Articles Posted in Divorce

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In one recent Florida divorce, a trial court’s failure to give the husband a meaningful opportunity to be heard in the case, as well as the court’s improper shifting of the burden of proof from the wife to the husband regarding whether Scotland law or Florida law should govern the divorce, forced the 5th District Court of Appeal to reverse the trial court and send the case back for a new trial.

Before the former couple married in Scotland, they executed a “Minute of Agreement,” which is the approximate equivalent of a prenuptial agreement. The couple’s agreement stated that, if they divorced, the court deciding the case should use Scottish law.
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A Christmas Eve ruling from the Third District Court of Appeal might have appeared to be a cause for cheer among those who support the state’s ban on same-sex marriages, but a careful reading provides a different perspective. The lesbian couple who litigated the matter lost their case largely on procedural grounds, since there were no issues in dispute between them, meaning that there was no “controversy” for the court to resolve.

While the factual background of O. and S.’s same-sex divorce case was not especially unique, the legal component was. Married in Iowa in 2009, the couple moved to Florida some time later. By 2012, the couple opted to go their separate ways, with O. filing for divorce.
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A couple’s out-of-state divorce order was the starting point of multistate legal battles spanning more than a decade. The battle between the two former spouses highlights some of the challenges that occur when parties to a divorce move away from the state that originally handled their case. The 4th District Court of Appeal upheld a dismissal of a husband’s Florida legal action related to the divorce because the couple’s previous home state of New Jersey was actually the proper place to bring his claims.

The long-running contest began after a New Jersey court issued an order granting a divorce to a couple, and giving the wife awards for unpaid alimony and child support. The court also ordered that certain pieces of the husband’s property be placed into a trust and gave the wife the authority to sell those assets in the trust. If necessary, the wife had the power to satisfy the child support and alimony debts from the sale of the husband’s trust assets.
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A Broward Circuit Judge’s order on December 17 granted to a South Florida art dealer something she sought for more than a year: a divorce. What made the judge’s in-court ruling groundbreaking was that the woman sought a divorce from her lesbian partner, with whom she had entered into a civil union in 2002. The ruling represents the first time a Florida court has issued a divorce to a same-sex couple and comes on the heels of a December 8 ruling, issued in the same case, declaring Florida’s ban on same-sex marriages unconstitutional and unenforceable, the Miami Herald reported.

The former couple entered into a civil union in Vermont 12 years ago. In 2010, one partner allegedly became unfaithful and, shortly thereafter, disappeared. In order for the other partner to marry her new partner, she needed to obtain a divorce. In a similar case involving a Tampa couple, the lesbian couple married in Massachusetts but could not get a Massachusetts divorce because neither was a resident there by the time they decided to part ways. In the present case, she could not obtain a Vermont dissolution because Vermont law requires a signed affidavit from her partner, and she no longer knew the partner’s whereabouts.
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When faced with the possibility of awarding alimony, courts have a variety of options. The appropriate option may depend on various factors, including how long you were married. Whether you are the spouse paying alimony or the one receiving alimony, it is very important to understand what the law does (and does not) allow courts to do when it comes to an alimony award. Two Florida appeals court decisions from this year serve as examples of these limitations.

In a very recent decision, Diaz v. Diaz, the 3d District Court of Appeal ruled in favor of a husband’s appeal and overturned a trial court’s ruling with regard to the husband’s payment of alimony. The trial court in that case ordered the husband to pay the wife durational (temporary) alimony each month for 48 months. The flaw with this award was that the couple’s marriage had only lasted for a little more than three years (40 months.) Section 61.08(7) of the Florida Statutes says that durational alimony “may not be modified except under exceptional circumstances and may not exceed the length of the marriage.”
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Sometimes, courts decide to award alimony to one spouse in a divorce based on that spouse having a much smaller income than the other spouse. The 2d District Court of Appeal received a case like this and reversed the trial court’s ruling requiring the husband to pay alimony. That’s because evidence of income disparity alone is not enough to justify an alimony award. The law requires proof of the recipient spouse’s need and the payor spouse’s ability to pay. The evidence in the case showed the husband did not have the ability to pay, so awarding alimony was erroneous.

