Currently Florida’s alimony laws are governed primarily by Florida Statute § 61.08 and the relevant caselaw surrounding alimony.  Florida Statutes were heavily revised in 2009 codifying much of the preceding caselaw.  In Florida there are four types of alimony, bridge-the-gap, rehabilitative, durational, or permanent.  The type and duration of alimony is based on the length of the marriage, need of the recipient spouse, and ability to pay of the payor spouse.

Marriages lasting less than seven years are considered short term marriages.  Permanent alimony is rare for marriages of this length.  However, bridge-the-gap, rehabilitative, or durational alimony may be appropriate if there exists need and ability to pay.  Marriages of seven to seventeen years are considered moderate duration marriages.  For moderate duration marriages alimony is more likely to be awarded; however, it is still unlikely that the court will award permanent alimony absent clear and convincing evidence of need and ability to pay.  Marriages exceeding a length of seventeen years are the most likely to have permanent alimony awarded when there exists need and ability to pay.

When determining whether alimony is appropriate the Court is guided to look at several statutory factors, including:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.”

Fla. Stat. §61.08(2)(a-j).

The Florida House of Representatives is currently considering House Bill 231 which would dramatically change Florida’s alimony laws.  Among the major changes the bill would eliminate permanent alimony.  It would also eliminate much of the discretion our trial judges currently possess in determining need and ability to pay.  The new language would provide stringent guidelines for the percentage of the payor’s income which may be awarded for alimony and for the duration a party may receive the alimony.

For more information about the current alimony laws please visit: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.08.html

For more information about the current proposed alimony revisions: http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0231__.docx&DocumentType=Bill&BillNumber=0231&Session=2013

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.

When scheduling a hearing the attorneys attempt to estimate to the best of their ability the amount of time necessary for a given hearing.  Sometimes, this estimate is inaccurate. Due process requires that both sides be given an approximately equal amount of time to present their evidence and argument.  If there is not enough time to present evidence for one side it may be necessary to continue the hearing.  Unfortunately, this may result in a delay in receiving an order but is the proper procedure.

In one recent Second District Court of Appeal case the trial court was hearing the issue of attorney’s fees and costs.  The Wife was not able to complete the presentation of evidence for her case.  The Husband was not given an opportunity to present any evidence.  The trial court continued the hearing; however, prior to the scheduled hearing the trial court denied the motion for attorney’s fees in favor of the Husband.  Even though the Wife had some opportunity to present evidence and the court ruled in favor of the Husband, it was still error to rule prior to allowing both sides to present evidence. 

A trial court’s failure to allow a party to present evidence to be heard on the issues pending before the court constitutes a denial of due process.”

See, Farrell v. Farrell, 37 Fla. L. Weekly D882 (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.

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.

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.

One of the most common issues for long duration marriages in Florida is the spouse who has a college degree and can work but who has not worked recently in the marriage.  For example, the parties may agree for one spouse to stay at home while the children are younger but agree that the spouse will return to work as the children grow up. As it becomes time for the spouse to return to work the marriage breaks down and at the time of divorce the stay at home spouse is alleging need of permanent alimony. 

While the case is obviously harder to prove because the status quo was that the spouse was not working, it is possible to decrease a spouse’s need based on their proven ability to contribute to their own support.  In a recent case from the Twentieth Judicial Circuit, which includes Fort Myers, the Wife stayed home with the children and ran a small home business.  However, she had a nursing degree and admitted she could return to work full time.  The Court found that it was reasonable that she return to work and decreased her need based on her ability to earn full time income.  In these circumstances it is required to prove actual ability to earn and not purely a speculative ability to earn. 

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.

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.

Yes, the Court may change the primary residential parent based on a refusal to comply with the Court ordered time-sharing. Florida Statute § 61.13 provides that the trial court “[m]ay upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interest of the child.” Fla. Stat. 61.13(4)(c)(6) (2010).

However, procedure is everything in the law.  Specifically, the trial court CANNOT change the primary residential parent based on contempt of court. In a recent case the trial court attempted to change the primary residential parent as a contempt of court proceeding.  There were many issues with the trial court’s ruling, first the trial court did not allow the Father to be heard in the proceedings.  Second, the Mother did not even ask for the primary residential parent to be changed.  Most important though, the trial court did not find it would be in the best interests of the children to make this change.

Therefore, if you are having trouble with a time-sharing agreement it is important to seek modification through the proper channels.  The court may award make up time-sharing for failure to comply with the court order time-sharing agreement; but it may not change the primary residential parent under a contempt charge. 

See Hunter v. Hunter, 65 So. 3d 1213 (Fla. 2d DCA 2011) (Hunter I); See also, Hunter v. Hunter, 36 Fla. L. Weekly D2274 (Fla. 2d 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.