 928 (Fla. 2005).  But, be wary, as a finding of acrimonious relations and inability of the parents to communicate effectively is not in and of itself a substantial change in circumstances.  See: Perez v. Reveiz, 50 So.2d 3^rd 101 (Fla. 4^th DCA, 2010).    

 

            If you are currently going through a dissolution action and are able to settle your case, placing certain circumstances that the parties’ agree to be substantial change in circumstances will likely be upheld by the Court (i.e. prohibiting relocation outside the state, stating that once the child starts school, the parties agree this will constitute a substantial change in circumstances, etc.).  See: Segarra v. Segarra, 947 So.2d 543 (Fla. 3d DCA 2006).

            Due to the complex nature of modification actions, it is highly recommended that anyone looking to file such an action obtain legal advice regarding same.  Our firm represents clients in family law matters, including modification cases, in Broward, Miami-Dade and Palm Beach Counties.  Therefore, if we can be of assistance to you, please feel free to contact us at (954) 316-3496.

 

Law Offices of Cindy S. Vova, P.A.

Pine Island Commons

8551 West Sunrise Boulevard

Suite 301

Plantation, FL 33322

954-316-3496 (office)

954-316-3056 (fax)

cindyvova@vovalaw.com

info@vovalaw.com

 

 

The Social Media Wars in Family Law Litigation

 

            Social networking sites, e-mail, and text messages are used constantly to obtain evidence in family law actions.  As such, it is important for any person engaged in a family law case to consider taking the following precautions as it relates to social networking:                     

 

TIPS FOR SOCIAL NETWORKING SITES

 

            1.         Maximize Your Privacy Settings.  You should make sure that your privacy settings are not open to the public.  Also be weary about even having privacy settings that are set to “friends only”.  It is often people that are considered friends who provide evidence to the opposing side. 

 

            2.         Be Conservative On Your Postings.  You need to think about what you are posting before you post it.  Ask yourself, could the other side use this post against me.  Blatant examples of what not to post including adult party pictures (do not post pictures of your friends and/or you drinking, smoking, dancing erotically, etc.; do not discuss the case online; do not post negative comments about the judge, the attorney, the spouse or anyone else involved in the case).  My favorite rule of thumb is if it is not something you would be proud of if your mother discovered it, do not post it!

 

            3.         Watch Social Media Check In Applications: It is generally not a good idea to have GPS tracking media active during family law cases.  These types of media often automatically post to certain sites and may be used against you in various ways, especially in highly contested child custody or alimony cases. 

 

            4.         Farmville Can Hurt You: Games that automatically post to your social media sites like Facebook can be used against you.  For example, if you are unemployed and your spouse is looking to have you held in contempt for failing to pay your child support, proof that you are playing Farmville all day, rather than seeking employment, can be detrimental. 

 

            5.         Change All Your Passwords: Often noone knows you better than the other side in a family law case.  They often know every website you visit and every password you have created.  That said, immediately change all your passwords for every social network site you are on (Facebook, Foursquare, Twitter, LinkedIn, My Space, etc.)  When you change your passwords, do not use something the other side can easily guess.  Remember, they know you well.  Your child’s name, pet’s name, etc. are not good passwords.  Use something that has no relation to your everyday life and would be hard to guess.

 

TIPS REGARDING E-MAILS

 

            1.         Obtain a Separate Litigation E-mail Address: The other side likely knows your e-mail address and your password, and while they should not be doing so, they may be monitoring your e-mail account.  Additionally, there has been a lot of discussion about whether or not a person has an expectation of privacy for an e-mail account.  The best rule of thumb is to create a separate e-mail account for your litigation case.  All e-mail with your lawyer and the other side should go through this e-mail address.  Do not use this e-mail address while at work, at a hotel, a friend’s home, public library, etc.  Using public places to access your e-mail has the ability to make the e-mail admissible in court.

