School District Designation and School Choice: Decision-Making Deadlock

One of the biggest battles in family court, aside from time sharing is school district designation and/or school choice for the child. In Florida, when a parenting plan gives parents joint parental responsibility, one category of major decisions co-parents must make together is educational decisions. Both parents must agree on the child’s school district designation, otherwise the court must decide the designation based on the child’s best interests. School district designation refers to which parent’s address will be defined in the parenting plan as determining the child’s default zoned public school. School choice refers to alternative school enrollment options such as magnet schools, private schools, charters or open enrollment.

Once it is established legally, which parent’s address will be used for school zone designation, if that parent moves to a new neighborhood, the child is not automatically enrolled in the new school district. The previously designated school remains the official designation unless both parents agree to the new school, or the judge approves a change in the designation. Under Florida Statute §61.13, when parents have joint parental responsibility, neither parent can unilaterally change a child’s school and doing so when joint parental responsibility has been legally established can be grounds for contempt.

If parents do not desire to have their child attend the zoned public school, they may want to pursue Controlled Open Enrollment to apply for a school outside of their district. Controlled Open Enrollment required applying in a timely manner to the charter school, specialized program, magnet school or a neighboring district. When parents have joint parental responsibility they are required to both consent to applying to and accepting a school choice transfer.

What happens when the parents cannot agree on the school designation or school choice? The first question is whether the parenting plan already contains a provision for what happens if parents cannot agree on school choice. Some parenting plans have a “tie breaker” clause which would designate one parent with the final decision-making authority to make educational decisions when the co-parents cannot agree. If there is no tie breaker provision in place and the co-parents cannot agree on the school then the court can make the decision on which parent to designate as the ultimate decision maker for education purposes. In making this decision, the court will consider the child’s best interests, the quality of the available schools and proximity to the parent’s homes. One very important distinction to make is that the court considers the best interests of the child; the convenience of the parent is not the court’s primary concern.

Factors the court may consider include the child’s individual learning needs, the preference for keeping children in a school they are already established with and familiar with, which parent can provide a better quality of school, transportation logisitics (such as whether the school is within one or both parent’s zone for school bus transportation or not), and whether the school offers programs tailored to any particular needs of the child (such as an IEP program or IB program). If one parent wants the child to attend their zoned school and the other parent wants to apply for school choice, the analysis is similar, however the court will consider which choice serves the child’s best interests and will consider factors such as commute times, proximity to the time sharing schedule, and quality of the school choice school versus the zoned school.

Lately, more and more parent’s are considering homeschooling as another possible option for school choice. When parent’s cannot agree on whether a child should be home schooled, the court will apply the same analysis, considering the best interests of the child. Homeschooling disputes can be particularly contentious when one parent will serve as the sole educator. A large part of the court’s consideration of the child’s best interests in determining whether ultimate educational decision-making should be awarded to the parent seeking to homeschool, is the quality of the home education. The parent must show that the state’s home education laws have been met and that the education being provided is of sufficient quality.

Co-Parents are strongly encouraged to try to resolve school designation and school choice issues where possible, before seeking court intervention. If you are facing a deadlock in education decision-making with your co-parent, contact Cody Law, to discuss all of the nuances to this issue and explore possible options to resolve the matter.

Divorce and Equitable Distribution of a Corporation

When spouses divorce, marital assets and debts are divided equitably. Typically these marital assets include real property, bank accounts, retirement accounts or personal property. But what happens when spouses own a corporate business? The company and its assets are subject to equitable distribution just like any other type of marital asset under Florida Statutes § 61.075.

The first step is to determine whether the corporation is a marital asset. Absent a prenuptial or post-nuptial agreement stating otherwise the general rule is as follows: If the business was acquired or created during the marriage, then typically it is considered a marital asset subject to equitable division. If the business was acquired or created prior to the marriage date, then typically only the increase in value of the business caused by marital labor or marital funds during the marriage will be subject to equitable division.

Typically the court will determine the company’s fair market value and award the company to one spouse, balancing the division in the equitable distribution of other marital assets. When spouses own interest in the business together, the court will not order them to continue to operate the business post-divorce unless both spouses agree.

