Category: Florida Law Blog

What Happens After Mediation for Custody in Florida

What Happens After Mediation for Custody in Florida

Orlando Mediation Attorney: What Happens After Mediation for Custody in Florida Has Failed?

Mediation has failed on most issues in your family law or divorce case, or mediation has failed altogether on all issues. If the parties cannot agree on anything, the mediator will declare an impasse (inability to agree on issues). This is when clients understandably want to know what happens after mediation for custody in Florida? An Orlando Mediation Attorney can answer this question for you when you call for a consultation. Call our office line today (407) 310-5636.

Three Possible Outcomes to Explain What Happens After Mediation for Custody in Florida Has Failed?

Once mediation has completely “failed,” meaning the parties are unable to agree on any issue, there are several paths forward. Three paths that frequently occur and answer what happens after mediation for custody in Florida, are as follows: First, either party may declare to the court that the case is ready for trial, provided there are no outstanding motions (to compel, for contempt, for temporary relief, etc.). Second, either party and their Orlando Mediation Attorney may file a motion for temporary timesharing relief. On account of the fact that in many family law and divorce cases, one party has total or majority custody of the children and the other party is seeking to obtain additional timesharing with the kids, that is the party that generally files for temporary relief. This is actually an incentive for the parties to agree on some issues at mediation. Even a temporary mediated settlement agreement is a step forward in most cases. Agreeing on something can lead to bridge-building. An olive branch may lead to an Olive Garden (not necessarily to a family dinner, but you get the analogy). Third, it is often the case that one or both parties are unable to afford additional Orlando Mediation Attorney fees, or decide not to continue the legal battle for other reasons (such as its impact on the children), and this leads to many cases being left open indefinitely until dismissed by the court, sent to the General Magistrate, or otherwise.

Orlando Mediation Attorney

If you are concerned about your family law mediation and would like to speak with an experienced and compassionate Orlando Mediation Attorney, call the Jacobs Law Firm to learn more.

Jonathan Jacobs is a Divorce Attorney In Clermont Florida, a Divorce Attorney in Orlando Florida, and a mediation attorney in Orlando who helps his clients. Call the Jacobs Law Firm today for a consultation in your family law case. (407) 310-5636, or e-mail us to schedule an appointment. Jonathan@JJLawFL.com

Orlando Declaratory Judgment Lawyer

Orlando Declaratory Judgment Lawyer

Orlando Declaratory Judgment Lawyer

Do you believe that you need to consult with and hire an Orlando Declaratory Judgment Lawyer? Let’s go through the undergirding principles of what a Florida declaratory judgment is and then see if you believe you need an Orlando Declaratory Judgment Lawyer. The pertinent portions of the Florida declaratory judgment statutes will appear throughout this article on declaratory relief.

By way of case law background, in Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 10–11 (Fla. 2004), the Florida Supreme Court decided that Florida’s declaratory judgment statutes (Chapter 86 to be precise) authorize declaratory judgments when it is necessary to resolve issues of fact, meaning determining the rights of the parties involved. Practicing as an Orlando Declaratory Judgment Lawyer locally, it is important to note that according to the Fifth District Court of Appeals, declaratory judgments may also assist the parties brought into an action in understanding whether they have a duty to defend against a lawsuit. In the absence of such a declaratory judgment, the clarification of the rights of the parties would be discouraged. Allstate Ins. Co. v. Conde, 595 So. 2d 1005(Fla. Dist. Ct. App. 1992).

Case Law Presented by an Orlando Declaratory Judgment Lawyer

More recently, the Fourth District Court of Appeals decided that “Because Transportation was entitled to a declaration of its rights, even if it had a remedy of rescission, the trial court erred in dismissing the complaint. We thus reverse and remand for further proceedings in the declaratory judgment action.” Transportation Cas. Ins. Co. v. Soil Tech Distributors, Inc., 966 So. 2d 8, 10 (Fla. 4th DCA 2007). An Orlando Declaratory Judgment Lawyer has the knowledge and experience of understanding when to pursue a cause of action for this type of relief.

