Sunday, May 5, 2024

Bonus Income And Child Support In Florida

In Florida, each party’s income determines what child support is owed by or paid to each party.

Not everyone receives the same salary every two weeks or even every year. High performing employees are rewarded by their employers with additional bonus income at irregular times during the year.  

Bonuses keep employees working at a particular employer in the hopes that they will earn a bonus at some point later in the year.

When a Florida parent/employee does receive that bonus, how does that bonus affect the child support owed by that parent/employee or owed to the other parent?

How Is Child Support Determined In A Florida Divorce Or Parentage Action?

In Florida, child support is determined via a system called the “guidelines.”

“The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact must order as child support for a minor child” Fla. Stat. § 61.30(1)

“The following guidelines schedule shall be applied to the combined net income to determine the minimum child support need:” Fla. Stat. § 61.30(6)

The Florida statute includes a massive chart of combined incomes and corresponding child support amounts.

For the sake of explanation, let’s use an example. I’ll assume one parent (Wilma) makes $ 2000 net income each month and the other parent (Fred) makes $ 6000 net income each month. The child support guidelines for those parents would be as follows:

Combine Monthly                          Number of Children

Net Income                                          One       Two        Three    Four       Five        Six

$ 8000.00                                            1290     2004     2513     2827     3085     3298

“Each parent’s actual dollar share of the total minimum child support need shall be determined by multiplying the minimum child support need by each parent’s percentage share of the combined monthly net income.” Fla. Stat. § 61.30(10)

So, if our two hypothetical parents had two children. The parent earning $ 6000 a month (Fred) would be responsible for 75% of the guidelines child support amount of $ 2004 or $ 1503. Likewise, the parent earning $ 2000 a month (Wilma) would be responsible for 25% of the guidelines child support amount.

Knowing these two numbers based on income, child support is then determined by the amount of time each parent spends with the child(ren).

“1. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to each parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.

2. Calculate the percentage of overnight stays the child spends with each parent.

3. Multiply each parent’s support obligation as calculated in subparagraph 1. by the percentage of the other parent’s overnight stays with the child as calculated in subparagraph 2.” Fla. Stat. § 61.30(11)(b)(1-3)

In our example, Fred’s obligation $ 1503 is multiplied by 1.5 for $2254.5 and Wilma’s obligation of $ 501 is multiplied by 1.5 for $ 751.5.

Fred only has the children every other weekend for three nights total. 3/14 is 21.4%

Wilma then has the children the other 78.5% of the time.

Wilma’s obligation for child support is $ 751.50 X 21.4% = $ 160.80

Fred’s obligation for child support would be $ 2254.5 X 78.5% = $1769.78

“The difference between the amounts calculated in subparagraph 3. shall be the monetary transfer necessary between the parents for the care of the child” Fla. Stat. § 61.30(11)(b)(4)

In our example, Fred would owe Wilma $1769.78 less $160.80 or $ 1608.98 a month in child support.

As you can see, everything about child support except for parenting time is based on the parties’ monthly incomes.

Child support is calculated as money owed each month. Bonuses, however, are not paid every month.  Bonuses are paid once or twice a year. How does a bonus impact the average net income of each party and subsequently the child support owed by or to that party?

Bonuses and Child Support In Florida

A bonus is part of a Florida parent’s income. Bonuses are included when determining income for the purposes of calculating a Florida child support obligation.

“Income shall be determined on a monthly basis for each parent as follows:(a) Gross income shall include, but is not limited to, the following:1. Salary or wages. 2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.4. Disability benefits.5. All workers’ compensation benefits and settlements. 6. Reemployment assistance or unemployment compensation.7. Pension, retirement, or annuity payments. 8. Social security benefits.9. Spousal support received from a previous marriage or court ordered in the marriage before the court. 10. Interest and dividends. 11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income. 12. Income from royalties, trusts, or estates. 13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses. 14. Gains derived from dealings in property, unless the gain is nonrecurring.” Fla. Stat. § 61.30(2)(a)(emphasis mine)

“The child support statute plainly requires that bonuses be included in the calculation of gross income.” Haupt v. Haupt, 288 So. 3d 1275, 1276 (Fla. Dist. Ct. App. 2020)

Bonuses must be included in income but only if the bonuses keep recurring year after year.