Corporation as a Party to the Divorce

A critical consideration to make in a divorce involving a corporation is whether the corporation itself should be joined as a third-party defendant to the dissolution. The decision regarding whether to add a business as a third-party will depend on the type of business entity at issue and the spouse’s claim against the business entity. If a spouse is seeking equitable distribution of property or real property owned by a corporation, then joinder of the corporation is imperative as the family court does not have jurisdiction to adjudicate the property rights of non-parties. See Ray v. Ray, 624 So. 2d 1148 (Fla. 1st DCA 1993).

Adding the corporation as a third-party to the divorce allows the court to have jurisdiction over the corporate entity and to issue orders regarding corporate assets. This can enable the court to compel discovery of the company’s financial records and enforce transfer of shares. Bear in mind that a business can be equitably divided without the necessity of adding the corporation as a party, however if the corporation is not added as a party to the action, the family court will not have jurisdiction to order that corporate assets be transferred as part of the equitable distribution. The corporation should be joined as a party in scenarios where both spouses have access to corporate books, checkbooks, bills and when personal expenses are paid by the corporation.

If the decision is made to add a corporation as a third-party defendant in a dissolution, the spouse joining the corporation must ensure proper service of process on the entity and that there is a basis for personal jurisdiction over the entity. If the business is a foreign entity, the Florida long-arm statute must be satisfied.

Joining a corporation as a party may not be necessary when a party is not requesting a claim against the corporate entity or an unequal distribution in any of the corporation’s property. If the corporation is not added as a party, the court still has the power to prevent the disposal of corporate assets or stock to a third party.

Valuation of the Business

If both spouses work for the business, the contribution of their labor, time and skills and the appreciation of the business value during the marriage makes it highly likely that the corporation will be considered a marital asset.

When one spouse holds a smaller percentage of corporate shares or membership units in the business, Florida courts primary focus is still on the marital nature of the asset rather than the legal ownership structure. The amount of units or shares does not automatically dictate how the value of the asset is divided. The spouse owning the majority of the shares or units may however retain the operational control of the business during the divorce process, however the minority owner still has legal rights to prevent the majority owner from hiding assets and to inspect corporate books, tax returns, and financial registries.

A final note regarding valuation of a business in a divorce is that Florida courts must be careful when balancing the business value and awarding alimony. If the corporation’s income is used to calculate the value of the business (which is then divided), that same income stream cannot be fully counted a second time in calculating alimony. A forensic accountant may be required to separate the business’s true asset value from the personal income it generates for each spouse.

If you and your spouse are facing divorce and one or both or you own a business, you should consult with an experienced Florida family law attorney, to determine how best to handle joinder and valuation of a business as a marital asset. Contact Cody Law to discuss this or any other Florida family law needs.

Holla “We Want Prenup, We Want Prenup”: Florida Prenuptial and Postnuptial Agreements

A Premarital agreement, known as a prenuptial agreement or “Prenup” is a contract couples sign prior to marriage, to become effective upon marriage to each other. The Prenup can determine what will happen if the couple divorces, including provisions for distribution of assets, debts, alimony, and other issues. A well executed prenup will set forth the terms of the divorce, rather than leaving those terms in the hands of the judge to decide.

A postnuptial agreement “Postnup” is essentially a different means to the same end. The difference is that a postnuptial agreement is executed sometime after the parties have married and there must be separate consideration to make the agreement binding.

Some of the benefits of prenups and postnups are avoiding costly litigation and stress if the marriage ends in divorce. Issues that cannot be decided in a prenup are child custody (in Florida this is known as parental responsibility and timesharing) and child support. These are considered rights of the children in Florida and cannot be waived.

Florida has adopted the Uniform Premarital Agreement Act, which expressly provides that parties may reach a binding contract on issues including:

• the parties’ rights and obligations concerning any assets and debts;

• the right to buy, sell, use, transfer, or dispose of property;

• Distribution of property in the event of separation, divorce or death;

• the right to alimony;

• the making of wills or trusts;

• disposition of proceeds from life insurance;

• Choice of law governing the premarital agreement.

To be valid, the prenuptial or postnuptial agreement must be entered voluntarily, without coercion or duress and must not be unconscionable. There there must have been a fair and adequate financial disclosure beforehand. When entering a prenup or postnup, each party must be separately represented.

If you are contemplating marriage, or already married, and believe you could benefit from a prenuptial or postnuptial agreement, contact our office to discuss the process.

