Articles Posted in Divorce

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Under Florida law, any community property is subject to equitable division by the courts in a divorce action. Typically, pension benefits and any other retirement benefits accrued during a marriage constitute community property. Additionally, parties are entitled division of cost of living adjustments under Florida law as well. Recently, a Florida court clarified whether a party that is awarded a portion of a spouse’s pension in a deferred retirement option program  (DROP) is entitled to a cost of living adjustment, even if the DROP account is not created until after the divorce is final. If you want to learn more about how ending your marriage may impact you financially, it is in your best interest to speak to a Miami divorce attorney promptly.

Procedural History of the Case

It is reported that the husband and the wife married in 1999. In 2014, the husband filed for divorce. The following year, the court entered a final judgment of divorce that included provisions regarding the equitable distribution of the husband’s pension with the state retirement system. The provisions stated, in part, that the marital estate was distributed equally between the parties and that a QDRO must be prepared with regard to the husband’s retirement pension.

Allegedly, the court entered a QRDO that awarded the wife half of the husband’s retirement benefits that accrued from the date of the marriage to the date the divorce action was filed, to be taken as a deduction from each monthly benefit payable to the husband from the pension plan. One of the paragraphs of the QDRO provided for a proportionate share of any cost of living adjustment the husband received. The husband objected to the cost of living adjustment at the trial level. He then appealed. Continue reading ›

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While courts typically conducted family law hearings in person prior to 2020, since the COVID-19 pandemic, many proceedings have been held via video-teleconferencing. Regardless of whether hearings are conducted in person or over the internet, parties impacted by such hearings have certain rights, and if the court violates their rights, any rulings issued during the proceeding may be reversed. This was demonstrated recently in a Florida opinion issued in a divorce case in which the court ruled that the trial court infringed on the wife’s due process rights by ruling on matters in her absence. If you or your spouse wish to end your marriage, it is important to understand your rights and obligations, and you should talk to a Miami divorce attorney promptly.

Facts of the Case

It is reported that the husband and wife married in 2002 and had two minor children. They subsequently divorced, and in 2016, the trial court entered a final judgment dissolving their marriage. The trial court also appointed a parenting coordinator and guardian ad litem to help resolve other issues. The parties later filed multiple post-dissolution motions, seeking enforcement of the final judgment, contempt, and psychological evaluations.

Allegedly, the court scheduled a hearing for June 2021 to address certain financial issues. The court conducted the hearing over Zoom and, prior to commencing, confirmed it would only cover the issues previously indicated. The trial court stated it was going to order the wife to pay her share of the children’s tuition, after which she logged off. She logged back on ten minutes later, only to log off again when the court restated its intent. The court later ordered the wife to pay the husband the cost of the parenting coordinator’s fees in the wife’s absence. The wife appealed. Continue reading ›

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Courts presiding over Florida family law cases will often make oral pronouncements regarding their decisions on disputed issues during hearings and later reduce the terms of their pronouncement to writing. Issues can arise, however, when a written order issued by a court conflicts with its earlier oral pronouncement. In such cases, as explained in a recent Florida ruling issued in a divorce matter, the oral pronouncement will generally prevail. If you or your spouse intend to file a petition for dissolution, it is wise to meet with a Miami divorce attorney to determine what measures you can take to protect your interests.

History of the Case

It is reported that the husband and the wife divorced in 2018. The year prior to their divorce, they filed a joint income tax return and received a refund in excess of $150,000. The refund, which was deposited into the wife’s attorney’s trust account, included a credit for overpayment carried over from the husband’s and wife’s previous joint return.

Allegedly, during an evidentiary hearing, the husband argued he was entitled to half of the credit for overpayment on the grounds that it was marital property subject to equitable distribution. The trial court agreed and orally granted the husband half of the overpayment. In the written order it issued on the matter, though, the trial court allocated all of the money in the wife’s attorney’s trust account to other parts of the entitlement award. The husband appealed, arguing that the trial court erred by issuing a written order that conflicted with its oral pronouncement. Continue reading ›

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It is a common practice for the Florida courts to issue orders in family law cases that impose obligations to pay child support or alimony. Additionally, to ensure that such obligations are upheld, the courts must issue a separate income withholding order. Recently, a Florida court discussed income withholding orders in a matter in which the wife objected to the trial court vacating an existing income withholding order. If you have questions concerning alimony, it is wise to confer with a dedicated Miami divorce attorney as soon as possible.