As an Orlando Declaratory Judgment Lawyer, I can point out that mimicking case law and Statutory precedent, the First DCA rendered a ruling that says a great deal and provides foundational guidance for potential or forced litigants: “Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration…[there must be a] present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.” Ahearn v. Mayo Clinic, 180 So. 3d 165 (Fla. 1st DCA 2015).

This language is about jurisdiction, venue, standing, and due process rights, among other issues. The Court sought to clarify all of the requirements for bringing and sustaining a declaratory action, even one that may necessarily precede a subsequent lawsuit. Preceding this ruling, in another case, the Fourth DCA decided that “An insurer may file a declaratory action in order to determine whether an insurance policy is voidable. See United Servs. Auto. Ass’n v. Clarke, 757 So.2d 554, 555 (Fla. 4th DCA 2000).” Of course, depending on the outcome of a strictly declaratory action, additional causes may (permissively) or must (compulsorily) be brought forward.

For your reference, we have sought to provide the relevant Florida Declaratory Judgment Statutes so that you may further understand what declaratory relief is. Consider hiring the Jacobs Law Firm, and its Orlando Declaratory Judgment Lawyer to help you determine your rights.

Florida Declaratory Judgments Statutes

Florida Declaratory Judgments Statutes

The sections of the Florida declaratory judgments Statutes, chapter 86, Florida Statutes (2003), that are frequently pertinent to declaratory judgment actions are:

86.011 Jurisdiction of trial court. The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed…. The court may render declaratory judgments on the existence, or nonexistence:

(1) Of any immunity, power, privilege, or right; or

(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. …

86.021 Power to construe.-Any person claiming to be interested or who may be in doubt about his or her rights under a … contract … or whose rights, status, or other equitable or legal relations are affected by a … contract … may have determined any question of construction or validity arising under such … contract … or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

86.071 Jury trials.-When an action under this chapter concerns the determination of an issue of fact, the issue may be tried as issues of fact are tried in other civil actions in the court in which the proceeding is pending. To settle questions of fact necessary to be determined before judgment can be rendered, the court may direct their submission to a jury.

Ultimately, if you are knowledgeable in the area of declaratory and civil law, you are fortunate and likely scholarly. If you need the help of an experienced Orlando Declaratory Judgment Lawyer, call us today.

Statute of Limitations on a Florida Promissory Note

Statute of Limitations on a Florida Promissory Note

Statute of Limitations on a Florida Promissory Note

The Statute of Limitations on a Florida promissory note is governed by case law and by Florida Statute. Specifically, Florida Statute 95.11(2)(b) governs limitations other than for the recovery of real property, such as for promissory notes. First, in legal terms, the Statute of Limitations on a Florida promissory note provides that “a legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond…” [shall be brought within five years from the date of the accrual of the action]. In layman’s terms, the Statute of Limitations on a promissory note in Florida states that an action generally accrues when the note/contract is breached by a nonpayment of monies owed. This principle (not principal!) is based on the aforementioned Statute and case law precedent. Essentially, Florida law provides a five year Statute of Limitations to sue on a promissory note to institute and satisfy the debt. A commonly cited case that addresses the running of the Statute of Limitations on a Florida promissory note is a Florida bankruptcy case, In Re Whitaker, as discussed below.

How Long is the Statute of Limitations on a Florida Promissory Note?

Under Florida law, on obligations founded on written instrument, upon accrual of cause of action, such as defaulting on promissory note, statute of limitations period begins to run. The Statute of Limitations on a Florida promissory note according to the Court in In re Whittaker, Bkrtcy, N.D. Fla. 1994, 177 B.R. 360, argues that under the Florida law on limitations periods for notes payable on demand, demand on promissory note would be fixed as five years after date of note, even if no demand had actually been made on note, where there were no special circumstances that would warrant extending “reasonable time” for demand beyond period provided for by statute of limitations. Id.

