Family Law Rights

Prenuptial Agreements and Estate Planning Considerations: ‘Till Death Do Us Part

2011-07-18T15:07:00.000-04:00

Nearly 80,000 Florida residents file for divorce each year. And, Florida has the nation’s highest percentage of residents over the age of 65. Many people enter into a second marriage with significant assets and adult children. Accordingly, it is often important to consult an experienced Florida family law attorney for a prenuptial agreement that addresses address both marital and estate planning issues.

Florida adopted the Uniform Premarital Agreement Act (the “UPAA”), which expressly provides that parties may reach a binding contract on the following issues: (i) the parties’ rights and obligations concerning any assets and liabilities; (ii) the right to buy, sell, use, transfer, or dispose of property; (iii) the distribution of property upon separation, dissolution, death, or other event; (iv) the right to alimony; (v) the making of a will or trust; and (vi) the disposition of life insurance proceeds. See Fla. Stat. § 61.079(4)(a).

It is imperative to understand the estate and probate rights that may be waived by a spouse. See Fla. Stat. § 732.702. For example, a surviving spouse normally has the right to receive an “elective share” of the deceased spouse’s estate (under current law, 30% of the elective estate as defined in Chapter 732, Part II, Florida Statutes).

A surviving spouse also has special rights to homestead real property. A decedent may not freely devise homestead real property upon death if survived by a spouse or minor child. See Fla. Stat. § 732.4015. The surviving spouse is entitled to a life estate in the property or, upon election, an undivided one-half interest. See Fla. Stat. §§ 732.401 and 732.4015. The property is exempt from any claims by the decedent’s creditors. See Art. X, Sec. 4, Fla. Const.

Additionally, if a spouse dies intestate (i.e., without a will), a surviving spouse is entitled to a specific share of the estate. See Fla. Stat. § 732.102. If a person marries after making a will, the surviving spouse is entitled to receive an intestate share of the estate. See Fla. Stat. § 732.301. A surviving spouse is also entitled to receive up to $20,000 in certain exempt property. See Fla. Stat. § 732.402. A surviving spouse is separately entitled to receive up to $18,000 in “family allowance” for support during the administration of an estate. See Fla. Stat. § 732.403. Finally, a surviving spouse has preference in appointment to serve as personal representative of a decedent’s intestate estate.

All of these rights may be waived in a prenuptial agreement. See, e.g., Fla. Stat. §§ 732.701 and 732.702 (to the extent the prenuptial agreement affects estate and probate rights, it must satisfy all other applicable formalities). The prenuptial agreement, however, may include language requiring the parties to make a will or trust, to give a devise, or not to revoke a will or devise. See Fla. Stat. §§ 61.079(4)(a) and 732.702. A practitioner must be prepared to advise clients on any rights that are being waived and avenues to protect the client’s interests.

Do I have to pay child support if I receive disability payments from the government?

2010-05-23T23:39:00.001-04:00

One common question is whether a parent has to pay child support if the children are receiving social security payments as a result of the parent's disability.

The short answer is that social security payments do not negate the obligation to pay child support. A disabled parent, however, does receive credit for the social security paid for the benefit of the children. In some cases, especially where the disabled parent has no other income, these payments may actually exceed the support obligation. The fact of the matter is that, to make any determination, you should still have a Florida family law attorney or other qualified person apply the Florida child support guidelines, properly taking into account any social security benefits paid to the children.

Under the Florida child support guidelines, social security is treated as income for purposes of calculating the parents' child support obligation. Specifically, under section 61.30(2)(a)(8), the social security benefits are treated as income to the disabled parent. The disabled parent, however, also receives credit for paying support equal to the amount of the social security received on behalf of the children. In other words, the social security funds are hypothetically earned by the disabled parent and paid by that parent to the children.

This rule was established by the First District Court of Appeals in Williams v. Williams, 560 So. 2d 308 (Fla. 1st DCA 1990). In Williams, the trial court failed to credit a disabled father for social security payments received by the mother on behalf of their three children. The court ordered that, in addition to the disability funds the mother received directly, the father also had to pay child support out of his own disability payments. As a result, after satisfying his child support obligations, the father had no money from which to live. The First District found that the court erred when calculating the child support guideline amount by failing properly to account for the social security payments received by the children.

In most cases, the social security payments will exceed the disabled parent's obligation to pay support. This is especially true where the disabled parent has no other material income.

