Category: Florida Law Blog

Motion to Compel In a Florida Family Law Case

Motion to Compel In a Florida Family Law Case

A Motion to Compel In a Florida Family Law Case

A motion to compel in a Florida family law case may be made when one party (the petitioner or the respondent) has failed to abide by a lawfully propounded discovery request. There are many different types of and reasons for filing a motion to compel, but this article specifically relates to a narrow discovery issue involving noncompliance. Noncompliance refers to a failure to abide by mandatory disclosure and the court’s family law rules of procedure that govern discovery.

In most cases, the parties make a discovery request of/from one another. In complex family law litigation relating to alimony, property distribution, and asset and liability distribution, discovery requests can be extensive and take a long time to piece together. Discovery may involve retirement plans, real estate properties, and even offshore accounts.

In many other cases without extensive discovery needs, the parties often ask for some bank records, W-2 statements, pay stubs, tax returns, and credit card statements. This sort of discovery is more likely than not obtainable via compliance with mandatory disclosure. Of course, any request for documents in a Florida family law case are subject to objection. When a fairly unchallenging discovery request has been made, by Rule, the party upon whom the request has been made has approximately 30 days to respond. The party responding to the request may make a request for an extension with good cause and in good faith, while the converse is also true, the party propounding discovery may offer an extension upon a showing the other side is getting their documents together and needs a little more time to do so. Discovery does not need to be a fight, but when one or both sides fail to comply with reasonable requests, your attorney may advise to you file a motion to compel in a Florida family law case.

When to File A Motion to Compel In a Florida Family Law Case

This is when a motion to compel in a Florida family law case may become vital to the stability of your case. If 30 days have passed, you may choose to send a reminder to the other side that discovery is due. Consider offering a small extension (the standard time is 10 days) to incentivize the production of the documents requested. If the other party fails to furnish the documents (provided you are in compliance with discovery), and you can certify to the court that you have made multiple good faith efforts to communicate with the non-compliant party (and have been stonewalled or outright ignored), you may then consider filing a motion to compel in a Florida family law case. Attorney’s Fees are sometimes awarded upon a showing of good cause.

Motion to Compel In a Florida Family Law Case

Motion to Compel Granted, Now What?

If a motion to compel discovery states to the court that the other side has completely failed to respond or object to a good faith and reasonable discovery request, generally, the court will order compliance with discovery to be made within 10 days (20 in some cases). If discovery is still not provided, the court may in some cases award (provided the motion and the attorney ask for it) attorney’s fees to be paid by the noncompliant party. After all, the party acting in good faith should not be made to bear the burden of paying additional legal fees for the other side’s failure to act in good faith.

Jonathan Jacobs is a Divorce Attorney In Clermont Florida, a Divorce Attorney in Orlando Florida, and helps clients throughout Central Florida. Call the Jacobs Law Firm today for a free phone consultation in your family law case.

Elements of a Contract in Florida

Elements of a Contract in Florida

Elements of a Contract in Florida

In our State, the party seeking to prove the existence of a contract will need to prove the existence of the elements of a contract in Florida. According to the Florida Supreme Court’s jury instructions (in tandem with our lawyerly understanding of contract law), there are three elements of a contract in Florida that altogether, if proven, demonstrate formation. First, the terms of the contract must be definite and certain (unequivocal, unambiguous). Plainly stated, the terms of the agreement must have been clear enough to both parties as reasonable parties, so as to have enabled them to comprehend the terms of the agreement when entering into it to be bound by it.

For example, a simple contract might be for the sale of a car in exchange for a one-time lump sum payment of $5,000.00. Another example is a contract for the sale of vacant land in exchange for 4 installment payments of $15,000 each, due on the first of every month. Of course, there are generally a number of conditions and prerequisites built into every contract, but as long as the terms are clear and certain, element 1 can be proven before the court.

