Articles Posted in Alimony

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Although there have been several recent attempts to abolish permanent alimony in Florida, all those recent attempts have failed.  Permanent alimony is still alive and well in the State of Florida.

So what does this mean to you, either as a potential recipient, or as a potential payor of alimony?  Permanent alimony is generally, as a rule, reserved for those cases in which the marriage has lasted at least 17 years.  Once that 17 year threshold is met, the potential for either paying or receiving permanent alimony is quite real.

An award of permanent alimony is not however, based solely upon the years of marriage between the parties.  The court is still required, and is mandated by Florida Statute 61.08 to consider the 10 factors listed in that statute regarding the award of alimony.

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Although 401K accounts and IRA retirement accounts are generally protected from creditors, they may not have the same protection against an ex- spouse regarding the payment of alimony or child support arrears.  Stated another way, if you are owed either alimony or child support, do you have a right to collect the monies owed from your ex-spouse’s retirement accounts?

Statutes that were designed to protect the family assets from creditor claims, so that the family would not become dependent upon the state for support, do not afford an individual the same protection against their ex-spouse for the payment of child support or alimony arrears.

In order for a spouse to reach funds held in a retirement account, whether it be an IRA or a 401(k), there must first be an existing support order.  Next, there must be a finding by the court that there are in fact arrears owed pursuant to that court order which have accrued as a result of nonpayment by the obligor.  If the court makes an affirmative finding that the obligor has willfully refused to pay support obligations, he or she may be found in contempt of court.

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The rate at which alimony and/or child support arrears are repaid is largely dependent on whether or not an income withholding order has been previously entered in the case.

If an income deduction order or income withholding order has been entered, Florida Statute 61.1301(1)(b)(2) mandates that any arrears must be repaid at least at the rate of 20% of the regular monthly support obligation. This is a nonnegotiable amount that cannot be repaid at less than the 20% rate based upon the statutory mandate.

The situation is a little bit different when there is no previously existing income withholding order.  The court has more discretion to dictate the terms at which arrears will be repaid to the recipient.  Case law has made it clear that in situations where income deduction or income withholding orders are not at issue or in play in the case, the trial court would have discretion to provide a different rate of payment on existing arrears.

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All income available to the recipient of alimony should be taken into consideration prior to the court assessing the amount of alimony to be paid.

Income from all sources reduce the “needs” of the spouse who is claiming alimony from the other party.  “Needs versus ability to pay” is the general standard utilized by the courts in determining alimony awards.  The importance of examining all sources of income available to the recipient of alimony cannot be understated.

Interest earned on 401(k) retirement accounts should be considered as income available to the spouse even though the spouse is not able to draw on the income until he or she reaches the age of 65.  Niederman v. Niederman, 6o So3rd 544 (Florida 4th DCA 2011)  stands for that very principle.  This is true regardless of whether the recipient of the alimony award has attained the age at which funds may be withdrawn without penalty.

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A trial court is required to make sufficient findings about an individual’s ability to pay alimony.  A litigant requesting alimony has the burden of proof on both his or her financial need as well as the other spouse’s ability to pay and meet that need. Gilliard v. Gilliard, 162 So3rd 1147 (Florida 5th DCA 2015).

In a recent case, Rutan v. Rutan, 177 So3rd 35 (Florida 2nd DCA 2015), the trial court noted the well-known ability of “self-employed spouses, in contrast to salaried employees, to control and regulate their income.”

Reasonable inferences made by a trial court from the evidence submitted regarding a party’s income are not enough. Inferences, no matter how reasonable, do not constitute a satisfactory substitute for the trial court making specific findings concerning the actual amount of income that would justify an alimony award.

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Alimony is an area of the law that requires a fact intensive investigation by the court.  When a court decides to either award an alimony claim or deny an alimony claim, the court is required to consider all of the statutory factors set forth in Florida Statute 61.08(2).

If a final judgment fails to consider all of the factors set forth in Florida Statute 61.08, the judgment is fatal, and the award or denial of alimony will be reversed and remanded to the trial court for further consideration.

This problem arose in a recent case from Broward County, Florida. In the case of Badgley  v. Sanchez, 165 So3d 742 (2015), the trial court failed to consider all of the statutory factors in making an award of alimony.  The appellate court took note of the fact that some of the statutory factors were considered, but not all of them.  The appellate court stated that a failure to consider all of the mandated factors is reversible error.