M’s family law case was one similar to many people’s situations. While married, M and his now-former wife, T, had a child. They also reportedly racked up a considerable amount of debt, including credit card balances exceeding $10,000. Eventually, the couple decided to dissolve their marriage. By the time they split up, each spouse was  in a very problematic financial state, since each had debt obligations allegedly exceeding their incomes.
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A woman who took her child and fled an allegedly abusive husband was unable to successfully move her divorce and child custody case to a court in her new home in South Florida. The 1st District Court of Appeal, while openly expressing sympathy for the woman’s difficult position, threw out an order transferring the case from Tallahassee to Miami-Dade County because, when the original divorce petition was filed, the couple had only lived in Tallahassee, making that location the only permissible place where the case could be heard.

The case regarded the difficult and allegedly violent breakup of the marriage of KM (husband) and TM (wife). The husband filed for divorce in September 2013 in Tallahassee, where the couple was living with their child. Shortly thereafter, a dispute reportedly erupted between the couple, and the husband allegedly punched the wife several times. The wife left Tallahassee and went to stay with her mother in Miami. The wife obtained a domestic violence injunction against the husband from a court in Miami-Dade County.
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Parties in divorce cases will, in many instances, submit proposed final orders to the trial judge. A recent 5th District Court of Appeal ruling serves as a reminder that, although these submissions are permissible and often helpful to trial judges, courts should be hesitant to adopt them in their entirety when the opposing side has no opportunity to comment or object. Additionally, parties are not entitled to forms of relief they didn’t ask for in their petitions, even if they raised the issues in their pre-trial documents.

The recent case involved CC’s filing for divorce from her husband, DC. The wife’s petition asked the court to dissolve the marriage, create a time sharing schedule for the couple’s child, award child support, and distribute the couple’s assets and liabilities.
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There are many reasons a divorcing spouse might sign off on a marital settlement agreement when one or more terms are less favorable than what that spouse would receive if the agreement followed the Florida Statutes. Whatever the reasons, a person in such a situation should be extremely careful when signing such an agreement because, as long as the language in the document is clear, courts will follow the agreement’s terms, as one recent 2d District Court of Appeal case demonstrates.

The case arose from the divorce of a Florida couple. After mediation, the couple came to terms on a marital settlement agreement. In that document, the husband agreed to pay the wife $4,500 per month in alimony. The alimony paragraph stated that the amount was non-modifiable and payable for the life of the wife.
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Alimony can serve as an important lifeline, especially for divorcing spouses who subsist on fixed incomes. A recent 5th District Court of Appeal ruling highlights the basic concept of alimony law in Florida, saying that alimony must be large enough to allow the recipient spouse to meet her living expenses without having to spend her assets just to pay her monthly bills. In the 5th DCA’s recent decision, it sent a divorce case back to the trial court after deciding that the alimony imposed on the husband would not be enough to meet the wife’s monthly expenses.

The divorce in question regarded the 12-year marriage of a Florida couple. The couple achieved a partial settlement agreement of their financial affairs through mediation. The agreement called for the husband to refinance the marital residence and give the wife $4,000 from the proceeds of that transaction.

On the matter of alimony, the couple could not agree. The wife put forth evidence to the trial court that she was disabled and unable to work, and that she received $1,189 per month in disability payments as her sole source of income. She also testified that, in order to secure a home comparable to the marital residence, she would have to pay approximately $850 per month. The trial judge ultimately awarded the wife bridge-the-gap alimony of $300 a month for two years. The judge, in arriving at these numbers, expressly factored in the $4,000 the wife would receive from the refinance transaction.
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