To the advantage of a Florida litigant seeking to collect on a promissory note that is potential beyond the five year statute of limitations on a Florida promissory note, another Florida Statute allows for a payment to toll the time. Florida Statute 95.051(a)(f) states that “The running of the time under any statute of limitations… is tolled by: … (f) [t]he payment of any part of the principal or interest of any obligation or liability founded on a written instrument.” This means that if a payment is made by the obligor (debtor), it may toll the running of the Statute of Limitations and therefore allow the lawsuit to collect to move forward.

An obligor (person obligated to repay on a note) is not without defenses, and the Statute of Limitations is likely a primary affirmative defense. Keep in mind, if the SoL is not argued in the pleadings as a defense, the obligor will likely forfeit a valid defense and could open herself up to considerable liability.

Jonathan Jacobs is a contract breach attorney in Orlando Florida and a divorce attorney in Orlando Florida.

Florida Supervised/Safety Focused Parenting Plan

Florida Supervised/Safety Focused Parenting Plan

Florida Supervised/Safety Focused Parenting Plan

As a baseline for reference, a Florida supervised/safety focused parenting plan is a unique parenting plan the Florida Courts will consider if the parties are amenable, or if a family law trial yields a victory for its merit. A parenting plan itself is always required in Florida family law cases involving minor children (kids under 18 years of age). In fact, in Schwieterman v. Schwieterman, 114 So. 3d 984 (Fla. 5th DCA 2012), the Court decided/affirmed “There is no presumption for or against any particular time-sharing schedule, including one calling for a fifty-fifty division of time, and instead, the sole requirement is that the time-sharing schedule must be set in accordance with the best interests of the child. West’s F.S.A. § 61.13(3). A Florida supervised/safety focused parenting plan is unique in that it takes a more serious and cautious approach to co-parenting. A safety-focused parenting plan is a serious matter requiring great care and attention to detail by the person petitioning for it.

Safety-Focused Parenting Plan

The presumption behind a Florida supervised/safety focused parenting plan is that shared parental responsbility (mutual decision-making and mutual parental authority) is not in the best interest of the minor child(ren). The person arguing on behalf of safety-focused parenting plan is telling the other side and the court that the kid(s) should not ever be home alone with the parent that allegedly presents a danger to their welfare. Generally, if a Florida supervised/safety focused parenting plan, the parties themselves or the Court itself must provide for a third-party to be present whenever the minority timesharing parent spends time with the child(ren). As with any parenting plan, to be approved by a Florida family law court, a Florida supervised/safety focused parenting plan must provide for how the parents will apportion responsibility and daily activities with/for the child(ren), particularize how much time each parent will spend with the child(ren) and when, make health care and school-boundary designations, and furnish the means/method(s) by which both parents will communicate with their children. The Courts also make it abundantly clear that Florida Statute 61.13 subsection 3 will be used as a barometer for determining what is in fact in the best interest of the minor child(ren).

How does a Florida Supervised/Safety Focused Parenting Plan Work?

According to the safety-focused parenting plan rubric, both parents may cooperatively choose the person(s) supervising the child(ren), specify the level of supervision, and mutually agree upon how to share the cost(s) associated with this additional layer of security. Similarly, both parents may agree to visitation with supervision at a specific facility, or choose a location where supervised timesharing may occur without significant interference or disruption. As you may have inferred, because safety-focused parenting plan involves additional measures of security for the protection and well-being of the child(ren), the degree and type of communications between the supervised-parent and the child(ren) must be identified with particularity.

Why Choose a Safety Focused Parenting Plan?

Furthermore, because of the background between the parties that likely has led to the suggestion or implementation of a Florida supervised/safety focused parenting plan, the plan must address whether firearms must be removed from the premises, whether alcohol must not be abused prior to visitation, that the child(ren) shall not be subject to physical or mental abuse, and may also identify specific persons that under no circumstance may be allowed near the kid(s).