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It is understandable that some spouses who are divorcing are not necessarily in the mindset to cooperate with one another. After all, fighting and disagreements have likely played a role in the decision to end their marriage. However, refusal to come to an agreement regarding one or more issues in a divorce can cause serious delays and can increase the cost of a divorce.

Before a court will grant your divorce, you and your spouse must settle numerous issues including:

  • Property and debt division;
  • Child support;
  • Time-sharing and visitation;
  • Parenting plans;
  • Alimony.

If any one of those issues cannot be settled out of court, the divorce can be delayed as the court will have to decide for you. You and your spouse will have to present evidence to support your arguments for how you want to resolve the issue at trial and the judge will rule on the matter.

A recent divorce case demonstrates just how much a divorce case can be affected by adversarial disputes instead of cooperation. After 25 years of marriage, the wife of the founder of Cancer Treatment Centers for America filed for divorce. The filing occurred in 2009 and the case is still dragging on due to several disagreements regarding a prenuptial agreement, custody, and division of their millions of dollars in assets. The case has involved numerous hearings, appellate hearings, changes of lawyers, contempt orders, and other complications, and is now finally going to trial over asset and property division. In the meantime, both spouses have likely spent an enormous amount of money, stress, and time dealing with the divorce proceedings and have been unable to remarry since their marriage is not yet dissolved after more than six years. Continue reading

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Divorce can be an uncertain or stressful situation for anyone. After all, many facets of your life from your living arrangements to your finances to your relationship with your children will likely change. While these changes may be difficult for anyone, they can be particularly difficult and stressful for a parent who has decided to stop working to stay home and care for the children and the household.

Being a stay-at-home parent is never easy, as there is a great amount of responsibility involved in constantly caring for small children on a daily basis. In addition, a stay-at-home parent is often tasked with a large percentage of cooking, cleaning, laundry, and other household chores. Such contributions can be extremely valuable for a household, especially if it eliminates the need for costly child care, housekeepers, or other services. In addition, a stay at home parent agrees to put his or her own educational or professional goals on hold for the greater good of the family.

Unfortunately, when it comes time for a divorce, the breadwinner of the family tends to focus on his or her financial contributions and not appreciate the sacrifices the stay-at-home parent has made. Because they have contributed more financially, they often believe they deserve more financially, as well. Luckily, family courts generally take the non-financial contributions of stay-at-home parents into considerations when making determinations regarding alimony and other financial support in a divorce. However, it is always wise for stay at home parents to do the following and more to protect their rights: Continue reading

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The end of a long-term relationship can be emotionally difficult and can make people act in ways that may be out of character. Sometimes, people who are getting a divorce feel a newfound sense of freedom that allows them to pursue new social or romantic options. In other instances, a divorce can cause individuals to engage in emotional coping mechanisms such as substance abuse or overspending. While these are natural and human reactions to the end of a relationship, sharing this type of behavior on social media such as Facebook, Twitter, or Instagram could have a negative effect on the way that certain issues in your divorce are resolved. Some of the ways that social media posts could affect your divorce are detailed below.

Sharing on Social Media Could Affect Child Custody Determinations

Under Florida Law, the guiding principle that courts must follow when making child custody determinations is the “best interests of the child.” In figuring out what type of custody arrangement is in a child’s best interests, courts may consider any factor that they deem relevant. For this reason, social media posts that indicate that a person is engaging in behavior that the court believes could affect a person’s ability to be an effective parent could potentially be introduced as evidence in cases in which child custody is disputed. Continue reading

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With the recent breach and data leak regarding approximately 32 million subscribers to the “married dating” website Ashley Madison, many married couples have likely been facing difficult situations as news of possible infidelity became exposed. It would not be surprising, in fact, if numerous couples end up in divorce court over a leaked Ashley Madison subscription. This leads to the common question: What role, if any, does a spouse’s adulterous behavior play in a subsequent divorce case?

Questions of Fault

In Florida, you must file for divorce on a “no-fault” basis, which means that no specific reason–such as adultery–can be given for the divorce. Insteading of blaming one spouse, all divorces are based on the assertion that the marriage is irretrievably broken. For this reason, adultery has no effect specifically on basic questions of fault in a divorce.