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Just three short months after Miami Heat guard Dwyane Wade’s divorce became final, a Florida appeals court was again called upon to enter a decision in the half-decade long legal contest. The 3d District Court of Appeal overturned a trial court’s order requiring the NBA star’s ex-wife to undergo a mental evaluation and also removed the trial court judge from the case, citing his denial of the “most basic right of due process” to the ex-wife, Siohvaughn Funches.

Many of the facts of Wade’s ill-fated marriage are well-known by now. Wade and Funches married in 2002, had two sons, and filed for divorce in 2007. The divorce proceeding turned into a marathon affair, becoming final only three months ago. In the property settlement, Wade agreed to pay Funches $25,000 in alimony, with another $10,000 in travel and living expenses. The basketball star also agreed to pay Funches’ mortgage and gave her the use of four cars.

This outcome apparently displeased the ex-wife, as Funches took to the streets of her hometown of Chicago. Funches stages a public protest claiming that the divorce had left her “on the streets.” Wade’s legal team fired back, returning to court to argue that Funches’ protest demonstrated her mental instability and dangerousness and requested that the court order a psychological evaluation of the woman and reduce her contact with the boys. Trial court judge Antonio Marin ordered the evaluation.
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One of the central underlying concepts of divorce and marital property settlement is something called equitable distribution. Equitable distribution, which is required by the Florida Statutes, means that each spouse should receive a fair portion of the marital estate, and each should share in both the marital assets and the marital liabilities. In a recent case, the 4th DCA rejected a trial court’s division of a 401(k) because it unfairly shared the account proceeds between both parties without similarly sharing the financial obligation for the outstanding account loan the couple took out during the marriage.

In 2011, a couple underwent mediation to reach an agreement regarding distribution of their property as part of their divorce. In addressing the husband’s 401(k) account with his employer, the couple agreed that the wife would receive one-half of the “the amount accumulated from the date of the marriage through January 1, 2008.” The agreement also stated that “loans and [withdrawals] taken during the marriage and not repaid will be taken into account for distribution purposes.”

The Qualified Domestic Relations Order (QDRO) the trial court entered, however, stated that the wife’s distribution would “not be reduced by the value of outstanding loans.” As a result, the wife received a payment of $47,505, while the husband’s remaining balance, which factored in an outstanding loan in excess of $30,000, stood at less than $13,700.
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With marital settlement agreements, much like any other form of contract, even the smallest of details can become extremely important. A case recently decided by Florida’s First District Court of Appeal highlights this point. In a recent case, the court concluded that an ex-wife could receive a portion of the 2010 value of her ex-husband’s 401(k) and Army pension, even though the couple divorced in 1994. The court ruled that, if the couple did not intend the wife to share in the account’s gains or losses, the agreement should have awarded her a fixed amount, not a portion of the account.

This couple ended their 20-year marriage in 1994. The divorce decree incorporated the couple’s marital settlement agreement, which they reached three months earlier. That agreement stated that the wife received 10/23 of the husband’s Army pension and half of his 401(k) “as of July 24, 1993”. The agreement called for entry of QDROs (special court orders governing pension and retirement funds) regarding the accounts, but the couple delayed for several years.

The wife finally filed for entry of the QDROs in 2010. The trial court awarded the wife $18,111 from the 401(k) and $18,922, plus $401 per month, from the Army pension. The trial court calculated these amounts based upon the 1993 values of each account.
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On September 5th, the public got even more insight into the now very public life of George Zimmerman (acquitted of the murder of Trayvon Martin) when his soon-to-be ex-wife filed divorce papers in Seminole County. In August, Shellie Zimmerman was found guilty of perjury and ended up with probation, plus 100 hours community service for her false statements regarding the couple’s finances during George’s bail hearings.

Sheila explained that the couple has been under intense scrutiny from “both sides” and identified the weakness of their marriage as two people fighting their own struggles to be heard by the other. She described their lives around the time of the trial and after as “living like gypsies” for security purposes with constant “babysitter” bodyguards looming over them.

The Zimmerman divorce, despite already being filed, likely hit a snag when on September 9th, Lake Mary police detained Zimmerman for a domestic dispute incident, which was resulted in a panicked 911 call by Sheila claiming George was threatening her and her father with physical violence and a gun. She further alleged George punched her father in the face during the confrontation. Sheila ultimately withdrew some of her statements, and charges were dropped against George.
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Under Florida law, an ex-spouse can request a legal modification of alimony. In a recent case, a couple had divorced after 28 years of marriage. On an appeal of the divorce judgment, the court reduced the husband’s alimony payments. In 2010, about a decade after the divorce, the former husband filed a petition requesting a reduction or termination of the payments, which were then $6,000 per month.