Is Per Diem Properly Included in Income for Purposes of Calculating Florida Child Support?

2010-05-23T18:53:00.000-04:00

As a Tampa family law attorney, I handle a large number of military divorces. These cases present a number of unique issues. One of the issues that often arises is how to account for military allowances and benefits from a family law perspective. Service members frequently do not understand that, for purposes of calculating child support, income is defined much more broadly than taxable income under the Internal Revenue Code. As any military divorce attorney will tell you, clients in the armed forces are often disappointed to learn that, while certain compensation is left off the tax return, those benefits are usually income under the Florida child support guidelines.

Not all payments and benefits received, however, constitute income. Many military service members and civilian employees receive an allowance for travel and other expenses. This pay is commonly referred to as a per diem allowance. Per diem is a Latin term, which literally means "per day." The term most often refers to the amount of money the company, government, or other organization will pay each day to cover living and travel expenses incurred in connection with work.

One of our recent military divorce clients involved a reservist that planned to spend an entire year on a security detail in the Middle East. As part of the contract, the client was scheduled to receive a per diem for certain expenses. An obvious issue in the client's divorce was whether the per diem would be included in income for purposes of calculating the client's Florida child support obligation.

Pursuant to section 61.30(2)(a)(13), Florida Statutes, reimbursed expenses, including per diem allowances, may be included in income for purposes of calculating child support. These payments, however, are only included to the extent that the payment reduces the recipient's living expenses.

Very few appellate decisions help family law attorneys interpret this standard. Florida's Fourth District Court of Appeal provided some insight in Lauro v. Lauro, 757 So. 2d 523 (Fla. 4th DCA 2000), the husband testified that the per diem he received was insufficient to cover the actual expenses he incurred when he was away from home on business.

The wife could present no evidence to the contrary but argued that, if the husband is paid per diem to cover his meals away from home, he does not have to buy groceries for dinner at home. The court rejected her argument for two reasons. First, the per diem at issue was a flat rate per day which did not necessarily cover the actual expenses incurred by the husband. Second, even if the husband were reimbursed for the exact amount he spent on a meal away from home, any reduction in his living expenses at home because he did not have to buy groceries was de minimus. Trial judges should not be reduced to having to decide how much a spouse, who was reimbursed for a meal while traveling, would have spent on a can of soup or a frozen dinner at home.

Based on this reasoning, we can expect the best divorce attorneys to argue that a per diem will not be included in income for purposes of calculating child support unless the allowance exceeds the actual expense or eliminates a material expense, such as housing, that otherwise would have been incurred.

Larry King Does It Again

2010-04-15T10:27:00.000-04:00

Larry King is currently on his eighth marriage. He is also headed for his eighth divorce. Apparently, Wife No. 8 is upset and alleges that Larry is having a sexual relationship with her sister. The Wife is seeking the couples' Beverly Hills Home, alimony, child support, and custody of their two sons.

Larry is currently 76 years old. How do you explain things to your boys? "Well, Aunt Becky was just really hot in that little skirt." I wonder if a ninth woman will agree to holy matrimony with Larry King.

Smart Lawyer Gets No Sympathy from the Court

2009-12-28T11:00:00.002-05:00

A story published by Law.com on Christmas Eve really got my attention.

So, when is it fair to revisit the terms of your divorce? That may depend on who you are.

Yes, a final judgment or decree is supposed to be “final.” But, in family law cases, there are occasions where it is completely appropriate and sometimes even necessary to change the terms of the final judgment or decree.

What justifies modifying a final judgment? You obviously don’t want people going back to court every time they realize they left something out of their agreement or want something new. At the same time, courts have to respect that circumstances do change. This is especially true with continuing obligations such as child support, alimony, and visitation.

The law is pretty clear that you can revisit alimony, custody, time-sharing, and parental responsibility when there is a substantial change in circumstances. Most states also require that the change is involuntary and unanticipated.

But, when is it appropriate to reconsider the equitable distribution of assets? A high-ranking New York real estate attorney at the prestigious Paul Weiss law firm recently learned that he would receive no sympathy from the court when his circumstances changed for the worse.

Steven Simkin had been married to his wife, Laura Blank, for more than 30 years. They spent the better part of two years fighting over the value of certain real estate investments and Mr. Simkin’s law practice. One item that was not subject to dispute was their account at Bernard L. Madoff Investment Securities LLC, which reflected a value of $5.4 million. In the divorce, Laura Blank took $2.7 million in cash for her share of the Madoff investments. Presumably for tax and other reasons, Mr. Simkin left most of the money in the Madoff investment fund.

