Articles Posted in Divorce

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Sometimes, in divorce matters, a couple can seem to reach a mutual agreement on the distribution of their marital assets, only to uncover a sticking point later. Such was the case for one Florida couple, who battled over the division of the husband’s military pension. The Second District Court of Appeal threw out a trial court order regarding the pension because the terms of that order contained elements that were not part of the couple’s mutual agreement and allowed the wife to share in benefits the husband would earn after the marriage had ended.

J.F. filed for divorce in 2011. His wife asked for a division of the couple’s retirement accounts as part of equitable distribution of their assets. The couple arrived at a settlement agreement, which they conveyed orally to the court on the record. At the hearing, some confusion emerged when the spouses’ attorneys attempted to recite the agreement about the husband’s military pension to the trial court. The parties later disagreed on the precise terms of the division of the military retirement, and the trial court held another hearing. The husband later challenged the resulting “Order for Division of Military Retirement Pay”, claiming it did not reflect the couple’s true agreement.

The appeals court agreed with the husband. The order suffered from two fatal flaws. First, it gave the wife a share of several future benefits, including the husband’s post-retirement cost-of-living adjustments, a portion of any retroactive payments the husband might receive if he chose to remain active after his normal retirement date and a piece of the husband’s exit bonuses, voluntary separation incentive pay or special separation benefits. This was problematic because the husband would not accrue any of these benefits until after the marriage ended and none of these benefits were discussed in the couple’s oral recitation of their agreement before the trial court. As a result, the wife had no claim to a share of those benefits and the order should not have included them.
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A wife’s effort to claim to claim two burial plots as belonging solely to her failed as a result of an unfavorable 1st District Court of Appeal decision. The court concluded that, although the two plots were her separate assets when her aunt gave them to her, one of the plots became marital property when she chose to transfer ownership of that plot from her name to the names of her and her husband collectively. This transfer constituted a spouse-to-spouse gift that changed the status of that plot.

In happier times, the couple decided to add the husband to the deed of one of two burial plots the wife had received as gifts from her aunt. Some time later, the couple’s marriage deteriorated and the pair sought to divorce. As part of that proceeding, the trial court considered how to classify the burial plot co-owned by both spouses. The trial court ultimately declaring the burial plot as non-marital property that belonged to the wife.

The husband appealed this decision, and the 1st DCA agreed with the husband. In resolving the question, the court decided that the wife’s decision to add the husband to the deed of one of the plots changed that asset’s status. Florida Statutes Section 61.075(6)(b)2 says that an asset acquired by one spouse as a result of “noninterspousal gift,” even during the marriage, is nonmarital property belonging to the spouse who received the gifted asset. That is what happened when the wife’s aunt gave the plots to the wife, meaning that, at that point, both plots were nonmarital assets belonging to wife.
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A wife’s efforts to escape responsibility for a $13,500 credit card debt her husband ran up mere days before the wife filed for divorce proved unsuccessful. The debt, incurred to pay for the college education of the couple’s daughter, occurred during the marriage and was not the result of intentional waste or depletion of marital assets, meaning that the courts must classify it as a marital debt for purposes of establish an equitable distribution of the couple’s assets.

This couple’s 27-year marriage was nearing its end by June 2011. Although the wife had informed the husband she planned to seek a divorce, she did not file immediately. Around the same time, the couple’s adult daughter was planning to start college in North Carolina that fall. The husband charged $13,500 on the couple’s Discover credit card to pay for the daughter’s college expenses. Four days later, the wife filed her divorce petition.

At trial, the wife stated that she had not planned to pay for the daughter’s college costs, but instead insist that the daughter pay her own way. The wife persuaded the trial court that the husband’s maneuver was an attempt to force her should a financial burden she never intended to undertake and that the husband should bear sole responsibility for the Discover card debt.
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Deciding the appropriate amount of retroactive support a spouse should receive can be somewhat complex in cases where the couple continues to live together during at least part of the divorce process. In one such recent case involving a veterinarian and his wife, the 5th District Court of Appeal decided that the couple’s long-term marriage entitled the wife to permanent alimony and that the husband should not be allowed to claim the mortgage and household bills he paid during the separation as support to his wife.

