Articles Posted in Divorce

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Florida is one of only a few states that still allow permanent alimony, and for that it has gained some notoriety. Of course, the requirements for awarding permanent alimony are quite strict, and the cases that involve it tend to be complex. The guiding principle that Florida courts use in determining spousal support and other matters related to property division is equitable distribution. Equitable distribution means assigning to each spouse the assets and obligations that the court deems fair based on the couple’s unique circumstances. As you might imagine, there is plenty of room for disagreement about what is fair. The Wayne v. Einspar appeal is a recent Florida family law case in which a former spouse challenged the court’s decision regarding equitable distribution.

Background of the Wayne v. Einspar Case

Matthew Wayne and Susan Einspar divorced in 2013, after their son had reached adulthood. At the time of their divorce, both parents had separately cosigned for various loans for their young adult son. Wayne was a cosigner on the student loans, and Einspar was a cosigner on the car loan. In the original divorce decision, the court did not count the loans as marital property.  Additionally, the court required Wayne to pay permanent alimony to Einspar and to keep a life insurance policy with Einspar as the beneficiary in order to secure this alimony. Wayne filed an appeal, challenging the court’s original decision on 10 counts, many of them related to alimony. Continue reading

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The longer a couple has been married, and the more assets they have, the more complicated the case tends to be if they divorce. Perhaps the most bitter divorce battles center around the physical custody of minor children and the right to make decisions related to their upbringing. When a couple does not have minor children, the biggest disagreements usually have to do with the division of property. Florida courts have clear rules about what is marital property and what is non-marital property, but there is still room for complicated situations to arise in which each spouse can make a claim to a certain asset. For example, if one spouse earned a lot more money than the other during the marriage, how should that money be divided? If one spouse used the couple’s money irresponsibly, how does that affect the court’s decision about how to divide the property?

Florida’s Equitable Distribution Doctrine

Florida courts divide divorcing couples’ property according to the principle of equitable distribution. In other words, they go by what is fair. They do not always divide marital property evenly, and they do not simply take into account how much income each spouse brought in and then let each spouse keep only the money he or she earned. Florida law also considers unpaid contributions to the marriage as reasons a person is entitled to a certain share of the marital property. For example, time spent as a stay-at-home parent also counts as a contribution. The logic is that, when taking care of the children full time, the stay-at-home parent spouse was freeing up the other spouse to concentrate more on earning money.

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No matter your profession, you have probably seen articles circulating online or on email lists about industry-specific words to expunge from your vocabulary. Most of these articles flag certain words for deletion because they are clichés or neologisms. The first time you clicked on a clickbait article telling you to avoid saying “think outside the box” or “circle back” was probably years ago, when the term “clickbait” was known only to professional writers. The family law terms you should remove from your vocabulary, however, are actually misleading. They refer to outdated concepts in family law and therefore are unhelpful in thinking about your divorce and parenting plan.

Custody

People tend to speak of one parent having custody of the children after a divorce, while the other parent has visitation. In the 1980s and 1990s, it was more common than it is now for children to spend most of their time with one parent and to spend only two weekends a month with the other parent. Now, when possible, courts often rule to have children spend at least two nights per week with each parent. Exceptions are when the parents live so far away from each other that it is not practical to transport the children back and forth each week.

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You have probably heard about divorced couples engaging in bitter legal battles over which one of them will have custody of the couple’s children. You might also know someone who stays in an unhappy marriage because he or she fears that, upon divorce, he or she will be ordered to pay hefty child support payments and have the court meddle in his or her finances for years, while being forced to give up the rights to make decisions about his or her children’s upbringing. In reality, child custody is rarely an all or nothing situation. Likewise, Florida courts do not impose child support obligations as a way to punish parents. In making decisions about custody and child support, judges are to consider the children’s best interest above all else and to determine how to promote the children’s interests in a way that is feasible for both parents.

There is No One Size Fits All Parenting Plan

It is rare in Florida that judges award sole custody of the children to only one parent.  Besides, the word “custody” has more than one meaning in Florida law.  Physical custody refers to where and with whom the children reside most of the time, whereas legal custody refers to who has the authority to make important decisions about the children. Legal custody includes the right to choose which school the children attend, which medical treatments they receive, and which religious activities they participate in, among other important decisions. It is technically possible for one parent to have more time with the children while the other has the last word about their education and extracurricular activities. Continue reading

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Florida is one of only a few states in which judges can award permanent alimony to the spouse with the lower income or earning potential as part of a divorce decree. For a novelist with a certain mindset, Florida’s spousal support laws could be a plot point in a farce about materialistic social climbers and wealthy business tycoons. (Would Bunny Lebowski in The Big Lebowski have had to stage her own abduction if she could have just sued for permanent alimony?) In practice, permanent alimony is one of the least frequently awarded forms of spousal support.  The only people who are even eligible to receive permanent spousal support are those who have been married for 17 years or more. Most permanent alimony recipients are elderly or have a chronic illness that would make gainful employment difficult or impossible.

