In a dissolution of marriage case, there are generally five major issues, which we identify according to the PEACE acronym. Those are: Parenting, Equitable distribution, Alimony, Child support, and Everything else. What you can expect is that many dissolution of marriage cases get resolved prior to going to trial, either at mediation or by entering into a Marital Settlement Agreement.

If the parties are splitting assets or money, it is important to keep in mind that the way those items are characterized can have consequences on whether they are enforceable by contempt. For example, if one party agrees to give to the other spouse a particular property or a sum of money, whether it is characterized as alimony, child support, or equitable distribution is very important. An obligation of support, such as alimony and child support, is enforceable by the Court through its contempt powers. However, failure to abide by an agreement which calls for a specific equitable distribution scheme is not enforceable by contempt.

But what happens if the agreement between the parties, or the final judgment adopting the same, does not specify whether a particular obligation is in the nature of support or part of equitable distribution? The court in Morrel v Morrel, 38 Fla. L. Weekly D22a (4th DCA 2013), was recently faced with this question. There, the former husband was required to maintain life insurance pursuant to a settlement agreement. When the former husband failed to do as he agreed, the former wife attempted to enforce the agreement through a contempt proceeding. The final judgment did not provide for alimony or other support for the wife. Because of this, but to no avail, the former husband argued that the life insurance was part of equitable distribution of property and therefore not enforceable by contempt. Due to evidence presented, the trial court agreed with the former wife that the life insurance was in the nature of support, and the 4th DCA affirmed. The result was that the husband was ordered “either to secure the insurance or to deposit cash of an equivalent amount in an account for the former wife’s benefit, should he predecease her.”

As you can see from the Morrel case, one way to avoid these situations is to understand the consequences of any provisions in the agreement, which you agree to sign. If you would like to avoid any ambiguity, be as precise and as clear as possible.

For more information, see Morrel v Morrel, 38 Fla. L. Weekly D22a (4th DCA 2013).

Liridona Sinani is an Attorney with Martin Law Firm, P.L., who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

With the new year come new Family Law Rules of Procedure. In a recent Florida Supreme Court opinion, Florida Family Law Rule of Procedure 12.740(f), which provided for a ten day review period for counsel who was not present when a mediation agreement is reached, was deleted. The rule previously stated that if counsel of record for any party was not present at mediation when an agreement was reached, such counsel has ten days from the service of the copy of the agreement to serve written objections on the mediator, unrepresented parties, and counsel. However, beginning January 1st, 2013, this provision is no longer available.

What exactly does this mean and how does it impact you? Admittedly, mediation can be a costly event. As such, parties under dire financial circumstances may choose to forgo having representation at mediation and instead opt for their attorney to review the agreement and file any objections later. With this new opinion, parties no longer have that 10 day safety net provided by Rule12.740(f). What this means is that in order to ensure that are fully advised of your rights prior to reaching any binding agreements it is best to have counsel present at mediation. However, if your financial circumstances forbid you from doing so, then make sure to incorporate a provision in your mediation agreement allowing for attorney review before you sign the agreement.

For more information, see Supreme Court of Florida Case No. SC11-1454.

Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law.  She is admitted to practice law in the State of Florida. She primarily practices in Lee County, Florida in Cape Coral and Fort Myers, Florida.

In today’s economy parties to a divorce often agree to sell the marital home in their marital settlement agreements.  Often the sale of the marital home takes considerable time following settlement to accomplish and the parties must make arrangements for payment of maintenance expenses pending the sale.  It is important to be very careful when making these estimations because both parties will be bound to the literal marital settlement agreement, even if certain events are not anticipated at execution.  For example, in one recent case the parties agreed to split prepayment penalties, real estate taxes, assessment, association fees, and insurance until the home was sold.  They also agreed to resolve a dispute with the roofing company at closing.  Ultimately, the Wife in this case resolved the dispute without input of the Husband.  The Husband argued that since he was not involved in the resolution of the dispute he should not be liable for half of the cost.  The Fourth District Court of Appeal found

[t]he MSA [marital settlement agreement] required that the dispute between the parties and the roofer be resolved, not that they both make the decision to resolve the dispute.” Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th DCA 2012).

The marital settlement agreement further provided that the Husband pay the Wife $15,177 from his share of the proceeds of the sale of the home for equitable distribution resulting from the distribution of retirement accounts to the Husband.  Unfortunately, there were no proceeds from the sale of the home and thus the Husband argued he should not be liable for that payment.  The appellate court again found for the Wife stating

[p]ayment from the closing proceeds is not a conditions precedent, only a source for the payment.” Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th DCA 2012).

When drafting a marital settlement agreement it is very important that you consider the implications and consequences of even simple clauses in the agreement.  If you are signing a marital settlement agreement it is imperative that you seek legal counsel.

See, Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th 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.

Often one of the last things Courts want to deal with at trial is all of the personal property in the home.  This is one of the areas of the divorce which parties should make a concerted effort to resolve amongst themselves.  However, sometimes it cannot be accomplished and the matter must be tried before the Court with other property.   In a recent case, at trial, the Judge ordered the parties to attend mediation to resolve the issue of dividing the contents of the home after the trial.  The appellate court reversed citing McAvoy v. McAvoy, 662 So. 2d 744,745 (Fla. 5^th DCA 1995) (“the parties are entitled to a final distribution of their assets and liabilities at the time of dissolution”).

