What constitutes "marital property" that gets evenly divided in a divorce?

That's a complicated question, but it's an important one to know the answer to in a contested divorce.

Generally, the only things that are non-marital are funds or items that were acquired prior to the parties being married, though there are many exceptions to that rule. For instance, if, after marriage, a person puts his or her spouse's name on the title or deed to premarital property (like putting money in a joint checking account or adding a spouse to a deed on a house owned prior to marriage), the non-marital property becomes marital. On the other hand, some things that are acquired after the wedding day are still considered non-marital. Inheritance is an example of a type of property that is non-marital, even if it's acquired after marriage.

Of course, if the spouse puts the inheritance into a joint bank account, the non-marital inheritance would suddenly become marital cash.

Told you it was complicated.

Reduce child support or at least reduce the consequences of failure to pay

The St. Petersburg Times reports today that filings to reduce child support in the Tampa courthouse almost doubled between 2005 and 2008 (the 2009 numbers aren't in yet).  In the St. Petersburg/Clearwater courthouses, the number of filings tripled, and in the county north of Clearwater, the filing went up fivefold.  The state's collection rate in that time period went down from 72% to 67% in that same time period.

Nothing about this is surprising.  I've seen articles about this happening in cities throughout the country for at least a year.  A more interesting statistic might be how much collection case filings have increased.  The saddest thing is that, when a payor falls behind by more than $2500, that payor's driver's license could be suspended.  Then, of course, as the article mentions, the payor can't get to work or find a new job, and child support falls further behind.

It's possible that this can be avoided, or at least the consequences of failing to pay can be reduced.

Too many payors wait until they fall behind or receive a notice of enforcement or contempt before they do anything.  By then, it's usually too late.  Immediately upon a pay reduction or job loss, a payor should seek modification of child support.  Child support can even be abated (temporarily stopped) when a job loss occurs in certain situations.

So, the trick is not to wait.  Call a lawyer (you've heard me say this a million times) right away when your job situation changes.  Don't wait until it's too late.  A jail cell is a bad place to negotiate your case from, especially when child support should have been adjusted long ago when the job loss occurred.

Is Florida a 50/50 custody state?

A couple of years ago Florida changed its statute on custody. Everybody thought the reason for the change was to make Florida a 50-50 custody state. That wasn't the reason for the change at all. Actually, the reason for the change was pretty simple.
In Florida, too many people have never understand the law on how kids are to be raised by unmarried parents. Parents with primary custody often like authoritarians. They think that, just because they have "primary custody," they are in complete control of the kids. They say things like, "I have primary custody, therefore you have no say in where the kids go to school." They try to tell the noncustodial parent that they can't show up for doctor visits, or that they can control what the kids did on the noncustodial parent's time.

This wasn't the law at all, either before the statute changed or after. This was never the law. So the statute was changed to make it clearer that this wasn't the law. The statute was changed to use words like "timeshare" instead of "custody." This change was so that people would understand that one parent has no more control over the kids than the other divorced parent.

But a funny thing happened on the way to the courthouse. So many people expected the statute to change into a 50-50 statute that it actually changed into a 50-50 statute, at least in some places.

In Florida, it seems things are changing. Despite the fact that not one word of that statute changed to turn Florida into a 50-50 state, strangely, Florida is slowly becoming a 50-50 state. In many parts of Florida, judges are deciding that 50-50 is the better custody choice for parents. Surprisingly, what everyone thought was going to happen with the new statute, but didn't, actually did. Weird.