 

            2.         Change Your E-mail Passwords: Immediately change all your passwords for every e-mail account you have.  Do not change passwords to joint e-mail accounts, if any exist-just stop using that account.

 

TEXTING AND CELLULAR PHONE TIPS

 

            1.         Minimize Texting: We often text without thinking, especially to those we consider friends and family.   Too often, these friends or family members either purposefully or inadvertently give this information to the other side.  Therefore, think before you text, and keep the texts during this difficult time to a minimum.  Also remember, the other side will happily turn over any nasty texts to the Court.  So always, always, always be respectful and courteous when texting or e-mailing the other side, no matter how nasty their e-mails or texts are to you.

 

            2.         Reconsider Your Cellular Phone Plan: If you have a family plan with the other side, you may want to consider contacting your provider and getting a separate account for yourself.  If the other side has access to your texts, call records, and tracking records, this information may be used as evidence in court against you.  Also, it is a good idea to use a provider that does not maintain records of the texting that you send and/or receive.  Certain carriers keep texting records.  Check with your carrier.  If they keep these records, you may want to consider switching.  Also, certain providers provide detailed invoices that show every phone call you make.  This is sometimes helpful and sometimes harmful.  Check with your provider to see what type of records they have and keep this in mind when using your cellular phone. 

                                                           

OTHER IMPORTANT TIPS

 

            1.         Be Wary of Spyware: Too often the other side plays dirty.  They attempt to illegally access your information.  While this is often a crime, it is often hard to prove, or not worth the government’s time to prosecute.  Even though a court should exclude all evidence not legally obtained, this is not always the case.  So just be careful and aware that this could occur.

 

 

            2.         Consider Your Own Actions Carefully: Consider your own actions.  Make sure you are not illegally accessing information.  If you know the passwords to the other party’s accounts, you know that person no longer gives you permission to look at their accounts.  Accessing these accounts without permission may be a crime.  So be careful. 

 

            3.         Electronic Evidence Is Not Easily Destroyed: Electronic evidence is often recoverable, even if deleted, especially through the use of forensic experts.  Thus, if you are required to produce these documents, and you attempt to hide them, if they are discovered, your credibility with the Court is shot.  A better practice is to simply not create the electronic evidence in the first place.  By following the steps listed above, this should help you in that regard.

 

            4.         Changing Account Numbers: Certain information that you one wanted the other side to have, you may no longer desire them to have.  Consider all accounts that the other side has access to (i.e. account numbers and security codes for bank accounts, brokerage accounts, credit cards, cellular phones, etc.)  You may wish to speak with your attorney regarding whether it is prudent to change these numbers.  But remember, it is usually not a good idea to change joint account numbers and security codes, especially with consulting your attorney and the other side first.  Also keep in mind that any activity performed in the joint account can be introduced as evidence before the judge.  

 

            5.         Keep a Calendar or Log: You may remember everything being posted, texted or said at that moment.  Maybe even days or weeks later.  But family law actions can take months, even years, to resolve.  Therefore, it is important that you keep a calendar or log of the events and statements that you believe are important evidence for your case.  Keeping a calendar or log can go a long way to establishing that your recollection or memory of the events is accurate, and make your attorney’s job easier (thus costing you less money in attorney’s fees and costs). 

 

            Our firm assists clients with their family law needs in the South Florida area.  If you have any questions regarding a family law matter, please feel free to contact our firm. 

 

Penny Taylor-Miller, Esq.

Cindy S. Vova, P.A.

8551 W. Sunrise Blvd.

Ste. 301

Plantation, FL 33322

   

 

                                     No Pleasure Cruise for Tom and Katie...Suri to Feel the Wake

 

              As sure as the rites of summer, last week our papers swelled with the news of yet another celebrity divorce.  This time  the always front page marriage of  Katie Holmes and Tom Cruise took center stage, and will likely remain there for some time to come. Katie, after nearly six years of marriage, filed for divorce in New York...while Tom was, of course, out of town filming in Iceland (Iceland????) a movie, perhaps aptly titled "Oblivion."