The second of three elements of a contract in Florida is the parties must have agreed to give each other something of legal value. This is often seen as the conferral of a benefit on one party to the detriment of the other (“a benefit to the promisor or a detriment to the promisee”). By way of example, if party A forgoes traveling abroad and chooses instead to go to college here in the United States, and in exchange their benefactor (let’s call her a rich aunt party B) agrees to pay party A’s entire college tuition, a bargain has been struck, and likely a contract has been made/formed. One party (party A) has conferred a benefit, and there is a detriment of sorts to the other party (party B paying $100,000 in tuition).

The third of the three elements of a contract in Florida involves a reasonable person objective standard test. Based on the conduct and representations of the parties, the court asks, “would a reasonable person, similarly situated, have agreed to the terms of the contract and understood them in the same way?” This element is based on the evidence, not the subjective or hidden intentions of the parties. The court prefers to be objective, not to involve itself in the independent biases of the parties. There must be clear manifestations based on a reasonable person standard.

Now you should have a general idea of the elements of a breach of contract in Florida. If you are involved in litigation over a breach of contract, and need to prove the formation of a contract, call the Jacobs Law Firm. We want to hear from you.

Is Alimony Taxable in Florida

Is Alimony Taxable in Florida

Is Alimony Taxable in Florida?

To best answer the question of “is alimony taxable in Florida,” we need to look ahead to some significant changes in the U.S. Tax Code courtesy of the Administration’s Tax Cuts and Jobs Act.  Currently, and for many years, alimony has been taxable against the payee/recipient, and has been a major tax deduction for the payor (person paying alimony due to an income disparity and a host of other statutory family law factors). There is still an alimony tax deduction in Florida, but be on the alert for changes.

The question that many attorneys are asking is whether the modifications to the Tax Code will have a grandfather clause allowing for divorce and alimony settlements made prior to the start of 2019, to remain under the old Tax Code laws regarding alimony. When more light is shed on that subject, we will let you know the relevant changes, if any. If all divorcees are affected, anticipate a deluge of cases flooding the Florida family law courts when payors seek downward alimony modifications.

For now, to continue answering if alimony is taxable in Florida, the current law, such as it has been for years is that if you are ordered to pay alimony, you may deduct the amount paid to your former spouse from your taxes. If you have been a recipient of alimony, you will continue paying taxes on all alimony amounts received, unless you have a clever accountant and financial planner and have certain tax deductions, breaks, or deferments scheduled to reduce the impact/burden of taxation.

Alimony Tax Deduction in Florida

Alimony Tax Deduction in Florida

Moving forward, one of the most fascinating trends to watch will be the impact of the Tax Code changes, vis a vis the Tax Cuts and Jobs Act, to how Florida family law courts award alimony at trial. Currently, the courts take into consideration how much the recipient will be taxed in making an award of alimony. However, if alimony is non-taxable, the payee/recipient will receive more money, and therefore the courts may choose to award less in alimony upfront, but close to the amount he/she would have received had their alimony been taxed on the back-end. The alimony tax deduction in Florida may not be here for long.

There are a lot of exciting changes coming to family law courts in Florida and around the country. In the meantime, we hope that your question of “is alimony taxable in Florida,” has been answered to your satisfaction.

Jonathan Jacobs is a Divorce Attorney In Clermont Florida, a Divorce Attorney in Orlando Florida, and helps his clients in the surrounding counties with their child custody and equitable distribution. Call the Jacobs Law Firm today for a consultation in your family law case.

Florida is a No Fault Divorce State

Is Florida a No Fault Divorce State

Is Florida a No Fault Divorce State

Is Florida a no fault divorce state? It is a daily occurrence in many family law attorney offices across Central Florida. A client walks in for a consultation, woman or man (gender is irrelevant), and starts the dialogue with a harsh and ostensibly disappointing accusation, “My spouse has been cheating on me.” This is followed by a demand for a divorce from the partner engaging in what the client spouse claims is illicit and inappropriate or immoral behavior. In my law practice, it is common that clients are unaware that Florida is a no fault divorce state. Informing clients that have been emotionally hurt of this fact is difficult, but necessary. No fault divorce in Florida means that obtaining a divorce is less complicated, provided there are no minor children to the relationship, and the party at fault has not exposed the kids to behaviors that are detrimental to their best interests. Divorces can potentially have layer upon layer of complex issues, and rarely if ever are two divorces alike.