In essence, a Florida supervised/safety focused parenting plan is intended to protect a child or children that have been abused (at least allegedly) or subject to parenting methods that could be considered detrimental to their best interest and health, safety, and welfare. It is a parenting plan (in its very foundation) that is above and beyond a routine arrangement.

Call the Jacobs Law Firm for a consultation regarding your divorce or paternity family law case. We specialize in same sex divorce and relocation with minor children cases.

New Florida Marriage License Law

New Florida Marriage License Law

New Florida Marriage License Law

There is a new Florida marriage license law! Well, not so much new as amended. The Florida Legislature has just amended Florida Statute 741.04. The new Florida marriage license law provides that neither a county court judge or a circuit court clerk (family law cases are generally heard in circuit court, though marriage licenses may be obtained in both county and circuit court) has the legal power to issue a marriage license to a minor (in Florida, a minor is someone under the age of eighteen that has not reached the age of majority (18)) unless certain LIMITED/NARROW exceptions apply, all of which must be met for the Court to grant a marriage license to a minor or minors. Maybe a premarital preparation course is in order!

New Florida Marriage License Law Exceptions

These exceptions are: 1. If both potential spouses are at least seventeen years of age, and the minors furnish the Court with the written consent of their parents or legal guardians (probably should be in the form of a notarized affidavit). If one potential spouse is of the age of majority, that person may not be older than 19 years of age (no more than 2 years older than the other, younger, potential spouse).

2. The new Florida marriage license law also makes it clear that the potential spouses must file an affidavit providing for their social security numbers (certain exclusions apply for non-citizens that will be addressed in a future article) and an attestation of their true age. This prevents the Court from being unable to enforce child support and from committing a grievous error should the potential spouses falsify their true ages. This also protects the Court from issuing a marriage license to improper parties.

Premarital Preparation Course

Premarital Preparation Course

Exception 3. provides that neither the Court nor the Clerk may issue a marriage license to a minor unless two additional protocols are followed to the letter. The parties must provide a written statement (individually or together, though if the couple intends to marry, it is likely they will file this statement together) affirming they have completed a premarital preparation course.

4. Finally, the parties must also attest to the fact they have read the handbook regarding the rights and responsibilities of a party/parties to a marriage as provided in Florida Statute 741.0306. Pursuant to F.S. 741.0306, These handbooks are available from the clerks of court when a couple applies for a marriage license.

alimony and retirement in florida

Alimony and Retirement in Florida

Permanent Periodic Alimony and Alimony and Retirement in Florida

A vitally important Fifth District Court of Appeals case has provided family lawyers with greater clarity regarding the awarding of permanent periodic alimony, and has reaffirmed some well-known and axiomatic family law rules of decision. In Hedden v. Hedden, a case dealing with alimony and retirement in Florida, the Fifth DCA affirmed that Courts should base alimony awards on current existing circumstances, not on possibilities or mere expectancies “likely but as yet unrealized.” 240 So. 3d 148 (Fla. 5th DCA 2018). This is important not just for social security benefits (early retirement or on-time retirement benefits) as under consideration by the court in Hedden, but also for other mere possibilities. Florida family law courts are far more disposed toward current and recent information than they are on prognostications of what could or can be if only this or that occurs.

Permanent Periodic Alimony Considers All Sources of Income

In Hedden, the Court reaffirmed that family law Courts are required to consider “all sources of a party’s income when determining alimony.” Fla. Stat. § 61.08(2)(i). While this may seem to be common sense, in rendering its decision not to include the possibility that the Wife might sooner than later begin collecting early retirement, it is an important point for the following reason. A party’s alimony and retirement in Florida award is based on a totality of income sources, but again, those sources of income are current or recent, not future possibilities.

