Articles Posted in Divorce

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“Self help” is a phrase often used in legal cases involving landlords and tenants. It generally refers to a landlord who decides to throw out a tenant on his own, without going through the proper legal procedures required for an eviction. Serious negative consequences can befall a landlord who engages in self help. While the phrase “self help” doesn’t exist in Florida family law cases, a similar truth exists. If you think your ex-spouse has violated the terms of your marital settlement agreement, and you decide to respond by taking matters into your own hands and acting on your own without going through the proper legal channels, it can create significant problems for you. It is a much better plan, instead, to retain an experienced attorney to help you protect your interests.

One common situation in which this type of problem crops up, and was at issue again in a very recent Fourth District Court of Appeal case that originated in Palm Beach County, relates to the marital residence. Many marital settlement agreements may give the exclusive use and possession of the home to one spouse but require that the spouses share the responsibility for paying the mortgage on the home. These agreements may impose certain restrictions on what the spouse who takes the home can and cannot do. For example, an agreement might give the home to the wife but prohibit any unrelated males from living in the home while the wife has sole possession.

So let’s say a couple has an agreement like the one described above, but the wife moves her boyfriend into the house. What can the husband do? Can he simply stop paying his half of the mortgage? No, he generally cannot. Furthermore, if the home is the residence of not just the ex-wife but also the couple’s children, the consequences facing the husband if he doesn’t pay can be especially serious. That’s because, in the scenario outlined above, that husband’s payment of 50% of the mortgage is considered to be a type of spousal support and child support. Not paying the mortgage can subject the husband to contempt of court penalties, potentially up to and including jail, the same as any other parent who is not paying their child support.

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In law, as with a lot of things in life, it pays to be well-versed in the details, be they small or great. For example, if you are preparing to retire, and your transition into retirement means a significant reduction of your income, do you know which rights this change provides when it comes to your alimony obligation? This and other questions are areas in which it pays to have representation from an experienced Florida alimony attorney.

One man facing that type of alimony scenario was Anthony, a firefighter. Anthony had filed for divorce in 2013 after 22 years of marriage. Anthony and his wife, Amy, worked out a marital settlement agreement. The agreement called for the husband to pay the wife $1,250 per month in durational alimony. The agreement said that it became enforceable when both spouses signed it, which happened in mid-September 2014. The trial judge, however, did not sign the final judgment in the divorce case until December 30.

These dates all mattered because of the change that occurred in the husband’s employment. In early December 2014, his pension board approved his retirement, effective Jan. 23, 2015. Three months into his retirement, the husband went back to court to seek a reduction in his alimony obligation. In support of his request, he pointed to his significantly reduced income in retirement.

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When a court makes a determination that an award of alimony is appropriate in a divorce case, one of the things with which the court may concern itself is taking steps to ensure the obligation is met. To do that, the law allows courts to demand that supporting spouses purchase life insurance to secure the award. Florida law also, however, dictates some clear hurdles that must be cleared in order for such an order to be allowed. Two cases from this year show this aspect of alimony cases in action. A knowledgeable Florida alimony attorney can help you in an alimony case that involves the mandatory purchase of life insurance.

The more recent of the two cases was a Fifth District Court of Appeal opinion that reversed an alimony award in favor of a husband. As part of this ruling in a divorce case that originated in Seminole County, the appeals court overturned the trial judge’s order that required the wife to maintain a $500,000 life insurance policy as security for the alimony obligation that she owed.

Florida law permits courts to order supporting spouses to purchase and maintain life insurance as security for alimony obligations. However, the law also places some clear boundaries regarding when such an obligation can be demanded. In order for a supporting spouse to be legally obliged to maintain life insurance for this reason, the trial court must first make several specific factual findings. The court must make determinations about insurability, about the cost of the policy, and about the ability of the supporting spouse to afford the insurance, as well as the impact on the supporting spouse of ordering such an insurance policy purchase requirement.

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When you make a claim for alimony, there are multiple hurdles you’ll need to clear. You’ll need to prove that you have a financial need. You’ll need to prove that your ex-spouse has the ability to pay. You may also have to overcome arguments from your ex-spouse that seek to impute income to you. All of these are areas in which the knowledge and skill of an experienced Florida alimony attorney can provide a major benefit.

The key issue in the divorce case of Carlos and Anemey was alimony. In making the necessary findings regarding the husband’s ability to pay and the wife’s need, the court must make income determinations for each spouse. Additionally, the court may impute income to either spouse if the judge concludes that that spouse is voluntarily unemployed or underemployed. In this case, it was the imputation of income that sent the case all the way to the Fourth District Court of Appeal.

Anemey was a stay-at-home parent during most of the couple’s marriage. By the time the couple began going through the divorce process, Anemey was a 62-year-old with a GED and minimal work experience. She last worked for a cosmetics company in California, making $12 per hour. She testified that she intended to work full-time, but she had received no replies to any of the job applications she submitted. Nevertheless, the court concluded that she should be capable of landing a 40-hour-per-week job that paid $10 per hour, so it imputed income to her in the amount of $400 per week.

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In many divorce cases, one of the key areas to resolve is equitable distribution. In some marriages, the couple may have a mixture of marital assets, non-marital assets, and maybe non-marital assets that were improved or acquired in part by using marital funds. Reaching a conclusion on equitable distribution can be very complex and is yet another example of where the experience of knowledgeable Florida divorce attorneys can help. One Tampa-area case involved just such a complication when the couple had used marital funds to pay the mortgage on a non-marital asset.