Readers really want to know is Florida a no fault divorce state? If it is, how does or will no fault divorce in Florida impact their dissolution of marriage case? No fault means that one or both parties need only tell the court their marriage is “irretrievably broken,” which is similar to what other jurisdictions phrase as irreconcilable differences. Irretrievably broken is the standard. One does not need to prove adultery. A spouse might strongly dislike the other spouse’s neck ties, dresses, shoes, breath, eyebrows, personality, television habits, over-cleanliness or lack of cleanliness. The list of potential reasons is endless. The point is that this is a low standard that can only be rebutted upon a rare showing (rarely granted by the court) that marriage counseling for 90 days would somehow take away the problems in a deeply troubled marriage.

No Fault Divorce in Florida

No Fault Divorce in Florida

Florida is a no fault divorce state for many reasons; one primary culturally relativistic reason is that our population is one of the most diverse in the entire nation, and value systems are often different. Another reason there is no fault divorce in Florida is a reduction in compelling the parties to bring their private lives into the public purview. By not forcing litigants to divulge their dirty laundry, the State of Florida allows family law litigants a measure of privacy and personal relief. It is not the job of the Florida family law court to assign blame as pertains to dissolution of marriage. If the reasons for the divorce (gambling, bankruptcy, child abuse, substance abuse, domestic abuse) are more serious than simply falling out of love and seeking greener pastures, and if there are minor children born to the marriage, then the parties are welcome to present testimony about parental fitness. If the parties have no minor children, or if there already is a parenting plan in place, the fact that Florida is a no fault divorce state may preclude any significant probing into the personal lives of the parties.

Jonathan Jacobs is a Divorce Attorney In Clermont Florida, a Divorce Attorney in Orlando Florida, and helps his clients in the surrounding counties. Call the Jacobs Law Firm today for a consultation and an answer to your question, is Florida a no fault divorce state, in order to be informed about your family law case. (407) 310-5636, or e-mail us to schedule an appointment. Admin@JJLawFL.com

safety-focused parenting plan

Motion to Deviate From Child Support Guidelines in Florida

Motion to Deviate From Child Support Guidelines in Florida

Did you know that according to Florida Statute 61.30(11)(a), upon motion from counsel or a pro se litigant, the court may agree to increase or lower the amount of child support owed by one or both parties? This motion is known as a Motion to Deviate from Child Support Guidelines in Florida. Similar to other aspects of Florida family law, the circuit court will base its decision to deviate upon arguments from counsel and/or the litigants by relying on the statutory factors. In a Herculean effort to make these factors the court considers more understandable, I will paraphrase them and provide examples where appropriate. This is not an exhaustive list, and there are many other scenarios where a motion to deviate from child support guidelines in Florida may be appropriate for you. This article is only part one in the series, and specifically covers Florida Statute 61.30(11)(a)(1).

The first reason the court may decide adjust the child support amount owed, specifically by increasing the minimum amount owed, is when there are “extraordinary” medical, dental, educational, or psychological expenses. For example, if the minor child requires corrective jaw surgery, orthodontic braces (Invisalign, etc.), or needs significant tooth intervention because of gum decay or cavities, the court will likely see this as a necessary ongoing expense and order the support amount increased upon a showing of medical estimates or bills and orthodontic evaluations.

Motion to Deviate From Child Support Guidelines in Florida

Motion to Deviate From Child Support Guidelines in Florida: Medical and Dental

If the minor child has a serious medical condition such as a heart condition, asthma, bone disorders, or some other rare disease, medical expenses may increase causing the court to order the child support to be increased. Who would want to file this particular motion to deviate from child support guidelines in Florida by asking for the support amount to be increased? The parent that pays for health and/or dental insurance and will be responsible for paying the health care provider(s) for the additional costs associated with medical or dental, or psychological care will ask the court for this baseline increase. Child support in Florida is based on shared responsibility, which is why the court generally requires the Child Support Guidelines Worksheet itself to include medical and dental insurance and uncovered medical and dental costs.