Calculating child support in Florida - Step by Step

Calculating child support in Florida is pretty easy, especially with some of the online tools available.  Here's a step-by-step guide to help you calculate your own support:

1. Calculate your net incomes


The first step in figuring out Florida child support is to calculate the net incomes of both parents. This is easy if you've both completed financial affidavits: it will be on page two. If you haven't completed the affidavits yet, you'll have to figure it out yourself. But that's pretty easy. The best way is to look on a pay stub. Net income is your after-tax income. Since you're probably not paid on a monthly basis, you'll have to do a little math. Everything on the child support guidelines in Florida is done on a monthly basis. If you're paid weekly, look at your weekly net (after tax) income and multiply it by 4.33. If you're paid twice a month, look at your after-tax income on your pay stub and multiply the amount by 2.15. Don't forget to include bonuses and average overtime in your net income. It all counts under Florida law! If you are self-employed or you don't have a pay stub, you can use last year's total net income from your tax return and divide it by 12.



2. Determine childcare and health insurance amounts, if any

The second thing to know is how much childcare and health insurance costs. It doesn't matter who pays it. We'll get to that later. Just know that these two amounts--if they exist in your case--get calculated into child support. Remember also that you'll have to know these as monthly amounts. So if, for instance, daycare gets paid weekly, you'll have to multiply the amount by 4.33 to figure out what the monthly childcare cost is. Some things count as childcare and some things don't. The law says a childcare is a childcare if it is the "equivalent of a daycare." After school karate class where the kids are taken when school ends counts as childcare under the law. It would be the "equivalent of a daycare." Babysitting by grandma doesn't count. That's not daycare, even if grandma gets paid.



3. Determine your amount of timeshare (visitation)

If one of the parents has more than 40% of the overnights (about 146 overnights in a calendar year), then the guidelines change substantially, and the amount of money paid by the minority timeshare (noncustodial) parent to the majority timeshare (custodial) parent decreases significantly. If the minority timeshare parent has the child or children more than 40% of the overnights in the calendar year, determine what the percentage will be. For instance, as said before, 146 nights is a 40% timeshare. In a standard "week on/week off" schedule, each parent would have the kids for 50% of the timeshare. You must determine the exact percentage if the percentage will be 40% or over.



4. Calculate the amount of support

Once you know all the numbers from the steps above, you are ready to calculate the guidelines child support. Actually, this is the easy part. There are two ways to do this:

a) Download the free form 12.902(e) from www.flcourts.org. Plug in all the numbers we've calculated in steps 1-3 and insert them into the proper boxes in the form. Follow the instructions and use the included grid to find the child support amount. If step three above didn't apply to you, then skip lines 10 through 21 on the form.

OR

b) Hate math? No problem. The same form that you can download in part a above is available for free in a fillable pdf online and it does all the math for you! You plug in the same numbers that we got in steps 1 through 3 above and it tells you what your child support is without you breaking out a single calculator or slide-rule! You can find many online versions of the calculator, but the one I prefer is made by the judges in Tampa. It can be found at www.fljud13.org.

Read their lips: new taxes!

We've been telling prosepctive clients that they need to get their cases filed quickly due to the filing fee increases. Divorces already had the highest filing fees of any type of case except adoptions, but as of July 1, they went up even more. It now costs $418 to file for divorce, including the fee for issuing a summons, even if it's an uncontested divorce. What's worse, you now have to pay to file a counter-petition. That's when you sue someone back for divorce who is suing you for divorce. It's almost a requirement to file a counter-petition because, if you don't file a counter-petition in a contested divorce, you run the risk that the filer will dismiss the petition, knocking the whole divorce out of court. The counter-petition means it takes two to dismiss the divorce, not just one. So the new total cost for a contested divorce (one with a petition and a counter-petition): $713! You probably don't want me to tell you how mediation costs went up, how process server costs went up, how subpoena costs went up, etc. You should know that the court system is completely broke. Critically broke. So broke that Florida supreme court justices are quitting because they can't pay their bills. People are getting laid off all over the place in the court system. So a Tampa legislator had a "great" idea: let the people who use the court system pay for the court system! Sounded good. His bill sailed through the legislature and across the governor's desk with almost no opposition and--boom!--court fees skyrocketed. My only question is this: if the people who use the courts are the ones paying for the courts, what are we paying taxes for? Well, I guess I do have one other question: who is going to be able to afford these courts? Okay, yeah, and one more question: weren't these courts supposed to belong to the people? Just a happy aside here to let you know that Orsini & Rose hasn't raised it's fees. :-)

In a family law case, who's paying for the lawyers?

