New Bill Aims to Streamline Divorce Proceedings Across Florida

A top-priority measure from the Family Law Section designed to bring more uniformity to divorce proceedings is moving forward in the Senate.

The Senate Rules Committee unanimously approved SB 534, introduced by Republican Sen. Erin Grall, a family law attorney from Vero Beach.

“Senate Bill 534 acknowledges the complexities in divorce proceedings and addresses conflicting case law about the distribution of assets and liabilities,”

Grall explained during her brief presentation to the committee.

The Rules Committee had over 25 bills to review in less than two hours, and Grall’s presentation on SB 534 lasted under three minutes, with no questions from the committee members.

Key aspects of the bill include:

  • Requiring that any gift of real property between spouses must be in writing.
  • Establishing guidelines for courts to consider when determining the value of a “closely held business” in divorce proceedings.
  • Defining “extraordinary circumstances” for courts to consider when deciding on an interim partial distribution of assets during a dissolution action.
  • Veteran family law attorney Shannon L. Novey attended the committee meeting to show support from the Family Law Section.

SB 534 had previously passed the Judiciary Committee with a 10-0 vote on January 16, and the Children, Families and Elder Affairs Committee unanimously the following week.

A companion bill, HB 521, introduced by Republican Rep. Traci Koster, a family law attorney from Tampa, is currently on second reading in the House calendar after passing through three committees without any opposition.

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Navigating Family Court Obligations in Bankruptcy: What South Floridians Need to Know

Navigating the discharge of family court obligations in bankruptcy can be complex due to the interplay between the U.S. Bankruptcy Code and state laws. This article provides a detailed look at the relevant sections of the Bankruptcy Code and explains how courts determine whether these obligations are dischargeable. Although bankruptcy law governs the dischargeability of debts, the absence of federal domestic relations law means that state law and court decisions play a crucial role. Interestingly, both state and bankruptcy courts can determine the dischargeability of domestic relations obligations, though they must apply bankruptcy law in their analysis.

Bankruptcy Code Overview

When it comes to matrimonial debt, two primary sections of the Bankruptcy Code are key:

11 U.S.C. §523(a)(5): Excludes from discharge debts arising from Domestic Support Obligations (DSOs).

11 U.S.C. §523(a)(15): Excludes from discharge non-DSO claims, including obligations related to equitable distribution owed to a spouse, former spouse, or child.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) significantly modified these sections to reduce litigation over family issues in bankruptcy court. However, unintended consequences mean that courts must often review whether an obligation is a DSO under §523(a)(5) or falls under §523(a)(15) on a case-by-case basis. This applies to various agreements, including paternity settlements that address child support and time-sharing.

Domestic Support Obligation (DSO) — 11 U.S.C. §523(a)(5)

A DSO is defined by four components under 11 U.S.C. §101(14A):

The debt is owed to or recoverable by a spouse, former spouse, child, or a government unit.

It is in the nature of alimony, maintenance, or support. It was established before, during, or after bankruptcy through various agreements or court orders.

It has not been assigned to a nongovernmental entity unless for debt collection purposes by specified relatives.

In Chapters 7, 11, and 13, debts meeting these criteria are nondischargeable. If any element is missing, the debt may not qualify as a DSO, as seen in cases where obligations to third parties were not considered DSOs because the debt was not “owed to or recoverable by” the spouse or child.

Non-DSO Obligations — 11 U.S.C. §523(a)(15)

This section addresses non-DSO obligations, such as equitable distribution and property settlement claims not covered under §523(a)(5). Both state and bankruptcy courts can determine the dischargeability of these debts under bankruptcy law. While straightforward, the interpretation of these debts can vary, leading to different outcomes in similar cases.

Different Discharges and Results

Chapter 13 has two types of discharges: the full payment discharge under §1328(a) and the hardship discharge under §1328(b). The latter, requested when payments are not fully made, does not discharge domestic relations debts under §523(a)(15).