“[B]onus income must be included in the calculations of both child support and alimony when it is regular and continuous.” Barlow v. Barlow, 224 So. 3d 868 – Fla: Dist. Court of Appeals, 2nd Dist. 2017

Bonuses by their very nature are not regular and continuous. Bonuses typically change every year.

“[B]onuses, [are] not guaranteed because they were given at his employer’s discretion. But under these circumstances [of regular bonuses] the trial court should have included the bonuses as part of the Former Husband’s income.” Edge v. Edge, 196 So. 3d 448 – Fla: Dist. Court of Appeals, 2nd Dist. 2016

How regular and continuous is “regular and continuous?”

In Dinardo vs. Dinardo the court found bonuses to be “regular and continuous” enough to be included as income even though “not guaranteed and in the sole discretion of his employer, the Husband has received regular and continuous bonuses nine (9) out of the thirteen (13) years he has been employed” DiNardo v. DiNardo, 82 So. 3d 1102 – Fla: Dist. Court of Appeals, 2nd Dist. 2012

When bonuses are found to be the result of a one-time event, they will not be included in income for the purposes of determining child support.

“[T]he evidence was uncontroverted that the extraordinary elevation in Former Husband’s 2012 income was not regular and continuous, but was instead due to a specific non-recurring event, i.e., the 2012 presidential election.” Rudnick v. Harman, Fla: Dist. Court of Appeals, 4th Dist. 2015

Outside of these one-time windfalls, it is an abuse of a court’s discretion to NOT consider bonus income solely because the employee cannot guarantee or even control the amount or timing of the bonus.

A Florida divorce or paternity court cannot “exclude [a] bonuses because it found that the payments and amounts were contingent and outside of [the party’s] control.” Parry v. Parry, 933 So. 2d 9 – Fla: Dist. Court of Appeals, 2nd Dist. 2006

Even if bonuses have been consistent enough to be included in income, the amount of the presumed next bonus should be based on the last bonus. Florida divorce and parentage courts should use the most current bonus when determining income for the purposes of child support.

A Florida “court should [rely] on the…the most recent bonus information available to it at the time of the final hearing.” Barlow v. Barlow, 224 So. 3d 868 – Fla: Dist. Court of Appeals, 2nd Dist. 2017

“[C]urrent income … should form the basis for the [support] award.” Crowley v. Crowley, 672 So.2d 597, 600 (Fla. 1st DCA 1996)

Bonuses are unpredictable and only arrive a few times a year. Courts should, at the very least accommodate that fact by requiring payment of support only when the parent receives the bonus.

A “court should modify the payment schedule for alimony and child support so that its payment coincides with the receipt of bonus income by the husband.” Shrove v. Shrove, 724 So. 2d 679 – Fla: Dist. Court of Appeals, 4th Dist. 1999

“We agree with the husband on this point and grant his request that the payment of permanent alimony be due on a quarterly basis [when he receives his quarterly bonus].” Coyne v. Coyne, 505 So. 2d 1115 – Fla: Dist. Court of Appeals, 2nd Dist. 1987

These same rules for determining if bonuses count as income for child support apply to determining income for the purposes of awarding alimony.

“[W]e have held that when a trial court calculates income for the purpose of awarding child support or alimony, it may not exclude from consideration bonuses that are regular and continuous.” Drew v. Drew, 27 So. 3d 802 – Fla: Dist. Court of Appeals, 2nd Dist. 2010

Bonuses are a big deal! People work very hard for their bonuses and giving a bonus up in child support stings even more.

Conversely, some people are mostly paid in bonuses. It would be an injustice not to include bonus income as part of a child’s support.

If you would like to speak to an experienced Florida divorce attorney about how your bonus or your child’s other parent’s bonus affects child support, contact our Naples, Florida family law firm today.


Wednesday, November 1, 2023

Uncontested Divorce in Naples, Florida

Uncontested divorce in Naples, Florida is not only possible, it is easily achieved under the right circumstances.  Many divorces share two things in common: 1) they parties agree that they should divorce, 2) The parties agree as to what should happen after their divorce.

Agreeing to a divorce is the easy part.  Unpacking an entire marriage in a way that’s fair and satisfying to each party is the difficult part.

When the parties to a divorce don’t have children, many assets or any need for support, there is not a lot to “unpack” so, in Florida, a simplified divorce is available.