As pertains to education, arguments are frequently heard by the court regarding the alleged necessity of private or charter schools, and regarding the alleged necessity of private tutoring for the minor child. For instance, is the public school in your child’s district rated an F? Is there a nearby charter or private school available at a reasonable cost? Is attendance at that school affordable for the parties and in the best interests of the minor child? Again, this is a question of fact.

When psychological issues are involved, those can range from (and are NOT limited to) depression (sometimes resulting from the parents’ own behavior and arguing), anti-social behavior, etc. Whether the support amount should be increased under the aforementioned circumstances is a question of fact presented by the parties and/or their family law attorneys, and factors applied by the court. Thank you for reading part 1 of this ongoing series, Motion to Deviate From Child Support Guidelines in Florida.

For more information please continue reading.

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

Is daycare included in child support in Florida

Is Daycare Included in Child Support in Florida

Is Daycare Included In Child Support In Florida?

Often, during negotiations over the terms of a marital settlement agreement or a paternity agreement (child support and a parenting plan), one party will ask that day care expenses be kept separate from the Child Support Guidelines Worksheet. This is generally not the optimal approach. To best answer the question, “is daycare included in child support in Florida,” it is important to note that in a majority of family law cases, the court requires that day care expenses be included in Child Support Guidelines Worksheets. Ensuring the child has a safe and nurturing environment while the parents are working is in the child’s best interest. This brings us to the Florida day care child support obligation.

Florida Child Support Statute

The parties must exchange Child Support Guidelines Worksheets to ensure the child support calculations are accurate and truly represent the information provided on the Financial Affidavits, pay stubs, tax returns, etc. Statutorily, as stated concisely in Florida Statute 61.30(7), child care costs such as daycare incurred as a direct result of one or both parties working (career necessities), looking for work, or obtaining an education with the intend of becoming employed or earning a promotion, MUST be added to the Worksheets. The Florida Daycare Child Support Obligation is that both parties must contribute according to their financial ability to do so. To better answer our question, is daycare included in child support in Florida, yes in most cases it is barring some reasonable explanation that allows for an exception to be made. This is when a Motion to Deviate from Child Support Guidelines may be appropriate.

Florida Daycare Child Support Obligation

The one caveat the Statute offers regarding the Florida Daycare Child Support Obligation is that “Child care costs may not exceed the level required to provide quality care from a licensed source.” Is daycare included in child support in Florida? In a sense, the Statute encourages parents to find a reputable and licensed child care/daycare provider to look after their children. Mostly, the Florida Legislature and the courts are seeking to compel the parents to find a reasonably-priced day care that does not overburden their finances, nor cause significant disagreements about the provider’s quality.

Florida Daycare Child Support Obligation

Is Daycare Included In Child Support In Florida? A Short Hypothetical About the Florida Daycare Child Support Obligation

Hypothetically speaking, if there are two day care facilities and one costs $170 per month for an infant, the other costs $230 a month, both parties should consider finding a middle ground. Find a day care that is relatively nearby, which costs $200 a month and has the option of a camera to observe your child(ren) while they are being cared for.

“Is daycare included in child support in Florida?” Judges prefer when the parties do their best to compromise. Break ups are often full of bitterness and they often cause distrust. Just because the parties are no longer “together,” does not make them bad parents or incapable of making rational adult decisions in the best interest of their children. Think carefully about whether your actions represent the best interest of your children, or are a reaction to the breakdown of your relationship. Daycare is vital to the health and security of children when parents work full time and there are no other family members available to help with child care.

For more information please continue reading.

