August 2010 Archives

August 28, 2010

How much alimony is just too much?

We now know that a 17 year marriage is considered a long term marriage under Florida law. A long term marriage raises the presumption of permanent alimony. The new alimony statute lists various criteria that the trial judge should consider in making the determination to award permanent alimony, but it doesn't tell us how much is to be paid.

The standard in alimony awards continues to be the needs of the recipient, balanced against the ability of the obligor to pay and meet those needs. There are thousands of cases on the books which deal with alimony. The following cases are representative of alimony awards which the court has ruled to be excessive, and can certainly be utilized and applied when considering the circumstances in your own particular case.

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In Thomas v. Thomas, 418 So.2d 316 (Fla. 4th DCA 1982), the wife was awarded 58% of the husband's net income. The court ruled that this amount was excessive and reversed the award.

Although there was no mention of any percentages being paid, the court in Posner v. Posner, 988 So.2d 128 (Fla. 4th DCA 2008) reversed an award when "the total support and expense awards consumed nearly all of the obligor's net monthly income."

An abuse of discretion was found in Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990) when the husband was ordered to pay 79% of his income for support.

In Benenfeld v. Benenfeld, 705 So. 2d 1072 (Fla. 4th DCA 1998) an award of 80% of the husband's net income was found to be excessive.

Seventy Six (76%) percent of the husband's income was ruled to be excessive in Decker v. Decker, 660 So. 2d 1162 (Fla. 4th DCA 1995).

Dennison v. Dennison, 852 So.2d 422 (Fla. 4th DCA 2003), the court found an award of alimony, in the amount of $3,000.00, combined with an award of child support of $1,500.00, to be excessive. The husband was showing net monthly income of $5,500.00.

In the case of Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983), an award of 71% of the husband's net income was found to be an abuse of discretion.

70% of the husband's income was excessive in Kaylor v. Kaylor, 413 So.2d 870 (Fla. 2d DCA 1982).

In Casella v. Casella, 569 So.2d 848 (Fla. 4th DCA 1990), an award of 70% of the husband's net income was also found to be clearly excessive.

The ultimate question that arises from this discussion is what percentage of support, when paid, becomes excessive? There is unfortunately, no simple answer. Each individual case must be examined on its own set of facts. What may appear to be an excessive award of alimony in one case, may not necessarily be excessive in a different case. It all depends on the unique facts of each case as they come before the court.

August 25, 2010

When should equitable distribution be unequal?

Equitable Distribution of marital assets is governed by the provisions of Florida Statute 61.075(1). That section provides that, in distributing marital assets and liabilities, a court "must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors...."

What factors then, would entitle the court to deviate from an equal distribution, and award one party more than the other?

When one spouse engages in conduct which results in the dissipation of marital assets, the court is warranted in making an unequal distribution. Hood v. Hood, Case No. 5D09-593, decided on July 30, 2010. Dissipation has been defined in the domestic relations context as "where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown."

Adultery can be considered as a factor when the court is fashioning an unequal distribution of the marital assets and liabilities of the parties, to the extent that marital misconduct depleted marital resources. As an example, the wife, in the case of Rabbath v. Farid, 1st District, Case No. 1D07-6583 had alleged in her petition that her husband had dissipated over $383,551.00 in marital funds while engaging in an extra-marital relationship.

The husband gave evasive answers and failed to adequately account for his various banking records. A combination of the husband's evasive answers and other competent evidence presented by other witnesses justified the court in making an unequal distribution of marital assets.

Other cases make it very clear that when a party contributes and commingles substantial non- marital assets to the relationship, that factor alone is not a basis for an unequal division of marital assets. In Hitchcock v. Hitchcock, 4th District, Case Nos. 4D06-4743 & 07-1049, decided on October 22, 2008, the court made just such a finding. A presumptive gift occurs when non-marital assets are commingled with other marital assets.

August 23, 2010

Who will get custody of the family dog?

Although a dog is viewed as a member of the family, no one in a divorce case is going to end up with custody of the pet.

A dog, or any other animal, is considered personal property, and personal property is divided between the parties pursuant to the equitable distribution provisions of Florida law. This means that there will be no fighting over custody and visitation privileges with the family pet.

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The trial judge in Bennett v. Bennett, 20 Fla. L. Weekly, D225a didn't see it this way. The judge who presided over the case initially awarded custody of "Roddy", the family dog, to the husband, subject to alternating weekend visitation privileges for the wife. The ruling created a never ending stream of conflict between these two parties.

On appeal, the decision was reversed. The appellate court explained that a dog, or any other animal, is allocated to one party or the other as part of the equitable distribution of the marital assets. The pet is considered personal property, and there is no provision under Florida law to order either custody or visitation rights of a family pet.