Local media have recently highlighted the complexities of high asset divorce by reporting on the divorce of Nancy Hua and Dennis Tsung, an affluent South Florida couple. As of August 2017, the details of how to divide the couple’s assets have yet to be completely worked out. The rulings issued so far in the divorce and in Nancy Hua’s appeal reveal many interesting things about the way Florida courts view property division between divorced spouses.

Wealth Plus Time Does Not Always Equal Permanent Alimony

Nancy and Dennis were married for almost 18 years. In the original divorce case, Nancy requested permanent alimony of $20,000 per month. For most of the marriage she had been a stay-at-home parent with no income. The spousal support award she received was for rehabilitative alimony; Dennis was to pay her $2,500 per month for two years. He was also to pay $12,000 toward her educational expenses; the plan was for her to attend nursing school and then begin working. The court estimated that she would be able to earn an annual income of $50,000 working full time as a nurse. The reason for the court’s decision to award rehabilitative alimony is that Nancy Hua had plenty of potential for gainful employment. She was in her early forties and in good health, and her children were old enough not to require full time childcare. Continue reading

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Alimony, spousal support, and spousal maintenance all refer to money paid by one ex-spouse to another after a divorce. The idea behind alimony is that, if one spouse depended on the other financially during the marriage, that spouse cannot become financially independent immediately after divorce. Florida alimony laws are quite favorable to the spouse receiving alimony payments. In fact, Florida is one of only a few states that can require the supporting spouse to continue making alimony payments indefinitely.

A change in the financial situation of one or both parties can lead to a modification of the spousal support order. One of the most common reasons for early termination of alimony payments is if the supported spouse remarries. As with so many legal issues, though, there is a gray area in which judges must consider the unique circumstances of the couple in deciding whether to terminate or reduce alimony payments.

Lump Sum vs. Monthly Payments

Most alimony payments in Florida take the form of periodic alimony, meaning that the supporting spouse pays the supported spouse a certain amount of money each month.  Bridge-the-gap alimony is intended to help the supported spouse through the transitional period of divorce and cannot exceed two years. Durational alimony, which is new as of 2010, lasts for a finite period of time specified in the court order. Both temporary and permanent periodic alimony stop immediately if the supported spouse remarries. Continue reading

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In Florida, children rarely testify in court. Even when the children are old enough to provide useful testimony, judges always avoid having minors testify in family law cases unless there is no other alternative. Divorce and custody battles are stressful enough for children and teenagers, and being questioned in a courtroom could cause them unnecessary additional stress. Therefore, courts often appoint a guardian ad litem to speak on behalf of the child.

What is a Guardian ad Litem?

A guardian ad litem is a person appointed to provide information about the child and his or her situation in order to help the judge make a decision about the child’s best interest. The guardian ad litem does not have custody of the child even temporarily; the child’s legal guardians remain the biological, adoptive, or foster parents. The guardian ad litem’s legal responsibility to the child is only to represent the child’s best interests before the judge.

In Florida, guardians ad litem are volunteers, and each guardian ad litem is assigned to only one child or family at a time. They come from all different professional and educational backgrounds. Regardless of previous work experience, they must take a training course to become qualified to work as guardians ad litem. Many of them have worked with children in their professional lives and have a keen sense of what constitutes a child’s best interest; many guardians ad litem are social workers, teachers, and healthcare workers. Continue reading

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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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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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Child support, under Florida law, is initially established by applying the Florida child support guidelines.  The child support guidelines are applied to not only a final hearing in a dissolution of marriage action, but are also applicable in temporary support proceedings

Florida Statute 61.30(1)(a) specifically states that the child support guideline amount is utilized to establish the amount of child support,  whether in a temporary or permanent proceeding.

When the court is assigned the task of determining the amount of child support that is going to be paid, a trial court is permitted to deviate from the amount of child support as provided for in the guideline amount, based on a myriad of different factors, as noted in Florida Statute 61.30(1)(a)(11).  There are 11 separate factors itemized under this statute which provide for different scenarios for deviating from the child support guidelines.  Take a few moments to read through that section to see if any of the listed factors will provide you with a basis to seek additional child support over and above the amount as set forth under the child support guidelines.