House Bill 907, signed into law on Monday, June 14, amends the previous statute concerning the payment of day care expenses. Under the previous statute, one parent would be solely responsible for the first 25% of the obligation and the remaining 75% would be shared based on the ratio of the parties’ incomes. The new law removes the 25% obligation and provides that 100% of the day care obligation will be shared according to the percentages of income.
Florida House Bill 907, signed into law on Monday, requires that support orders, and Income Decution Orders, take into account the payor parent’s reduced obligation for child support as each child would no longer qualify to receive support. Prior to the entry of this bill, if there were no provision in the settlement agreement which made provision for the reduction of support for each child, the parent would need to petition the court and seek a reduction. If the parent did not seek a reduction, the support would continue to accrue at its current rate until such time as a petition was filed. Before the bill, the burden was on the parent paying the support to modify it and that, without a modification, the support would inure to the benefit of the child and was a vested right of the child. The reality is that the support would continue to be paid, at the same rate, for more than one child and it would be paid to the other parent, not the child, to use as he or she deemed appropriate. The parent receiving the support would argue that the support should continue to be paid regardless of the number of children; the parent paying the support would argue that it was unfair. The house bill appears to clarify that the support should be reduced as each child no longer qualifies for support under the law.
I am keeping an eye on the aftermath of the ruling in Kaa v. Kaa, 9 So.3d 756 (Fla. 2d DCA 2009), to see how the Courts will continue to address the issue of passive appreciation of non-marital assets. There has been a distinct conflict in our district Courts of Appeal with the Second District Court of Appeal firmly holding that passive appreciation of a non-marital asset is non-marital. That may be changing.
The distinction has been that a non-marital asset, which has been enhanced either through marital funds or efforts (“active appreciation”) has been deemed marital while increases in value which were due to market forces (“passive appreciation”) has been deemed non-marital. As least until recently, the market forces that I have seen in Naples, Florida made it easy to argue that any increase in property was due to passive appreciation and that, regarless of any marital contribution, the property increase in value had nothing to do with marital labors. That position is changing, not only because the market has plummetted in recent years but because of the holding in the Kaa case.
Kaa is a case where, 6 months before the parties’ marriage, the Husband purchased property in his name (his “non-marital” property). The property was never retitled jointly and, after more than 25 years of marriage and 4 children, the parties decided to divorce. The Husband claimed that the property was non-marital and that the entire value of the property should be his. The Wife argued that, after more than 25 years of paying mortgage payments and maintaining the property with joint funds, half of this property should be hers.
The Court found, based on the prior rulings from the Second District Court of Appeals, that the Wife was entitled to only the increase in value of the property due to the use of marital funds to pay down the principal balance of the mortgage and increase the size of the house. The Court certified conflict with the First District Court of Appeal’s decision in Stevens v. Stevens, 651 so.2d 1306 (Fla. 1st DCA 1995). The decision, in Stevens, provide that an equitable distribution should take into consideration not only the marital contributions to the property but also the appreciated value of the property due to the expenditure of marital funds and contribution. This is a huge distinction.
The decision, in Kaa, may have been different if there had not been what appeared to be an truly inequitable result. Kaa was a long-term marriage, with real estate which had, for all intents and purposes, been utilized as marital to raise their four children. Providing the Wife with merely the marital portion of the non-marital asset, without giving her any of the appreciation, probably seemed patently unfair to the Appellate court. Still, based on the previous holdings in the Second District, the Court affirmed the opinion below and certified the conflict with the First District.
This is an evolving area of the law that I believe we will see significant change in the near future.
The parent relocation statute has caused a lot of confusion among litigants, lawyers and Judges. The original statute provides that a parent moving more than 50 miles for more than 60 days must notify the other parent, in writing, of the move. If the other parent objects, the moving party must seek approval by the Court.
Effective July 7, 2009, the law regarding parental relocation has been amended to provide for the following:
1. Specific notice must be given to the other parent within 20 days (from 30) of the intended move. The requirement that the parent provide notice of the intended address has been removed;
2. The bill removes the requirement that parents discuss the matter first before a relocation Petition is filed; and
3. A hearing on temporary relocation must be heard within 30 days of filing and a final hearing within 90 days.
Although amended to expedite the process, it will still be burdensome on the litigants and difficult for both the lawyers and the Judges. In general, people normally have an idea of where they want to move and why. The relocation provision directs the litigant to provide this information in advance, even where the relocation is an idea versus a set plan.
