Florida Statute 61.14(1)(b), sometimes referred to as “the cohabitation statute,” states that b(1)
[t]he court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderence of the evidence that a supportive relationship exists. (2) In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question….

The Second District Court of Appeals recently explained that to determine whether a supportive relationship exists, the circuit court must employ an analysis of four steps: First, the circuit court must elicit the nature and extent of the relationship in question. Second, the court must determine whether the facts establish a supportive relationship. Third, if a supportive relationship is found to exist, the court must consider the relevant economic factors for determining an award of separate maintenance or alimony outlined in section 61.08(2). Fourth, after evaluating all relevant economic factors, the court must must decide whether to reduce or terminate the alimony obligation.

If a payor is able to prove that the recipient of alimony is in a supportive relationship, the court may reduce or terminate any alimony order currently in place. These are important factors to consider when deciding whether to attempt to modify any previous alimony orders in your case.
See King v. King, 37 Fla. L. Weekly D552.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

Many family law cases are able to be resolved at mediation, which keeps the parties from having to go before a judge to further litigate their case. Mediation is a beneficial way to work out parenting plans, child support, and even alimony arrangements between parents.

Mediated agreements can be as detailed as the parties choose for them to be. Some spouses prefer this option, so that if they other party does not comply, there is a clear course to enforce the agreement. Either party may file for contempt with the court, and the non-complying party will be forced to either comply with the agreement, or show the court why they are unable to do so.

When the court finds that one party is able to comply, but is willfully choosing not to do so, the court may find that party in contempt. At that point, it is up to each individual court to decide what sanctions to impose. Many times this may be a payment, or a “purge” amount to bring the non-compliance current, or it may be other sanctions that the court finds are proper to award the other spouse.

It is important to note that even attorney’s fees may be awarded to the spouse who files for contempt if the court finds that the non-complying party is actually in contempt. It is usually best to try to communicate and work out any differences prior to taking court action. Even if this is unsuccessful, the court will at least be impressed to know that you did try to work out the problem prior to coming into the courtroom.

See Norberg v. Norberg, 37 Fla. L. Weekly D415.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

Sometimes the Court will allow one party to stay in the marital home while the minor child(ren) finish high school or reach majority.  It is important that the trial court set a specific enddate for the exclusive use and possession of the marital home though.  The Court can even order the mortgage to be split as part of equitable distribution and not as an inclusion in child support. 

Specifically in one recent case out of the Second District Court of Appeals the parties had a minor child.  The Court ordered that the minor child and mother could remain in the home until the minor child reached eighteen.  The trial court further ordered that the father pay child support and pay half the mortgage.  Once the child reached eighteen the home could be sold and the proceeds split.  The father appealed this decision and the Second District Court of Appeals found that the court had set a specific endpoint and that the requirement that he pay half the mortgage was not a part of his child support.

In the current economic times it sometimes does not make financial sense to sell the marital home immediately.  This is one solution which is sometimes explored in Florida Divorces.

See, Philips v. Philips, 37 Fla. L. Weekly D496 (Fla. 2nd DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BABCPA”), a debtor was eligible to receive a Chapter 13 discharge upon completion of the Chapter 13 plan regardless of whether the debtor had received a discharge in a prior case.  BAPCPA added section 1328(f) of the Bankruptcy code which provided that a court shall not grant a discharge to a debtor under Chapter 13 if the debtor had filed a previous case within 4 years.  This is assuming the debtor received a discharge in the previous case.  Even though a debtor would not be eligible to receive a Chapter 13 discharge within 4 years of filing a previous case, section 1328(f) does not restrict a debtor from being able to actually file for Chapter 13 protection.

“Chapter 20” cases (where a debtor’s prior Chapter 7 discharge bars a Chapter 13 discharge) can still offer substantial relief from creditors.  The most significant of which would be in the case of a struggling homeowner who has fallen behind on his mortgage payments.   Filing for Chapter 13 would allow that debtor to spread out the missed payments over the course of the Chapter 13 plan.  He would be eligible for this relief even if he has already filed and received a discharge in a prior Chapter 7 case.