Facts of the Underlying Case

It is reported that the wife and husband divorced, and the court ordered the husband to pay alimony. In 2021, the husband moved for a modification of his obligation. The court granted the husband’s motion and issued an amended income withholding order. The wife appealed the trial court’s ruling, arguing that it erred by issuing the order without notice or granting her an opportunity to be heard. As the appeal was pending, the trial court vacated the income withholding order but did not enter a new order. The wife asserted that this was improper under Florida law as well. The husband did not pay any alimony during the pendency of the appeal.

Income Withholding Orders in Florida Family Law Cases

The court noted that the wife’s reasoning was correct and remanded the matter to the trial court, directing it to enter a new income withholding order. In its opinion, the court noted that the trial court was mandated to do so by Florida Statutes. Specifically, the law dictates that when entering an order establishing, modifying, or enforcing an obligation for child support, alimony, or both, unless the order is temporary, the court must enter a separate order for income withholding unless one has already been entered. Continue reading ›

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Divorce can leave one party in a precarious financial situation. In many divorces, then, a person will seek alimony from their spouse. In evaluating whether alimony is warranted, the courts will look at not only if the party seeking alimony can demonstrate their need but also if the other party has the ability to pay. If either party’s economic circumstances change after a court enters an order granting alimony, the court may grant a modification. Recently, a Florida court discussed the factors considered in determining whether to terminate alimony in a case in which it upheld the trial court’s ruling. If you are considering ending your marriage and want to learn more about alimony, it is smart to meet with an experienced Miami divorce attorney.

Background of the Case

It is reported that the husband and wife divorced in 2008. Their marital settlement agreement was incorporated into the final judgment of divorce. Among other things, the agreement dictated that the husband was to pay the wife $3,000 in alimony per month until the wife remarried, the husband reached the age of 65, or either party died. It stated that the obligation could be modified, but an increase in the wife’s income did not constitute grounds for a modification.

Allegedly, the husband filed a petition for modification in 2016 after he lost his job. The wife filed a motion for enforcement and contempt, as the husband had ceased paying alimony when he was terminated. There was no activity in the case until 2019, when the wife filed a second motion. The husband then filed a second petition for modification or termination. The case proceeded to trial, after which the court found that the husband had demonstrated a substantial and material change in circumstances and suspended his obligation until his ability to pay was restored. The wife then appealed. Continue reading ›

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Florida is an equitable distribution state, which means that in divorce actions, the courts have the authority to divide marital assets in a manner that they deem fair and just. Not all property acquired during a marriage is subject to equitable distribution, though, as shown in a recent Florida ruling. If you have questions about how ending your marriage may impact you financially, it is prudent to talk to a skilled Miami divorce lawyer as soon as possible.

Factual and Procedural Background

It is reported that the husband and wife divorced. In the final dissolution of judgment, the trial court ordered the husband to pay the wife $255 per month, which the court stated represented a portion of his “military retirement.” Five years after the divorce was final, the wife filed a motion for enforcement and contempt, arguing that the husband retired two years earlier but had not paid her any portion of his military retirement. The court granted the wife’s motion, and the husband appealed.

Assets Subject to Equitable Distribution

On appeal, the husband argued that he medically retired and that, therefore, the money he received represented military disability payments rather than retirement payments. He further noted that he did not meet the length of service requirement to receive retirement payments from the military. As such, he argued that the trial court erred in ordering him to make payments to the wife. Continue reading ›

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In divorce actions, the parties will typically go through the process of discovery, during which they will seek any evidence that they can use to help them obtain a favorable outcome. Once discovery is complete, and the court issues its final judgment, however, parties will rarely be granted the chance to offer additional evidence. This was demonstrated in a recent Florida ruling, in which the court explained that reopening evidence in a divorce action would be unfairly prejudicial to the wife. If you are interested in seeking a divorce and want to learn more about your rights, it is smart to confer with a knowledgeable Miami divorce attorney.

History of the Case

It is alleged that in 2014, the parties divorced pursuant to a consent judgment that, among other things, fixed the equitable distribution of the estate. In 2020 the wife filed a motion asking the court to clarify her right to the husband’s pension. The court conducted a hearing during which the husband, the wife, and the benefits manager for the husband’s pension fund testified. The court ultimately entered an order defining the husband’s pension obligations to the wife.

