Attorney-at-law David Goldman, with over 20 years experience, publishes this blog which will be of interest to every person who knows about divorce. It's home to great information for parenting, information on child support, tips on parenting after divorce and more.
Family law clients always ask me, “What is a QDRO?” (pronounced informally “Quad-Row”) QDRO is an acronym for Qualified Domestic Relations Order, which is a court order that grants a party a right to a portion of the retirement benefits his or her former spouse has earned through participation in an employer-sponsored retirement plan. Federal law states that a retirement benefit can only be divided between former spouses if there is a QDRO. Retirement plans can be a huge asset in a marriage that may be forgotten in a divorce, so its key for clients to educate themselves on division of this marital asset.
In a divorce, a family law attorney needs to determine what retirement plan each party owns through mandatory disclosure by the formal, legal plan name. It is important to know the value of each plan, the valuation date used to value the plan, what ancillary benefits are associated with the plan (for example, market fluctuations, survivor benefits, subsidies/supplements, and interest credits), the correct method of division for the plan, and will the retirement plan accept a QDRO. Disclosure is important in obtaining this information and the plan’s summary description. It is also important to obtain the plan’s divorce transfer and QDRO guidelines, if available. Obtaining a statement for the plan as of your desired valuation date will assist you in a smooth QDRO process. For federal government employees, retirement plans are divided by a COAP, which stands for Court Order Acceptable for Processing.
Your divorce decree will not be enough to divide a retirement benefit in most cases. A QDRO is a separate document from the divorce decree. It is always better to file a QDRO with the retirement plan as soon as possible. If the former spouse retires after the divorce is final, and the QDRO has not been filed with the plan, the plan will begin paying out the benefit to the former spouse and only future payments will be affected.
That dreaded word in a divorce: Alimony. Alimony is determined by the court after looking at one party’s actual need versus one party’s ability to pay. After equitable distribution is determined, the court reviews what money is left over, if anything, and considers the parties’ circumstances to come up with a fair award. Some questions to answer:
Divorces in Florida typically split the parties’ assets and liabilities down the middle as much as possible. Determining what is a marital asset or liability or a non-marital asset or liability can be key to whether an asset or liability will be considered in the calculations. Before filing for divorce, you should consider the following items when thinking about equitable distribution:
In Florida, divorces with children involved primarily focus on the parenting plan first. The parenting plan determines numerous factors in raising your children and will be the document most referred to after the divorce is finalized. It is important that the plan is tailored to you and your children and accounts for the best interest of the children. Before filing for divorce, you should consider whether you would like to request one of the following:
Shared Parental Responsibility: Both parents confer and jointly make all major decisions affecting the welfare of the children, such as education, healthcare, etc.
Shared Parental Responsibility with Decision Making Authority: Both parents attempt to agree on major decisions, but one parent will have the ultimate decision-making authority.
When parties come to family court in Florida for paternity, dissolution of marriage, or child support proceedings, income of the parties can become very important in calculations and is examined closely. There may be certain situations where one parent is working overtime to make additional money, whether it be to pay support or to supplement income because of a lack of support being received. Can working overtime be a problem in your family court case?
Florida Statute § 61.30(2)(a) indicates that gross income shall include, among other things, bonuses, commissions, allowances, overtime, tips, and other similar payments. Child support will be calculated from net income, so it is important to get all allowable deductions as accurate as possible. For purposes of child support, the court must impute income to a voluntarily unemployed or underemployed parent unless the lack of employment is the result of the parent’s physical incapacity or other circumstances beyond the parent’s control. The court has to state the exact amount of gross income it is imputing to a parent. See Shrove v. Shrove, 724 So.2d 679 (Fla. 4thDCA 1999). Regular overtime or second-job income is included unless the court specifically finds that the opportunity to earn overtime will not be available as an income source in the future. See Butler v. Brewster, 629 So.2d 1092 (Fla. 4th DCA 1994).
Therefore, it can be possible that overtime and second-job income can be used to calculate child support and the court won’t make a finding that the income source will not be available as an income source in the future, making child support higher or lower depending on the circumstances. Contact an experienced Jacksonville Family Law Attorney with the Law Office of David M. Goldman, PLLC for a consultation.
In Florida, the enhancement of value of a nonmarital asset could be declared by a divorce court to be a marital asset. Most of the time you see this when one spouse’s nonmarital asset is alleged by the other spouse to be a marital asset. If it cannot be declared a marital asset any other way, the court may look at enhancement of value of the nonmarital asset and award the other spouse an interest of that enhancement of value. The Mitchell case illustrates this concept.
In Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2ndDCA 2003), the husband owned a Tampa Carrollwood home prior to the marriage and kept it titled in his name so it was nonmarital property. The trial court found that the home had been enhanced due to marital funds and efforts. Typically, the enhancement in value of a nonmarital asset resulting from either party’s nonpassive efforts or the expenditure of marital funds is a marital asset. The appellate court found that such enhancement in the Mitchell case was negligible. They performed primarily cosmetic or maintenance-related improvements, such as wallpapering. The most important factor in the increase in the value of the property was passive market appreciation, about 5 to 6 % annually. This produced a market value of $185,000. The appellate court found that where the increase in market value is attributable to inflation or “fortuitous market forces,” the expenditure of marital funds on the nonmarital asset does not transform the appreciated asset into marital property. However, an increase in equity due to the use of marital funds to pay down a mortgage balance is a marital asset subject to equitable distribution. The appellate court found that the wife’s interest in the home was limited to her one-half share of the amount by which the mortgage was reduced with marital payments.