   

                  Of course, the usual economic issues rise to the top...apparently Tom made $75 million last year, while reports say Katie only eked out a meager $3 million. (What percentage of that sum the formerly happy couple will get the  pleasure of handing over to their carefully assembled team of divorce attorneys one can only imagine)  According to TMZ.com, Katie is not concerned about getting Cruise's money (though it is intriguing and, perhaps coincidental that reports just listed Cruise as the highest paid actor last year)  Apparently, a prenuptial agreement will govern most of the economic issues...though stay tuned to see if either party's attorneys find grounds to challenge that document.  

 

            The real headline grabber, however, seems to be their six-year old daughter, Suri.  According to new reports Katie is seeking sole custody (a term that, for all intents and purposes, disappeared from Florida laws several years ago as the state acknowledged kids are not "things" that one should have custody of).  It appears, however, that Katie wants to get Suri away from Tom, period, or more aptly, away from Tom's association with the  Church of Scientology.   Now it appears that's Tom's affiliation with the group, religion, cult, sect...whatever you want to call it, existed well before the Katie and Tom union.  "So...?"you ask.

 

            New reports cite Katie's concern that Tom wanted Suri shuttled off to the Church of Scientology's 700 acre Southern California desert compound. According to former Scientology members, including, Amy Scobee, who followed the late L Ron Hubbard’s teachings for 27 years, was quoted in London's Daily Mail, as stating that  a myriad of abuses constituting violations of civil and human rights, and tantamount to slavery occur occurred at the Gold Base Sea Org.  Wow...now that's what I call a boot camp.  Did anyone ever say the kid was so misbehaved?

 

         Now, I don't portend to know about Scientology, nor, for that matter willingly learn about it.  However, Cruise's involvement with the group, and how it affects little Suri, nobody can accurately predict at this stage.  Nonetheless, there's that little thing in this country called the Constitution, and specifically, the  First Amendment, giving all people the freedom of religion.  As such, the Courts (and that includes the state of New York ) cannot impinge on anyone's religious freedoms nor can a divorce court compel an individual to make him or her have a child practice one faith or bar the parent from having the child participate in another faith.  In essence, based on religion alone, Katie cannot keep Suri from Tom. 

     

             As this case unfolds, anyone who follows the news, myself included, will, whether wittingly or unwittingly, learn more about Scientology.  Perhaps Katie's legal team will challenge whether Scientology is really a religion (though the First Amendment also protects free speech and self expression).  Of course, if the allegations of human rights violations prove true then, religion or not, the Court's first concern is to protect children, so absent cooler heads prevailing (almost an oxymoron in a divorce) the not-so-pleasurable Cruise  is likely to continue for some time. (Personally, I’d rather be on Royal Carribean’s Allure of the Seas!)

    

         What lesson can we glean from with what now will not be a "happily- ever- after" ending?  It's simple...one's beliefs travel with the person.  They do not stop at marriage.  So, if your mate-elect affiliates with a group, practices a religion (even a more "mainstream" one), grew up in a culture, etc. where the belief system, values, customs and traditions are vastly difference than those of your past, and more importantly, those of your present beliefs, values, customs, etc. what makes you think this will create an environment  compatible with how you want to raise your children?  (Hint...it will not).   Although love may cloud these issues in the beginning, I know as a divorce and family law attorney for nearly 28 years, when the love leaves, these differences take on gargantuan proportions in divorce wars.  I see it not where one partner claims the other belongs to a cult.. but in cases where one partner's beliefs and practices simply do not meld with the other's!          

 

       It's too late for Katie.  For those contemplating spawning and marriage, think before you ink that marriage contract.   Whether you need a prenuptial agreement or post nuptial agreement, or whether you are married or have children and aren’t married, and can't come to a common ground, the Law Office of Cindy S. Vova, P.A. is dedicated to helping you come to a peaceable resolution of your family law situation.  For us, there is no "Mission Impossible."