Simplified Divorce

The Florida Family Law Rules of Procedure provide both instructions for filing a simplified petition for dissolution of marriage and the forms to fill out to request a simplified divorce.

The form is very particular as to who is eligible for a simplified divorce.

  • You and your spouse agree that the marriage cannot be saved.
  • You and your spouse have no minor or dependent child(ren) together, the wife does not have any minor or dependent children born during the marriage, and the wife is not now pregnant.
  • You and your spouse have worked out how the two of you will divide the things that you both own (your assets) and who will pay what part of the money you both owe (your liabilities), and you are both satisfied with this division.
  • You are not seeking support (alimony) from your spouse, and vice versa.
  • You are willing to give up your right to trial and appeal.
  • You and your spouse are both willing to go into the clerk’s office to sign the petition (not necessarily together).
  • You and your spouse are both willing to go to the final hearing (at the same time).

If you meet all of these requirements, there are still a lot of not-so-simple steps. After filing the simplified petition for dissolution of the form on-line or in person at the Collier County Courthouse.  You must attach a signed Marital Settlement Agreement.

The standard form for a Marital Settlement Agreement provided by the Florida courts is woefully incapable of handling all but the simplest divorces.

If either person has any 401ks or pensions, there is no language as to how those assets should be divided to avoid a tax penalty.

If the parties own real estate together, there is no language for a scheduled sale of the home or the signing of a quit claim deed to release the home to the other party.

If there are mutual credit cards, there is no schedule for paying those cards and closing them.

Sadly, the simplified divorce forms only work for the simplest of divorces.

Eligibility Criteria for Simplified Divorce in Florida Requirements
Mutual Agreement You and your spouse both agree that the marriage cannot be saved.
No Minor/Dependent Children You and your spouse have no minor or dependent child(ren) together. The wife does not have any minor or dependent children born during the marriage, and she is not currently pregnant.
Division of Assets and Liabilities You and your spouse have agreed on how to divide your assets and liabilities, and you are both satisfied with this division.
No Alimony Request You are not seeking support (alimony) from your spouse, and vice versa.
Waiver of Trial and Appeal Rights You are willing to give up your right to trial and appeal.
Signing and Final Hearing Both you and your spouse are willing to go into the clerk’s office to sign the petition (not necessarily together), and you are both willing to attend the final hearing (at the same time).

Uncontested Divorces Using An Attorney

A divorce can still be done fairly simply and effectively if the parties do not meet the Florida simplified divorce qualifications.

In my law office, if a person comes to me seeking a divorce, I will assume that the divorce will be uncontested.  I use my client’s completed financial affidavit and completed parenting plan to begin crafting final documents.  There may be many blank spaces left for both the client and the opposing party to fill in. Even incomplete final divorce documents help isolate the remaining issues and educate both parties as to the structure of their final settlement.

The final documents must be prepared at some point in the divorce case so we might as well prepare them right away to relieve the anxiety of both parties and move us so many steps closer to settlement.

After reviewing the final documents the opposing party will usually submit their own financial affidavit, submit proposed changes to my office or retain their own attorney.

Contested Divorces…For Now

Just because the divorce isn’t completely agreed does not mean the case is contested.  98% of all divorces end up settling and thereby become uncontested divorces.

Usually a divorce is happening per the person who filed the divorce petition’s schedule.  The other party is still absorbing the reality of divorce and may not be ready to settle right away.

After the respondent of the divorce is served, the parties are required to exchange initial financial documents like the financial affidavit within 45 days.

Upon receipt of the financial documents, almost all the financial issues can be resolved with a quick analysis of the numbers.  Child support is a calculation. Division of marital assets in Florida “must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution” Fla. Stat. Sec. 61.075(1)

For some couples, quick calculations may resolve all outstanding issues.

But there are lots of exceptions to the above rules regarding finances and divorce….and alimony has almost no black and white rules.  Parenting time, of course, cannot be determined with a mathematical formula.

In cases where there are still outstanding disagreements after preparing proposed final documents, the parties can be referred to mediation.

Typically, a lot of those unresolved issues get resolved almost immediately via motions for temporary relief such as a motion for exclusive possession of the marital residence.  A judge’s ruling on a temporary motion usually lets the parties know “which way the wind is blowing” as to final rulings and further encourages settlement.