The husband in Mitchell also had 41 acres of unimproved land in North Carolina that was solely titled in his name alone throughout the marriage. The circuit court characterized the entire appreciation in the value of the nonmarital North Carolina property as a marital asset subject to equitable distribution despite the fact that the appreciation was entirely attributable to passive inflation. As in the case of the Carrollwood home, this was error according to the appellate court. It was undisputed that the property was unimproved. It had no sewer, septic, electric, or water connections. The record showed that the parties used marital funds to pay mortgage payments, taxes, and a road assessment fee. The increase in the husband’s equity due to the use of marital funds to pay down the mortgage was a marital asset to be divided between the parties. Otherwise, the North Carolina property was found to be husband’s nonmarital asset.
In some marriages, a spouse’s parents may supplement the family income with monetary gifts, which may be an issue later on if the husband and wife divorce. Can one spouse argue that the other spouse will have higher income due to the monetary gifts from family members thereby raising alimony and child support payments? According to Florida law, it depends.
In Oluwek v. Oluwek, 2 So.3d 1038 (Fla. 2ndDCA 2009), Jonathan Oluwek, the husband, appealed an amended final judgment of dissolution of his marriage to Linda Oluwek, the wife. The trial court imputed $1500 per month contributed regularly by the husband’s parents to husband for alimony and child support. The husband argued the trial court erroneously imputed the $1500 per month as income to the husband. The record indicated his parents made regular monthly payments of $1500 over the last five years of marriage.
The Oluwek court held that as a general rule, the trial court may not consider financial assistance from family or friends in determining a party’s ability to pay alimony or child support. However, there is an exception that allows the court to impute income based on gifts “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” In Vorcheimer v. Vorcheimer, 780 So. 2d 1018 (Fla. 4thDCA 2001), the appellate court held that the trial court erred by imputing $1500 to the husband as income where there was no evidence that the payments would continue. The $1500 payments had been made on a monthly basis for twelve years, but the husband’s father testified at trial that he had stopped making the monthly payments and would not make them in the future. The court distinguished that case from Ordini v. Ordini, 701 So.2d 663 (Fla. 4thDCA 1997), in which regular monthly payments from the husband’s parents continued through trial and the husband’s mother testified that she would continue to make them in the future.
In 2016, Angelina Jolie filed for divorce from Brad Pitt after he got into an altercation with his son Maddox on a plane that resulted in an FBI investigation. You may have heard about the custody battle with their six children that has ensued. Recently, a judge apparently ordered “new restrictions” regarding Angelina’s participation in how Brad interacts with the children.
The Judge wrote, “[The children] not having a relationship with their father is harmful to them. It is critical that each of them have a healthy and strong relationship with their father and mother.” The Judge also state, “If the minor children remain closed down to their father and depending on the circumstances surrounding this condition, it may result in a reduction of the time they spend with [Jolie] and may result in the Court ordering primary physical custody to [Pitt].” The Judge created a visitation schedule for Brad to see his children over the summer with the children continuing to receive therapy.
It seems the Judge is trying to prevent parental alienation. Parental alienation is the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members. Check out 9 warning signs that parental alienation might be present here.
Former New York City Mayor Rudy Giuliani and his third wife, Judith, are currently involved in a heated divorce. A day after filing for divorce on April 4, 2018, the parties filed for each other to produce a statement of net worth to determine assets. The Giulianis have been married for 15 years and they do not have a prenuptial agreement.
In 2007, when Rudy Giuliani submitted his financial disclosure to the Federal Election Commission while running for president, he was worth an estimated $30 million. The couple own properties in Manhattan and Palm Beach, Florida. It is estimated that there is currently an estimated $60 million in assets at stake. When he married Judith, Rudy was pretty much insolvent and the money he has now was earned while he was married to Judith. New York is a separate property state, but her participation in his success could be a factor for the assets to be split 50/50.
In Florida, mandatory disclosure applies so the Giulianis would not need to file for a statement of net worth. Mandatory Disclosure is the procedure where financial information is automatically disclosed by the parties upon the filing of a divorce. The parties must exchange financial information in the form of a financial affidavit and additional documents such as tax returns, bank statements, credit card statements, deeds, vehicle titles, insurance policies, etc. Mandatory disclosure must be completed within 45 days after service on the respondent.
National headlines were made when the wife of former U.S. Open champion Lucas Glover was arrested for domestic violence battery and resisting arrest in St. Johns County, Florida on May 13, 2018. The altercation allegedly occurred after Lucas Glover missed the 54-hole cut at The Players Championship. Lucas Glover told authorities that his wife gets violent every time he does not play well in a major PGA Tournament. There were allegedly visible injuries on Lucas Glover and his mother. Krista Glover faces a court date on May 31, 2018 and was released on a $2,500 bond.
The Glovers children were present at the home when the incident happened. Krista Glover had been drinking throughout the day and started yelling profane insults at Lucas Glover in front of their children and his mother. Lucas Glover told her to stop the argument while in front of the children. The children were in bed when the physical altercation happened, and it is unknown if they observed any of the altercation or the subsequent arrest afterwards where Krista Glover allegedly resisted arrest. The couple was married in 2012 and have two children, a two-year-old son and a 5-year-old daughter.
The consequences of arguments in front of the children can be serious to both the aggressor and the victim. The Florida Department of Children and Families may become involved if they receive an abuse report to investigate regarding the situation, which could even lead to possible removal of the children from both parties if it is alleged Lucas Glover failed to protect the children from multiple instances. Also, it is key that alcohol was involved. Drinking is perfectly legal and acceptable; as long as there is not a demonstrable effect on the children. If there is a demonstrable effect on the children, alcohol treatment would most likely be ordered by a dependency court.