 

       A happy 4^th of July to all Americans who have their freedom, and a big thanks to those men and women in uniform who help keep it that way!

 

Cindy S. Vova

The Law Office of Cindy S. Vova, P.A.

Pine Island Commons

8551 West Sunrise Boulevard, Suite 301

Ft. Lauderdale, FL 33322

(954)316-3496

www.vovalaw.com

info@vovalaw.com 

blog

Verbal Times Sharing Agreement Among Parents,

                                    In Florida: Not Worth the Paper it’s Written on

            When it comes to resolving time sharing (a.k.a. “custody”) issues between parents who are divorcing, separating or otherwise living apart, I’m all about pushing the Staples proverbial “easy button.”  In other words, the more the parents can resolve without attorneys, and certainly without court intervention, the better.  Notwithstanding same, I’ve also always been an advocate of putting agreements in writing.   As famous movie producer Samuel Goldwyn said, “a verbal contract isn’t worth the paper it’s written on.”

 

       Apparently the First District Court of Appeals in the State of Florida is of the same opinion.  Late last year the Court issued an opinion that, although supported by law, flies in the face of layman logic (this shouldn’t surprises me after practicing law for nearly 28 years).  The Department of Revenue (the agency that handles child support in Florida) appealed a trial court’s order that allowed a deviation from child support guidelines, reducing the father’s obligation, because he spent 40 percent of the time with the child.  DOR v. Daly, 74 So3d 165(Fla. 1^st DCA 2011).

 

    Essentially, under Florida law, child support is calculated based on the parties’ net incomes and the number of children. A table is then used to determine the payer’s child support.  This chart is found in §61.30, Fla. Stat. 

                       

            Once a parent spends 20 percent of the overnights with the child, then the Court is mandated to deviate from the child support guidelines set forth in the statute, usually resulting in a reduction of the paying parent’s child support. § 61.30(11)(b), Fla. Stat.  Twenty percent (20%)  of the time is the magic number (for the mathematically challenged, that’s 73 nights per year) because that is deemed “substantial time-sharing.”

§61.30(11)(b)(8), Fla. Stat.

 

       So why did the Appellate Court reverse the reduction the judge granted  Mr. Daly in his child support obligation?  Both parties readily acknowledged in court that he spent 40% of the overnights with the child.  Alas, the First District said “no.” Simply...the parties failed to put their agreement in writing.  The essential document that the parties lacked was a Parenting Plan.  Even though § 61.30(11)(b), requires a deviation from guidelines, the remainder of that statutory section also requires that time sharing be set forth in a parenting plan.

 

     The opinion goes on to say that “ pursuant to section 61.30(11)(b), a trier of fact shall deviate from the guidelines “[w]henever a particular parenting plan provides that each child spend a substantial amount of time with each parent.”

            The parties agreed to the 60/40 split.  Wasn’t that their parenting plan? Not under Florida law, where a parenting plan requires “a document created to govern the relationship between the parents...and must contain a time-sharing schedule for the parents and child.” § 61.046(14), Fla. Stat. (2010). 

 

            No worries, you say.  We’ve written down our agreement for time sharing with the kids. So, you think you’re covered?  According to Daly, you’re wrong again.  The Daly case specifically cited §61.046(14)(1) and (2), Fla. Stat. (2010) whereby  a parenting plan must be (1) “[d]eveloped and agreed to by the parents and approved by a court;” or (2) “[e]stablished by the court, ... if the parents cannot agree.

 

           The Daly opinion relied on “the plain language of the statute” that “ prohibits a trial court from deviating from the guidelines based on a verbal visitation agreement even where equity compels the deviation.”  In another appeal by the Department of Revenue, based again on a verbal agreement, the 1^st District Court of Appeal, just this month, reinforced its prior decision in  DOR v. Veach, Case No. 1D11-4923 (April 4, 2012).

