Preparing for a Divorce Trial

Preparing for a Divorce Trial.

Advertisements

How to “Work the System”…Imputation of Income

by Robin Roshkind, Esquire, West Palm Beach, Florida

In my continuation of “working the system” in divorce court blogs, I must qualify that I am only licensed to practice law in the State of Florida.  Therefore, all my information is based upon Florida law.  Marriage and divorce laws change with each state.

In Florida divorces, there is such a thing as “imputation of income”.   Income of a husband or a wife is especially important when it comes to issues such as child support, alimony and any request for an award of attorneys fees.  PRESENT ability to pay is important for temporary relief hearings pending the actual divorce proceedings.

But at the end of the process, when it comes down to the actual trial, the divorce court judge may look at a party’s earning history over the last three to five years, not just the present day income.  As a result of that employment history, the court may “impute” an income to a spouse, and enter a ruling “as if” the spouse was in fact earning that income, even though in reality they are sitting on the beach waiting for this case to be over.

Often, to impute an income, in addition to any earnings history, the judge might also consider a vocation evaluation.  That is when a party is evaluated as to their age, health, education and marketable skills set, and the evaluator, as expert witness, testifies as to what that spouse could be earning if employed.  The divorce court judge then has the discretion to impute an income to that spouse as if he/she were employed earning that income and enter an order based upon that imputed income.

Vocational evaluations are granted by court order after a motion is made and a hearing is set.  They are helpful tools in imputing an income to an under employed or unemployed spouse for purposes of awarding alimony, child support and attorneys fees. For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

What Is Contempt Of Court In Palm Beach County Divorce Cases?

by Robin Roshkind, Esquire, West Palm Beach, Florida

Contempt of court under general law is a WILLFUL disregard for court orders.  What that means is there has to be intent to violate a court order.  The intent could be out of vindictiveness, punitive in nature, out of anger, or in some other way meaningful intent to violate the court’s ruling.

In divorce cases in Palm Beach County, this could mean many things.  Where a court order states that certain documents are due by a certain date, if this is not complied with, the court may hear a motion for contempt for violation of such an order.  The burden of proof is upon the movant who is filing the motion.  The movant would have to show the court that the order could have been complied with, but was not, out of willful intent.  Not out of inability. 

Most motions for contempt of court are filed with regard to court orders to make some form of payment from spouse to spouse.  This could be child support, alimony, attorneys fees, or some other form of equitable distribution or some other action court ordered in the divorce case.  If a party is ordered to make a payment to another party, and willfully with holds that payment although the funds are readily available, that is contemptible.  If a party simply does not have the means, that is an affirmative defense to a contempt claim.  That party then should file a modification based upon a change of circumstances since the court order was entered.

For more information about motions for contempt or petitions for modifications of alimony, child support or other issues, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

What If I Don’t Like The Divorce Judge’s Ruling?

by Robin Roshkind, Esquire, West Palm Beach, Florida

You have lasted months or years under the stress of the divorce process.  You finally get to trial.  Now you think the judge made an error of fact or law.  You do not agree with the judge’s decision. AND HAVE A LEGAL BASIS ON WHICH TO DISAGREE. What can you do?

You have several steps:  file a MOTION FOR REHEARING to go before the same judge.  In this motion for rehearing, you must point out any error of fact or law for the judge to reconsider.  Just because you simply disagree with the ruling, does not mean you have a legal reason to get it changed.

If the judge considers and denies your motion for rehearing, hire this Firm or another to file a NOTICE OF APPEAL on your behalf in the higher court, the Fourth District Court of Appeal, which is for Palm Beach County.  If there is a legal basis for an appeal, i.e. abuse of discretion, error of fact or law, you may win a reversal on appeal.  This is another involved process and takes time and money.  But ultimately, you may have satisfaction if the judge’s decision in the lower court gets overturned or remanded back for reconsideration.

For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, PA at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

 

 

Where To Live While Divorcing!

By Robin Roshkind, Esquire, West Palm Beach, Florida

If you are going through a divorce, things can’t be too pleasant around the house, even if the divorce is amicable.  You do have some options as to living arrangements. 

Most lawyers would advise clients to live in the marital home if at all possible.  Divorce means transition for you, your spouse and your kids, so the less changes the better at this critical time.  However, if there is domestic violence or the threat of same, it would be wise to remove yourself from the situation.

If the house is big enough to not run into each other, or if there is a “mother in law” or guest house out back, remove yourself to that part of the home.  If that is not possible, and your name is on the deed to the house, then relocate, even if it is temporary.  You do not lose your rights to the house by moving out. 

If finances allow, rent an apartment or house nearby.  If finances do not allow, stay with a friend, relative or co worker until you can either get to mediation and come up with some agreement with your spouse, or get to a temporary relief hearing, where the judge will either give you possession of the home, or allow the finances to find other housing.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at www.familylawwpb.com for more information.

Can A Divorce Decree Be Changed?

By Robin Roshkind, Esquire, West Palm Beach, Florida

The lawyerly answer is…it depends.  Certain things in a divorce decree or divorce court order may be modified by the parties or by a judge, and certain other things, once agreed to, adjudicated, and court ordered, are set in stone.

Anything that addresses the best interests of the children of the divorce can be modified, either by agreement of the parties or by a court order.  This would require the moving parent to petition the court for a modification of, for example, child support, time sharing arrangements, shared parenting, or a relocation.  The moving party would have to prove there is a substantial change in circumstances since the entry of the original court order, which is enough of a change to warrant the modification asked for.   

Other divorce issues, like the division of marital assets and/or debts, once decided or agreed to by the parties, or adjudicated by the judge, become the law of the case, never to be adjudicated again…that is, unless a spouse can prove fraud. This principle of divorce law is called equitable distribution of marital assets and debts.

Sometimes alimony obligations can be modified upward or downward, provided the agreement between the parties, does not specifically state that alimony is unmodifiable.  Again, to modify, this would require the moving party to file a petition for modification of alimony, and allege a substantial change of circumstances from the time of the original court order… said circumstances would have to warrant a modification in the court’s opinion, or by agreement of the parties.  Since the law on alimony is based upon one spouse’ need, and the other spouse’ ability to pay, alimony modifications are quite common.

For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

 

 

What IS A Motion To Withdraw?

By Robin Roshkind, Esquire, West Palm Beach, Florida

Often a client will want to settle a divorce case because to litigate is very expensive.  If the other spouse does not want to settle, however, no settlement is possible.  Clients run out of litigation funds for their attorneys.  In that case, they will have to finish the matter on their own or “pro se”, i.e. without counsel.  Where misunderstandings come in, is that a client cannot simply direct a lawyer to STOP.  A lawyer is an attorney of record with responsibility to continue with the representation until a judge orders or allows the lawyer to get off the case.  This requires the lawyer to file a motion to withdraw from the representation and go to a court hearing where the judge will decide whether or not to allow the lawyer to get off the case.

This depends upon whether or not there is a trial pending, or any other action at the present time pending such as a mediation or motion hearings.  If the case is languishing, a lawyer will be allowed to withdraw, but this has to be by court order.  Until such order is entered, the client will continue to have representation whether they want it or not and they will have to pay for it as well.

For more information about this or other divorce topics, please call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at www.familylawwpb.com.