Tag Archive for: Florida Statutes

Does Florida Recognize Common Law Marriage?

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You may have heard about common law marriages. Generally speaking, they are unions in which the couple has not been licensed for marriage by the state but have lived with one another for a certain period of time and have voluntary held one another out to others as being a married couple.

Prior to 1968, couples could enter into a common law marriage in Florida and have all the rights and responsibilities that come with a state-licensed marriage. However, with the passage of section 741.211 of the Florida Statutes, couples could no longer enter into common law marriages in Florida. The current iteration of section 741.211 reads as follows:

Common-law marriages void.—No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.

However, this statute does not abolish Florida’s recognition of all common law marriages.

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Prenuptial Agreements: Uniform Premarital Agreement Act

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No matter the reason that parties enter into a prenuptial agreement, there are certain issues that may be agreed upon and other issues that Florida public policy prohibit parties from agreeing on prior to marriage.

For example, a clause in a prenuptial agreement defining a visitation or time-sharing schedule with respect to the parties’ unborn children would not be enforceable.  This is because a time-sharing schedule must be based on the best interests of a child, and it is difficult to define and anticipate those best interests before the child is born.  Similarly, a prenuptial agreement may not restrict a child’s right to financial support.

So, what may be agreed upon in a prenuptial agreement?  Section 61.079 of the Florida Statutes, known as the “Uniform Premarital Agreement Act,” specifically states that the following may be settled in a prenuptial agreement:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

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Termination of Alimony: Proposed Changes to “Supportive Relationship” Standard

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According to current state law, a Florida family law judge has the option to reduce or terminate an alimony award if he or she finds that the ex-spouse receiving payment (the “obligee”) is in a supportive relationship.  The term “supportive relationship” currently has somewhat of a tough standard to overcome.  For example, one factor in determining whether a supportive relationship exists is whether the obligee and his or her current boyfriend or girlfriend call each other “my husband” or “my wife” in public.

In a bid to curtail permanent periodic alimony and ease the ability for a paying spouse (the “obligor”) to modify or reduce his or her alimony obligation, Florida HB 549 proposes many changes to the “Supportive Relationship” standard.  This bill will change current section 61.14(1)(b) of the Florida Statutes as follows (new language is underlined, while deleted language is stricken):

61.14 Enforcement and modification of support, maintenance, or alimony agreements or orders.—
(1)
(b)1. The court must may reduce or terminate an award of alimony if it determines upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. The court shall make specific written findings that support such a determination. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.

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Vast Changes Proposed to Florida Alimony Statute

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Permanent Alimony?  A thing of the past.  Standard of living during the marriage?  That factor is so passe.  Payments past retirement?  Not any more.

These are just a few of the vast changes that will be made to section 61.08 of the Florida Statutes (the “Alimony Statute”) if the current version of House Bill 549 is passed and signed into law.  Below you will find the proposed changes to the Alimony Statute (proposed additional language is underlined while proposed deletions are stricken):

61.08 Alimony.—
(1) In a proceeding for dissolution of marriage under s. 61.052(1)(a), the court may grant alimony to either party, which alimony may be bridge-the-gap, rehabilitative, durational, or long-term permanent in nature or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments or payments in lump sum or both, which may not exceed 20 percent of the payor’s monthly net income to include all sources of income averaged over the last 3 years of the marriage. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.

Factors in Relocating with a Child

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If you are or have been involved in a child custody case and you wish to move with your child, you must make sure to follow the procedures of section 61.13001, Florida Statutes (the “Relocation Statute”).

Often times, parents are able to come to an agreement on relocation.  The Relocation Statute has specific requirements for the agreement, and the agreement must be filed with the court and ratified by a judge.

But what if you and the other parent cannot come to an agreement?  What specific factors does a judge look at to determine if relocation is in a child’s best interests?

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Relocation With A Child Outside of Florida

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If your child has ever been subject to a custody proceeding (such as divorce, paternity, or temporary custody), then you are likely restricted in where you can move with the child under section 61.13001, Florida Statutes.  This law, known as the “Relocation Statute,” prevents a parent from moving a child more than 50 miles except under certain circumstances.

The first circumstance allowing relocation is if both parents agree.  However, strict requirements must be followed.  The agreement must:

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Concurrent Custody vs. Temporary Custody

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I recently wrote a post explaining temporary custody by an extended family member, a type of action which allows parents to temporarily transfer their custody rights to a relative.  Once a judge grants a petition for temporary custody, the relative temporarily assumes the parents’ right to make decisions concerning the child’s healthcare and education, and also assumes the right to obtain documents such as birth certificates and passports.

However, sometimes parents want to give a relative custody rights while also retaining the rights for themselves.  Chapter 751 of the Florida Statutes allows for this arrangement in what is termed “concurrent custody.”

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Temporary Custody by an Extended Family Member

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If you have a nephew, niece, or grandchild living with you, you may have run into a roadblock when attempting to acquire his or her birth records or passport.  Further, you may have gotten the run around when attempting to make decisions concerning the child’s education or healthcare.  Fortunately, this state has a solution in chapter 751 of the Florida Statutes.

Chapter 751 permits an extended family member to take temporary custody of a minor child, access state and other records, and make major decisions concerning a child’s upbringing.  But, keep in mind, temporary custody must be granted by a Florida court (and cannot simply be signed away by a parent), and there are strict procedural requirements that must be met.

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Child Custody and “Best Interests”

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When a Florida family law judge makes a custody determination, the judge’s main concern is establishing a parenting plan that is in the best interests of a child.  The parenting plan will outline, among other things, parental responsibility (the authority to for a parent to make decisions regarding a child’s welfare) and a time-sharing (visitation) schedule.

A whole host of factors go into an analysis of where a child’s best interests lie.  The factors are laid out in section 61.13(3)(a)-(t), Florida Statutes:

(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

When Is Permanent Alimony Not Permanent? When There Has Been A Substantial Change In Circumstances.

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When a judge orders a spouse to pay permanent periodic alimony, he or she may feel resigned to a lifetime of indebtedness to the one person he or she is trying to forget about. It’s that word, “permanent,” that seems so…well…permanent. But, believe it or not, Florida law has contemplated that there are times when permanent alimony may no longer be appropriate (or when the amount of alimony may be reduced).

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