 

      That means, even if you create your own time sharing agreement, and even if you reduce it to writing, it still requires the court’s approval if you wish to rely on that plan to adjust your child support obligation.

       The interpretation of the Florida child support statutes established by Daly further reinforces why it makes sense to consult with a divorce/family law attorney early on in any situation where the parties contemplate divorce, agree to modify an existing child support order or are involved in a paternity case.

 

        At the Law Office of Cindy S. Vova, P.A. we keep up-to-date on all the relevant law so that your case doesn’t suffer the unintended consequences of Mr. Daly’s case.  From our offices in Broward County, we help families throughout Florida, including Miami-Dade and Palm Beach, with not only child support and timesharing/parenting plans, but with alimony, modifications, prenuptial and postnuptial agreements, parental relocations, property division and domestic violence.   We encourage parents to agree on time sharing.  Come see us to make sure your agreement is enforceable.

Cindy S. Vova

The Law Office of Cindy S. Vova, P.A.

Pine Island Commons
8551 West Sunrise Boulevard #301
Plantation, Florida 33322-4007

Phone: 954-316-3496
Email: info@vovalaw.com
Website: www.vovalaw.com

 

 

 

British Divorce Downright "uncivil"

            BRITISH DIVORCE…GUILTY TO A FAULT!

            “I want a divorce, and let me tell you why!” As a Florida family law and divorce attorney for nearly 28 years,  I often hear these words, or some variation on this theme, when a prospective client calls.   Although the Law Office of Cindy S. Vova, P.A. knows that listening to a client and caring about his or her family situation is an important part of the divorce and healing process, it is not important to the court.  In Florida, and that includes Broward, Miami-Dade, Palm Beach and every other county, parties need not cite to the court a “reason” for wanting a divorce other than that they have “irreconcilable differences.”  These “irreconcilable differences can be as innocuous as a husband (or wife, I suppose) leaving the toilet seat up, to waking up one morning with the epiphany that one does not wish to spend the rest of his life with the person lying next to him (presumably his wife).

 

            In fact, according to an April 8, 2012 New York Times article, New York was the last bastion of “fault” divorce, and even New York abolished this requirement in 2010. Thus, every state in this country has some form of no-fault divorce.

 

            So, the obvious question springing from this is, “Doesn’t ‘no fault’ divorce make it too easy to get a divorce?”  Well, let’s consider the alternative...a divorce requiring “grounds.”  The United Kingdom still requires a party requesting a divorce to set forth and actually establish, to the satisfaction of the Court, that grounds exist.  According to the Times, under British law, five categories exist under which where the court may grant a divorce.  These include:

            • Adultery (pretty obvious)

            • Abandonment (relatively obvious), and

            • “Unreasonable Behavior”

 

Now, having probably represented parties in around 800 divorce cases, and having served as a Florida Supreme Court Certified Family Mediator in another 200 cases, I can tell you that nearly EVERY CASE contains some of what I, personally, would call “unreasonable behavior.”   That is, in part, because divorce is such an emotionally charged situation where even the most rational of individuals sometimes crack under the emotional and financial pressures that occur in divorces.

 

            In the UK, however, alleging “grounds” for a divorce adds yet another layer of emotional, and, dare I say financial strain, that, according to the New York Times article, raises the level of absurdity in pleadings to be reminiscent of, in my humble opinion, a 1970s Monty Python skit.   For example, per the article, spouses have alleged that:

 

• A wife was mandated by her husband to dress and speak as a Klingon (wonder if Star Trek originally ran on BBC 1 or BBC 2)

 

• The serial abuse of repeated tuna casserole dinners (based on the cuisine I’ve had in England that, arguably, may have been an upgrade)

 

            • “Spiteful tampering with the TV antenna” (could cable have saved that marriage?)