As virtually everyone now knows, Bernie Madoff's investment fund was one of the largest ponzi schemes in the history of the world. And, it turns out that Steve Simkin’s Madoff investments were completely worthless. After learning that he paid his wife $2.7 million for her half of a worthless investment, Mr. Simkin asked a New York court to set aside the agreement.

On December 24, 2009, the New York Law Journal reported that the court denied any relief to Mr. Simkin. According to the report, Acting Supreme Court Justice Saralee Evans held that the Court simply would not revisit the parties’ settlement. The Court reasoned that the account could have been converted to cash, so neither party was mistaken in their marital settlement agreement.

But, what the Court apparently failed to consider was that, even if the money had been withdrawn, it still would have been subject to a “clawback suit” by the Trustee for the Madoff Estate. The Trustee can recover withdrawals going back six years. Nevertheless, Mr. Simkin is simply out of luck. First, he lost $5.4 million in the Bernie Madoff fraud. Then, to add insult to injury, he unwittingly gave his wife $2.7 million for her share of the worthless Madoff investments. Of course, there are many stories about people who were screwed by Bernie Madoff. But, in this case, the family law judge decided that Mr. Simkin should bear 100% of the loss and his wife should keep the $2.7 million she took for her share of the sham investment.

The Court simply had no sympathy for a man who had represented many of the world’s most sophisticated investors in their most important real estate deals. I question whether the Court would have reached the same conclusion had the wife been left with the worthless investments.

The only good news is that Bernie Madoff will be spending the rest of his life in prison as part of a 150-year sentence. Unfortunately for Mr. Madoff, there are several inmates who apparently have a sense of rough justice that is even stronger than the Judge that slammed Steve Simkin.

AVVO Assigns Superb Rating to Attorney Richard J. Mockler

2009-12-23T07:06:00.000-05:00

The website AVVO.com has assigned a Superb Rating and a numerical rating of 10.0 to Attorney Richard J. Mockler.

Avvo Lawyer Rating

Therapy Brings Happiness

2009-11-28T20:26:00.004-05:00

Therapy Brings Happiness

A recent study suggests that a single course of therapy can bring more happiness than winning the lottery or getting a $40,000 pay raise.

Seriously?

Military Divorce Rate On the Rise

2009-11-27T22:03:00.000-05:00

According to the Defense Manpower Data Center, the divorce rate for married service members increased by more than 38% from September 2001 to September 2009.

In 2001, the divorce rate for married service members was 2.6%. By 2008, the military divorce rate had increased to 3.4%. For 2009, that rate increased to 3.6%. The rate for military women is an astonishing 7.7%, while the rate for men is 3%.

According to Joe Davis, spokesman for the Veterans of Foreign Wars, when a married couple is faced with "eight years of war, preparing for war, being at war, coming home and having to think about going back to war again — and when you have children — it just has a tremendous impact on the family unit."

April Cunningham, a spokeswoman for the department of defense, referred to the increase over last year as "relatively small." According to my math, the overall rate increased by 6% in a single year. If you told me my taxes were going up by 6%, I would not consider that increase "relatively small."

Some people criticize that the actual military divorce rate is much higher due to the inaccurate manner in which the defense department counts divorces as the difference each year between the number of married service members.

This would not come as a surprise, since a recent field survey in Iraq showed that nearly 22 percent of young combat soldiers questioned said they planned to get a divorce or separation. This is a 77% increase over 2003, when 12.4% of young combat soldiers said they planned to get a divorce or separation.

Military Divorce

Social Abandonment - He Refuses to Go to My Social Events

2009-11-23T14:55:00.000-05:00

Thank God for no-fault divorce states. New York actually still requires a reason justifying the divorce. So much for mere "irreconcilable differences."

Apparently, "social abandonment" is not sufficient grounds for terminating the marriage. When Novel Davis filed for divorce from her husband, Shepherd, she argued that the divorce should be allowed because he abandoned her - socially. Among other things, Shepherd refused to eat meals with Novel, celebrate holidays together or attend family functions.

It's a shame, but New York law will require Novel to come up with a better reason before granting her divorce.