If you’d like to learn more about uncontested divorce in Naples, Florida, contact my Naples, FL family law office to schedule a free consultation with an experienced Florida divorce lawyer.


Friday, August 25, 2023

How Do I Deny Paternity In Naples, Florida?

In Florida, to deny paternity you must be found to the be the father or at least accused of being the father.

Typically, paternity is established merely by the parties being married.  If you are married to a woman and the woman has a baby, you are the legal father in Florida (at least initially).

If a man is not married to a woman but the woman agrees that he is the father, the woman directs the man (usually with the assistance of someone at the hospital) to sign a voluntary acknowledgment of paternity.  This form, once signed creates a rebuttable presumption of paternity which can be rescinded by either the man or the woman within 60 days.  Fla. Stat. Sec. 742.10(1).  After 60 days, only the legal father can contest the paternity based on “fraud, duress, or material mistake of fact, with the burden of proof upon the challenger[the legal father]” Fla. Stat. Sec 742.10(4)

If mother and father are not agreed at the hospital when the voluntary acknowledgment of paternity is circulated, often, paternity is found via the simple declaration of an administrative judge in a child support proceeding.  The administrative judge gets the man to admit paternity or submit to a DNA test and then declares the man “the father”.  This can still be challenged in a non-administrative or a “true” court.

The court to challenge the paternity is usually the court within which the child lives.  So, if the child lives in Naples, Florida, you could challenge the paternity in Collier County.  You could probably still challenge the parentage order in Collier County if you lived in Naples, Florida and there was no previous court order relating to parentage in another county.

There are some things that can prevent a denial of paternity forever no matter what.  If the alleged father has ever claimed the paternity for some type of legal advantage to himself, as a father, then he is forever barred from denying that paternity.  For example, you cannot declare yourself the father to defeat another man’s claim of being the father and then disavow paternity.  S.B. v. D.H. 736 So. 2d 766, 767 (Fla. 2d DCA 1999).

More typically, you cannot say publicly, “I’m the father” for a period of more than two years and then deny paternity.  C.C.A. v. J.M.A., 744 So. 2d 515 (Fla. 2d DCA 1999).  Additionally, a woman cannot hold a man out as the father for two years and then ask the court to declare that same man not to be the father (but that alleged father can always agree that he is not the father).  Barker v. Barker, 785 So. 2d 1273 (Fla. 5th DCA 2001).

In 2006 a specific statute, Fla. Stat. Sec. 742.18(1) was enacted in Florida about how a legal father (which we covered above) can challenge paternity when he finds out he is not the biological father.  It requires the following:

“To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation.” Fla. Stat. Sec. 742.18(1).  This means just going to the county court the child is living in or the child support order was filed in.

The petition must then be served upon the mother and, if there’s a child support order administered by the department of revenue, the department of revenue must be served as well.

This petition must include, “An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.” Fla. Stat. Sec. 742.18(1)(a).  This generally means reasons for a suspicion that are confirmed by a DNA test that the next section of the statute discusses as “The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required” 

If the father cannot get access to the child (there is no visitation available to apply a quick swab test available on Amazon for $ 99.99) then can just testify to that fact.  Failing that, the alleged father can ask the court to have the child submit to a DNA test.

The statute then elaborates when you CAN NOT deny paternity in a Florida court:

An alleged father must be current on his child support to file this motion or his child support owed is due to a “inability for just cause to pay the delinquent child support.” Fla. Stat. Sec. 742.18(1)(c).

The child cannot have been the result of an artificial insemination while the alleged father was married to the mother. Fla. Stat. Sec. 742.18(1)(e).  It obviously wouldn’t be fair to use a sperm donor as an excuse.

The alleged father cannot have done anything to prevent the biological father from asserting his rights. Fla. Stat. Sec. 742.18(1)(f).

The child in question must be under the age of 18.  Fla. Stat. Sec. 742.18(1)(g).

Then the statute allows for a second test wherein the mother can refute any denial of paternity (that meets the above requirements) if she can show that the alleged father did one of the following things AFTER he learned that he was not the biological father:

“(a) Married the mother of the child while known as the reputed father in accordance with s.742.091 and voluntarily assumed the parental obligation and duty to pay child support;

(b) Acknowledged his paternity of the child in a sworn statement;

(c) Consented to be named as the child’s biological father on the child’s birth certificate;

(d) Voluntarily promised in writing to support the child and was required to support the child based on that promise;

(e) Received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded; or

(f) Signed a voluntary acknowledgment of paternity as provided in s. 742.10(4).”Fla. Stat. Sec 742.18(3).