Reasons why Equal Timesharing May be Denied in Court

After recent changes in Florida family law. Florida courts now begin with a rebuttable presumption that equal timesharing with each parent is in the best interests of the child. Either party can offer evidence to show why equal timesharing is not in the child’s best interest. The Court has a long list of “Best Interest Factors” it considers in making this determination. Four of the biggest reasons that a court may rule equal timesharing is not in the child’s best interest are:

• Substance abuse and alcohol abuse

  Abuse of alcohol or drugs by a parent is one of the reasons equal timesharing may be denied. Alcohol or substance abuse puts the child in danger and can significantly impact the parent’s ability to meet the child’s needs.

• Emotional or physical abuse or neglect

  Parents who abuse or neglect their child are considered unfit. Child abuse can be physical, emotional or sexual. Child neglect occurs when a parent fails to meet the needs of the child. This can include not providing proper hygiene, living environment, food, clothing, education or medical care.

• Parental alienation

  Parental alienation occurs when one parent engages in behavior to sabotage the relationship between the child and the other parent. This can be done through actions such as disparaging the other parent in front of the child, emotionally manipulating the child to take sides, or preventing the other parent from having contact with the child without justification. If parental alienation is shown to be serious enough, the alienating parent could lose custody of the child.

• Serious mental illness

  In certain instances, if mental illness is severe enough to affect one parent’s ability to properly care for the child it could result in a loss of custody. There is no set list of mental illnesses that affect custody but the court will consider the parent’s ability to meet the child’s needs.

This is not an all inclusive list and you should consult with an attorney who will consider your specific circumstances and discuss whether parental responsibility and timesharing may be allocated unequally in your case.

Is Alimony Just for Gold Diggers?

Alimony is one of the most litigated issues in a divorce. Often, the higher earning spouse will agree to other issues, such as the division of property and parental responsibility and time sharing, but would rather die on a hill than make alimony payments to their ex. But what is alimony exactly, and does it just have a bad reputation?

Although alimony is often portrayed in movies and television as one spouse living “the good life” on their ex’s dime, it’s use and purpose is a far cry from that. The first misconception is that alimony is not gender specific.  Either party in the divorce can be responsible for paying alimony to the other.

The threshold considerations when making a request for alimony in a Florida divorce are:

1)      Is there a demonstrated need for alimony?

2)      Is there an ability to pay alimony by the other party

Unless the answer to both of those questions is a resounding “yes” then the court will not consider issue any further.  The need for alimony is shown by the requesting party’s financial disclosures, which, in short, must show that the requesting party’s monthly income is less than the requesting party’s reasonable monthly expenses, for the lifestyle they are accustomed to.

What alimony is not designed to do, is leave the parties with the same income after alimony is paid, or leave the spouse that is on the hook for alimony with less income than the receiving party. There are various types of alimony that are suitable for specific circumstances, after a need and an ability to pay are proven.

After some recent changes to the law, there are currently four types of alimony available in Florida: lump sum, durational, bridge the gap, and rehabilitative. The award of alimony is limited in length to fifty percent of the duration of the marriage for short-term marriages; sixty percent of the duration of the marriage for moderate-term marriages; and seventy-five percent of the duration of the marriage for long-term marriages.  Short-term marriages are defined as a marriage lasting less than 10 years. Moderate-term marriages are defined as marriages lasting 10-20 years, and long-term marriages are defined as marriages of 20 years or more.

For durational alimony, Florida law limits the award to the reasonable need of the receiving party, or an amount not to exceed thirty-five percent of the difference between the parties’ net incomes, whichever is less.  

The main goal of alimony is to help one spouse transition from married life to single life.  The typical situation where an award of alimony might be appropriate is when one spouse was the “breadwinner” during the course of the marriage, while the other spouse sacrificed their own career goals to provide other valuable services, such as care for the children or maintaining the household.  The non-earning parent may need help in the form of alimony to meet their monthly needs until they have found a job or completed the necessary education to make themselves employable.

There are many other considerations when it comes to alimony and whether you are seeking alimony or have an alimony obligation, you should seek the advice of a Florida family law attorney.

Cody Law would be happy to discuss with you and help you navigate the issues you are facing.  Call or e-mail for a consultation (904) 837-5222.

