Sunday, July 22, 2007

Fifth District Protects Your Rights…Even if You Don’t

The Fifth District Court this week in the D.B. v. W.J.P. decision reviewed a mediation agreement from a dependency case where the Mother agreed to a Chapter 751 kinship order granting temporary custody to the maternal grandmother…on her letter to the Court advising she did not agree with the order, the Fifth found that a hearing was necessary despite the agreement…

Third District Reviews Deferred Division of Retirement Account

The Third District this past week released the Rivero decision, relating to an agreement that divided the value of a pension at time of divorce, but deferred payment of that sum until the Husband retired or otherwise left his employment. The Wife's attempt to divide dividends prior to his retirement or termination was rejected…

Second District Defines Limits on Imminent Harm

The Second District this week released the Oettmeier decision regarding injunctions for domestic violence, which marks a clear line between fear of imminent harm and reasonable fear of imminent harm…

Fourth Sets Clear Limits on Charging Liens

The Fourth District, on the 18th, released the Rudd opinion, related to charging liens. The holding is essentially that while a charging lien may attach to the proceeds of equitable distribution in a divorce case, and these constitute favorable proceeds, it is not acceptable to include fees incurred in pursuit of the charging lien in the lien itself, and it is not acceptable to award a charging lien which extends beyond the scope of those favorable proceeds to the entirety of a party's assets. The Court found no error, however, with a charging lien which stated one amount owed resulting in a higher figure ordered…

4th Begins to Set a Limit on Fees

In what may be an attempt to back away from substantial fee awards between parties who each have significant assets, the Fourth District released the Von Baillou decision on July 5th, reversing a fee award to a party who had substantial assets from the divorce on the grounds of lack of need. The ruling specifically points out that a financial review remains the first step for a fee award even under Rosen, and clearly requires at least some evidence of need…

4th Gets Even Tougher with Imputees…

On top of previous case law finding that an individual fired for intentional incompetence or malfeasance can be declared voluntarily underemployed, the Fourth District Court, in Malone, seems to extend a Court's ability to impute income to a party making bad business decisions and a token effort at the appropriate level of employment…

Another Step Towards a Temporary Waiver of Support

The Fourth District Court, in the recent Ledea-Genaro v. Genaro ruling, extended the holding of Lashkajani in enforcing a waiver of temporary support at time of final hearing, where no temporary support was requested prior. A party seeking to rely on Belcher's exception to waivers of temporary support is now, as such, required to seek that support prior to the final hearing in their case…

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