He argued that an order requiring him to pay permanent periodic alimony payments should be modified because (1) his financial circumstances had changed significantly and (2) his former wife was in a relationship with someone supportive. The former wife denied the material facts underlying the petition.

A general magistrate made a recommended order, finding a substantial change of circumstances since the husband’s income had been reduced. In his findings, he noted that he did not think this change was contemplated at the time of divorce and that the former wife was in a committed relationship. He recommended the alimony payments be reduced significantly, down to $1,294.06 per month.
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One murder and one plotted murder both grabbed headlines this month in Miami and both involved the dissolution of the bonds of marriage.A Paranoid Plot
A Dania Beach husband, is being held in prison with his bail set at $5 million for his attempt to hire a hit man to murder his wife. The couple had been married for two years and all friends and family attest that the husband thought the world of the wife – paying for her cars, plastic surgery, and any extravagances she could ask for.

The two met at a strip club where she danced and soon after got married. The couple signed a prenuptial agreement to protect his assets. Over the next two years the marriage deteriorated and after the birth of their son, the couple became estranged. The son was kept in the wife’s mother’s room in the home at all times and she would not permit the husband to see the baby.
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Changes may be coming soon to Florida alimony law and the effects may retroactively extend to cases settled years ago. If a bill recently vetoed by Florida Governor Rick Scott is reintroduced for the 2014 legislative session, it will spark another long fight over how Florida’s “permanent alimony” system is enacted. Proponents of the bill include the “Florida Women for Alimony Reform” and “Family Law Reform”. They are supported by elected officials in the Florida House of Representatives like Representative Ritch Workman (Republican -Melbourne) who claim current laws have lead to situations “where alimony was used as a weapon by the judge to punish the person that they thought was wrong in the divorce,” an improper practice, considering Florida is a “no fault state”. A “no-fault” divorce means that specific grounds are not needed for divorce proceedings to be initiated, only that a marriage is “irretrievably broken” or there is a “mental incapacity” on the part of one of the parties in a marriage. These supporters of the bill believe current law in Florida allows for too much abuse and misinterpretation on the part of the courts.Although the bill passed the Florida House and Senate, Governor Rick Scott vetoed the bill, stating as his reason that the bill would retroactively affect past court decisions that granted alimony. Others have speculated that there is more to the veto, as a plan to pass a retooled version of the legislation that eliminated the bill’s effect on prior court decisions was not met with any response and text messages reported to have been sent between the State Senate President’s chief of staff and State Senator Tom Lee (Republican -Brandon) guess that the decision “may be larger than just the veto message”.

There are those who believe that the Governor issued the veto in an attempt to distance himself from what some call an “anti-women” reform plan. Despite the anti-woman label, there are women’s groups on both sides of the argument. The “Florida Women for Alimony Reform” claim the bill will be beneficial to the growing number of working women in Florida, while a group known as the “Frist Wives First” say they are trying to protect the many “lifelong caregivers” who rely on alimony checks to live, as they cannot find work after having been out of the workforce for so long.
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Residents of the Miami-Dade area, even Florida itself, have heard a lot about Dwayne Wade over the past year. He has had a storied history both on the court and in court. As one of the Miami Heat’s most prized players, Dwayne Wade has lived the typical athlete’s life of marriage and divorce that involve high stakes finances mixed with public attention. Wade’s stands out for its marathon duration, however.The beginnings of this divorce epic began quite simply. In 2002, Wade married his high school girlfriend. The marriage lasted five years until he filed for divorce. The divorce was finally granted three years later in 2010 after a long, drawn-out divorce court battle. Wade retained full custody of their two sons after the court, in its 102 page ruling, described his wife as embarking on a relentless crusade to alienate Wade’s children away from him. Now in 2013, six years after divorce was filed for, the one last thing left unresolved was the division of Wade’s fortune. Until now.

The claims made by Siohvaughn Funches, Wade’s former wife, have been a tabloidist’s dream. On July 19, despite claims by Wade’s attorney that Wade had been paying Funches $25,000 a month in spousal support, Funches took to the streets of Chicago, portraying a destitute woman with a sign reading “NBA Miami Heat star, mother of his children on the streets”. Wade additionally had provided her with four cars, paid for her mortgage, maintenance, security and taxes. During the legal process, Funches employed 16 different attorneys to battle Wade, all fees for which Wade paid.

The settlement agreement entitles Funches to $5 million. There are strings attached to this agreement, however. The agreement includes a “non-disparage” provision essentially meant to discourage and punish disparaging remarks made by one party against the other. Reportedly, this provision also protects against comments made by Funches against Wade’s new girlfriend and Wade’s family.