It’s been just a little over 10 years since this statute was enacted by the Florida State Legislature but it has proven to be very difficult to overturn paternity in the Florida courts while using this statute. The question usually becomes, “When should you have known you needed a DNA test?”  The courts are split on whether you can come back after 15 years or so and ask for a DNA test. For many Florida appeals courts at some point, it is too late…or is it? The issue is extremely sensitive and deserves the attention of an experienced lawyer.

Contact my family law office in Naples, Florida and speak with a Florida divorce lawyer to learn more about the process of investigating, confirming or denying paternity under Florida law.

Denying Paternity in Naples, Florida Details
Establishing Paternity in Marriage Marriage often establishes paternity; married to the mother, you’re the legal father.
Voluntary Acknowledgement of Paternity Unmarried man acknowledged as father by mother can sign voluntary paternity form; can be rescinded within 60 days.
Administrative Judge’s Declaration of Paternity Administrative judge may establish paternity in child support proceedings; can be challenged in non-administrative court.
Challenging Paternity in Child’s County Challenge paternity in the court where the child resides; location determines jurisdiction.
Restrictions on Denying Paternity Past claims of paternity for legal advantage or holding out as father can prevent denial; time limits on changing paternity claims.
Challenging Paternity under Fla. Stat. Sec. 742.18 File petition in circuit court where child support is administered; provide affidavit with newly discovered evidence; present scientifically accepted tests showing low probability of paternity.
Additional Considerations for Denying Paternity Meet certain requirements: be current on child support or unable to pay for just cause; child under 18; child not result of artificial insemination while married; not prevent biological father’s rights; mother’s possible refutation based on certain actions.


How Do I Legally Change A Child’s Name In Naples, Florida?

In most states, the birth certificated is just a formality with no legal control.  In Florida, the birth certificate is a big deal.  Listing the father on the birth certificates can make that man the legal father automatically, (but this can be undone by court order).  Fla. Stat. Sec 382.013(2).

Likewise, whoever puts the child’s name on the birth certificate gets to name the child.  If the mother and father are married to each other they will typically agree.  If the husband and wife fail to agree, the last name of the child will be a hyphenated version of each name they both selected in alphabetical order.  Fla. Stat. Sec. 382.013(3)(b).  For example, If Amber Allen and Bruce Battenburg have a child together and can’t settle on the child’s name, the child’s last name will be Allen-Battenburg.

If the parents are not married, the mother has the right to name the child for both first and last names.  Usually this isn’t a problem, except in the very common occurrence of the mother giving the child her last name and not the father’s last name.  The child carrying the father’s last name is not automatic.  Girten v. Andreu, 608 So. 2d 886 (Fla. 3d DCA 1997)

The father can’t even ask that the child’s name be something different until he has established paternity with the court.  Once a father, has established paternity, the father can then petition the court to change the child’s last name to the father’s last name.

Paternity typically gets established in the county where the child lives.  If your child lives in Naples, Florida, you can go to the Collier County courthouse to establish paternity.

If the father wants to change the child’s last name, the father must show that it is in the best interests of the child that the child’s carry his last name.   V.S. v. B.M., 281 So. 2d 587 (Fla. 2d DCA 1973).  In my experience, the judge will often push the parties to agree to a hyphenated name and, failing that, the judge will give the child the father’s name purely because of the cultural tradition.  This, of course, depends on the judge and the judge’s opinion of how important a last name is.  If the child knows their last name (this usually happens between ages 2 and 3) then the judge will often not allow for the change of a last name.

If for some reason (usually spite) a party asks to change a child’s last name during a divorce proceeding, the courts will almost always deny that request.  Airsman vs. Airsman, 179 So. 3d 342, 345 (Fla .2d DCA 2015).

If parents together decide to change their child’s name (first or last), they don’t do so through the family law courts but rather through the chancery courts pursuant to Florida statute section 68.08(7) “A husband and wife and minor children may join in one petition for change of name and the petition must show the facts required of a petitioner as to the husband and wife and the names of the minor children may be changed at the discretion of the court.”

