Articles Posted in Alimony

As part of an alimony obligation, a payor may be required to purchase life insurance to secure the award. In a recently decided case captioned Sager v. Sager the former husband appealed the final judgment. He argued that the trial court erred in requiring him to purchase life insurance to secure his alimony obligation. Husband and wife were married in 1982, and the former husband filed for divorce in 2016. Former husband was a mortgage broker and former wife was a teacher. The parties lived in the State of New Jersey for a large part of their marriage. The parties moved to the State of Florida and bought two houses. They used one as the marital home and used the other as a rental property. The former husband was 72 years old, and was retired. The former wife was 66 years of age. She did not have a college degree and was an early childhood teacher. She was also a substitute teacher in the summer. The trial court required the former husband to purchase a $250,000 life insurance policy to secure his alimony obligation to the former wife. The former husband appealed from the judgment requiring him to purchase the life insurance policy.

To secure alimony, the Florida Court of Appeal stated that trial courts may require that life insurance be purchased to secure alimony obligations when the trial courts make specific findings of fact that: (i) insurance is available for the payor, (ii) the payor has the ability to pay its cost, and (iii) that special circumstances warrant its purchase. Special circumstances that warrant the requirement that an obligor purchase life insurance include where the payee would be left in dire economic straits if the payor died, or where the payee is elderly, disabled, or has limited employment skills and the payor’s death would cause the payee to be dependent upon the generosity or welfare of others.

To speak with a divorce attorney in Wellington, Florida, contact the Lane Law Firm, P.A.

Imputation for purposes of alimony was recently decided by the Florida Court of Appeal in a case captioned Cura v. Cura. In Cura v. Cura, the Husband filed an appeal challenging an order awarding temporary alimony and child support. After a seventeen year marriage, the husband and wife separated. When the parties separated they were living at the husband’s mother’s home in Palm Beach County, Florida. The wife obtained her own residence and filed for divorce. She sought an award of temporary alimony and child support. During the course of the marriage, the parties enjoyed a lavish lifestyle. Immediately before the filing for divorce, the parties sold a valuable piece of property. The husband then sold a second piece of property. Finally, the husband took out a large mortgage on a third piece of property. The husband also sold a number of investments.

At a hearing, the Husband was unable to locate the whereabouts of any of the revenues from the aforementioned transactions. The husband claimed that he had no access to funds and was unable to obtain employment. The wife alleged that the Husband continued to enjoy a lavish lifestyle. She also contended that the Husband received gifts from his mother and was voluntarily unemployed.

In making an award of alimony and child support, the Florida Court of Appeal ruled that a trial court may impute income to the husband.  Imputing income requires people who are able to earn an income to do so. Unless the payor is mentally or physically incapacitated, earnings are to be imputed to an underemployed or unemployed person if such underemployment or unemployment is voluntary. If there is not sufficient evidence to decide the amount to impute, the spouse is presumed to have the capacity to earn the amount that that spouse historically earned. The trial court is to consider the payor’s job prospects, qualifications, recent work history, and the prevailing level of earnings in the community. Additionally, the court is to consider relevant economic factors.

Imputation of alimony was recently discussed by the Florida Court of Appeal in a case captioned Frerking v. Stacy. In this case, the former wife appealed a trial court’s decision that denied her request for permanent alimony and imputed income to her. The parties were married for nineteen years. The Florida Court of appeal pointed out that permanent alimony is intended to provide for the needs and necessities of life as they were established during the course of the marriage. Permanent alimony is presumed to be appropriate after a long-term marriage. A marriage that lasts seventeen years or more is considered to be a long-term marriage. A trial court errs when it fails to award permanent alimony where there has been a long-term marriage, unless the presumption favoring this award is overcome by competent substantial evidence.