 

                        • A husband who “usurped” the wife’s control of the washing machine (that might have been grounds to SAVE the marriage)

 

• A wife who “without justification , flirted with any builder or tradesman” (I would guess her “justification” was that her husband couldn’t fix a “bloody” thing)

 

• A husband who insisted that Timmy, his pet tarantula, sleep next to the bed in a glass case (hey, at least he didn’t insist it sleep on the pillow sans cage), and

 

• A husband who insisted on controlling the television remote (okay, so if this passed muster in a British court, I guess every wife in America would have grounds for divorce, particularly during football season)

 

I can only wonder what “fault” was plead in Prince Charles and the late Princess Diana’s petition for divorce....

 

                 So why am I urging the British to abolish this arcane requirement to grant a divorce?  Although the legal system in the United States is modeled after the common law system we adopted from our friends across the pond (except of course Louisiana, that follows the French civil system, and caused me not to apply to Tulane Law School out of fear I’d have to learn more useless stuff..thank you Emory for having me!), it is time for the British to take a lesson from us.  No fault divorce does make divorce easier...when a marriage should end...It eliminates the need for people to write hurtful, silly and damaging allegations in their divorce petitions, let alone spend the time, effort expense and embarrassment of attempting to prove these allegations before a court. 

           

            Since Florida requires neither spouse to plead or prove this unreasonableness, nor, for the most part, does adultery play a role in the Courtroom, attorneys representing divorcing parties can concentrate on those matters that require “reasonableness,” specifically issues involving time sharing and a workable parenting plan with the children, equitable distribution of marital assets and debts, whether alimony is appropriate and, if so, whether the alimony should be bridge-the-gap, rehabilitative, durational, lump sum or permanent periodic, and child support.

 

            If there appears to be no chance to “save” a marriage, then at our firm we concentrate on amicably resolving these issues as expeditiously as possible, and not spending our clients’ money investigating affairs, and providing evidence to the court of Timmy Tarantula’s sleeping arrangements!

 

            Call us.  We are happy to listen to about your spouse’s unreasonable behavior.  We are sympathetic to what you may have endured.  However, we will help you move forward to the future, perhaps boldly going where you’ve not been before....but not aboard the Starship Enterprise.

 

Cindy S. Vova

Law Office of Cindy S. Vova, P.A.

8551 West Broward Boulevard

Suite 301

Plantation, FL 33322

(954)316-3496

info@vovalaw.com  

Alimony Reform Fails in Florida Legislature

With the Florida legislative session ended earlier this month the verdict was in . . . NO changes to Florida’s alimony laws in this round.

Of course, there’s always next year, and with the tenacity of certain lobbying groups this year, there is no question that alimony reform will continue as a hot button again, and change is lurking.  In fact, the first round of recent statutory alimony changes took effect January 1, 2011, when a new “type” of alimony called “durational” alimony was added to Section 61.08, the Florida alimony statute.  At the same time bridge-the-gap alimony, recognized by some courts as far back as 1979, was also included and defined in the statute as alimony awarded to help  transition the lower  earning spouse, usually in a shorter term marriage, from married life to single life.

                When a court deems durational alimony is appropriate, it cannot last for longer than the term of the marriage.  So, if one is married for eight years, the LONGEST (under durational alimony) a court can award a spouse alimony is for those eight years.

                Last year the new law also defined three specific types of marriages, based on the number of years the spouses lived in marital bliss..Well, perhaps all was not blissful, but nonetheless... Section 61.08, Florida Statue defines a “short-term” marriage as one lasting up to seven years; an “intermediate term marriage” as one lasting from  seven to 17 years, and a “long term marriage” as one lasting more than 17 years.  Prior to these changes, judges had little consistent guidance on how to address the type and duration of  alimony in marriages of 12 to 17 years, and relied on cases bearing very little consistency. 

                Nonetheless, as soon as the legislature enacted law where a “long term marriage created a presumption in favor of a permanent alimony award, six months later, in July 2011, the statute was revised, removing the “presumption” of permanent alimony for these 17 plus year marriages.  In other words, a judge is not “required” to award permanent alimony in long-term marriages.  So if you find yourself divorcing after 17 plus years of marriage, you need a skilled Florida divorce/family law attorney to persuade the Court of your position, whether for or against permanent alimony.