If only one person wants to change the child’s name they follow Florida statute section 68.08(8), “When only one parent petitions for a change of name of a minor child, process shall be served on the other parent and proof of such service shall be filed in the cause; however, if the other parent is a nonresident, constructive notice of the petition may be given pursuant to chapter 49, and proof of publication shall be filed in the cause without the necessity of recordation.”  This means the other parent has to be formally served notice if they live in Florida.  If the other parent does not live in Florida and presumably cannot be found, you can publish the notice in the newspaper.

The two ways to change a child’s name in Chapter 86 of the Florida statutes seem very simple compared to what I wrote earlier in this article.  Unfortunately, you cannot use this chapter if there’s an ongoing divorce or a paternity case. “This section does not apply to any change of name in proceedings for dissolution of marriage” Fla. Stat. Sec. 68.07(9).

Contact my family law office in Naples, Florida to speak with a Florida divorce lawyer to learn if changing your child’s name is viable.

Topics Details
Birth Certificate Role In Florida, birth certificates hold legal significance; listing father can establish legal paternity and child’s name.
Naming Convention for Married Parents If married parents agree, child’s name is usually settled; if not, hyphenated version of each parent’s name in alphabetical order.
Naming Rights for Unmarried Mothers Unmarried mothers have right to name child; father’s last name not automatic, requires paternity establishment to change.
Changing Child’s Last Name Father can petition to change child’s last name after establishing paternity; court considers child’s best interests.
Paternity Establishment Paternity typically established in county where child resides, such as Collier County for Naples, FL.
Court’s Consideration of Name Change Court weighs best interests and cultural tradition; child’s age and familiarity with last name impact decision.
Changing Name During Divorce Requesting name change during divorce is often denied by courts.


Tuesday, August 22, 2023

How Do I Get Custody Of A Child That is Not My Biological Child In Naples, Florida?

In Florida, there are four ways to get custody of a child that is not your own: 1) Adoption, 2) Appointment of a Guardian, 3) Intervention by the State Department of Children and Families in a dependency action, and 4) Temporary custody under Chapter 751.

The first step in seeking any kind of custody is usually gaining temporary custody.  Typically, temporary custody can be granted routinely if both parents consent to the grant of temporary custody.  This is very common for military families or families that are undergoing a temporary crisis.

If the child lives in Naples, Florida, or lived in Naples Florida for at least six months during the last six months the jurisdiction for this action typically will be in Collier County.

Only “an extended family member” may bring a petition for temporary custody in the Florida courts.  Fla. Stat. Sec. 751.02 to 751.03. This includes grandparents, cousins, aunts and uncles, siblings or half siblings.

If you are not a relative of the child, you cannot ask for temporary custody under Chapter 751 and must proceed via adoption or guardianship under Chapter 744.

If only one parent consents to the temporary custody but the other parent cannot be found, temporary custody can still be granted as long as you have diligently searched for the missing parent.

If a parent formally objects to a grant of temporary custody (or any custody) then that non-parent will not be granted custody unless there are extreme circumstances.  A parents’ right to be a parent and have control of their child’s life has been held by both the Florida and United States’ Supreme Courts as a fundamental right and therefore cannot be usurped for almost any reason.

The courts still must find that the grant of temporary is 1) consented to by the parents and 2) in the best interests of the child.  This is done through a hearing where evidence is presented as to why this award of temporary custody would be in the best interests of the child.  The evidence is almost always just testimony from the petitioner (the person seeking temporary custody).

Temporary custody can be terminated very easily by a parent disavowing their consent and reinstating their rights.  The facts would have to be extreme for a court to continue a temporary visitation after the disavowal of a parents’ consent.

For example, a parent who had never met the child could not just swoop in and take custody of the child from a grandmother with temporary custody.  The parent’s rights to their children are fundamental constitutional rights so, in cases like this, the court will often set up a transition plan.

In the case where a parent has been found to be unfit, the parent must simply prove their fitness to reinstate their rights and terminate the temporary custody order.

In lieu of this concept that temporary custody competes with the parents’ custody the legislature changed the statute so that temporary custody could be considered “concurrent.”  This essentially turns the temporary custodian into a 3rd parent.  There is, however, no statute available to direct concurrent custodians and parents in the event that they disagree upon something related to the welfare of the child.

