In a recent child support case involving unmarried parents, the mother attempted to impute income to the father. The father lost his job as a commodity broker as a result of his misappropriation of funds.  The mother introduced a report from a vocational expert in an attempt to impute income to the father.

In a case captioned, Damask v. Ryabchenko, the Florida Court of Appeal began by pointing out that Florida’s child support guideline presumptively set forth the amount that trial courts should award as child support in initial proceedings and modification proceedings.  The child support guidelines can be also used to provide a basis to prove that there has been a substantial change of circumstances that warrants a modification of child support.

Income should be imputed to unemployed or underemployed parents when their unemployment or underemployment is voluntary. If a parent is voluntarily unemployed or underemployed, the parent’s probable earnings are determined based upon his or her recent earnings, qualifications, and prevailing earnings in the community. The party seeking to impute income has the burden of proving that the other party’s unemployment or underemployment was voluntary, and must provide evidence to the court that income is available to the payor from employment for which he or she is qualified by education, experience, and geographic location.  In determining geographic location, consideration should be given to the parties’ custody and visitation schedule and the parties historical utilization of time-sharing with their children.

In an alimony case captioned Tanner v. Tanner, the Florida Court of Appeal recently ruled that in order to determine whether a payor’s voluntary retirement is reasonable, a trial court is required to consider the payor’s age, health, reason for retiring, type of work, and the age at which others who perform the same type of work normally retire.

In Tanner v. Tanner, the Husband appealed the trial court’s order denying his petition for modification of his divorce decree. The parties were divorced in January 2016. The final judgment of dissolution required the Husband to pay permanent periodic alimony to the Wife. In September 2018, the Husband filed a petition to modify the divorce decree in which he sought to eliminate or reduce the amount of his alimony payments.

In the Husband’s supplemental petition for modification of alimony, the Husband stated that his employer terminated his employment, and that his medical condition precluded him from finding similar employment.  The trial court denied the Husband’s petition for modification of alimony based upon the fact that it found the Husband’s retirement at age 64 to be unreasonable. In his appeal, the Husband argued that his retirement was reasonable based on his age and his failing health.

A sweeping alimony reform measure was recently adopted by the Florida House and Florida Senate.  It has been sent to Governor Ron DeSantis for his consideration.  This is part one in a series describing the implications of this legislation.

First, permanent alimony was abolished in Florida.  There are now three types of alimony in Florida.  They are bridge-the-gap, rehabilitative and durational alimony.

Bridge-the-gap alimony is awarded to assist parties in making the transition from being married to being single.  It is intended to assist the recipient spouse with specific short term needs.  Bridge-the-gap alimony cannot exceed two years.  It ends upon either party’s death or upon the remarriage of the recipient spouse.  It is not modifiable in duration or in amount.

An alimony case involving the imputation of income was recently decided by the Florida Court of Appeal.  In a case captioned Douglas v. Douglas, the Florida Court of Appeal recently ruled that the party who seeks to impute income to the other spouse bears the burden of proving that the other spouse is employable and that jobs are currently available for which the recipient spouse is qualified. 

In Douglas v. Douglas, the husband appealed several of the rulings that the trial court made in the Final Judgment of Dissolution of Marriage.  The parties were married for eight years.  They were the parents of two children.  The wife was a stay-at-home mother, who took care of the parties’ children during the course of the marriage.  She did not work outside of the marital home during the marriage.  After the parties separated, the wife unsuccessfully applied for over thirty jobs during the parties’ separation. 

The husband was a professional basketball player. During his career, he played for the New York Knicks, Houston Rockets, Sacramento Kings, Golden State Warriors and the Miami Heat.  Recently, the husband played on a number of European teams.  The wife filed the Petition for Dissolution of Marriage. 

A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned Hamilton v. Hamilton.  In this case, the husband appealed the Final Judgment of Dissolution of Marriage based upon the fact that the trial court awarded an unequal division of the parties’ assets to the wife.  The husband contended that the trial court improperly classified over fifty thousand ($50,000.00) dollars of husband’s credit card debt as nonmarital debt.

The Florida Court of Appeal ruled that marital assets and marital liabilities are all assets acquired and all liabilities incurred during the course of a marriage.  These assets and liabilities may be acquired during the course of the marriage by either spouse, jointly, or individually.  There is a presumption in Florida law that all assets acquired and all liabilities incurred after the date of marriage which are not specifically designated as nonmarital assets and nonmarital liabilities are presumed to be marital assets and marital liabilities.

In the case at bar, the husband incurred charges on several credit cards that were used to pay for business expenses and personal living expenses during the course of the parties’ marriage.   The trial court concluded that the husband’s business expenses were nonmarital debt because the Husband failed to provide the trial court with evidence that any portion of the debt was marital.  The Florida Court of Appeal reversed the trial court’s ruling.  The Florida Court of Appeal ruled that the trial court’s designation of the husband’s business expenses as nonmarital liabilities failed to comply with Florida’s statutory presumption that all assets acquired and all liabilities incurred during the course of a marriage, which are not specifically established as nonmarital assets and nonmarital liabilities, are presumed to be marital.  Absent any evidence that the husband’s business expenses were specifically established as nonmarital liabilities, they are presumed to be marital liabilities.  Since there was no evidence in the record that showed that the husband’s business expenses were nonmarital, the Florida Court of Appeal ruled that they were marital liabilities.