Relocating with Children in a Divorce

A question that comes up frequently in Florida family law practice is, what happens when one parent wants to move? There are lots of reasons one parent may decide to relocate. Whether it is to be closer to other family members, for a work opportunity, or due to the cost of living in the area. If you are facing divorce and there are minor children involved then you may need prior court approval to relocate.

When does the Relocation Rule Apply?

Florida Statute § 61.13001 (1) (2023), contains specific requirements when a parent, or any person with rights to time sharing with a child, desires to move. The relocation statute applies when:

(1) the move is for at least 60 consecutive days as opposed to a temporary absence such as a vacation;

(2) The move is at least 50 miles in distance (as the crow flies) from the parent’s prior address.

 If you meet this criteria, its imperative to comply with the relocation statute and petition the court to approve the relocation prior to making a move. If a party fails to obtain court approval to relocate that party could be held in contempt of court or ordered to return the child. 

Can the Parents Agree on the Relocation?

The easiest way for one parent to relocate is with the approval of the other parent (or anyone entitled to time-sharing with the child) for the move. If both parties agree they can enter into a written agreement. The written agreement must:

(1) Clearly state that you both agree to the relocation.

(2) Set forth a time-sharing schedule for the non-relocating parent.

(3) Detail transportation arrangements necessary to make the new time-sharing plan work.

The written agreement, once signed by all parties, must be filed with the court and approved by court order.

What Happens When the Parties do not Agree?

absent an agreement between the parties, the party seeking to relocate must file a formal petition requesting permission to relocate with the court. The petition must include specific details of the relocation and reasons for the move and must be served on the other party in accordance with Florida law. You should consult with a Florida family law attorney who can assist in the preparation and filing of your petition.

The court will consider the best interests of the child in making its decision on whether or not to approve the relocation. These considerations include but are not limited to:

• The child’s age and developmental stage;

• How the move might affect the child’s educational, physical and emotional development;

• Whether the move will improve the child’s and moving parent’s quality of life;

• The current employment and ecconomic circumstances of each parent;

• The reason’s each parent has for seeking/objecting to the relocation;

• Any history of domestic violence or substance abuse by either parent;

• The relationship between the child and each parent, as well as siblings and other significant people in the child’s life;

• The child’s preference (depending on child’s age and maturity).

If you or the other parent of your child are seeking to relocate you should consult with an attorney to discuss all issues involved in relocation with a minor child. Cody Law can help you navigate the process. Call or e-mail us for a consultation.

Eve Cody

Should I Move Out of the Marital Home?

During a Florida divorce many people are faced with the conundrum of whether to stay in the marital home. While there is clear-cut answer to this question there are several factors that should be considered in reaching a decision:

Safety

The first consideration should always be any personal safety risks involved in continuing to cohabitate in the family home. If the environment is unsafe it is important to get out of the situation and find other accommodations immediately.

Are There Minor Children Involved?

If there are minor children of the marriage, it may not be ideal to move out of the family home until the court enters a temporary or permanent parenting plan, outlining how each parent will split time with the children. If you need to move out prior to an official order on timesharing, you should at a minimum have an informal arrangement agreement in place with your spouse for each parent to maintain timesharing with the minor children. Moving out could potentially have an impact on the Judge’s decision on parental responsibility and timesharing, if your case makes it to trial. The Judge will consider the reasons for leaving the home and your continued contact or lack of contact with the children following the move.

Do You Intend to Keep the Marital Home?

If you plan to keep the marital home, moving out may not be in your best interest and the court could construe the move as abandonment.  If it’s likely you and your spouse will fight over who should be awarded the home, staying under one roof may be helpful in maintaining a strong claim to the property.

Short Term Expenses

Staying under one roof has it’s advantages.  While it could be uncomfortable to live together during the divorce, it will keep your short term costs lower.  unless you have friends or family who are willing to let you stay with them at no cost, you will most likely need to pay rent, utilities and other living expenses on a new living space, in addition to costs on your marital home. Consider your resources and whether moving out during the divorce is feasible.

Access to Personal Items in the Home

Moving out of the marital home will limit your access to and control of items of personal property within the home. If you leave the home you should make a list of items of personal property and photograph/video items in the home to help with division of marital assets.

Ultimately, there are many factors that should be taken into consideration when making the decision of whether or not to remain in the marital home. Cody Law can help guide you in making this difficult decision. Call or e-mail us for a consultation.