This case also held that when the Husband consolidated investments into one investment after filing the entire appreciation of the asset was marital and subject to divide.

See, Kumar v. Kumar, 37 Fla. L. Weekly D725 (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.

Florida law is well settled that absent a contractual agreement releasing the liability on the promissory note, parties are responsible for the debt even after the foreclosure process is complete.  Therefore, a trial court cannot factor the speculative release of the debt in its award of equitable distribution.

A recent case out of the Third District Court of Appeal deals with this very issue.  The Husband wanted to let the marital home go into strategic foreclosure due to being underwater on the home by approximately $76,000.  However, the Wife did not want to have her reputation tarnished.  The trial court found that most people in their situation would elect strategic foreclosure and since the Wife insisted on keeping the house she should solely be liable for the debt.  The Appeals Court reversed finding this rationale legally insufficient.  Specifically, since Florida law is well settled that absent a contractual agreement releasing the liability on the promissory note, parties are responsible for the debt even after losing the collateral, the Appeals Court found the liability to be marital.  Further, as the trial court’s rationale was not within the statutory guidelines for deviation from an equal division, the Appeals Court found the trial court’s rational legally insufficient.  

See, Bryne v. Bryne, 37 Fla. L. Weekly D688 (Fla. 3d 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.

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.

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.

In a typical divorce one of the major issues is “equitable distribution.” In Florida equity generally means a 50/50 split.  Although the courts do not have to evenly divide the property, the court must have legal justification for deviating from this standard. 

In a recent case the Husband had used an investment account worth approximately $50,000 to live on during the divorce case.  By the end of the case the account had no money left in it.  In ordering the equitable distribution the trial court ordered that account credited to the Husband.  However, the court did not make any provision for the fact that the Husband has literally spent the wife’s half of that account. The appellate court reversed the trial court stating:

the trial court’s attempt to offset Dan’s unauthorized expenditure by awarding him the worthless account was insufficient because Dan spent Ava’s half of the TD Ameritrade proceeds.”

Absent specific statutory reasons to deviate from an equitable distribution the trial court must order a near even split of the assets and liabilities.

See, Bryne v. Bryne, 37 Fla. L. Weekly D190 (Fla. 3rd 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.

More than likely yes, however the language in the agreement will be very important.  Florida’s Constitution provides for significant protections to homestead property provided certain requirements are met.  This protection extends to the sale of the home to purchase a new home.  However, in the case of a divorce, sometimes the parties agree to sell the marital home and divide the funds. 

Language in this agreement can be very important.  In a 1996 Fourth District Court of Appeal Case the husband agreed:

Judgments, Liens, and Lawsuits Satisfied: The Husband shall satisfy any and all outstanding judgments pending against him from his share of the proceeds received from the sale of the marital property.  Husband shall further be responsible for any and all potential claims, lawsuits, or judgments pending against him individually or in connection with his profession.”

Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996).  In that case the Court found that the Husband’s share of the proceeds were subject to claim by third party creditors.  However in a recent case out of the Third District Court of Appeal, the Court found different language to provide protection from creditors, specifically, from a previous marriage’s child support claim. In that case the parties agreed:

The parties agree that any lien or encumbrances on the marital home not specifically listed in the parties’ Marital Settlement Agreement or Addendum thereto as liens or encumbrances to be paid shall be the sole responsibility of the Husband and shall be paid from his share of the proceeds.  This shall include, but not be limited to, lien(s) from the Husband’s attorney and any loans taken by the Husband except those listed in the Marital Settlement Agreement and Addendums thereto.”

Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). In Kerzner, the Husband, once the liens were satisfied, intended to reinvest his share of the funds into a new home.  The Court found the lack of the language “any and all outstanding judgments pending against,” from the Myers, case made it distinguishable and Husband’s share was protected from creditors other than creditors of the marital home. 

As previously mentioned, the specific creditor at issue here was his previous Wife claiming past due child support.  This is an important secondary point from this case that even child support claims are unable to collect on Florida Homestead. . 

See, Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). See also, Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996). 

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.

The short answer is maybe.  Prior to considering the impact of the dissipation of marital funds the Court will need to consider a couple important factors.  First, when did this dissipation occur?  For example if the gambling occurred throughout the marriage it will be less likely to be an major factor in determining the division of property. However, if it occurred immediately around separation it is more likely to result in an offset of marital property. Second the Court will determine if there was a “marital purpose” to the dissipation.  Again, for example, if one spouse gambled while entertaining business clients which contributed to marital income, the dissipation will likely not favor an unequal offset.  However, if one spouse was an addict who simply wasted marital funds on gambling it could favor an unequal distribution.

In a recent case from just north of Fort Myers, the Court found that a Husband who gambled as part of entertaining clients throughout the entire marriage was serving a marital purpose.  As such the Court found it inappropriate to penalize him at the divorce for these actions. The Court found that while the Wife may have been frustrated by these actions throughout the marriage, the actions obviously served a marital purpose. 

See, Zambuto v. Zambuto, 36 Fla. L. Weekly D2758 (Fla. 2nd DCA 2011).

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.