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

Florida Family Law Notice of Related Cases

Florida Family Law Notice of Related Cases

Florida Family Law Notice of Related Cases

What is a Florida family law notice of related cases and why do Florida family law circuit courts require family law litigants to file this notice with the court? According to Florida Rule of Judicial Administration 2.545(d), and Florida Family Law Rule 12.900(h), a Florida family law notice of related cases must contain the case captioning, the case number(s) of any related case(s) and should indicate to the court whether you are seeking to consolidate all outstanding issues under the family law court umbrella. Similar to the litigants’ obligation to inform the court of any changes in financial circumstances (by filing an amended Financial Affidavit), if related cases are filed during the pendency of the divorce/marital dissolution, then the parties must bring them to the court’s attention by filing a Florida family law notice of related cases. Do not forget to let the court know of any cases that impact your dissolution of marriage, and/or child custody case.

What is a Related Case in Florida Family Law Court?

Florida Family Law Notice of Related Cases | What is a Related Case in Florida Family Law Court?

What is a related case in Florida family law court? Commonly, litigants will file a notice of related cases when there is an eviction, unlawful detainer, domestic violence, and/or criminal assault, battery, or stalking case/situation that arises. These types of cases could significantly impact the litigants’ timesharing and child support amounts, particularly if the case proceeds to trial. Withholding information from the court can lead to a result that could be challenged, and/or your veracity and forthrightness with the court could be challenged. If there are no related cases, you may wish to submit the Florida family law notice of related cases form and state that there are no related cases for purposes of making the record.

The rules of procedure provide that a case is related if it “involves the same parties, children, or issues and is pending when the family law case is filed; or it affects the court’s jurisdiction to proceed; or an order in the related case may conflict with an order on the same issues in the new case; or an order in the new case may conflict with an order in the earlier case.” If you need clarification, call a Florida family law attorney for more information, or consult with the local Clerk of Court in your county to receive the clarity you need to proceed forward with confidence.

For more information please continue reading.

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

Florida Family Law Notice of Limited Appearance

Florida Family Law Notice of Limited Appearance

Florida Family Law Notice of Limited Appearance

Often, the parties in a Florida family law case do not have the financial resources to hire an attorney to manage their entire case. These financially-constrained litigants may, in the alternative, hire an attorney with the understanding that he or she will file a Florida Family Law Notice of Limited Appearance. This means that if a litigant wants to hire an attorney for just one proceeding such as a hearing on a motion for contempt, the court-ordered family law mediation, or only for the family law trial, that is a strategy a litigant may employ in an attempt to save on legal fees and costs. It is not optimal to hire an attorney that does not have the full knowledge of the proceedings, and has not been litigating your case since the beginning, but hiring an attorney to protect your best interests is still the optimal choice.

Florida Family Law Rule 12.040

In order to appear on your behalf on a limited appearance basis, a Florida family law attorney such as myself will file a Florida Family Law Notice of Limited Appearance. According to Florida Family Law Rule 12.040, Attorneys may represent a client on a limited basis provided they obtain the client’s informed consent and in some cases the client’s signature. Florida Family Law Rule 12.040(a) specifically provides that: “An attorney of record for a party, in a family law matter governed by these rules, shall be the attorney of record throughout the same family law matter, unless at the time of appearance the attorney files a notice, signed by the party, specifically limiting the attorney’s appearance only to the particular proceeding or matter in which the attorney appears.”

Consider your budget, the benefit that a skilled Florida family law attorney may add to the outcome of your case, and if you want to hire us on a limited basis, we will consider filing a Florida Family Law Notice of Limited Appearance to appear on your behalf at certain hearings, mediations, or trial, as opposed to being your legal counsel for the entire case.

Florida Family Law Notice of Limited Appearance

More simply stated, sometimes Legal Aid or low cost firms are unable to assist an indigent client. At times such as those, what some clients do not know, is that they may hire (if the attorney or law firm is willing) an attorney for limited appearances/representation. This is one way that some law firms, such as ours, makes legal representation affordable. The limitation is just that however, limited representation helps, but does not necessarily resolve all legal issues because the attorney hired for a per-event basis may not have all the background facts and the client may not have properly drafted his/her pleadings. Nevertheless, some attorney help is surely better than none, and affordability is critical for a great number of would-be-clients. Food for thought.

