Part of Real World Divorce: web edition | Kindle edition
Melvyn Frumkes has been practicing for 60 years in Miami and New York. By the 1980s he was on seemingly every "best lawyers in America" list, from publications ranging from the National Law Journal to Town and Country. Frumkes is the author of Frumkes on Divorce Taxation (James Publishing).
Frumkes handles a 50/50 mixture of male and female clients in lawsuits that go to trial about 10 percent of the time. With 5 trials per year, then, Frumkes estimates that he has handled about 300 trials. The person who initiates a divorce lawsuit in Florida is referred to as a "petitioner" but Frumkes says "Every other court paper talks about Husband v Wife because it is easier for the judge."
Frumkes is a particular expert on the issues revolving around using New York versus Florida courts when a family spends time in both states. "I worked on one interesting case. The wife is an attorney and practices in New York while the husband is a resident of Florida. They have two children. In Florida if either person is a resident for six months, a spouse can file for divorce. The wife thus had a choice of Florida or New York law. She sued her husband in Florida, represented by a New York attorney, so that her practice would not be valued and divided." Didn't that deprive her of the opportunity to get near-automatic sole custody of the children from New York courts? "No. The children live in New York so jurisdiction for them was in New York. The wife filed a separate custody and child support action in New York. She was divorced in Florida and therefore didn't have to give the husband any money from her law practice, but she collected custody of the kids and 21 years of child support from the New York courts where a Florida court would have given her shared custody and only 18 years of child support." Can she now force this defendant to pay for the children's college education? "Yes, under New York law." Could the husband object to the jurisdiction of the New York courts on the grounds that he was living in Florida and the divorce was being litigated in Florida? "No. You can serve someone for custody by mail under UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act]. She got personal jurisdiction over him in New York when he went up there to visit the kids."
A parent can collect child support until a child turns 18 or 19 if still in high school. A Florida court cannot order a parent to pay for college but will enforce an order from a state where such support can be required and will enforce agreements between parents. Section 61.30 of the Florida statutes is used to calculate child support. A parent with a net (after-tax) income of $10,000 per month will pay $1,437 per month ($17,244 per year) in child support for a single child. Any income over $10,000 per month is multiplied by 5 percent and added to the $17,244. A parent with a $250,000 per year gross income who would pay $40,000 per year in Massachusetts or $42,500 in New York, for example, would have roughly a $175,000 per year net income in Florida and pay $19,994 per year, i.e., not very different from the capped child support numbers in states such as Alaska, Minnesota, and Texas.
Will the court order the payor to pay for daycare on top of child support? “Child care costs will be added to basic obligation costs if it is necessary in order for the plaintiff to receive an education, work, or actively search for a job. If the recipient is in school there will not be an imputation of income.”
At what age will a child’s preference regarding how much time to spend with each parent be considered by a court? “This varies case by case," says Frumkes. "Children shouldn’t be involved. I represented a woman who has 16-year-olds. They probably would have been allowed to testify as to their preference but it's up to the judge. In most cases there would be an in-camera discussion between the judge and the child. It depends on the child's age, intelligence, and maturity. Custody evaluations could also be done by a Guardian ad litem. They can do a 'home study' because kids are easily influenced, e.g., giving favorable testimony for the parent who brought them to the courthouse.”
Can cases effectively be won or lost at a non-evidentiary hearing for a temporary order? "No," says Frumkes. "Cases come to trial within 8 months and before that they go to mediation so there is no temporary order stage at which the case is effectively won or lost.”
Is a “walk-away” prenuptial agreement valid in Florida? “Yes and no. In Florida, you can bargain away all of your rights and there isn’t a statute on it. However, one spouse cannot become a public charge at the time of the divorce.”
Consumers whom we interviewed in Florida were aware of the possibility of mercenary marriage and invariably had a few stories to share of someone whose fortune had been made via a short-term marriage. The consumer understanding of the law seemed to be that permanent alimony could be obtained after a marriage as short as 7 years but that a 14-year marriage was necessary to cement one's claim. From a 50-year-old business manager who was between jobs when his higher-income wife sued him: "The [defense] lawyer told me to go out immediately and rent the most expensive apartment in Tampa [to establish a baseline need]. She said 'Start seeing this therapist right now. She is going to come testify that you are clinically depressed and will never be able to work again. My retainer is a non-refundable $10,000.'"
The average hourly wage in Florida is $19.68 per hour. A person who goes to college at the Florida State University will spend approximately $68,112 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full time is $40,000 per year in Florida or $32,346 after taxes. For a college-educated man it is $50,000 per year or $39,456 after taxes. Florida collects 8.9% percent of state residents' income to run state and local government. This is only slightly lower than the national average despite the fact that the state levies no individual income tax. (Source: Tax Foundation.)
The average annual cost of childcare is $8,009 for an infant, $6,368 for a four-year-old, and $3,677 for a school-age child. Thus the total cost of childcare from age 0 through 12 is $42,844 in commercial settings or $40,604 in a family care setting.
