Articles Posted in Financial affidavits

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In dissolution of marriage actions, attorney’s fees are frequently awarded when there is a large disparity in the parties incomes. Generally speaking, the underlying premise is to “put the litigants on an even playing field.” Both parties should have the ability to retain and be represented by competent counsel throughout the dissolution of marriage proceedings. This holds true whether the proceedings are in Boca Raton, Delray Beach, Fort Lauderdale, or anywhere else throughout the state of Florida.

The award of attorney’s fees is governed by Florida Statute 61.16, which is titled as Attorney’s fees, suit money and costs. An award of attorney’s fees requires both of the parties to appear in front of the judge and to present their evidence regarding income, expenses, and their respective needs for an attorney’s fee request.

A judge has the discretion to make an award of attorney’s fees on both a temporary basis as the case is progressing, as well as on a permanent basis as the case is concluding.

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In a case recently decided, a wife was awarded an astounding sum of $75,000.00 per month for temporary support for herself and her child. Stanton v. Stanton, 2D10-919 (2010).

The appellate court said this amount simply could not stand, as the amount was not supported by competent substantial evidence.

The trial court should consider the standard of living in addition to the need of one spouse and the other spouse’s ability to pay. de Gutierrez v. Gutierrez, 19 So.3d 1110, 1113 (Fla. 2d DCA 2009).

Here, in this case, the wife had testified that her monthly expenses totaled $44,029, including those of her child. Her financial affidavit also indicated her monthly expenses to total $44,029. It was clear to the appellate court that the trial judge had erred in making an award of $75,000 per month for the wife when the evidence reflected that the wife’s needs were $44,029. Also CLICK HERE to visit my site for the most updated information on the new alimony laws in Florida.

The appellate court gave further instructions to the trial court that the award to the wife must be based upon her needs, and should not attempt “to fund the enjoyment of every
little luxury enjoyed before divorce.” Levine v. Levine, 964 So.2d 741, 742-43 (Fla. 4th DCA 2007).

The purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce. “Fixing alimony at a profligate standard of living is to turn alimony into a lottery. That is one reason why the standard of living during marriage is not a super factor trumping all other factors in awarding alimony. Jaffy v. Jaffy, 965 So.2d 825, 828 (Fla. 4th DCA 2007).
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Although the sum of $44,029, awarded to the wife on a monthly basis was certainly not a nominal amount, this case still clearly points out that the standard for temporary relief is clearly the needs of the requesting spouse versus the ability of the other spouse to meet those needs.

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coins question mark desktop.jpgIn every dissolution of marriage action filed in Boca Raton, Fort Lauderdale, or anywhere else throughout the state of Florida, the parties are required to file a financial affidavit which details their income, expenses, assets and liabilities. The importance of filing this document in an accurate manner cannot be over emphasized.

What happens when assets are not disclosed by a party to the divorce proceeding?

In Romero v. Romero, 959 So.2d 333 (Fla. 3DCA 2007), the husband failed to disclose stock options he had received over the course of the marriage, and which the wife was unaware of. They were ultimately discovered by her after the proceedings concluded, and she subsequently tried to reach them through the use of a constructive trust.

The trial court concluded that these options were marital assets because they were awarded to the husband based upon his past qualifications and experience over the course of the marriage.

The wife testified that had she known about them, she would have wanted half; that she would have exercised them; she would have sold them, and would have used the proceeds to reduce the mortgage on her home.

The decision of the trial court, awarding the wife half of the options, was ultimately reversed on appeal. The appellate court ruled that the wife failed to establish the elements of fraud, and “impermissibly stacked inference upon inference, with the full benefit of hindsight, culminating in a final judgment based solely upon speculation.”

What makes this case rather interesting is the fact that neither party completed a thorough examination of their assets when they drafted their marital settlement agreement. Given theses circumstances, the court concluded that the husband did not commit any fraud in not disclosing his stock options.

It is important to recognize that a petition to set aside a final judgment in a divorce case cannot be done simply because of non-disclosure on a financial affidavit. There must be more. The moving party must still establish a ground for setting aside the judgment pursuant to Florida Rules of Civil Procedure, Rule 1.540(b)(3).

In other words, a movant must show not just that the affidavit contained a false statement of a material fact, but also that it was fraudulent, i.e., that the person making the false statement knew that it was false, that the false statement was made with the intent that the other party would rely on the false statement, and that the other party actually relied on the false statement and was thereby prejudiced. Ward v. Atl. Sec. Bank, 777 So.2d 1144, 1146 (Fla. 3d DC 2001).

The moral of the story is to exercise due diligence in not only completing your financial affidavit, but to also conduct your own extensive investigation into discovering the nature and extent of all marital assets. For more valuable information regarding this subject or any other subject that you may have an interest in, please click the following link which will take you over to my site,