Unique Interaction of 11 U.S.C. §523(a)(15) and Chapter 13 Discharge

A domestic relations obligation fitting §523(a)(15) is generally dischargeable in Chapter 13, except under a hardship discharge. Non-debtor spouses can object to Chapter 13 plans, potentially preventing the debtor from getting a discharge if the plan is not approved.

The Attorney’s Role

Attorneys should identify the type of domestic obligation owed. DSOs are nondischargeable in Chapters 7, 11, and 13, while non-DSO obligations are nondischargeable in Chapter 7 but usually dischargeable in Chapter 13. Timing of bankruptcy filings in relation to family court cases is crucial, and careful review of court orders and agreements is necessary to determine whether bankruptcy is advisable and which chapter to file under.

Court’s Application of Law

The determination of whether a debt is a DSO depends on the intent of the parties, as outlined in various court cases such as Cummings v. Cummings and In re Benson. Courts consider factors such as the language of agreements, financial positions, and how obligations are treated for tax purposes.

Preparing for Bankruptcy

Spouses anticipating bankruptcy filings should ensure that obligations are described as DSOs in agreements to make them nondischargeable. Language in court orders should reflect the intent to provide support to ensure obligations are recognized as DSOs.

Attorneys’ Fees and Adversary Litigation

Litigation to determine dischargeability can be costly, with attorneys’ fees potentially added to the domestic relations debt. In Florida, fee awards can be based on contract or statute, with consideration of need and ability to pay.

Conclusion

Dischargeability actions in bankruptcy or state court are costly and uncertain, requiring thorough due diligence. Understanding the definitions in 11 U.S.C. §§523(a)(5) and (a)(15) and applying them to state court orders or agreements is essential for determining the advisability of filing for bankruptcy.

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UNDERSTANDING ATTORNEY’S FEES IN FLORIDA DIVORCE CASES: INSIGHTS FROM ROSEN V. ROSEN

Navigating a divorce can be both emotionally and financially challenging. A critical aspect of this process is understanding the implications of attorney’s fees. In Florida, there have been significant developments in this area, particularly highlighted by the landmark case of Rosen v. Rosen. This article delves into the complexities of attorney’s fees in Florida divorces, emphasizing the key insights from the Rosen v. Rosen case.

Background of Rosen v. Rosen

Rosen v. Rosen is a pivotal decision by the Florida Supreme Court that addresses the issue of attorney’s fees in divorce cases. The case revolved around a dispute between a divorcing couple concerning the payment of attorney’s fees. The court’s ruling provided crucial guidance on the factors considered when awarding attorney’s fees and underscored the importance of equity and fairness in these matters.

Factors Considered by the Court

In divorce cases, courts have the discretion to award attorney’s fees based on various factors. The Rosen v. Rosen decision emphasized that the primary considerations are the financial need of one spouse and the ability of the other spouse to contribute. The court examines the financial resources of each party, including income, assets, and liabilities, to determine the appropriate allocation of attorney’s fees.

Equity in Awarding Attorney’s Fees

The concept of equitable distribution in divorce extends beyond just the division of marital assets. In Rosen v. Rosen, the court highlighted the importance of ensuring both parties have access to competent legal representation to achieve a fair and just resolution. This may involve ordering one spouse to contribute to the other spouse’s attorney’s fees, particularly when there is a significant disparity in financial resources.

Need-Based Assessment

A key takeaway from Rosen v. Rosen is the need-based assessment for awarding attorney’s fees. The court evaluates the financial needs of the requesting party and their ability to independently cover legal expenses. This approach aims to prevent a power imbalance in divorce proceedings and ensures that both spouses can effectively present their cases.

Contribution to Attorney’s Fees

Florida law acknowledges that one spouse may lack the financial means to cover their attorney’s fees entirely. In such situations, the court may order the other spouse to contribute to the reasonable fees incurred by the financially disadvantaged party. This contribution is determined based on a combination of need and the ability to pay.