For a man who goes to college and then works for 14 years, his total after-tax spending power would be approximately $484,272 (14 years of average earnings minus college outlays). For a woman who goes to college and then works for 14 years, the comparable number is $384,732.
For a woman with one child, collecting child support yields a higher personal spending power than going to college and working when it exceeds $2,531 per month. This occurs when the defendant father has an after-tax income of at least $382,560 (roughly $600,000 pre-tax). For a man, the comparable number child support number is $3,742 per month, corresponding to a defendant mother earning $673,200 per year after-tax (more than $1 million per year pre-tax). It is easier to make child support pay better than college/work when there are multiple children. For example, a woman with two kids needs to collect $3,281 per month total, or $1,640 per month from each father, which is not too far over the guideline level of $1,437 for a $120,000 per year after-tax earner.
Census 2014 data show that 15 percent of women aged 30-40 collect child support and that 84 percent of all Floridians collecting child support are women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
According to Frumkes, while there are not many cases in which the woman must pay the man, there are "more and more." Frumkes says "The court would order what we call a 'time share' in Florida. The guy may not have been involved before but now he is going to be ‘father of the year’. He’ll probably want an equal time share but he hasn’t been a hands- on father. The Court would likely give him every other weekend, Wednesday nights, and part of the summer. This was the traditional time share. We don't have a 50/50 presumption in Florida." [Note that a shared parenting bill that also included some limitations on alimony was vetoed in 2013 by Governor Rick Scott.]
What is the impact of the time share? “The main impact is on the allocation of child support responsibility. Time share also has an impact on the dependency exemption and child tax credits," says Frumkes, "if one parent has at least 51 percent of the nights. This is based on how many overnights the child has with one parent.”
Does the father's affair have an impact on the outcome of this hypothetical? “Fault is considered only if it affects the child but this guy playing around or sitting around or going out drinking with his buddies will not affect child support, alimony, or equitable distribution of assets.”
How much child support is at stake in this case? If the mother were to pay the father, it could be as much as $22,500 per year. Unusually, due to Florida's time share formula, the mother would be paying the father even if he took care of the child only every other weekend, according to Frumkes. The mother thus has less of a financial incentive to fight for sole custody compared to some other states, since she will be paying under almost all likely scenarios. However, Frumkes still expects a fight: "Most women will fight for sole custody because if they end up with 50/50 time they are afraid that others will think they are a bad mother."
Reflecting on his 60 years of practice, what kind of outcome does Frumkes think is actually best for the child? "If the people live in the same school district, 50/50 could be more reasonable. More and more courts in Florida are going 50/50. One week on, one week off.”
How much would Frumkes expect the legal fees to be in this case if it went all the way through trial? “I would expect the fees to reach close to $100,000 per side. Florida has mandatory mediation and a lot of cases get settled that way, however. I personally don’t want to take your children’s college education fund! I did, however, have a case where the bill reached $100,000 per month and was billed out for about 1.5 years. That was a jurisdictional question.”
Will this high-income plaintiff be required to pay her slacker defendant's legal fees? “The court will require an even playing field. The impecunious spouse will be able to seek fees from the spouse that has money. They may also receive 'suit money' to pay for expert witnesses, depositions, or a forensic accountant.”
Can the photographer collect alimony from the doctor after such a short marriage? "He'll get 'bridge the gap' alimony, enough to get him out of the house and earning money," Frumkes notes. "He could also receive rehabilitative alimony by claiming he will get a college degree in TV production and that’s why he stayed home watching television. He would need two years of college to get to his earnings potential. Here there is no limitation and there are no guidelines.”
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
In this case Frumkes foresees a 50/50 custody order although this depends upon the judge. “I call it ‘gastronomical law’: what did the judge have for breakfast that day? And is he pissed off at his wife that day? One judge tells me: ‘when I was married to my first wife I would look at these financial affidavits and think this is crazy! How can a woman spend so much? When I married my second wife I understood.’”
In the event of a sole custody victory by one parent, child support may be calculated by considering that the parent who files singly will have an after-tax income of $47,716 and the parent while the parent who files as head of household with four dependents will have an after-tax income of $51,666 (source: ADP Paycheck Calculator). Adding these two results in a combined income of $99,382, which yields child support from the table of $2878 per month or $34,536 per year. As the parents have equal incomes, the loser parent would pay half of that or $1439 per month, i.e., less than $250,000 over the years that these children will still be young enough to yield child support.
Due to the equal incomes there would be no alimony in this case.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
"There is a good chance that he will get 50/50 custody if he behaves like the father of the year," says Frumkes. "The Father can say 'I relied on my wife to bring up the children. Now that we're not together I want to participate in the children's life and I am going to, even if I have to cut back on work.' And they do."
What kind of child support can the mother get? "It would be the full amount if she has the kids all of the time," Frumkes notes. "But would be cut in half if the time share is 50/50." [The "full amount" would be the top of the guidelines for two children plus 7.5 percent of the $70,000 in additional after-tax income, for a total of $31,986 per year.] Thus the wife has roughly a $300,000 financial incentive to fight shared custody.
