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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