Such non-disparage provisions are not uncommon in celebrity splits, but are a good idea in most separations where children are involved. Negative comments made with malice, especially made unwittingly during the emotional turmoil of a separation or divorce, often have a major impact on the development of the children and their desired relationship with their loving parents. Non-disparage agreements must be carefully constructed, and it is advisable to speak with a Florida divorce attorney to achieve the best results.

The book is now closed on the division of finances for Wade and Funches. But no one should assume the story is over, as Funches is still exploring methods to acquire visitation rights for their children. Wade’s attorney says that due to her history and seeming mental instability, visitation rights may be difficult to acquire, however.
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Commonly known as DOMA, the Defense of Marriage Act was partly overturned by the Supreme Court on June 26, 2013.DOMA was originally enacted in 1996 under President Clinton. One component of the statute permits states to refuse to recognize same-sex marriages performed under the laws of other states. President Clinton, later in 2009, admitted that he supported same-sex marriage but ultimately did not feel it was a federal issue. The other part of the statute defines marriage, for federal purposes, as between one man and one woman, effectively precluding married same-sex couples from receiving federal benefits. It was this federal definition (“Section 3”) that the Supreme Court struck down.

In 2011, the Obama administration proclaimed that although it is their belief that the Section 3 is unconstitutional, they would continue to enforce the bill but refused to defend it in court. Prior to the historic Supreme Court ruling, Section 3 was struck down as unconstitutional in the Court of Appeals for eight federal circuits.

The case that made it to the Supreme Court which ultimately led to its overturning is United States v. Windsor. The case followed Edith Windsor who had married her spouse Thea Spyer in Canada in 2007. The couple moved to New York and New York state recognized their same-sex marriage. When Thea died, she left her entire estate to Spyer. Historically, when a spouse dies in the US, the spouse, and only the spouse, will be exempt from federal estate taxes; if the estate is left to anyone but a spouse then the limit is $3.2 million dollars before estate taxes apply. In Edith’s case, the IRS did not recognize Edith as a legitimate spouse under DOMA leaving Edith with an estate tax bill totaling over $300k.

Windsor proceeded to sue for a refund of the money she did eventually pay. The grounds were that such a tax under DOMA’s non-recognition was a violation of her Fifth Amendment right of equal protection. The two federal courts ruled in favor of Edith and the case made it to the Supreme Court; oral arguments were heard in March 2013. The court found Section 3 unconstitutional as “a deprivation of the equal liberty of persons that is protected by the Fifth Amendment”.

Governor Scott and Senator Marco Rubio disagreed with the SCOTUS decision but identified that it won’t affect Florida ban. The Florida state ban on gay marriage was introduced in 2008. The Florida ban would need to be repealed by either an act of legislature, which is slow and the bill was introduced based voted on by the citizens of Florida (62%), or by a petition requiring nearly 700,000 signatures. Equality Florida, a gay-rights group, announced it will campaign in 2014 for a bill to challenge the Florida ban.

Although the focus is on same-sex marriage, an interesting effect of this case is same-sex divorce. Historically, upon a divorce, ex-spouses could transfer unlimited money between them in settling property distribution. Same-sex couples now can settle divorces without imposing large tax fees. Additionally, federal gift taxes would not apply to same-sex spouses.
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How can a couple that has never had a marriage ceremony or a marriage certificate be married? This legal theory is known as common law marriage and it treats a man and woman who act like a husband and wife as a husband and wife upon splitting up.Florida recognized common law marriages for many years until 1968 when the state ended it with Florida statute 741.211.

This does not mean that no common law marriages exist in Florida. Florida will, in fact, recognize common law marriages in two main capacities: Couples having entered a common law marriage before 1968 and couples seen as married under common law from a state that permits common law marriage. As stated succinctly in the opinion of Johnson v. Lincoln Square Properties, Inc., “Florida has always determined the validity of marriage in accordance with the laws of the place where the marriage occurred.” Such a following also requires Florida to look at how those states treat property acquired during the marriage.

The states which recognize common law marriages are: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (select cases), South Carolina, Rhode Island, Texas, Utah, and the District of Columbia.

Courts in these states will look at the following elements when deciding to recognize the couple as married under common law:

– (1)The couple has cohabited in a common-law state
– (2) with the intention to be married
– (3) for a period of time (which will be viewed subjectively on a case by case basis)
– (4) and has held themselves out as married (joint tax returns, shared surnames, etc)

If all these elements are not present, the couple cannot be deemed to be married under common law. As one might notice, there is much subjectivity with each element, and it is important for individuals to contact an experienced family law attorney to assess their potential situation and assist in the process.

If a common law marriage is found to be valid, the couple will be treated as no different than a traditionally married couple in these states. They will need to go through all the same formal divorce proceedings to dissolve their marriage.
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