This couple divorced after more than 17 years of marriage. The couple continued to live together for part of the period when the divorce was pending, and the husband gave the wife $6,000 per month for support and payment of certain household bills, including the mortgage. The trial court ordered the husband, a veterinarian, to pay durational (temporary) alimony of $3,500 per month for eight years. The court also decided that the husband owed the wife no retroactive alimony.

The wife contested these determinations on appeal. The 5th DCA sided with the wife, ruling that the trial court should have awarded permanent, not temporary, alimony. Florida law requires a trial court to consider primarily what the needs of the spouse seeking alimony are, and the other spouse’s ability to pay. Additionally, the law’s default position is that permanent alimony is the appropriate remedy in cases involving long-term marriages, which the statute defines as ones lasting 17 years or more.
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A court’s contempt power can be an extremely important and effective tool in ensuring compliance in family law matters, as spouses may ignore court order to spite their exes. This power does come with some clearly delineated limits, though. The power to force a spouse to meet the terms of an equitable distribution is one such area, leading the 4th District Court of Appeal to throw out a trial court’s contempt finding against an ex-wife who did not pay the mortgages on the marital home.

The case regarded a 2010 divorce. As part of the equitable distribution, the wife received the marital home. The distribution also called for the wife to assume total responsibility for paying the mortgages on the home, even though the husband’s name was the only one on the mortgages. After the divorce, the wife rented the home out, but did not pay the mortgage payments.

The parties soon returned to court, with the husband seeking a contempt order against the wife for failing to keep the mortgages current. The trial court refused the husband’s request, explaining that it could not utilize its contempt powers because paying the mortgages was an aspect of equitable distribution, not spousal support. Had the wife violated a term related to support, she could have faced punishment for contempt.
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Still motivated after their near-miss in the last session of the Florida Legislature, advocates for an overhaul to the state’s alimony laws are looking to a newly released documentary film to provide additional fuel to their cause. The film, entitled “Divorce Corp.”, allegedly demonstrates many of the excesses and flaws of Florida’s current system of family law and procedure. Proponents of changes to the laws governing alimony hope that the film will inspire the legislature to make another effort at reform, and that the governor will approve this time.

The Miami Herald reported on “Divorce Corp.”, which some theaters advertised as exposing “how children are torn from their homes, unlicensed custody evaluators extort money, and abusive judges play God with people’s lives while enriching their friends,” and its interrelationship with the movement within the state to amend Florida’s alimony laws. Alan Frisher, head of a pro-reform non-profit organization called Family Law Reform, supports the film. Frisher described “Divorce Corp.” as “another way to engage the public.” In addition to screenings of the documentary, Frisher also published a book entitled “Divorcing the System: Exposing the Injustice of Family Law,” and has held summits touting alimony reform.

In its 2013 session, the Florida legislature passed a controversial measure, Senate Bill 718, reforming alimony laws. The bill would have ended permanent alimony and established limits on the amount of alimony a spouse could receive. The changes would have also altered the definitions of short-, moderate- and long-term marriages. For example, the bill stretched the definition of “short-term” marriages from seven years or less to 11 years or less, and stated that the default outcome for short-term marriages is an award of no alimony.
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One variety of estate planning technique used to shield assets from creditors is the use of discretionary trusts, such as so-called “spendthrift trusts.” In a recent ruling by the 2d District Court of Appeal, however, the trusts a former husband created failed to block his ex-wife from collecting the alimony he owed her. The court decided that, although Florida has a public policy favoring the recognition of spendthrift provisions in trusts, it has a stronger policy favoring the protection of spouses through the enforcement of spousal support orders.

When a couple divorced in 2007, after 30 years of marriage, they reached a marital settlement agreement resolving, among other items, alimony. The agreement, which the court ratified, required the husband to pay the wife $16,000 per month. Despite receiving a sizable regular income from a series of discretionary trusts, the husband fell behind on his alimony.