Conclusion

The Rosen v. Rosen decision has significantly shaped the landscape of attorney’s fees in Florida divorce cases, emphasizing the principles of equity and fairness. Understanding the factors considered by the court, the need-based assessment, and the potential for contribution to attorney’s fees is crucial for individuals undergoing a divorce in Florida. Seeking legal guidance to navigate the complexities of attorney’s fees ensures that each party has the opportunity for fair representation, promoting a more just resolution in the challenging process of divorce.

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CONTEMPT ACTIONS

In Florida, a defendant cannot be held in contempt for failing to pay debts not related to support. Property division awards are not enforceable by contempt; instead, they are treated as creditor-debtor issues. Default interest payments on equitable distribution awards, which are nonsupport-related debts, also cannot be enforced by contempt.

Florida family law rules permit trial courts to use contempt powers to enforce orders requiring a person to perform an act other than paying money, such as signing a title, deed, or other transfer documents like a mortgage. When the act in question does not involve payment, the court may use contempt to enforce property division awards.

Emergency ex-parte motions for child pick-up orders are generally disfavored unless there is a true emergency, such as a threat of physical harm to the child or the child being improperly removed from the state. Visitation disputes alone rarely qualify as emergencies.

Definition and Types of Contempt

Contempt is defined as a refusal to obey any legal order, mandate, or decree given by a judge, or any act that embarrasses, hinders, or obstructs the court’s administration of justice or diminishes its authority or dignity.

Direct Contempt: Contemptuous acts committed in the immediate presence of the court.

Indirect Contempt: Acts committed outside the presence of the court. Any doubt about whether contempt is direct or indirect should favor the contemnor.

Contempt can be classified as civil or criminal:

Criminal Contempt: Punitive and involves conduct intended to embarrass, hinder, or obstruct the administration of justice, used to vindicate the court’s authority and punish the offender.

Civil Contempt: Remedial, aimed at coercing compliance with a court order rather than punishing the offending party.

Understanding these aspects of attorney’s fees and contempt actions is crucial for navigating family law proceedings in Florida. By ensuring both parties have access to competent legal representation and appropriately using contempt powers, the court system strives to maintain fairness and justice.

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ATTORNEY’S FEES IN FLORIDA FAMILY LAW PROCEEDINGS

In Florida, a court may award attorney’s fees to a party involved in any proceeding under Chapter 61. Chapter 61 encompasses actions such as dissolution of marriage, enforcement, modification, separate maintenance, time-sharing, support, and appellate proceedings. The fundamental purpose of awarding attorney’s fees is to ensure both parties in a family law proceeding can afford competent legal counsel, thereby maintaining fairness. Additionally, attorney’s fees may be awarded in paternity proceedings.

However, attorney’s fees are not generally authorized in domestic violence proceedings. An exception exists for injunctions for protection against domestic violence, where fees can be awarded under Section 57.105, which addresses frivolous filings.

The Florida Supreme Court in Rosen v. Rosen emphasized that the primary factors in determining entitlement and the amount of attorney’s fees and costs are the need and ability to pay. The court underscored that the intent of the Florida statutes is to ensure both parties can secure legal representation. Thus, trial courts must evaluate each spouse’s need for suit money against their ability to pay. Nevertheless, the court also instructed that all relevant circumstances should be considered, including the scope and history of the litigation, its duration, the merits of the respective positions, whether the litigation is primarily for harassment or stalling, and the existence of prior or pending litigation.

For a trial court to properly award attorney’s fees, the requesting party must provide evidence of both their need for fees and the other spouse’s ability to pay. This evidence can include testimony or exhibits, with financial affidavits commonly admitted. The assessment of “need” varies across Florida’s district courts of appeal; some focus on actual need, while others emphasize the disparity of resources between parties.

When considering a request for attorney’s fees, courts can evaluate all income and assets, whether marital or nonmarital. They must identify the source and amount of any imputed income considered in the fee request. Failure to consider evidence of ability to pay can result in reversal. The court must admit and consider financial affidavits or other documentation and evaluate the value of all assets, liquid or illiquid. In determining a party’s ability to pay attorney’s fees, the court must consider the impact of all financial obligations, including child support and alimony.

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