                        So what further changes were lurking this past legislative session that are certain to rise up again?  A group called Florida Alimony Reform has spent considerable time and resources attempting to, most notably, effectively end permanent alimony in Florida.  Indeed, after considerable lobbying on all sides, the bill (House Bill 549) advanced by Florida Alimony Reform passed the House 83-30, but, ultimately the Senate failed to take action on the companion bill.

     Now the fine gentlemen (do they have any “women” members..? I have many women clients who are exposed to paying permanent alimony due to their superior earnings over their long-term spouses) would have the public believe that lawyers (I assume he means ALL lawyers) opposed the legislative change because, in at least the opinion of co-director Alan Frisher, it would mean less business for lawyers.  This is simply not true. As one of my favorite law professors at Emory University said to my first year class many years ago, “the facts do affect the outcome of the case.” 

                A March 4, 2012 New York Times article, presumably in an attempt to attack Florida’s current alimony laws, quoted Tampa eye surgeon, Bernard Perez, presently suffering from cancer, who said that he “had been ordered to pay his former wife 85 percent of his income . . . ”  The use of the past tense in Dr. Perez’s quote from the Times is very relevant.  According to the appellate opinion, while Dr. Perez’s divorce was pending, a judge in Hillsborough County ordered the doctor to pay, what appears from the appellate decision, actually 88 percent of the doctor’s income on a TEMPORARY basis . . . that is to say, while the divorce was pending.  Clearly the trial judge erred, and when Dr. Perez appealed the decision (while the case was still pending, and before a final decision on alimony) Florida’s Second District Court of Appeals, acknowledged this error and overturned the judge’s temporary decision. Therein lies the beauty of our legal system.  When a party feels (and has legal grounds) that a judge (or jury) erred in a decision, he can appeal that decision before a higher court.

                Now, knowing that the legal system is an imperfect machine, but albeit, the best one

available, the wiser parties  (or the wiser attorneys of parties)  try to compromise and resolve these issues.  However, when such a total overreaching decision occurs, then that is what the appellate system is designed to address.

                I can assure you that no legislation proposed by Florida Alimony Reform or any other lobbying entity, will so significantly overhaul alimony as it stands today, that it  will escape appeals.  So, is there a perfect solution? Easy answer...no....However, a well thought out, debated and investigated change to the future alimony statues beats one pushed through by some disgruntled men who hate the system and feel wronged by it.

                    By the way, permanent alimony is a misnomer, or, if you will, an oxymoron. Permanent alimony awarded by a court is always subject to change...marriage by the spouse receiving permanent alimony terminates it.....a spouse engaged in a “substantial supportive relationship” may have the alimony received reduced or terminated...retirement at an appropriate time constitutes a change whereby alimony may be terminated or reduced, and a former spouse, such as Dr. Perez, who suffers an “involuntary” reduction in income (i.e.: illness)would not have to pay his wife 85 percent of his reduced income... unless, of course, HE agreed on a period of alimony that was nonmodifiable for any reason whatsoever.  That, of course, would have been his free choice to negotiate....not a decision thrust upon him under the current alimony statute.

                Still confused?  If you have alimony questions call the Law Firm of Cindy S. Vova, P.A. Whether you are in Miami-Dade, Ft. Lauderdale, Weston, Davie, Cooper City, Sunrise, Parkland, Coral Springs, Miramar, Margate, Boca Raton or Palm Beach, our experienced attorneys are here to assist you with questions on the who, what, where, when and why’s of alimony.  If you’re worried about paying alimony or you’re  worried about not receiving it, if you want to modify the alimony you pay or receive, if you’re owed alimony and you’re not getting it our experienced attorneys can give you straight answers.  Call our office, centrally located in Plantation, for the low down on what’s up with alimony in Florida.