One of the most attractive features of normal Chapter 13 cases is the ability for a homeowner to “strip” the second mortgage on his home.  If a homeowner owes more on his primary mortgage than the value of the home, than a second mortgage’s claim is considered wholly unsecured.  The lien is “stripped-off” and is treated the as regular unsecured debt such as credit card.  Upon completion of the Chapter 13 plan, the second mortgage is discharged along with the other unsecured debt.

Courts have been split about whether a Chapter 13 debtor who is ineligible for a discharge due to a prior filing could still strip a second mortgage .   A recent Florida case, however, answered this question in the negative.  In a recent decision in the Southern District of Florida, the bankruptcy judge ruled that Chapter 13 debtors who received a prior Chapter 7 discharge and were, accordingly, ineligible for Chapter 13 discharge could not use Chapter 13 to strip wholly unsecured junior mortgages.

See In Re Quiros-Amy, 23 Fla. L. Weekly Fed. B125 (Bankr. S.D. Fla. 2011)

Jonathan Bierfeld is an attorney with Martin Law Firm, P.L., whose practice focuses in Bankruptcy Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Sometimes in Florida a case will be referred to a general magistrate for a hearing or trial.  Often the rationale for this is to alleviate crowded Circuit Court dockets and for the parties to get a hearing sooner than they would in Circuit Court.  However, as is often the case in any court, one party may not like the outcome.  Rules of Procedure provide that an “exception” to the magistrates report must be filed within a specified time period.  If an exception is not timely filed, the Circuit Judge will sign an order adopting the magistrate’s findings and opinion.  Once this order is adopted by the Circuit Judge the only available appeal is to the district court of appeal.  Another Circuit Judge or Magistrate cannot change the order of the previous Judge or magistrate. Additionally, the opinion will only be overturned for errors of law; not simply because another Judge views the facts differently.

It is important to have an attorney represent you at all stages of a case.  Often times, there is nothing an attorney can do after the trial because the record of the court case will not support an appeal.  However, the attorney may have been able to achieve a different outcome if they had been hired at the beginning of the case. 

See, Drdek v. Drdek, 37 Fla. L. Weekly D420 (Fla. 4th DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

In Florida, attorney’s fees for divorce cases can be paid by the more wealthy party on a “need and ability to pay” basis.  The Court will consider the equitable distribution between the parties at the end of the case in the calculation of need and ability to pay.  A recent case out of the Second District Court of Appeal demonstrates how the Court should make this calculation.

In this case the Husband earned the family’s income, earning $175,000 base salary, $6,000 automobile allowance, and substantial bonuses. The Court resolved alimony and child support awarding the approximately $6,000 a month in various types of support.  The Court also resolved equitable distribution awarding both parties over one million dollars in assets.  Throughout the case the Husband had voluntarily contributed $20,000 towards the Wife’s attorney’s fees and cost. 

At the conclusion of trial both parties requested attorney’s fees.  The Husband requested Wife pay his attorney’s fees for her misconduct during the case.  The Wife requested the Husband to pay her fees based on her need and his ability to pay.  The trial court denied Husband’s request, finding that Wife had caused some unnecessary delay and unnecessary increase in attorney’s fees, but that extenuating circumstances warranted some of this delay.  The Trial Court also denied Wife’s motion finding that the parties were in relatively equal financial positions.

The Second District Court of Appeal reversed this decision because the trial court inproperly ignored Husband’s bonus income.  It found that while the bonus income was not guaranteed, for thirteen years he had earned a bonus of $74,000.  While the appeals court agreed that past income had been divided relatively equally; it found the trial court failed to properly consider future earning capability. Specifically quoting another case

[w]here, as here, the record establishes that the parties’ past, present[,] and anticipated earnings are not substantially equivalent, it may be inequitable to force the lower earning party to deplete her share of the otherwise equally divided assets to pay attorney’s fees” Nisbeth v. Nisbeth, 568 So. 2d 461, 462 (Fla. 3d DCA 1990).

See, DiNardo v. DiNardo, 37 Fla. L. Weekly D323 (Fla. 2nd DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.