Articles Posted in Divorce

Published on: | by

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.
Continue reading ›

Published on: | by

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.
Continue reading ›

Published on: | by

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.
Continue reading ›

by
Posted in: Alimony
Published on:
Updated:

Published on: | by

A wife successfully managed to obtain a freeze of $3 million of her husband’s assets while posting an injunction bond of only $100. The 3d District Court of Appeal upheld this low bond because Florida’s courts were in the position only of enforcing an order in an underlying divorce case situated in Argentina, which meant that the Florida courts should defer to the Argentinian rule, which disfavors imposing bonds on the economically weaker spouse in a divorce.

A woman filed for divorce from her husband in Buenos Aires, Argentina in 2011. Both were Argentinian citizens and residents, but the wife claimed that the husband held some money in bank accounts in Miami. The court in Argentina issued an order freezing half the funds in those accounts and seeking the aid of the American courts in enforcing that order.

The wife then went to the Circuit Court in Miami and succeeded in obtaining a temporary injunction to freeze the accounts. The court required the wife to pay a bond as part of the injunction process, but it set that amount at only $100. The husband asked the court to increase the amount of the bond, claiming that the injunction froze roughly $3 million in assets and that $100 was too small an amount. The court held a hearing but declined to increase the bond. The Circuit Court concluded that its role was nothing more than one of enforcement of the Argentinian order under the principal of comity, which means the recognition of legal rulings from an outside state or country.
Continue reading ›

Published on: | by

Psychological and physical evaluations can be important tools for courts as they analyze a parent’s fitness. The law, however, also maintains several hurdles on the permissibility of such examinations because of their invasive nature. The case before a court must implicate the parent’s mental or physical condition, and the parent must be on notice of the potential of an evaluation before the court may order such a step. In a recent case from southwest Florida, a mother’s appeal allowed her to escape such an evaluation when the 2nd District Court of Appeal ruled that her case did not meet either of the required criteria.

As part of one couple’s divorce, the court awarded primary residential custody to the mother and issued a time-sharing order. At a hearing in late October 2013, the court discovered that the father had not seen his daughter in more than four months. The father expressed his desire to see his child, but he also stated that he did not want to force his daughter to visit him.

The trial court assumed that if the mother was supportive of maintaining the child’s relationship with her father, the visits would be occurring in accordance with the time-sharing order. As a result, the court ordered the mother to undergo a psychological evaluation, but it made no findings of fact as part of the order. The mother appealed.
Continue reading ›

Published on: | by

An ex-husband’s attempt to force his ex-wife to share the cremated ashes of their son failed to succeed in either a Palm Beach County trial court or the 4th District Court of Appeal. The recent decisions make clear that the remains of the couple’s son did not legally constitute property and were not subject to the rules of property division.

The 2007 divorce of this Florida couple was a relationship marked by contentiousness, litigation, and tragedy. They battled over items as small as home videos and a baseball card collection. Then, in 2010, disaster struck when Wellington polo magnate John Goodman, while allegedly driving drunk, killed the Wilsons’ 23-year-old son by crashing his Bentley into the son’s car.

The couple launched a civil suit against Goodman, who eventually settled with the family for $46 million. The settlement brought an end to the husband’s alimony obligation to his ex-wife, but not to their legal battles. The couple could not agree regarding the burial of their son. The wife wanted to bury her son in Palm Beach County, where the son lived and died, while the husband desired to bury the son in Georgia, next to the graves of his parents. The husband argued before a Palm Beach County trial court that the son’s cremated ashes, which remain housed in a Royal Palm Beach funeral home, were property and should be subject to division, meaning splitting them in half and dividing between each of the parents.
Continue reading ›

Published on: | by

A Palm Beach County probate case and a divorce action in Broward County might not necessarily seem to have much in common, but two rulings in those cases issued earlier this month share a common link, for each addressed the timely issue of same-sex marriage. Additionally, as the Sun-Sentinel and Miami Herald reported, each judge in those cases concluded that Florida’s ban on same-sex marriage ban is unlawfully discriminatory. The recent rulings follow on the heels of two prior decisions, one each in Monroe and Miami-Dade Counties, that also determined that the marriage ban violated the U.S. Constitution.