Permanent Periodic Alimony

Permanent Periodic Alimony and Equitable Distribution

Also in Hedden is a gem for attorneys litigating alimony. The Court ruled that when assessing the needs of the payee (recipient) of alimony, the financial need of that spouse for receiving alimony should be based on that spouse’s financial situation after, not before, equitable distribution. Id. at 148. The Court utilized this principle of examining a spouse’s post-equitable distribution financial situation to decide that the amount/portion of a pension that has already been equitably distributed to a spouse “cannot be considered in determining the other spouse’s ability to pay alimony because the other spouse no longer has that portion of the marital asset.” This seems fairly logical and simple to follow. If one spouse is given an asset such as half of a retirement account, their need for alimony is reduced, and they may no longer have a need for alimony at all.

Alimony and Retirement in Florida | Rebuttable Presumption

Finally, two major and related takeaways from Hedden are first that Florida’s alimony Statute provides that a court cannot award durational alimony if permanent alimony is appropriate (this is basic exclusion and inclusion), but a family law trial court may award both if such an award is justified by the evidence and the testimony offered. Fla. Stat. §§ 61.08(1), 61.08(7). Second, there exists a rebuttable (can be disputed and argued against) presumption that permanent periodic alimony is appropriate after a long-term marriage. Fla. Stat. § 61.08(4). A long term marriage in Florida is 17 or more years. Hedden touches on a controversial legal issue of whether a person in their early 40s should be awarded permanent periodic alimony when they might be paid for an extended period of time greater than that contemplated by the Rules.

Jonathan Jacobs is a Divorce Attorney In Clermont Florida, a Divorce Attorney in Orlando Florida, and helps his clients in the surrounding counties. Call today for your free 15 minute consultation! 407-310-5636.

Florida Wrongful Eviction Statute

Florida Wrongful Eviction Statute

Florida Wrongful Eviction Statute

The Florida Wrongful Eviction Statute 83.67, informs Florida residents of the acts the Florida courts consider to be “prohibited practices” in landlord-tenant law. This article will highlight some commonly litigated aspects of the Statute. One major component of the Florida Wrongful Eviction Statute is that according to Florida law, a landlord may not directly or indirectly (there are always clever albeit questionable means of achieving a cessation of utilities within a dwelling) cause a disruption or a termination of utility services provided to the tenant. This rule applies even if the landlord is the party responsible for payment of the utilities. The list of prohibited stoppages provided by the Statute (it is not an exhaustive list) is water, heat, electricity, garbage collection, etc. Illegal eviction in Florida is a serious matter that should be addressed by a Florida court for a proper remedy to be granted.

Florida Wrongful Eviction Statute 83.67

Next, in the Florida Wrongful Eviction Statute , the Florida Legislature proscribes the conduct of a landlord that prevents a tenant from gaining “reasonable access” to his/her rental residency. Often, landlords will simply change the locks on the door(s) and cause the tenant to be excluded from the premises. This can leave a tenant without access to food, water, clothing, or shelter, and is therefore outlawed. To this point, a landlord a landlord may not leave a dwelling in disrepair by taking off the roof, removing walls, or otherwise even if for purposes of maintenance because it could leave a tenant exposed and in a tenuous position. The exception is when an eviction has occurred or there has been a surrender, abandonment, or other recovery of possession of the residency.

Illegal Eviction in Florida

Illegal Eviction in Florida

The good news for a tenant finding him or herself in a similar predicament as proscribed by the Florida Wrongful Eviction Statute, is the tenant could be entitled to three (3) months’ rent and a Statutory award of attorney’s fees for having to bring such an action against a landlord acting in bad faith in contravention of Florida law. More good news for a victimized tenant suffering from an illegal eviction in Florida is that he or she may sue the landlord for 3 months’ rent for each separate violation committed by the landlord. For example, if a landlord has both locked a tenant out and seized the tenant’s possessions without having gone through the official and lawful eviction process through the courts, the tenant may sue for 6 months’ rent.