How about alimony? "There is no limitation on the length of alimony," says Frumkes, "and there are no guidelines for the judge. With a mid-term marriage like this it is hard to predict. Permanent alimony is supposed to be reserved for long-term marriages."
Property division? "Home equity and savings will usually be split 50/50." As noted above, unlike in New York, the doctor's professional practice will not be valued and divided.
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Frumkes says that 50/50 parenting is a possible long-term outcome for this case but that in the near-term it could be that one parent would visit in the other's home for two hours at a time. Frumkes predicts that there will be dueling psychologists presenting custody plans to the court. In his personal opinion there will need to be frequent contact with both parents "otherwise there may not be a chance for the necessary bonding between parent and child."
The mother, if she is successful in her quest for sole custody, would be able to get the same $31,986 per year in child support (plus any additional amounts due to the income on the $2 million). As above, if there is a 50/50 time share her revenues would be cut in half. Frumkes says that the mother will be restricted to short-term alimony and will not be able to get a share of the $2 million because it will be considered a "non-marital asset."
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
Frumkes says that the mother will become what was formerly called the "primary residential parent" designation (prior to the "time share" language) and the father will pay at the guidelines level of $31,986 per year. Frumkes thought that a father could work his way up to a 50/50 time share just as though the parents had been married.
If the plaintiff in this case were to marry into a household with a high-earning husband, Frumkes says there would be no effect on the child support payments owed by the defendant.
Could this plaintiff have gotten rich if she had found a higher-income partner at the music festival? “Massive child support is not going to happen in Florida. There was a case in 1998, Finley v. Scott, in which the plaintiff, a mother with actual expenses of $2100 per month for herself and two children (one by the defendant), wanted $10,000 per month based on the football player defendant’s income of $270,000 per month. The court awarded her $2000 per month and $3000 per month into a trust for the child.” Here are some excerpts from that case:
By order dated January 25, 1994, the trial court adjudicated Scott to be the child's biological father and ordered temporary child support in the amount of $5000 per month. The trial court's order states that the amount of temporary child support is less than the amount dictated by the child support guidelines imposed by section 61.30(6), Florida Statutes (1993), which would have required child support exceeding $10,000 per month because Scott's gross monthly income was approximately $266,926.1 In entering an award of temporary child support, the trial court found that it must consider not only the child support guideline amount, but must also consider the actual and bona fide needs of the minor child and the overall financial circumstances of each parent. During this determination of temporary child support, Finley had introduced an affidavit establishing total monthly living expenses of $2128 for herself, the minor child of Scott, and another daughter whose father was not Scott.
In a paternity judgment dated December 30, 1994, the trial court entered a final adjudication that Scott was the biological father. The trial court awarded primary residential custody and responsibility to Finley, subject to shared parental responsibility. The trial court found that Finley had made misrepresentations to the court concerning financial information and had refused to properly account for the $50,000 of temporary child support that Scott had paid to her.
The trial court found that Finley's request of approximately $10,000 per month in direct child support had no economic relevance to the bona fide actual needs of the child. The trial court found that this Court recently stressed in Miller v. Schou, 616 So.2d 436 (Fla.1993), that “[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle.”
Finley appealed the final judgment, arguing that the trial court should have awarded the full guideline amount, $10,011, and that the trial court had no authority to require any of the support payment to be paid into a guardianship trust. Scott cross-appealed, arguing that the $3000 per month ordered to be paid to the guardian of the property was an abuse of discretion in that the $3000 was in excess of the child's actual needs.
How easy is it for a parent to move out of state with a child? "It is easier if one parent's time share is limited to every other weekend and much harder if there is 50/50 custody," Frumkes says. "The statute on relocation under Chapter 61 outlines many factors including whether the relocation will enhance the general quality of life for both the parent or the other person seeking the relocation and the child. If I were representing a mother seeking to move, I would show that the house in California is better as well as the school and medical care. Maybe they have more family in California. Those are tough cases.” From statute 61.13001:
NO PRESUMPTION; FACTORS TO DETERMINE CONTESTED RELOCATION.—A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:
(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.
The statute notes that "The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child."
A bill to put some limits on Florida's "permanent alimony" tradition was vetoed by Governor Rick Scott in 2016. That a conservative Republican supports a lifetime of cash-without-work after a seven year marriage shows the depth of commitment to adult dependency among American politicians and voters.
Due to the fact that Florida offers such different outcomes than Northeastern states in which some families divide their time, hiring an attorney who understands the multi-jurisdictional issues is critical when filing or defending a divorce lawsuit in Florida.
A plaintiff who is successful in getting a case out of Florida and back to New York or Massachusetts can, for example, obtain twice as much child support and is much more likely to win a sole parental role. A defendant who is successful in keeping a case in Florida is much more likely to emerge with a shared parental role and his or her finances intact.
Note that when suing an extremely high income individual, the lack of a cap on child support in Florida may make Florida a better venue than New York, for example, or another jurisdiction where income considered and/or total child support is capped.
Borrowing a rich partner for one night will work out better financially than a long-term marriage to a middle-income partner.