Articles Posted in Divorce

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A husband’s recent failed attempt to modify his alimony obligation serves as a cautionary tale for all divorcing spouses as they consider signing agreements regarding alimony. The husband sought modification because the wife had been cohabitating with a man for two years. The 4th District Court of Appeal ruled that this was not grounds for modification, however, since the couple’s alimony agreement listed remarriage, but not cohabitation, as a valid basis for modifying the husband’s obligation.

When Husband and Wife divorced in 2007 after 17 years of marriage, they reached a marital settlement agreement that included the terms of the husband’s alimony obligation to the wife. The couple agreed that the husband would pay the wife $2,000 per month until he turned 62. The only grounds for modifying that obligation were loss of income due to the failure of the husband’s business, loss of income due to a decline in the husband’s health, the wife’s remarriage, or the death of either spouse.

In 2012, the husband went to court asking the judge to modify or terminate his alimony obligation. The wife, the husband alleged, had been living with a man in a “supportive” relationship that involved sharing wealth and assets for at least two years. The wife asked the judge to throw out the case, arguing that her non-marital relationship did not trigger any of the modification grounds listed in the settlement agreement.
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A recent 4th District Court of Appeal ruling highlighted the complicated issues involved in calculating alimony in a case where the wife, who was previously a successful professional, retired early and did not intend to return to work after the divorce. The appeals court rejected a trial court ruling imputing no income to the wife, determining that, because the wife was qualified for certain jobs and that her continued unemployment was her own choice, the lower court should have imputed some income to the wife in determining the amount of alimony the wife should receive.

When this Florida couple married, he was an attorney for a utility company and she ran a public relations and marketing firm. The husband’s employer laid him off in 2000, but provided him with such a generous severance package that both he and his wife decided to retire early. The husband told the wife that, as a result of the severance payment, neither of them would ever have to work again. After a year of retirement, though, the husband started a consulting business from which he earned a sizable income. The wife remained retired.

When the couple divorced after 17 years of marriage, one of the central items in dispute was alimony and the wife’s earning capacity. An expert witness testified that, with a few short classes in computer software and social media, the wife could obtain a job making $40,000-$50,000 per year. The trial court, though, decided the wife was not qualified for most of the jobs identified by the expert witness, imputed no income to her, and ordered the husband to pay her $11,648 per month in permanent periodic alimony. The court also did not require the wife to return to work.
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A Tampa lesbian couple who married in Massachusetts in 2010 encountered a roadblock recently in their ongoing effort to get divorced. A trial court judge ruled that, because Florida law does not recognize same-sex marriages as valid, Florida courts lack the authority to dissolve them, the Tampa Tribune reported. The couple’s attorneys announced their intent to appeal the ruling, where they will argue that the state’s same-sex marriage ban is unconstitutional.

The lesbian couple in this case married in Sunderland, Mass. in 2010. The next year, they moved to Tampa. Unfortunately for the couple, the relationship deteriorated and they separated last fall. One of the women called the court clerk’s office in Franklin County, Mass. to inquire about obtaining a divorce. The clerk there explained that the woman could only file for divorce in Massachusetts if she had lived there for at least a year. She then filed for uncontested divorce in January in Hillsborough County.

In March, the couple completed a marital settlement agreement regarding the division of their assets. The woman’s lawyers argued that, if the legislature had desired to strip courts of the authority to grant divorces in cases involving homosexual couples, it could have explicitly stated this intent in the 2008 Definition of Marriage amendment to the state constitution. By contrast, Georgia’s constitution expressly forbids courts from granting divorces or maintenance in cases involving same-sex couples. Florida’s amendment has no such language.
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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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