The wife filed motions seeking enforcement of the alimony order, including asking the court to order the garnishment of any distributions from the trusts to the husband. The trustee objected, claiming that the law protected trust assets from all creditors, including the wife. The trial court agreed with the wife and issued the order.
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With Christmas having recently come and gone, many people likely received a new addition to an existing collection of possessions. For some, it may have been a new piece of jewelry; for others, perhaps a new power tool. When these collections of become an issue in a divorce, there is a clear right way, and wrong way, to go about seeking to include them in the equitable distribution of assets. The recent decision in a First District case highlights one of the wrong ways to establish value, which resulting in the 1st District Court of Appeal rejecting a wife’s efforts to include her husband’s tools in the couple equitable distribution.

The case went before the court of appeal as a result of a dispute over the value of the husband’s tools. In the trial court dissolution hearing, the husband testified that the tools were worth $500. The wife, in her financial affidavit, stated the tools’ value at $20,000. In crafting its equitable distribution, the trial court awarded the tools to the husband, and accepted the wife’s $20,000 valuation. Because the trial court accepted this larger valuation for the husband’s tools, it lessened the amount the husband received in the remainder of his equitable distribution.

The husband appealed, and the court of appeal sided with him. The problem for the wife was a lack of proof to buttress her $20,000 claim. During the dissolution hearing, the wife admitted that her assessment was a blanket statement without specific evidence to back it up. The court explained that some amount of tangible proof is necessary to back up valuations such as the wife’s. The court noted that its decision mirrored the 2d DCA’s ruling in a 2000 case, Lassett v. Lassett, where the court rejected a husband’s $10,000 valuation of his wife’s jewelry collection because the only proof supporting the claim was the husband’s unsubstantiated testimony.
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When a couple divorces, one of the integral elements of property division is separating marital assets from non-marital ones. A recent 4th District Court of Appeal ruling highlights that an asset’s origin at the time the couple marries is not the only criterion for ascertaining its classification. In the Jordan case, the wife’s work improving an asset, and the couple’s use of the asset’s proceeds for marital benefits, converted the asset from non-marital to marital.

A chiropractor and his wife married in 1992. The husband conducted his practice in an office building he owned separately, as his parents had deeded it to him before he married. However, while the couple was married, the wife coordinated and performed several significant renovations and improvements to the building. Also during the marriage, the husband transferred title of the building to a corporate entity he created. The couple eventually sold the building, purchasing and then selling a salon. Over the years, the couple used funds from the corporation to pay their household and living expenses.

The couple filed for divorce in 2011. The trial court adopted the wife’s proposed judgment, and the husband appealed. On the matter of the office building and corporation assets, the court determined that the trial court correctly found it to be a marital asset. The husband’s professional building clearly was a non-marital asset when the couple had married. However, the wife’s work on the building was sufficient to convert it from a non-marital asset to a marital one. The wife was “instrumental” in the completion of “vast improvements …, which included replacing walls, installing new flooring, adding columns and a flag pole to the front, modifying lighting and other electrical work, adding an additional parking lot, replacing the roof, and putting in new doors and windows,” the court pointed out. The amount of effort the wife expended on the office building went far beyond mere maintenance, but rather, provided substantial enhancement in the asset’s value.
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A Third District Court of Appeal case from earlier this month marked a reversal of course for that court with regard to the rules regarding cohabitating couples and alimony modification. In the court’s latest ruling, it decided that, even though an ex-wife received virtually no financial support from her cohabitating boyfriend, a trial court was nevertheless justified in using that relationship as the basis for lowering the ex-husband’s monthly alimony obligation.

The case centered upon the aftermath of a divorce following which the ex-husband had paid his ex-wife alimony since the couple’s divorce in 2005. In 2009, the ex-wife boyfriend moved in with her. The ex-husband sought to reduce his alimony based upon the cohabitation relationship, and the trial court dropped his alimony obligation from $4,200 per month to $3,500.

The ex-wife appealed. The Third DCA originally agreed with the wife, but reconsidered its opinion and upheld the trial court ruling. The court ultimately decided that the statutes were clear in allowing the trial court to make the reduction based upon the change in circumstances brought about by the cohabitation.
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