Jon concedes primary custody to Kate

2009-11-23T10:59:00.000-05:00

Okay, so Jon and Kate's divorce will be finalized by the end of the year.

Jon showed up to an all-day Saturday mediation with a dozen roses as a peace-offering. But, Kate refused to accept them. So, I likely won't advise my clients to use this approach. Although, I do encourage everyone to be nice, especially when you want to reach an agreement regarding your divorce rather than financing a messy and painful trial.

I thought it was interesting that Jon conceded primary custody to Kate. I don't know the details of their time-sharing plan, but it seems that he could take a couple of kids each night. It could be like a round-robin. For me, I can handle my two girls nicely. But, I don't know what I would do with eight little ones running around.

I wonder if the couple is going to follow a nesting concept, where they allow the children to stay in the house and the parents rotate in and out. I remember a special where both parents said that the house was "for the children," not for them. Does the same feeling still hold?

The last challenge for the couple is determining a child support number. In Florida, the statutory chart for child support guidelines only go up to six children. Eight is literally "off the chart." Good luck Jon.

Divorce statistics, joint custody, and time-sharing

2009-11-23T10:36:00.001-05:00

Professor Anne-Marie Ambert recently published a study that detailed some interesting Canadian divorce statistics.

Canadian divorce rates divorce rates peaked in 1987, went down over time, and are now holding somewhat steady. First marriages now have a 67% chance of lasting for life.

That is much better than the old adage that "50% of marriages end in divorce." I have said that to several of my clients. Canadian divorce attorneys can now say that only 33% of marriages end in divorce.

Professor Ambert also reports that 70% of Canadian divorces are initiated by women.

The report also included some really interesting findings regarding equal time-sharing or "joint custody" between parents. At present, both parents have substantial time sharing each parent (defined as at least 40% of overnights with the children) in fewer than 10% of cases. That figure, however, is rising.

Professor Edward Kruk has opined that 40% time-sharing with a parent is the minimum time necessary for mutual bonding.

The report also includes as finding that only 10% of children live a majority of the with their fathers.

Change in Child Custody Laws: Time-Sharing in Florida

2009-04-27T18:06:00.005-04:00

The Florida legislature recently enacted laws that abolished the concept of "primary" and "secondary" child custody as well as "visitation." The court system was overwhelmed with parents who were fighting not only about at whose home the child would spend most of his time, but also over who should have the title of primary child custodian. Many believed that, if they were deemed the "secondary" child custodian, then they were also a second-class parent. Further, may parties resented that they had to "visit" the child rather than live with or spend time with the child. In an effort to help parents avoid fighting over semantics, the Florida legislature adopted the concept of "time-sharing" to replace the old regime of awarding custody to one parent or the other.

The Florida legislature also modified and expanded the factors that courts must consider when making a determination on the issue of time-sharing. The overriding concern remains the best interests of the child. There are now twenty factors for consideration, some of which are highlighted below:

The ability of each parent to have a close relationship with the child;
The ability of each parent to work with the other parent;
The ability of each parent to put the needs of the child before his or her own needs;
How parental responsibilities will likely be divided when the divorce is finalized;
Whether each parent will require some sort of child care during his or her time-sharing schedule;
How long the child has lived in a stable home;
Whether the parents live near each other and the child's school;
How well the child is doing in school;
How well informed each parent is of the child's scholastic and extracurricular activities;
Whether each parent is involved in the child's scholastic and extracurricular activities;
The ability of each parent to provide a routine for the child;
Whether each parent is morally fit;
The physical and mental health of each parent;
The preference of the child;
Whether there has been any domestic violence or other abuse or neglect;
Whether either parent has falsely accused the other parent of abuse;
The responsibilities of each parent toward the child before the petition for divorce was filed;
Whether either parent has exposed the child to alcohol or drug abuse;
Whether each parent has shielded the child from the divorce litigation;
The ability of each parent to meet the child's current and future developmental needs; and
Anything else that the court believes is relevant.

To review the full text of the new legislation, see section 61.13(3) of the Florida Statutes.

Courts may give each factor different weight based on the circumstances of a particular case. If you have questions concerning how the factors might apply to your case, be sure to consult an attorney experienced in family law.

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Richard J. Mockler and Adam B. Cordover are family law attorneys at Richard J. Mockler, P.A., located in Tampa, Florida. For a free consultation or more information on time-sharing or other family law matters, please visit our website at http://www.FamilyLawRights.com.