In this case, the wife, Bridgett, owned one-half of a duplex. That asset was the wife’s non-marital property. During the marriage, the couple paid $350 of marital funds toward the duplex’s mortgage from November 2004 until the wife’s half of the duplex was destroyed by fire in November 2006.

Sometime later, Bridgett and her husband, Ricky, divorced. During the divorce hearing, the husband sought credit for the duplex mortgage payments in calculating the couple’s equitable distribution. The trial judge agreed with the husband and gave him dollar-for-dollar credit for the full amount of the 24 mortgage payments made on the duplex during the marriage.

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With many family law litigation matters, finances can be an important part of the overall case. Your South Florida family law attorney can go over with you some of the scenarios in which you may be able to obtain a court order forcing your ex to pay your court costs or fees. Often, these matters come down to the respective spouses’ need and ability to pay. In certain scenarios, however, those factors are not the only factors. In one recent case, the wife’s misconduct led the court to give her a much smaller fees and costs award than she desired.

In January 2014, Sharon filed for divorce from her husband, Brian, after eight years of marriage. That was the beginning of a prolonged and bitter battle. Shortly after she filed for divorce, she filed for a domestic violence protective injunction. Among other things, she accused Brian of molesting the couple’s children. She made these accusations, not only to the judge, but also to the children’s pediatrician and their school principal. She told the pediatrician that she thought that the father was giving illegal drugs to the son. There was one major problem with the abuse allegations, however:  they were all false, according to the court.

Along the way, the mother also asked the court to appoint a guardian ad litem for the children to aid in determining timesharing, even though she had already agreed with the father as to shared parental responsibility and equal timesharing. The mother also argued that, since the father was wealthier, he should have to pay for the guardian ad litem.

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In your alimony or child support case, there can be many components that go into calculating the appropriate amount of support owed. Part of making that calculation is ensuring that only a supporting spouse (or parent)’s regular and continuous income is factored into the determination. Whether or not you are the supporting spouse or parent, getting this determination of income correct can be integral to your case and is one of many ways an experienced Fort Lauderdale divorce attorney can help. For one husband and father, his counsel persuaded the Second District Court of Appeal that a lower court erred by using an older year’s bonus income instead of his most recent bonus in calculating his alimony and child support payments.

In the recent divorce case of Matthew and Jilla, originating in southwest Florida, one main item with which the courts wrangled was the calculation of the husband’s income for determining his support obligations. The man made a little more than $100,000 per year ($8,476 per month) in salary. He also, though, got an annual bonus. The trial court, in making its calculations in this case, used the husband’s 2013 bonus ($133,332) to arrive at an income figure of $19,583 per month. This $19,583 sum was the figure the court used to determine both alimony and child support.

The husband appealed, and he won. The problem was that the methodology for calculating his income was legally flawed. Section 61.30 of the Florida Statutes requires the inclusion of bonuses in calculating a supporting spouse or parent’s obligations. The courts have made it clear that, in order to count in this calculation, bonus income must be regular and continuous. Thus, using an example from a Second DCA case from March, when a man received a $30,000 bonus each year for 12 years, the trial court in that matter properly added $2,500 to the man’s monthly income because that bonus income was regular and continuous.

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When you, as a spouse who owes an obligation of alimony, experience a substantial chance in your income, the law may provide you with certain avenues to obtaining a reduction in, or the elimination of, your alimony payments. In many situations, that change may even apply retroactively to some date in the past. A knowledgeable Fort Lauderdale alimony attorney can help you navigate the path to seeking a modification and a retroactive application of that modification. In one recent case, the First District Court of Appeal concluded that the elimination of a husband’s alimony obligation should have applied back to the date that his ex-wife began receiving payments from his military pension, since that was the date when she ceased having a need for alimony.

Holli and Michael were a couple from Santa Rosa County who had divorced. The couple had children, but their children were all legal adults. The one issue that proved to be a source of extensive litigation was alimony. The trial court issued one order modifying alimony, and the husband appealed. The appeals court reversed and sent the case back to the trial court.

At that time, the only basis for the award of alimony to the ex-wife that the appeals court could identify was the wife’s continued financial support of the couple’s children in college. This was a problem in Holli’s case because one parent’s support of a couple’s adult children is, in Florida, not a valid basis for determining that a spouse has a need for alimony. If a parent has a court-ordered obligation to support a child (or children) in college, that potentially can be the basis for a determination of need. In Holli’s situation, though, there was no judgment to that effect, meaning that she had no legal obligation to support the children, and her support could not be the basis for a determination of her need for alimony.

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The law gives parties wide latitude in how they structure the terms of their contractual agreements. The same is generally true when it comes to spouses and the terms of their prenuptial agreements. For example, one Florida couple entered into a prenuptial agreement that waived all rights to future alimony claims but permitted the wife to receive a “salary” for two years after a divorce. According to a recent Fourth District Court of Appeal ruling, that agreement was valid and meant that the courts could not order an award of alimony and couldn’t use contempt powers if the husband didn’t pay the salary.

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A well-worn catch-phrase opines that “timing is everything.” In the law, timing isn’t necessarily everything, but sometimes it can be the only thing that matters. Failing to follow precisely the rules of procedure and the time limits they impose upon you can have dire consequences. A South Florida case involving a couple of Ecuadorean citizens, who lived most of their married life in that country, provides a prime example of this concept.

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