The Broward case involved a lesbian couple who married in Vermont in 2002. Four years ago, the couple separated. One of the women recently filed a petition in Broward Circuit Court to dissolve their marriage. One essential legal question in the case regarded whether the Florida courts have the legal authority to dissolve an entity — a same-sex couple’s marriage — that Florida does not recognize as valid in the first place. In addressing that question, Judge Dale Cohen decided that the ban on same-sex marriages violated the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment.

In his 16-page order, Judge Cohen stated that to “discriminate based on sexual orientation … to hold some couples less worthy of legal benefits than others based on their sexual orientation,” Cohen wrote, “is against all that this country holds dear, as it denies equal citizenship. Marriage is a well recognized fundamental right; all people should be entitled to enjoy its benefits.” Last month, Judge Luis Garcia in Monroe County and Miami-Dade County Judge Sarah Zabel reached similar conclusions on the equal protection question.
Continue reading ›

Published on: | by

Seeking to end a marriage is often emotionally difficult. It can also be logistically difficult when your spouse is located somewhere far away and does not respond to the legal documents sent to him/her. Default judgments can be useful to allow you to move on with your life, but they require careful attention to the procedural rules the law has established. In a recent 2d District Court of Appeal case, the court reversed a wife’s default judgment because she made new claims in her amended petition for dissolution, but did not serve that petition on her husband.

When a Florida woman filed for divorce from her husband in late 2011, she asked for sole possession and use of the couple’s Tampa condo as well as the couple’s other Tampa property, and half of the proceeds from two apartments in Italy that the couple had recently sold. The wife sought and received a default judgment after the husband failed to respond.

After the court entered the default, the wife amended her petition, asking the court to give her sole ownership of all the Tampa properties, part ownership of another property in Italy that the husband bought, along with sole ownership of the couple’s six motorcycles and Mercedes car. The trial court allowed the wife to proceed on her amended petition, even though she never served that version on the husband.
Continue reading ›

by
Posted in: Divorce
Published on:
Updated:

Published on: | by

A circuit court judge in the Florida Keys recently ruled that the Florida Constitution’s ban on marriages between same-sex partners violates the US Constitution’s equal protection clause, the Miami Herald reported. The ruling, which the state has appealed, could have a wide-reaching impact for many Florida same-sex couples, beyond simply those seeking to marry.

In a ruling issued July 17, Plantation Key-based Judge Luis Garcia decided that, when the Monroe County Clerk’s denied a marriage license to Key West bartenders Aaron Huntsman and William Lee Jones, the state violated the mens’ rights under the Fourteenth Amendment. The fact that Florida’s same-sex marriage was the result of a ballot initiative approved by a majority of voters did not matter. According to the court’s decision, it “is our country’s proud history to protect the rights of the individual, the rights of the unpopular and rights of the powerless, even at the cost of offending the majority.”

The ruling applies only to couples seeking to marry in Monroe County. The state Attorney General’s office immediately filed a notice of appeal, which stayed enforcement of Judge Garcia’s ruling. This means that all potential same-sex marriages in the county remain on hold until the court of appeals resolves the state’s appeal, although Huntsman and Jones have asked Judge Garcia to lift the stay and allow the Monroe County Clerk to begin issuing licenses right away.
Continue reading ›

Published on: | by

Few spouses, while happily married, stop to consider maintaining the proper legal segregation of assets they acquired separately before or during the marriage. This often leads to trouble when a spouse mixes his/her separate assets with marital property and, as a result, causes the law to view that asset as having become marital property as well. One recent decision from the 4th District Court of Appeal, ruling that a real estate interest a wife inherited had converted to marital property, demonstrates the problems a spouse can create when she fails to maintain the required separation.

Before the couple married, the woman and her two sisters inherited a house. While the couple was married, the wife bought out her sisters’ ownership interests in the house. The couple eventually renovated and sold the house. They paid for the renovations from money in a marital account. When they sold the house, they deposited the proceeds into a marital account. What was left over after capital gains taxes remained in that marital account for the next 10 years, where they used to money to make stock trades.

Some time later, the husband filed for divorce. The trial court ruled against the husband’s request to include the wife’s original one-third ownership interest as a marital asset for purposes of equitable distribution.
Continue reading ›