The Jacobs Law Firm is a landlord-tenant lawyer firm in Orlando and Clermont.

Notice of Nonrenewal of Lease by Tenant in Florida

Notice of Nonrenewal of Lease by Tenant in Florida

Notice of Nonrenewal of Lease by Tenant in Florida

Regarding a Notice of Nonrenewal of Lease by Tenant in Florida, Florida Statute 83.46 provides information about when a renter’s payments are due to the landlord or management company operating as the agent for the landlord. On account of the fact that a large number of the calls to my law office are from renters seeking to remain in their apartments, or from landlords seeking to evict tenants, this blog post represents a great opportunity to interpret the Statutes for potential clients, but is not intended to be legal advice, it is simply an interpretation of what the Statutes could mean to a court if litigated.

To start analyzing a Notice of Nonrenewal of Lease by Tenant in Florida, we must interpret F.S. 83.46(2), which states: “If the rental agreement contains no provision as to duration [length] of the tenancy [your lease], the duration is determined by the periods for which the rent is payable [first of the month, end of the month, or 15th of the month]. If the rent is payable weekly [rent is due on Friday], then the tenancy is from week to week; if payable monthly, tenancy is from month to month; if payable quarterly [rent is due every three months], tenancy is from quarter to quarter; if payable yearly [pay on January 1st for the whole year], tenancy is from year to year.” Without an understanding of this precursor Statute, it is easy to misinterpret the key Statute 83.57.

Notice of Nonrenewal of Lease by Tenant in Florida: What is the Time?

Florida Statute 83.57 governs the “Termination of tenancy without specific term.” This Statute is often litigated, or at least used to make legal arguments, when a lease has expired and a tenant and their landlord continue the rental agreement without signing a new lease agreement. In this manner, the courts may look to when (how often) rent is paid as opposed to how the rental agreement, when it was active, governed the parties’ arrangement. Read carefully the language of the Statute, with my inserts included.

Florida Statute 83.57 provides that; “A tenancy without a specific duration, as defined in s. 83.46(2) or (3) [clearly explained above], may be terminated by either party giving written notice [written notice is vital to the strength of an eviction lawsuit for both parties] in the manner provided in s. 83.56(4), as follows:

(1) When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period; [recall that the court is not referring to the lease agreement itself, in the absence of a new signed written agreement, the court is looking at how often rent is paid]

(2) When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;

(3) When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and [careful, 30 days’ notice may be most appropriate to avoid a misinterpretation of the law!)

(4) When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.

Florida Statute 83.56(4) explains the written notice requirement for terminating a lease in Florida. The Statute states that, “The delivery of the written notices…shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The notice requirements of subsections (1), (2), and (3) may not be waived in the lease.” This last part relating to a Notice of Nonrenewal of Lease by Tenant in Florida is of particular importance. A landlord may not disclaim the Statutory requirement in a lease. This is largely because in most cases the landlord writes the lease, and therefore to protect the tenant’s rights, cannot thwart Florida law and foist a violative lease on an unsuspecting renter.

Jonathan Jacobs is a breach of contract attorney Orlando FL that offers consultations with clients where he will explain to you the elements of a breach of contract in Florida to help you resolve your legal issues. Call the Jacobs Law Firm today for a consultation in your contract dispute case, (407) 310-5636, or e-mail us to schedule an appointment: Admin@JJLawFL.com.

Do I have to File a Financial Affidavit in Florida Divorce Cases

Do I have to file a financial affidavit in Florida divorce cases

Do I have to File a Financial Affidavit in Florida Divorce Cases?

Do I have to file a financial affidavit in Florida divorce cases? In Daniel v. Daniel, 922 So.2d 1041 (4th DCA 2006), the Court heard arguments from the husband’s attorney regarding whether requiring him to fill out a financial affidavit violated his right to privacy. This was a divorce, non-simplified dissolution of marriage case; involving a marriage of sixteen years. The spouses had no antenuptial (prenuptial) agreement, wife’s petition requested permanent financial relief (permanent alimony), and the wife objected to husband’s attempt to avoid filing financial affidavit.