In lieu of temporary custody, a non-parent can proceed under Chapter 744 of the Florida Statutes and ask for guardianship.  Guardianship is almost always pursued in cases where the parents are dead, incapacitated or unavailable.  Guardianship is also used in cases where a child is to receive some kind of large settlement and a non-interested third party is needed to oversee the money which the child will receive until that child turns 18.

If you are looking to take custody of a child that is not your biological child, then I know you’re doing things from the heart and for the right reasons.  As a Florida family lawyer, please contact my Naples, Florida family law office so I can help you and help this child.


Thursday, June 29, 2023

How Do I Determine My Income or My Spouses Income In My Naples Florida Divorce?

Whether it’s determining alimony or determining child support in a Naples, Florida divorce, income is the biggest factor in determining either of those obligations.

The Florida statute goes into great specifics about what shall be considered income for the purposes of child support or alimony.

“Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government , or any unit of local government, or any uint of local government.  United States Department of Veterans Affairs disability benefits and unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support. Fla. Stat. Sec 61.046(5)

As you can see, it’s not simply the money you get from your check.  Bonuses, business income, and options may all be available through your job and those benefits that eventually can be turned into cash will be considered income.

Investment income is considered income for the purposes of child support and alimony. It can be as simple as dividends from stocks or rents from real estate.  Investment income can also be shielded from looking like current income in myriads of ways.  For example, Warren Buffet’s famous stock, Berkshire Hathaway, has regularly grown but has never issued a dividend.

Florida alimony attorney

The division of marital assets can often create income to both parties.  For example, if a pension is divided in two, both parties’ pension payments will be considered as income to each party, respectively.

Perhaps the better question to ask is: “what is not income?”

One time distributions may be considered as a capital asset and not as income. Vollmer v. Vollmer, 33 So. 3d 67 (Fla. 1st DCA 2010)

Drawing down your assets (not just taking an interest payment or dividend) is also not be considered income.  Receiving cash by taking on debt is also not be considered income for child support or alimony purposes.

What isn’t income is often what gets litigated in a divorce case.  Spouses will declare their annual bonus as a one-time distribution because “it’s not guaranteed.”

Cash income or secret second jobs can usually be proven via bank records and/or spending habits.

During a divorce, people often deliberately stop working, don’t work as much or suddenly find work in a lower paying field for the purpose of reducing their income.  Courts can then impute income to that party based on these facts.

Finally, business owners are notorious for masking personal income as business expenses.  Those expenses which are mostly for personal purposes should be recalculated as additional income to the party.

Business owners also can appear to have a lower income due to the nature of “pass through” entities like Chapter S corporations.  Courts are very familiar with the concept of “pass through” income and do not allow that amount to be the exclusive calculation of income in a divorce. Zold v. Zold, 911 So. 2d 1222 (Fla. 2005) Courts will look to cash withdrawals and other cash flow to determine income.

The biggest issue with determining income is that the proof of the income is usually under the control of the person earning the income.  This requires the other party’s lawyer to issue discovery requests to the person regarding their income and subpoenas to third parties (customers and clients) to verify the income.  In my experience, if there’s any evidence of manipulation of income for the purposes of reducing income for the divorce, the judge starts making estimates about what the person really earns.  Those estimates are almost always on the high side.

Defending an accusation of misdirecting income is simple: disclose everything exhaustively.  After sifting through thousands of pages of bank documents, the other side will realize there is no hidden “Easter Egg”

If you have more questions about income and support for your Collier County divorce, contact my Naples, Florida family law office to schedule a free consultation with an experienced Florida divorce attorney.

Types of Income and Benefits Details
Wages, salary, commissions and bonuses Payment received as part of employment
Compensation as an independent contractor Payment received as a self-employed individual
Worker’s compensation Benefits received due to work-related injury or illness
Disability benefits Benefits received due to a disability
Annuity and retirement benefits Periodic payments from annuities or retirement plans
Pensions Periodic payments from pension plans
Dividends, interest, and royalties Income generated from investments
Trusts and other payments Payments received from trusts or other sources
United States Department of Veterans Affairs disability benefits and unemployment compensation Excluded from the definition of income, except for support purposes


How Does My Age Affect My Naples Florida Divorce?

Elderly or grey divorces are becoming more and more common. Age can be a factor in Florida divorces insofar as it impacts alimony.

