The division of property and assets in a Marital Settlement Agreement can be contested in two ways. The first basis to challenge a Marital Settlement Agreement is for fraud, coercion or misrepresentation. The second basis to challenge a Martial Settlement Agreement is for unfairness. In a recent case captioned Hall v. Hall the Florida Court of Appeal stated that a Marital Settlement Agreement could be set aside for fraud, duress, misrepresentation, or coercion. The second basis for setting aside a Martial Settlement Agreement contains three elements. First, the spouse that wants to set aside the agreement must prove that the Martial Settlement Agreement is unfair to the recipient spouse in light of the parties' financial circumstances. The trial court will then look at the financial situation of the parties, their ages, their education and their health. The trial court may then decide that the agreement is unfair to the recipient spouse in light of the payor spouse's financial circumstances.
In an alimony case, there is a rebuttable presumption that a seventeen-year marriage is a long-term marriage and that an award of permanent alimony should be made. If the trial court does not award permanent alimony, the trial court must make findings as to why this rebuttable presumption should not apply. In Quinones v. Quinones the Florida Court of Appeal recently had a case before it in which the wife appealed a judgment awarding a dissolution of marriage from her husband. The wife argued that the lower court mistakenly found that her marriage to her husband was a moderate term marriage. The wife also argued that she should have received an award of permanent alimony. The Florida Court of Appeal agreed with the wife and reversed the lower court's ruling. The parties were married in 1992. The husband filed a petition for dissolution of marriage after the parties had been married for seventeen years. By the time that the case was tried the parties were married for 23 years. Three weeks before the trial was held, the husband lost his part-time job and was in the process of transitioning to new full-time job. The trial court ruled that the wife should not receive alimony due to the fact that the marriage was a moderate term marriage and the financial circumstances of the parties.
In calculating alimony, income received by the alimony recipient from retirement accounts (such as 401ks) is considered in determining the alimony recipient's need where principal in these retirement accounts will not be invaded for purposes of support. In a case captioned Stoltzfus v. Stoltzfus, the Florida Court of Appeal recently had before it a case in which the husband challenged the trial court's award of alimony. The husband's challenge was based upon the amount of alimony that the trial court awarded to his wife. The wife also cross-appealed based upon the amount of alimony that she was awarded. The husband alleged that the lower court failed to take into account income that the wife received from her retirement accounts in determining the wife's need for alimony. The husband pointed out that the wife received income from two 40 IK accounts that wife received as part of the equitable distribution of the parties' assets. The trial court had found that the 40 IKs were generating income , but found that the wife was not be able to receive that income until she was sixty-five.