The Florida legislature passed Senate Bill 718 which aimed to drastically overhaul Florida family laws.  In summary the bill made two major changes.  First, it completely changed the alimony laws in Florida.  It eliminated what is known as “permanent periodic alimony.”  Permanent periodic alimony is rarely ordered under current law, as the Court must find that no other alimony is appropriate prior to ordering permanent periodic alimony.  In the cases where permanent periodic alimony is ordered the marriage is almost always one of “long duration,” or over seventeen years.  There must also be a need by one spouse and the ability to pay by the other spouse. The bill made other changes to alimony in cases of short and moderate duration marriages.  Primarily establishing alimony guidelines, similar to the Florida child support guidelines. This bill would have applied retroactively, meaning, final judgments and even agreements previously reached would be affected.

The other major proposed change was to child time-sharing.  The legislation would have created a presumption for equal time sharing.   Under current law most family attorneys and judges strive for an equal time-sharing plan.  However, there are certain factors the Court must consider before ordering timesharing.  The overriding concern for the family court judge in any child case is the best interest of the child.  The proposed legislation essentially mandated that equal time-sharing was in the best interest of the child absent a showing otherwise.

Below is the letter that Governor Scott wrote explaining his reasons for the veto.

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.

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.

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.

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.

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 the spouse vacating the home should usually be given some sort of credit to offset the value of remaining in the home.  Typically, the Court accomplishes this in two ways.  One way is through spousal support, the other is through equitable distribution.  A recent case dealt with this issue through equitable distribution. The court ordered the marital home sold; however, it permitted the husband to remain in the home until it was sold, provided he paid the mortgage, taxes, and other maintenance fees.  The court did not allow the husband any offset in the equitable distribution finding only that it was offset by the fair rental value of the home. The court did not make any findings as to the amount of the fair rental value for the home.

Mortgage and other maintenance expenses do not necessarily equal the fair rental value of the home.  When the court is making a distribution such as this it is necessary for it to determine the fair rental value and make an offset equal to the deficiency or excess of the payments made by the spouse remaining in the home and the fair rental value of the home.

See, Tuomey v. Tuomey, 36 Fla. L. Weekly D2539 (Fla. 5th 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.

Florida Statute § 88.6041 explains how out of state support orders are to be enforced in Florida.  It provides:

(1) The law of the issuing state governs the nature, extent, amount and duration of current payments and other obligations of support and the payment of arrearages under the order

(2) In a proceeding for arrearages, the statute of limitations under the laws of this state or of the issuing state, whichever is longer, applies.”

Fla. Stat. § 88.6041 (2010).  In summary, the order from the issuing state will govern the details of the support.  However, as to how long the payee has to enforce the order, the state’s law which provides the longer time period for enforcement will govern.  Support orders include child support and spousal support which is commonly referred to as alimony.

Florida allows the payee an unlimited amount of time to enforce a support order.  Thus when an out of state support order is being enforced in Florida, it may be enforced at any time, up to and including against the estate of a deceased payor.  There are affirmative defenses to enforcing an out of state order which may be relied on by the payor; however, these defenses will require an evidentiary hearing based on the conduct of the parties and not simply the passage of time.

See Jackmore v. Jackmore, 36 Fla. L. Weekly D2217 (Fla. 1st 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.

Rehabilitative alimony must establish a set time period.  A recent divorce case originally from Fort Myers, Florida went up on appeal addressing this very issue.  This case dealt with a seven year marriage.  The Judge correctly decided that permanent alimony was not appropriate.  However, he did order the Husband to pay rehabilitative alimony to allow the Wife to finish her education to become a school teacher.  At trial, the parties disputed how long her education would take to complete.  The Final Judgment of Dissolution of Marriage stated only that the Husband would pay $3,500 a month in rehabilitative alimony while the Wife finished school.  It did not address for how long he would be required to pay alimony to the Wife.  

The Husband appealed this issue because without a set end point it was possible this rehabilitative alimony could go on forever.  The Second District Court of Appeal agreed with the Husband, finding that orders of rehabilitative alimony must establish a set time period with a specific termination date.

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law, and Civil Litigation.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

See Draulans v. Draulans, 36 Fla. L. Weekly D2065 (Fla. 2d DCA 2011).