 

Cindy S.  Vova

The Law Office of Cindy S. Vova, P.A.

8551 West Sunrise Boulevard, Suite 301

Plantation, FL 33322

954-316-3496

cindyvova@vovalaw.com

Judge Rules Properly on Sandusky Grandchildren Issue

 

      For several weeks major news stories and significant hoopla focused on the serious allegations of child molestation, encompassing 40 criminal counts of sexual abuse of children against Penn State University’s former assistant football coach, Jerry Sandusky. 

 

            It seems that Jerry Sandusky’s son, Matthew, is in the throes of custody proceeding involving, among other matters, the time sharing with Matthew’s and his former wife Jill’s three children, ages 9, 7 and 5. On November 7, 2011, just two days after the charges were filed against Jerry Sandusky, the former Jill Sandusky (now know as Jill Jones) filed a petition in the Court of Common Pleas of Centre County, Pennsylvania, asking that the court “enter a temporary order stating that until further order of court, the children shall not be in the home of Jerry Sandusky or in his presence.”

 

            Apparently the parties had an Interim Parenting Plan, dating back to August 3, 2011. According to Jill’s allegations, when the children are with their father, Matthew Sandusky, they are “regularly in the care of their grandparents,” Jerry and Dorothy Sandusky.

 

            Although I don’t know whether Matthew Sandusky’s attorney filed  a response to this motion, one thing is clear, the presiding judge, Thomas King Kistle, made a proper decision in ruling on the motion.

 

            Judge Kistle, in a temporary order entered on the same day the motion was filed, held that the Sandusky children were not to be in the presence of Jerry Sandusky “without supervision,” and further temporarily prohibited overnight visitation at Jerry Sandusky’s home.  Although Jill Sandusky sought to prohibit Jerry Sandusky from any contact whatsoever with his grandchildren,  Judge Kistle amended the proposed order so that safeguards were in place for the protection of the children, while limiting the further trauma that the family and the children are certainly suffering under the scrutiny of the country and the world. 

 

            Being neither in the position of judge nor jury in determining Jerry Sandusky’s guilt or innocence,  I’ll leave that to the state of Pennsylvania’s justice system.  But besides (perhaps rightfully) turning the reputation of esteemed Penn State football Coach Joe Paterno upside down, there is more at stake...the Sandusky grandchildren.

 

              Although these children are relatively young, undoubtedly wagging tongues, finger pointing and muffled whispers have infiltrated their childhood  in the vicinity of their Penn State University dominated town.  By Judge Kistle’s benevolent and wise temporary ruling, at least these children have some stability whereby their grandfather is not abruptly removed from their lives, yet the children are protected from this alleged predator.  If Jerry Sandusky did even one of the things he’s been accused of he should rot in some far away jail forever...if that is punishment enough.  Someday, these children will know the truth.  But for now, Judge Kistle ensured that these children will be safe, but put a band-aid on a family that surely needs it.

 

            Oh, and also, glad to see that Judge Kistle’s order also addressed the issues of Matthew Sandusky using his mother as a conduit for communication between his ex-wife and himself.  Good for you Judge Kistle...and Matthew, grow up.  These are your children and Jill’s. Whatever

brought about the demise of the marriage (and believe me, as a family law and divorce attorney I’ve heard it all), act like an adult and father.  You need to parent these children TOGETHER.  Takes what’s good about both of you (and, apparently you used to see something good to have three children together) and use it to raise three healthy and happy children.

 

            Our firm has handled similar cases.  We are attorneys, but we are also parents and people who care about children and families...especially those fractured by divorce.  If you have issues involving time sharing with your children in Florida, and particularly Miami-Dade, Broward and Palm Beach Counties, we would be glad to speak with you about them.

 

Cindy S. Vova

Law Office of Cindy S. Vova, P.A.

8551 West Sunrise Boulevard

Suite 301

Plantation, FL 33322

(954) 316-3496

cindyvova@vovalaw.com