Several cases on record establish this principal of law. Two that come to mind are County of Pasco v. Riehl, 620 So2d 229 (Fla. 2d DCA 1993) and Levine v. Knowles, 197 So2d 329 (Fla 3d DCA 1967). Perhaps it would be a good idea for married couples to have two dogs, one for each of them, in the event of a divorce.

August 23, 2010

Will a $300,000.00 child support debt land you in jail?

Maybe yes, or maybe no. The fact that such a large indebtedness exists, in and of itself, is not the determining factor that may lead to incarceration. The court must first determine how much of that debt can be presently paid by the obligor. This amount becomes the "key" to the jailhouse cell for the obligor.

This principal for asserting civil contempt in family law cases was established by the Florida Supreme Court, in the case of Bowen v. Bowen, 471 So.2d 1274, 1278-79 (1985). The Bowen case requires a two step analysis. First, the court must determine if the obligor, who is behind in his payments, has willfully violated the court order for support; and second; the court must determine an appropriate remedy which is to be imposed in order to compel the defaulting individual to comply with the court's orders.

If the court wishes to incarcerate an individual for willfully failing to pay support, an affirmative finding must first be made to determine what the present ability is to meet a purge condition. A purge is generally a dollar amount that the defaulting party has the "present and current ability" to pay. Once that amount has been determined, the obligor or defaulting party can either pay or go to jail; his or her release will be subject to the payment of the purge established by the court.

Quite frequently, the purge payment represents a very small percentage of the support that is actually owed. It could literally be pennies on the dollar.

A recent case from the 3rd District illustrates the principals involved in jailing an individual for non payment of support. See the case of Aburos v. Aburos, Case No. 3D08-2808, decided on April 21, 2010. The former husband owed $319,828.00 in child support payments. He was found in willful contempt, and was ordered to be taken into custody. The court established a purge amount of $25,000.00, which amount would represent the" key to his cell". On appeal, the appellate court ruled that it was simply error to establish a "purge amount" when there was no evidence in the record that the former husband had the "current and present ability" to pay the amount as ordered by the court.

August 22, 2010

Child support arrears and the IRS...Can they take my refund?

Just when you were thinking about all the different ways in which you were going to spend your tax refund, reality sets in, and you realize that the IRS has intercepted your money. How can they do this; is it really possible; can the IRS take my refund and apply it against child support that I owe? The answer is YES!

The authority of the IRS to intercept tax refunds was established pursuant to Title IV-D of the Social Security Act and the Internal Revenue Code. The program is known as TRIP, or the tax refund intercept program.

The TRIP program is administered by the Florida Department of Revenue in cooperation with the United States Internal Revenue Service (IRS). The authority of the Department of Revenue to act in this capacity is found in Sections 409.2554(1) & 409.2557(1) of the Florida Statutes, (2008).

This does not mean that the TRIP program is absolute, and without safeguards for the taxpayer. A delinquent parent does have rights. A delinquent parent is one who owes at least $500.00 in past due child support. This parent must first be certified by the State of Florida to the Federal Office of Child Support Enforcement. If the intention exists to intercept the taxpayer's refund, he or she must be given 30 days advance notice in which to challenge the action. The procedure to be followed in challenging the action along with an analysis of the TRIP program can be found in the case of Florida Department of Revenue, Child Support Enforcement, o/b/o Tammy J. Baker v. Harvey Baker, 1st District Case No. 1D09-1929, decided on December 31, 2009.

You may feel that the amount of child support arrears that is owed may be inaccurate, or you believe that there are no arrears or delinquencies. Don't delay in bringing this to the attention of the court. Get a hearing scheduled and get the matter clarified before year end. It will save you a lot of time and energy by taking a proactive approach with this issue, rather than a reactive one.

August 22, 2010

A long term marriage is now officially 17 years !

Some areas of the law are "black and white" in that based upon a prescribed set of facts, you knew exactly where you stood. Some areas are "gray", which is especially true in the context of a divorce case, where the family court judge presiding over the case has a wide range of discretion . This was never more true than when dealing with the issue of alimony.

Alimony was always the "wild card" in a divorce case. If the entitlement to alimony was apparent, the recipient never really knew what to expect as to how long the financial assistance would continue, nor did the obligor really know what their exposure would be to pay the obligation. That has all changed now, with the enactment of Florida Statute 61.08, effective July 1, 2010.

The Florida legislature has now categorized marriages into three types, short term; moderate-term; and long term marriage, all of which are determined by the length of the marriage.