Alimony payments may be reduced or terminated when a former spouse enters into a supportive relationship.  The payor bears the burden to prove that a supportive relationship exists.  Some of the factors that Florida courts assess in determining whether a supportive relationship exists are as follows:

First, whether the recipient and the cohabiting party have held themselves out as a married couple.

Second, the amount of time that the parties have resided together in a permanent residence.

An alimony case involving the reimbursement of business expenses was recently decided by the Florida Court of Appeal in a case captioned Ortega v. Wood.  In Ortega v. Wood, the husband was an optician who owned an optical business with his mother.  The wife sought to impute income to the husband for in-kind benefits and business expense reimbursements that were provided to the husband by his business.  The optical business provided the husband with an apartment at no cost and paid for his personal expenses, including his dentist appointments, his doctor’s appointments, his massages, his lab tests, his pharmaceuticals, his lawn mower, and products that he ordered from GNC.

In reaching its alimony determination, the trial court did not consider the business’ provision of the husband’s apartment and the payments for the husband’s medical appointments, dental appointments, lab tests, massages, GNC products, and pharmaceuticals to be income. Because the husband testified that the business provided all of its employees with the same reimbursements, the trial court ruled that these payments were reasonable business expenses and did not consider them to be income when it calculated the husband’s alimony obligation.

The wife appealed the trial court’s Final Judgment of Dissolution of Marriage to the Florida Court of Appeal.  The Florida Court of Appeal reversed the trial court and held that the trial court should have included the in-kind payments and expense reimbursements that husband received from the optical business in determining the husband’s alimony obligation.  The appellate court pointed out that under Florida law, for purposes of calculating alimony, “income” is defined as any type of payment, including, without limitation, salary, wages, bonuses, commissions, disability benefits, worker’s compensation, retirement benefits and annuities, dividends, pensions, interest, trusts, royalties, and any other payments made by a private entity, person, or governmental entity.

A division of property and assets case involving the exclusive use and occupancy of the marital home was recently decided by the Florida Court of Appeal.  In a case captioned Ortiz v. Ortiz, the husband and wife were married in 2010, and had three children. They lived in Tennessee for most of their marriage, and then moved to Florida.  The parties obtained a VA loan to purchase their home in Florida.  After the parties moved to Florida, the wife found employment and the husband started attending culinary school in Orlando, Florida.  When the husband’s culinary school in Orlando closed, the husband moved to Miami to attend culinary school.

The wife filed for divorce.  In the wife’s Petition for Dissolution of Marriage, the wife sought exclusive use and possession of the marital home.  The trial court awarded the Wife exclusive use and possession of the marital home until the parties’ youngest child reached the age of eighteen or the wife remarried.

The Florida Court of Appeal affirmed the ruling of the trial court.  The Florida Court of Appeal stated that the marital home, like any other asset, is subject to equitable distribution.  A trial court may deviate from the presumption that there should be an equal division of property and assets and may award one of the parties exclusive use and occupancy of the marital home under the following circumstances: (i) when it is desirable to retain the marital home as a place in which the parties’ dependent children should live, (ii) when it is in the children’s best interests, (iii) when it would be equitable to award one of the parties exclusive use and occupancy of the marital home, and (iv) when the parties are financially capable of maintaining the marital home.

In a recently decided alimony case captioned Morgan v. Morgan, the Florida Court of Appeal ruled that the size of an alimony award is based upon the standard of living that was established by the parties during the course of the marriage, and not the parties’ postseparation lifestyle.

In Morgan v. Morgan, the husband appealed the final judgment of dissolution of marriage.  He challenged the trial court’s alimony award and its equitable distribution of the parties’ assets.  The Florida Court of Appeal reversed both of the trial court’s rulings on these issues.

During the course of the marriage, the husband and wife had a comfortable lifestyle.  They lived in large homes, frequently traveled, and never had to worry about paying their bills.  After the parties separated, the husband could only afford to live in a small apartment, drive an old truck, and could barely pay his bills.  The trial court’s final judgment stated that during the course of the marriage, the husband and wife lived a lifestyle that was “upper-middle class”. The lower court acknowledged that the husband’s current lifestyle was not consistent with the parties’ lifestyle during the course of the marriage.  At the time that the trial took place, the evidence showed that the wife’s income was seventy-five (75%) percent greater than the husband’s income.  Despite these findings, the trial court only awarded the husband one thousand ($1,000.00) dollars per month in alimony.

In an alimony case captioned Speigner v. Speigner, the parties were married for almost twenty (20) years.  Both parties worked during the course of the marriage.  The Husband had the larger income.  The Wife worked, raised the parties’ children and ran the household.

After hearing the evidence, the trial court found that the Wife had a need for support and the former husband had the ability to pay.  The court stated that the Wife had significant business acumen and found that both the Husband and the Wife had the capacity to earn additional income. The trial court awarded the Wife eight years of durational alimony.

The Florida Court of Appeal reversed the trial court’s ruling.  In reversing the lower court’s ruling the appellate court pointed out that in Florida, a long-term marriage is a marriage that exceeds seventeen years.  There is a rebuttable presumption that permanent alimony will be awarded following a long-term marriage.  This presumption can only be rebutted if there is proof that after termination of the alimony payments the recipient spouse has the capacity to support him or herself at the marital standard of living.  Durational alimony is only appropriate if the court finds that the recipient spouse does not have an ongoing need for support on a permanent basis.  In order to justify an award of durational alimony following a long-term marriage, a court must find that the recipient spouse is capable of attaining a level of self-support that is commensurate with the marital standard of living at the time that the durational alimony expires.

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