It is reported that a week after the trial, the husband obtained a new attorney, who then moved to reopen the evidence on the grounds that the court granted the wife a greater share of the husband’s pension than she was entitled to receive. The motion asserted that supplemental evidence from the benefits manager was necessary to issue an equitable ruling. The court denied the motion, and the husband appealed. Continue reading ›

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In many divorce actions, a couple will disagree as to how marital property should be divided. In some instances, a party will go so far as to intentionally divert funds to prevent their spouse from accessing them. The courts typically do not look kindly on such behavior, as demonstrated in a recent Florida divorce action in which the court found that the wife’s act of depositing marital funds in an irrevocable trust constituted misconduct. If you have concerns about how a divorce could impact your finances, it is in your best interest to meet with a Miami divorce attorney as soon as possible.

Factual and Procedural Background

It is reported that the husband and the wife were in the process of divorcing. After the petition for dissolution was filed, the wife transferred approximately millions of dollars in marital funds into an irrevocable trust. She allegedly did so to protect the husband from wasting the assets after the divorce, given his history of being reckless with marital funds and subject to extortion schemes. Allegedly, in the trial court’s final judgment of divorce, it allocated the money in the trust to the wife for purposes of equitable distribution, which increased the value of the marital estate and ultimately prompted the court to require the wife to pay the husband an equalizer payment of approximately $2 million. The wife appealed, challenging the trial court’s ruling.

Intentional Diversion of Marital Funds

On appeal, the trial court ruling was affirmed. Specifically, the court found that contrary to her assertions, the wife’s actions solely benefitted her and were unrelated to the marriage and, therefore, constituted misconduct and intentional diversion of marital funds. Continue reading ›

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Parties seeking a dissolution of their marriage in Florida must comply with any applicable procedural rules. This means, among other things, that the party that institutes an action must properly serve the initial pleading on their spouse. If they do not, the court may lack jurisdiction over the responding spouse. A person cannot attempt to avoid dissolution by evading service of process, however, as demonstrated in a recent Florida opinion issued in a divorce case. If you or your spouse intend to end your marriage, it is important to speak to a Miami divorce attorney regarding your rights.

Facts of the Case

It is alleged that the husband filed a petition for dissolution of marriage. He then hired a process server to serve the petition on the wife. The process server attempted to serve the wife at her father’s home. She tried to evade service, however, by refusing to answer telephone calls or the door and running into the house. Further, her father attempted to stop the process server from getting close to the house.

Reportedly, the process server subsequently left the wife a message on her cell phone and yelled into the house that he had papers to serve her. She did not respond, and he ultimately left the papers in an obvious location and screamed that she had been served. The wife subsequently filed a motion to dismiss the action due to improper service of process. The court denied her motion, and she appealed. Continue reading ›

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There are different types of alimony the Florida courts can award in divorce proceedings, including permanent alimony. Permanent alimony is not as permanent as the name suggests but can be adjusted if a court finds that a modification is warranted. The court will only grant a modification if there is evidence that it is necessary due to a change in circumstances that is both material and substantial, however, as demonstrated in a recent Florida case. If you have questions regarding alimony or the financial ramifications of divorce, it is smart to confer with a knowledgeable Miami divorce attorney as soon as possible.

The Facts of the Case

It is reported that the wife filed a petition to modify the periodic payment of permanent alimony awarded to the husband via a marital settlement agreement that was adopted by the trial court as part of the parties’ divorce judgment. Specifically, she requested that the court impute income to the husband based on the fact that he was eligible to receive Social Security benefits, even though he had not applied for such benefits. The court denied her petition, finding that she failed to adequately prove that there had been a material and substantial change in either her or the husband’s circumstances that warranted a modification. The wife then appealed.

Grounds for Modifying Alimony Awards

On appeal, the court affirmed the trial court ruling. In doing so, it stated that pursuant to established case law, a trial court cannot impute the value of Social Security benefits that a person is eligible to receive but has not yet applied for as income to a person if they offer evidence showing that their decision to defer the benefits is merely a prudent investment strategy, as their benefits will increase if they do not take them until a later date. Continue reading ›