In this alimony case, the trial judge found that former wife could be immediately employed as a full-time public-school teacher. The trial court overlooked the fact that the former wife had never been a full-time school teacher. Courts can impute income to unemployed and underemployed spouses when their loss of income is voluntary and the unemployment or underemployment is due to the party’s failure to use diligent and good faith efforts to find employment that pays a salary at a level that is equal to or better than the income that the spouse previously received. The party alleging that income should be imputed has the burden of proof. In imputing income, a court is required to look at the spouse’s occupational qualifications and recent work history and the prevailing level of earnings in the commun ity. The Florida Court of Appeal stated that a party’s use of diligent and good faith efforts to find employment does not include retraining. A party is only required to find a job for which the party is already qualified. Accordingly, the trial court was reversed in this case and the matter was remanded to the lower court for proceedings consistent with ruling contained in this opinion.

To speak with an alimony attorney in Boca Raton, Florida, contact Matthew Lane & Associates, P.A. at (561) 328-1111.

In a modification of alimony proceeding, a trial court can temporarily modify an alimony award while the award is being appealed. It cannot alter the actual alimony award during the pendency of the appeal. In Horowitz v. Horowitz the Florida Court of Appeal recently stated: “[T]he trial court may conduct a hearing on the modification petition and issue orders consistent with Rule 9.600(c). It may not, however, enter a final judgment disposing of the modification petition until the appeal is final and our mandate issues. Thompson v. Stewart, 569 So. 2d 1372 (Fla. 4th DCA 1990); Campbell v. Campbell, 436 So. 2d 374 (Fla. 5th DCA 1983); Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. 4thDCA 1974)…We begin with the principle stated by this court in Kalmutz: [W]hen the jurisdiction of the appellate court attaches it is exclusive as to the subject covered by the appeal; so that modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is. Kalmutz, 299 So. 2d at 32 n.l…

Citing Rule 9.600(c), we have noted “[w]hen the trial court temporarily alters the provisions in the final judgment for the purpose of protecting the welfare or rights of a party pending appeal, the terms of the judgment are not affected.” Goodman v. Goodman, 664 So. 2d 975, 975 (Fla.4thDCA 1995) (emphasis added)…To the contrary, the subsequent modification proceeding is neutral and indifferent as to the legal correctness of the prior adjudication and correctly proceeds on the theory that, whether or not the prior adjudication was correct on the facts then found and adjudicated, those facts have now changed and the present factual circumstances differ so substantially and materially from those underlying the prior adjudication that a different level of support is warranted as to the future…As outlined, the trial court can consider the former husband’s petition and, if appropriate, fashion a temporary order which may be revisited or reduced to permanent rulings once the pending direct appeal has been disposed of by this court. Horowitz v. Horowitz, 39 Fla. L. Weekly D987, 987-988 (Fla. 4^th DCA May 14, 2014)

To speak with a divorce lawyer in Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

In an alimony case, a trial court may require a paying spouse to maintain life insurance under certain circumstances. In order for a court to require a paying spouse to maintain life insurance, the trial court must find that the insurance is available, it must state the cost of the policy, and it must determine the that paying spouse has the ability to pay for the cost of the insurance. The amount of the insurance required must be commensurate with the amount of the support obligation. Finally, in order to require a paying spouse to maintain life insurance to secure an alimony obligation, there must be “special circumstances” that justify this requirement. These special circumstances include situations where the recipient spouse would be left in severe financial condition after the death of the paying spouse due to his or her poor health, age, or lack of employment potential.

Additional alimony special circumstances include the paying spouse’s poor health, where minors are living at home, where the recipient spouse has a limited capacity to earn income, and where the paying spouse has failed to live up to his or her support obligations. Finally, a paying spouse can bind him or herself to purchase life insurance by agreeing to purchase life insurance on the record.

To speak with a divorce attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In Florida, permanent alimony is rebuttably presumed to be appropriate in a marriage that exceeds seventeen years. In a case captioned Hedden v. Hedden, the wife appealed a judgment terminating her marriage of thirty-seven years. The parties have two children. The wife was a stay-at-home mother for a majority of the marriage. The wife was last employed twelve years prior to date of the trial. The wife also had a medical condition. The trial court found that the wife had a need for support and that the husband had the ability to pay. The trial court awarded the Wife both permanent and durational alimony. The durational alimony was scheduled to end when the wife reached age 62. At age 62, the wife was eligible to receive Social Security benefits.