The short answer is, probably you. But there's a lot more to it than that, especially in a Florida family law case. Many lawmakers have suggested that we have the "loser pays" rule in the U.S., which is where the loser in the lawsuit has to pay the attorney fees and court costs of the winning side. These legislative and congressional bills are usually killed by insurance company lobbyists (that's right, the same ones crying about the "litigation crisis") because they know insurance companies would usually be the losers in the lawsuits. The fact is, we have a number of "loser pays" rules in family law (and general civil) court already without the "loser pays" rule. But, like I said, there's more to it than that. First, how do you determine who the "loser" is? What if one person wins custody of one child but the other wins custody of another? What if one person wins the house but another wins the 401(k)? "Winning" is difficult to define in family law. So, in family law, we try not to focus on who is the winner, but who can afford the lawyers. If one person makes $300,000 and the other makes $30,000, the judge may often say that the person making the most money has to pay 90% of the lawyers' fees of the other person. (Why 90% and not all of the fees? The idea is that the 10% will act as a "co-pay", forcing the person receiving attorneys' fees from the other side not to purposely run up attorneys' fees just to harm the other side.) We lawyers call this the Rosen rule, based on the original appellate court case that allowed attorneys' fees to be paid by the party that makes the most money. But don't get too excited about the Rosen rule. For one thing, judge's don't always grant Rosen fees. Sometimes, judges will say, "Well, this case ought to settle, so I'm not awarding any fees to anyone." Second, lawyers usually want you to pay the fees up front, even though the other side may have to reimburse you based on a Rosen motion. After all, lawyers have expensive rent, expensive employees, expensive furniture, and so on. Our office landlords just don't want to hear, "I'll pay you in a couple of months when the other side pays my fees." You'll probably still have to pay your lawyer up front, then get reimbursed from the other side later. Lastly, it's very, very common for judges put off attorneys' fee motions until after the case--including the trial if there is one--is completed. So, even if you do get reimbursed, it may not be until the case is completely over. Rosen isn't the only way to get fees paid by the other side. One of my favorites--and one of the least used--is called the Request for Admissions. If, for example, the other side lies on his or her financial affidavit about income (a very common event), you can send out a request in a certain form for the person to admit that he or she makes more. If the other side doesn't respond within 30 days, they've admitted it automatically, which is great for those cases where the other side is constantly delaying. If they deny it, they must pay the cost and fees for your lawyer to prove it up at trial, subpoena the employer's records, take the other person's boss's deposition, etc., and it's almost impossible for a judge to refuse to award the fees and costs. There are lots of other ways to have fees paid by the other side in Florida. Believe it or not, we even have the "loser pays" rule. It's just not automatic until you make it automatic. You have to invoke the "loser pays" rule by filing a form which essentially threatens the other side by saying, "If you don't settle for x, you have to pay our costs and fees." We lawyers call it the "OJ" rule (Offer of Judgment, not the O.J. you're thinking of). Bottom line, there are lots and lots of ways in Florida family court to cause the other side to pay your attorneys' fee and litigation costs. But a lot of them aren't used, some are almost never used, and some, though used, don't get granted until the case is almost finished. So, who's paying the fees? Probably you.

Can stimulus checks be seized for back child support?

Apparently the IRS thinks so. They've decided to seize stimulus checks as if they were tax refunds. Moreover, take this scenario: Suppose a child support payor has remarried and the payor and the new spouse are both receiving a stimulus payment (let's say $600 for the payor and $600 for the payor's spouse). Do you think the IRS can hold the portion of the check which is due to the payor's spouse? In other words, can they take the whole $1200, or just the $600 that would be coming to the child support payor? Yeah, that's what I would have said, too, but the IRS disagrees with us. They'll seize the whole $1200. You didn't really expect the IRS to do the right thing, did you?