New Florida Laws – Marriage, Divorce, Custody, & Military – Ayo & Iken
Our Ayo & Iken attorneys are reacting to three new laws which took effect July 1 that will alter the landscape of family law dealing with childcare for deploying military members, equitable distribution of marital assets, and the banning of underage marriage barring extenuating circumstances.
SB 140, which amends Florida Statute 741.04, bans the marriage of individuals under the age of 18 unless there is parental consent if a person is 17-years-old or with pregnancies involved. During the legislative session, many believed allowing underage marriage to be archaic, which led to the ban. Our Ayo & Iken attorneys believe the law will really be a procedural change, as opposed to resulting in cases that will be challenged in court.
That is not the case for the newly enacted “Uniform Deployed Parents Custody and Visitation Act”, creating part IV of Florida Statute 61, which will greatly change how military service members being deployed can handle issues concerning their child’s care while they are gone.The law provides for more parameters for parents deploying for service to find agreements for their child’s care. Florida is the 14th state to pass the act. There is concern that involving non-parents in children’s issues may lead to litigation if disputes arise.
“While the statute is very laudable in its intent I have a feeling the Florida Supreme Court is going to have a problem with some of its provisions. Namely, the statute allows for extended family members and even non-family members to exercise time-sharing while the servicemember is deployed,” said Ayo & Iken Attorney James Wimsatt. “The Florida Supreme Court has said previously time-sharing even by grandparents can invade on the Constitutional rights of the other parent. As such, I predict there is going to be a lot of litigation surrounding this statute going forward.”
Ayo & Iken Attorney Bruce Przepis agreed.
“The scenario that I can foresee is that there is a dispute between the biological parent and the new cousin, boyfriend, or girlfriend, selected by the deployed person,” Attorney Bruce Przepis said. “Now you are just adding another layer of litigation that I am not so sure the legislature thought through. So we will have to see how things progress through the courts, but I think the extra litigation is going to be a real issue for the lower trial courts.”
Finally, a new law that amends Florida Statute 61.075 adds to the list of potential marital assets and liabilities the paying down of notes and mortgages secured by the non-marital property if marital assets are used to do so. The law also accounts for “passive appreciation”, which is the increase of the value of property by virtue of something like an uptick in the economy during which a piece of real estate may gain value as the market improves. The law also provides formulas and guidelines for judges to determine the amount of “such passive appreciation,” and authorizes the courts to require security and “reasonable rate of interest” when installment payments are ordered by the courts upon a party.
Attorney Przepis finds this new law to be a positive for family law cases as it provides more guidelines for determining equitable distribution of assets.
“I think time will tell how that works out but I think it was a very good idea on the part of the legislature, and I think it should create a situation where there are far more just results when there is division of assets,” he said.
One other caveat that should be looked at that is part of the new law concerning alimony, Wimsatt said.
It involves court-ordered collateral for agreements over lump sum alimony payments. For example, if party A is paying $1-million to party B but spreading those payments out over ten years paying $100,000 each year, one of the situations that needed to be considered is what happens when party A defaults and stops paying.
“What this statute does is it allows a judge to enter security for those payments. So if a party agrees to pay $1-million over ten years, the court can now order another assets such as a house or bank account to be used as security for payments. Then if the party defaults the other party can seek payment against that security,” Wimsatt said.
Ayo & Iken Attorney Lee Feinberg views the new law as one that will have a big impact on family law cases.
“This is significant as it takes some discretion out of the court’s hands and places it into a formula that can be readily ascertained by your attorney. Essentially what it addresses is a non-marital asset which appreciated in value and how to value that appreciation as a marital asset vs a non-marital asset,” Feinberg said.
Overall, with these new laws it will remain to see how they shake out in the courts.
“Any time a new law is enacted it takes some time for the cases to be presented on the trial level and then to be interpreted by the district courts of appeal or the Florida Supreme Court. Once those cases go up to a higher court it gives us guidance at the trial level,” Feinberg said.