It is important to note that in almost every divorce case, a financial affidavit is a basic requirement under mandatory disclosure, and both parties must comply. The only circumstance wherein a party, or both parties, may avoid providing the court with a financial affidavit is where there is a marital settlement agreement in a simplified dissolution of marriage case that is private, and the parties mutually agree to not notify the court. Not every court will countenance this sort of arrangement and may require the marital settlement agreement and financial affidavits be filed despite the wishes/request of the parties. Now, back to Daniel v. Daniel, and our original question, do I have to file a financial affidavit in Florida divorce cases?

Financial Affidavit in Florida Divorce Cases

In Daniel, the Court decided that a husband MUST (mandatory disclosure) file financial affidavit in non-simplified dissolution proceeding involving request for permanent financial relief, and further ruled that such a discovery request did not violate the husband’s right to privacy. The Court’s rationale was that a financial affidavit is essential when the Court is trying to do justice and equity in a Florida divorce case. The Court will likely hear arguments from both sides concerning property divisions, alimony, and a final decree may turn on financial condition of parties. The Court decided that any Florida family law court could not do right thing without sufficient information about parties’ finances. Family Law Rules of Proc., Rule 12.285(d). When you ask yourself, do I have to file a financial affidavit in Florida divorce cases, consider the Court’s decision in Daniel, and engage in best practices for openness and judicial equity. A motion to compel may follow a refusal to provide mandatory disclosure.

Jonathan Jacobs is a Divorce Attorney In Clermont Florida, a Divorce Attorney in Orlando Florida, and helps his clients in the surrounding counties.

Petition for Relocation Florida Statute

Petition for Relocation Florida Statute

Petition for Relocation Florida Statute

A recent family law decision rendered by the Fourth District Court of Appeals (in Florida) has helped to clarify a key point of contention in relocation hearings and trials involving minor children. The case explores the evidentiary burden of proof required under the Petition for Relocation Florida Statute.

This important decision is Solomon v. Solomon, 221 So.3d 652 (4th DCA, 2017), wherein the Court decided that “A court may not consider potential future, or even anticipated, events as a substitute for evidence.” This means that if a Wife petitions the family law Court for relocation, the Court may not treat the husband’s promises of better conduct in the future as evidence to rebut wife’s evidence that it is in the best interest of the children to relocate to a different state. In Solomon, the husband did not prove by a preponderance of the evidence that it was in the children’s’ best interest to stay in Florida, specifically in the Palm Beach area.

Here, the husband had mental health issues caused by substance abuse problems. These afflictions caused the family to lose its structural integrity and led to a host of hardships. The wife met her burden of proof by showing the Court by a preponderance of the evidence that the children’s best interest was served by moving to Virginia. The husband could not overcome the proof provided/shown to the court by the wife.

Petition for Relocation Florida Statute

Florida Statute 61.13001: Petition for Relocation Florida Statute

Florida Statute 61.13001(8), the Petition for Relocation Florida Statute, governs the burden of proof for rulings on relocation and provides as follows: “The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.” This burden of proof can be met in multiple ways, and there is no one showing of proof that applies to all family law cases.

In addition to the Petition for Relocation Florida Statute, in Solomon, the Court relied on a Florida Supreme Court case, Arthur v. Arthur, 54 So.3d 454 (Fla. 2010), wherein the Supreme Court of Florida rejected a “prospective based” analysis concerning petitions for relocation, stating: Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child.” Essentially, a family law litigant opposing relocation must rely on past conduct/behavior, and may not present prospective good intentions and expectations of better relations to the Court as evidence to rebut a petition for relocation.

Jonathan Jacobs is a Divorce Attorney In Clermont Florida, a Divorce Attorney in Orlando Florida, and helps his clients in the surrounding counties.