Jonathan Jacobs is a same sex divorce lawyer in Orlando Florida, and a relocation attorney Orlando that works tirelessly for his clients to ensure a positive outcome to their family law litigation. Call now for your consultation, 407-310-5636.

Affidavit of Corroborating Witness in Florida

Affidavit of Corroborating Witness in Florida

Affidavit of Corroborating Witness in Florida

To obtain a dissolution of marriage in Florida (colloquially speaking, a divorce), either spouse (husband or wife) must have resided in the State of Florida for a minimum of six months prior to filing a petition for divorce. There are many ways that a family law litigant can prove to the Florida Court that he or she is a Florida resident, one of which is by asking a witness to produce an Affidavit of Corroborating Witness in Florida on your behalf. The foremost method is by simply filing a copy of one’s Florida Driver License that shows a residency of at least six months in Florida. Alternatively, a family law litigant may provide a Florida identification card, a Voter Registration card, or otherwise. If none of those documents can be furnished, there is still an alternative to proving one’s residency in the State of Florida, pursuant to the requirements of the Florida family law circuit court.

The alternative is for the litigant to bring in a witness to testify to the litigant’s residency for minimum of six months, or the witness may simply furnish an affidavit to the court stating the same. The witness may not be either of the litigants themselves because that would hardly offer new information or solve the evidentiary problem. The person that signs the Affidavit of Corroborating Witness in Florida
must also have been a Florida resident for a minimum of six months prior to the petition for divorce having been submitted to the court. This is really quite a basic and logical requirement. Under oath, the affiant must swear, “I know of my own personal knowledge that this person has resided in the State of Florida for at least 6 months immediately prior to the date of filing of the petition.”

If you need clarification, call an Orlando Divorce Attorney, or a Florida family law attorney for more information, or consult with the local Clerk of Court in your county to receive the clarity you need to proceed forward with confidence.

Writ of Bodily Attachment Child Support Florida

Writ of Bodily Attachment Child Support Florida

Writ of Bodily Attachment Child Support Florida

A Writ of Bodily Attachment Child Support Florida is established when the payor (person ordered to pay the payee/recipient) of child support has been delinquent, received a fair warning of that delinquency (essentially a failure to pay child support, whether willful or due to financial hardship and/or inability), and has failed to pay that amount owed/requested. The Writ commands the Sheriff of any county to arrest the payor for his or her failure to pay child support. First, either the Florida Department of Revenue (DOR) will commence an action, or the party to whom child support is owed will first file a Motion for Contempt, stating that the payor has failed to pay and is accruing arrears in defiance of a court order commanding him or her to pay child support payments. Jacobs Law Firm is a Florida child support attorney firm.

Pursuant to Florida Statute 38.22, and Florida Family Law Rule of Procedure 12.615, a Florida Family Law Court (the Circuit Court of any County) may find a person in civil contempt for failure to pay child support. Civil contempt is not the same as criminal contempt, but the consequences are severe.

The “Writ of Bodily Attachment Child Support Florida” may be served by a Sheriff in any Florida county, even if in a county where the Writ did not originate. This is not simply a matter of the delinquent payor absconding to another county to avoid paying child support debt. Once the debt is owed, it must be paid and satisfied to avoid very real consequences.

A Florida Child Support Attorney

Florida Child Support Attorney

The reason you may need a Florida Child Support Attorney to represent you is because a Bowen Hearing (eponymously named after Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985)) is held within 48 hours. The purpose of a Bowen Hearing is for the Circuit Court to determine the payor’s present ability to pay the amount of child support owed. The “Writ of Bodily Attachment Child Support Florida” creates a “purge” amount owed. This means that the amount owed must be satisfied or else the payor will likely not be released from jail. If the payor is determined by the evidence to have the ability to pay, he or she must do so or remain incarcerated until such a time as they decide to pay their child support debt.

A Florida Child Support Attorney may file a Motion to Set Aside Writ of Bodily Attachment for you, which will illustrate to the Circuit Court your inability to pay and ask for your release from jail. Call us immediately if you need help. Attorney Jacobs is an Orlando child support attorney specializing in child custody and relocation with minor children cases.