The law now provides that parents provide a “unified front” on issues concerning the children. Change #7 reads as follows:
The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
I am honestly perplexed by this new change in the parenting statute. Even in a good marriage, it is hard for parents to adopt a unified front when it comes to children. As a divorce attorney, I am uncertain regarding the legislature’s intent when crafting this provision. To me, a “unified front on all major issues” means that the parents will stand united and make joint decisions together. While that is ideally what we all want for our children, it is just not realistic.
I, for one, am hoping that this provision of the statute is not going to bear much weight in the courts. For one thing, it seems to be inconsistent. The statute provides, in the first part, that the court will consider the parents’ capacity to keep the other informed and then provides that the parents adopt a unified front on major issues.
For me, the question really is: are parents who are getting divorced really going to “put on a happy face” and present a unified force in their children’s lives? Only time will tell.
The sixth change to the parenting statute allows the Court to consider who provides more consistency for the children with homework, discipline, meals and bedtime. The provision reads as follows:
“The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline and daily schedules for homework, meals and bedtime”
As a divorce lawyer, it could be important to know how your client disciplines the children. Does he or she use time out versus corporal punishment? Is there a conflict between the parents regarding punishment? In my practice, this issue usually comes up when one parent disciplines the children and the other parent does not follow through. When the parties do not utilize the same type of discipline, or if the discipline is negated at the other person’s home, it creates more conflict with the children.
I believe that the more important change is going to be to look at the children’s schedule for doing homework, eating dinner and going to bed. Having a routine, which is followed in both households, is important to establish with the Court. If there is no consistency on these issues, it is more likely than not that the Court is going to direct that the children spend more time at one household versus the other during the school week. This will ensure that schoolwork is done, that the children are fed and in bed at an appropriate time, and that they are rested for school the next day.
The fifth change to the parenting statute requires parents to be involved with their children and know about the important aspects of their children’s lives. It reads as follows:
The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
This issue usually comes up when asking a parent about the things his or her children are involved in and the things that the children love. During a divorce, there can be a conflict between parents regarding who the children associate with, their experiences at school and the children’s medical needs, their extracurricular activities and the things that they love. The question here is who is more involved in the children’s lives and who makes the greater effort to remain involved and encourage participation in the children’s education, health and well-being.
I would also suggest that this provision could be interpreted to extend to the parent who provides the most cooperation with the other parent in matters concerning the children. The parents should always try to discuss, even when it is hard, the children’s schooling, activities and health issues. Neither parent should ever be in the dark concerning the children nor should either parent ever take the initiative to make important decisions without the other’s input.
In my Family Law Reporter, received today, I was interested to read that a Miami/Dade Judge went out on a limb and granted an adoption to a gay couple. This issue is going to be an issue to watch in the Florida Courts.
The Judge made a decision that a ban by the legislature of allowing homosexuals to adopt violates the equal protection clause of the Florida Constitution. The Judge further ruled that the ban infringes on children’s federal and statutory right to have a permanent home after the biological parents’ parental rights are terminated.
Change number 4 may be one of the most difficult for divorce lawyers and clients to interpret. It reads as follows:
“The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.”
The Courts now need to look at the geographic viability of the plan proposed by the parties. I assume that the Courts are going to consider the distance children will travel when deciding what plan to implement. Although the second sentence of this provision indicates that this will not create a presumption for or against relocation, it is my opinion that this provision will not necessarily apply to relocation cases. Cases where one parent relocates a significant distance from the other are not cases where you are going to request that the Court allow mid-week parenting time for school-age children. It is not feasible for children to travel in a car for hours back and forth between parents when they have school the next day.
I believe that this section of the statute will be more relevant when parents are asking the Court to adopt a plan that will cause the children to be exchanged with some frequency and the parents do not necessarily live close to one another. The question will be what length of time the children spend traveling to and from each home and whether the children are losing time in the afternoon which affects their studies and whether the travel time is causing them to wake up much earlier for school at one parent’s home versus the other.
Practice tip: If you intend to ask the Court to adopt a parenting plan with mid-week exchanges for school-age children, keep your residence within close proximity of the other parent.
Divorce lawyers used to look at the love, affection and emotional ties between parent and child. I always thought that this was a non-issue. How was the Court supposed to determine who loves their children more or with whom the children are more bonded?
Change number 3 turned the “bonding” provision around and now reads as follows:
“The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent”.
Now, instead of looking at love, affection and bonding, we will now be looking at the parent who puts the children’s needs first ahead of his or her own.
Practice tip: When discussing your case with your divorce attorney, talk about how you tend to your children’s needs as compared to the other parent.
Tamara's Blog 