In Florida people over age 65 have an extra right to speedy trial (for presumably morbid reasons).  “Civil actions involving elderly parties; speedy trial.—In a civil action in which a person over the age of 65 is a party, such party may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the initial complaint or at any time thereafter.” Fla. Stat. Sec. 415.1115

So, a party to a Florida divorce would have his case heard “at the front of the line” if he or she so wished.  Often discovery matters are going to take a while so this issue may be moot unless the parties have simple (or no) assets and are eager to get re-married.

Obviously, it is more likely for an older person to qualify for statutorily mandated permanent maintenance because it is more likely that an older person has been in a 17+ year marriage.

Age often effects income and alimony is largely determined by both parties’ incomes.

While age discrimination is illegal when hiring and promoting employees, we all know that older workers face more difficulty in finding employment than younger workers, especially if they have been out of the workforce for a long period.  Florida courts are willing to acknowledge these employment difficulties when calculating alimony. Lynch v. Lynch, 695 So. 2d 843 (Fla. 3d DCA 1997)

Age often comes with various mental or physical disabilities that limit earning potential.  This effects both a party’s ability to self-support or, alternatively, to pay alimony.

Florida divorce attorney

An advanced age makes an alimony-receiver far more likely to be awarded permanent alimony…even in a short marriage. Levy v. Levy, 900 So. 2d 737 (Fla. 2d DCA 2005)

Florida courts consider awarding permanent alimony to a party in a short-term marriage if a disability occurred during the short term marriage.  At an advanced age, several disabilities can be identified as occurring during the marriage: stroke, heart attack, etc.  Other disabilities associated with aging may not have a singular moment that can be said to have occurred during the marriage: dementia.

If the disability is found to have existed before the marriage, there can be no award of permanent or rehabilitative alimony if the marriage was classified as a short term marriage. Kunzweiler v. Kunzweiler, 698 So. 2d 1251 (Fla. 5th DCA 1997)

Disability is often proven via medical evidence but in the case of the broader concept of “being old.” A party’s testimony alone may suffice as evidence of an age related disability. de Gutierrez v. Gutierrez, 19 So. 3d 1110 (Fla. 2d DCA 2003)

For the alimony-payor, age definitely matters.  The Florida supreme court says you are allowed to retire at age 65 and reduce your alimony on your 65th birthday.  Pimm v. Pimm, 601 So. 2d 534 – Fla: Supreme Court 1992

Additionally, marital assets can be impacted by age.  Often, a person’s largest asset is their 401k, IRA or other tax-deferred retirement account.  A Florida court would be loath to force a withdrawal from one of those accounts if the holder of the account was under age of 59 1/2 as they would incur a 10% penalty under the law. 

The division between marital and non-marital assets is more difficult when the parties are at greater ages.  It is rare to perfectly isolate a non-marital asset and claim that the other party contributed nothing to the asset over 20 plus years, especially a house.  Additionally, it is rare to have all the paperwork after 20 plus years to rebut the presumption that the asset is marital.

Unfortunately, with age comes illness.  The possibility of terminal illness can dramatically effect a divorce.  If you or your spouse die before the divorce is granted, the marital assets will be divided via the probate court not the divorce court.

Naples, Florida’s median age is 66.8 so age is often a factor in Collier County divorces and the Collier County judges will thoughtfully consider how your age will impact the outcome of your divorce.  Contact my Naples, Florida family law office to speak with an experienced Florida divorce attorney and to learn more about what can and will happen in your pending divorce.

Impact of Age in Florida Divorce Details
Speedy Trial for Elderly Parties Elderly parties over the age of 65 can request to advance the trial on the docket in civil actions.
Qualification for Statutorily Mandated Permanent Maintenance Older individuals are more likely to qualify for permanent maintenance due to longer marriages.
Alimony Calculation Age-related employment difficulties and disabilities can be considered when determining alimony.
Awarding Permanent Alimony in Short Marriages Advanced age and disabilities occurring during the marriage may lead to the awarding of permanent alimony in short-term marriages.
Disability Proof Testimony alone may suffice as evidence of an age-related disability.
Retirement and Alimony Reduction Retiring at age 65 allows for a reduction in alimony payments.
Impact on Marital Assets Age can affect the division of marital and non-marital assets, especially when it comes to retirement accounts and property accumulated over a long period.
Terminal Illness and Divorce In case of terminal illness and death before the divorce is granted, the division of marital assets will be handled by the probate court.


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