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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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Resolving issues of back-owed child support can require creative problem-solving between the parties. Sometimes, that creativity may run afoul of the law if it impairs child’s legal right to receive support. One couple’s solution, which converted back-owed child support into a money judgment in favor of the wife and stripped the family court of jurisdiction over that judgment, did not violate the law, according to a recent 4th District Court of Appeal ruling. Because the agreement only removed the family court’s jurisdiction, and did not prevent the wife from pursuing the debt in civil court, the settlement did not contract away the child’s right to support.

The marriage of two attorneys ended in divorce in 1999. The agreed judgment between the parties required the husband to pay child support of $1,300 in 1999 and $1,500 starting in 2000, even though the applicable child support guidelines called for only $828 per month.

The husband fell behind on his support payments, resulting in several contempt proceedings and judgment enforcement motions. The couple eventually settled this dispute and the trial court entered an agreed order in 2008 that included a money judgment of $70,000 plus interest in favor of the wife. The family court also relinquished jurisdiction over that money judgment, except that the court retained the power to use its contempt powers if the husband did not stay current on the $828 per month of child support required by the guidelines.
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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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Prenuptial agreements are extremely valuable tools to establish financial boundaries and protect assets each spouse brings into the marriage. To be legal, both spouses must make a genuinely voluntary decision to sign the agreement. Forcing your future spouse to sign a prenuptial agreement in the middle of the night mere hours before your wedding is a recipe for failure, as it raises a strong inference that your spouse signed under duress, and not voluntarily. A husband discovered this in a recent case, where the 2d District Court of Appeal recently voided the couple’s prenuptial agreement, ruling that the husband’s timing raised a clear issue of coercion.

A man and his girlfriend scheduled their wedding for July 13, 2002, in Las Vegas. Less than a month before the wedding, he presented a draft of a prenuptial agreement to her. An attorney advised her not to sign, because the agreement waived her right to claim a statutory elective share, receive alimony or share in assets acquired during the marriage. Near midnight on the eve of the wedding, the man arrived at the Las Vegas airport, handed the girlfriend another copy of the agreement, and demanded she sign it and get it notarized. She complied.

When the wife filed for divorce in 2009, the husband asserted that the prenuptial agreement controlled the terms of asset distribution. The wife sought to set aside the agreement, arguing the court should void it because the husband improperly coerced her to sign it. The trial court sided with the husband, concluding that the wife waited too long to bring her claim of coercion, but the court of appeal overturned that ruling.
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An ex-husband’s behavior may have risen to the level of annoyance or general harassment, but not domestic violence, according to a Florida appeals court. The court ruled against the ex-wife’s injunction for protection because her evidence failed to prove that the husband’s past conduct amounted to an intentionally unwelcome touching or that the ex-husband’s ongoing conduct demonstrated a risk of imminent future violence.

In October 2012, a woman sought an injunction for protection from her ex-husband. The wife, who had filed for divorce four months earlier, asserted that the husband had once grabbed her arms and made unwanted sexual advances. According to the wife, this incident resulted in bruises on her arms. She also alleged that she felt threatened by the husband’s constant barrage of text messages that she continued to receive on a regular basis and by an encounter with the husband at a beach.

The trial court granted the injunction, but the 4th District Court of Appeal reversed that ruling and ordered the injunction vacated. The court explained that two possible bases exist under Florida law for issuing an injunction for protection: (1) proof of actual past domestic violence, or (2) a reasonable belief of impending future domestic violence.
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A Russian mother’s effort to pursue an award of child support hit a snag when a Florida appeals court concluded that a Russian court should hear her claim. The Russian courts already had jurisdiction over issues of custody, visitation and time-sharing regarding the child, making them a more convenient forum for the hearing of the child support issue. In a recent case, the court determined that, while courts will generally favor the forum choice of the filing party in cases involving domestic parents, this rule does not apply if the parent filing the case is not a resident of the United States.

The case regarded the child that a couple had together in Russia 17 years ago. In 2012, the mother launched an action in Florida to assess paternity and receive an award of child support. The father sought to dismiss the case on the grounds of forum non conveniens, arguing that because the mother was a resident of Russia with few to no ties to Florida, a Russian court would be better positioned to hear the case. Forum non conveniens is a legal doctrine allowing a court to dismiss a case if, in the court’s discretion, another court could more conveniently try the case. The trial court denied the motion.

The court of appeals sided with the father. In general, the court explained, the person who files the action (the mother in this case) is entitled to a presumption in favor of the court she chose. This presumption does not exist, though, if the person filing the action is from another country. Even if Florida was an inconvenient forum to hear the mother’s child support claim, the case would have stayed here if no other court constituted an adequate alternative. The court of appeals, however, concluded that the Russian courts were such a viable alternative. The court noted that the Russian courts already had jurisdiction over the custody, visitation and time-sharing regarding the child.
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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 recent court of appeals decision put a screeching halt to a mother’s attempt to relocate her daughter from central Florida to Indiana. The 5th District Court of Appeal’s ruling affirmed a lower court’s decision that the move was not in the daughter’s best interests, concluding that the mother was motivated by a desire to maintain physical distance between the daughter and the father, and to block contact between the two.

This couple divorced in 2008 in California, and the court approved a marital settlement agreement that included a 50-50 time-sharing arrangement for the couple’s one daughter. The mother and the daughter soon moved to central Florida. In an effort to be closer to his daughter, the father moved to Orlando in the summer of 2010.

Just three months later, the mother abruptly relocated her family, including the daughter, to Indiana, where the mother’s husband had received a job offer. The father asked the court to order the return of his daughter. After a failed telephonic mediation, the mother petitioned the court to approve the relocation to Indiana.
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A father’s attempt to avail himself to statutorily-dictated child support modification failed due to an earlier decision the man made, which ultimately proved costly. The man had previously consented to a marital settlement agreement that contained a waiver of his right to seek a child support modification based upon the parents’ time-sharing schedule, according to the Second District Court of Appeal. The father’s unfavorable decision spotlights the extreme importance of understanding all the ramifications of the terms of a settlement agreement.

Two years after a couple divorced in 2003, the couple created a supplement to their marital settlement agreement that altered the husband’s child support and alimony payments, and specifically stated that the agreement’s visitation arrangements could not be construed as the children’s spending 40% of their time with the father. This percentage was important to clarify, because Section 61.30(11)(b)(10) of the Florida Statutes allows a parent to seek a modification of his child support obligation if his children spend 40% or more of their overnights with him.

In 2012, the father requested a downward adjustment in his child support based upon the alleged fact that the children spent 42% of their time with him. The mother argued that, under the terms of the supplemental settlement agreement, the father waived his right to seek such a reduction.
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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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