A short term marriage is one in which the duration is less than 7 years; a moderate-term marriage is from 7 years but less than 17 years in duration; and a long term marriage is one which exceeds 17 years duration. The time period is measured from the date of the marriage to the date of filing the dissolution of marriage action.

The length of the marriage is important, since it becomes the determining factor in the type of alimony to be paid and received. For example, once you fall into a long term marriage bracket, the presumption exists for the payment of permanent alimony, the amount of which would continue to be measured by the needs of the recipient, balanced against the financial ability of the obligor to meet those needs. Although there is only a presumption in favor of permanent alimony, rather than a directive, that presumption may be difficult to overcome.

What about the other two categories, short term and moderate-term marriages? What is the relationship between alimony and these types of marriages? The Florida legislature, in Chapter 61.08, has defined four types of alimony, which are bridge-the-gap; rehabilitative; durational; and permanent.

Bridge-the-gap alimony is generally reserved for those falling within a short term marriage, and is utilized to assist one in making the transition from being married to being single. The length of the award cannot exceed two years.

An award of rehabilitative alimony may be awarded to assist a party in establishing the capacity for self support. This is to either redevelop previous skills or for receiving the training to acquire new skills. There must be a specific plan in place to achieve these objectives.

Durational alimony may be awarded when permanent alimony is not appropriate, and it may not exceed the length of the marriage.

By having these objective standards in place, the subject matter of alimony is now approaching the "black and white" zone of the law.

August 21, 2010

Eighty one year old man required to pay permanent alimony!

As the old cliche goes, "nothing is forever", including either the award of or agreement to pay permanent alimony. Support obligations are always subject to modification.

However, in order to justify a modification of alimony, the petitioning or moving party must prove (1) a substantial change in circumstances; (2) that the change was not contemplated at the time of entry of the final judgment of dissolution of the marriage; and (3) that the change is sufficient, material, permanent and involuntary.

One should be mindful of the fact that there is a very big difference in modifying alimony downward due to a change in final circumstances, versus a complete termination of alimony. In order to terminate a permanent periodic alimony obligation, one must allege and be able to prove that he or she is no longer able to pay any amount of alimony or that the recipient of the alimony is able to support themselves through their own efforts and abilities.

A recent case from the Third District Court of Appeal, decided on August 18, 2010 offers a good explanation as to the heavy burden involved in terminating permanent periodic alimony. Suarez v. Sanchez, 3rd District Case No. 3D09-1593.

Mr. Sanchez was an eighty one year old gentleman, whose health had deteriorated since the dissolution of marriage was entered, and due to poor health, chose to take a voluntary retirement. Although he had met his burden in establishing a basis for a modification of his alimony payment, he did not meet the very heavy burden of having his payments terminate in their entirety. The evidence presented in the case demonstrated that Mr Sanchez had an annual surplus of approximately $10,000.00; and the former wife had an annual deficit of approximately $19,000.00.

Since the ability to continue to pay something existed, although at a reduced amount, the alimony obligation would continue, even at the age of 81.

August 20, 2010

Has custody been abolished in Florida?

Recent legislation in Florida has changed the way we now provide for minor children in a divorce case. The manner we have previously been accustomed with in dealing with the issue of custody has in fact been abolished in Florida.

The new parenting and time sharing provisions of Florida law are found in Chapter 61.13. All of the old nomenclature and terminology regarding "custody" of minor children has been abolished. The reason for this is really quite logical. Emotions run high in a divorce case, and the minor children are generally the focal point of the dissolution of marriage proceedings. If one parent felt that they could come out of the litigation with the title of "custodian", it was often times viewed as some type of victory. This resulted in unnecessary litigation, expense, and emotional toll upon the parties, as well as the children.

The new legislation removes the issue of "custody" from the battleground. There is no longer a need for the mother or father to fight over obtaining the prize for becoming the "custodian" of the minor children. Now both parents simply enter into a Time Sharing Plan, whereby certain days of the week, as well as various responsibilities of each parent, are spelled out in a written contract or plan.

A Parenting Plan can be very detailed and elaborate as the particular situation dictates, or it can be very general. It is up to the parents to create their own plan, based upon their individual and unique circumstances. However, a Parenting Plan, in order to be approved by the Court, must, at a minimum, contain certain provisions. A Plan must describe in detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of health care, school-related matters including the address to be used for school-boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the child.

It is the public policy of the state of Florida that each minor child has frequent and continuing contact with both parents after the parents separate or once the marriage of the parties is dissolved. By abolishing the old manner of dealing with minor children and doing away with the "custody" determination , the process should become a less costly one for the parties, both on a financial as well as on an emotional level.