The Florida Court of Appeal reversed the trial court for two reasons. First, the Court of Appeal held that, in Florida, permanent alimony is rebuttably presumed to be appropriate when there is a long-term marriage. A long-term marriage is defined as a marriage that exceeds seventeen years. Permanent support is appropriate where no other type of support would be fair and reasonable. The purpose of durational alimony is to provide the recipient with alimony for a set period of time when there is not an ongoing need for support. A court should not award durational alimony where there is a need for ongoing support. Where a recipient has an ongoing need for support, durational alimony is inappropriate and permanent alimony is the appropriate remedy. Additionally, an award of support should not be based upon a predicted increase in the recipient’s income.  This award is to be based upon the present circumstances of the parties. The court may always modify a support award should the parties’ circumstances change in the future.

To speak with an alimony attorney in Palm Beach Gardens , Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In alimony cases, living with someone may reduce or eliminate the need for alimony when the live-in relationship is found to be substantially equivalent to a remarriage. In a recently decided case captioned Bruce v. Bruce, the wife appealed the trial court’s refusal to award her alimony. The parties were married for twenty years. They had three children. The wife worked part time and took care of the children during the day. The wife had serious medical issues, including being hearing impaired and having permanent arthritis, and was a cancer survivor. The wife moved out of the marital home and into an apartment with her boyfriend. The wife denied that she was in a supportive relationship with her boyfriend. The wife contended that she owes her boyfriend back rent, which she intends to repay in the future. The wife contended that she pays for her own phone, electric and water bills and pays for her own groceries. The wife and her boyfriend have no joint financial accounts, they have no joint investments and they do not jointly own personal or real property.

The lower court denied alimony to the wife because it found that the wife had entered into a supportive relationship with her boyfriend. The Florida Court of Appeal held that under the Florida law, it is appropriate for trial courts to consider party’s supportive relationships in awarding alimony. The Court of Appeals directed Florida trial courts to look at the particular circumstances of each case. Florida courts are to utilize the factors contained in the Florida Statutes to determine whether alimony should be reduced or denied where there is a supportive relationship. The court defined supportive relationships to be relationships that take the financial place of marriages. Supportive relationships decrease the financial need of former spouses. The financial support in a supportive relationship is equivalent to a marriage and permits the reduction or elimination of the need for alimony. However, financial support alone does not create a supportive relationship. The court is required to look at the nature of the live-in relationship and the length of time the relationship has existed. Only when the relationship is the equivalent to a remarriage is the reduction or elimination of an alimony obligation warranted. The trial court must look into the extent and nature of the supportive relationship and how the relationship permanently reduces a party’s need for alimony.

To speak with an alimony attorney in Wellington, Florida, contact Matthew La ne & Associates, P.A. at (561) 363-3400.

In awarding alimony, income will not be imputed to a spouse who decides to defer taking Social Security benefits when that party would receive larger benefits by deferring the benefits.

In a case captioned Huertas Del Pino v. Huertas Del Pino the trial court imputed income to the Wife based on the Wife’s failure to apply for Social Security benefits. A court may impute income to an unemployed or underemployed party in determining that party’s need or ability to pay alimony. The party seeking to impute income has the burden of proof. In this case, the Wife was a stay at home mother with little employment experience. After the divorce was filed, the Wife unsuccessfully attempted to find employment. The trial court held that the Wife could find forty hours per week of employment and that she was capable of earning ten dollars per hour. Additionally, at the time of the final hearing, the Wife was eligible to immediately receive $640 per month in Social Security benefits. However, if the Wife elected to defer receipt of these Social Security benefits until after her sixty-fifth birthday, she would receive $900 per month in Social Security benefits. The lower court ruled that the Wife had an obligation to immediately apply for her Social Security benefits and imputed $640 per month to the Wife in reaching its alimony determination.

The Florida Court of Appeal reversed the trial court and held that the trial court improperly utilized the Wife’s current monthly Social Security payments in reaching its alimony computation. The Court of Appeal held that a party may properly choose to defer taking his or her Social Security benefits when the economic value of receiving the benefits early is outweighed by the benefit of receiving them later. A trial court should impute Social Security benefits and pension benefits to a party when that party can elect to draw benefits without receiving any reduction in these benefits. However, if by immediately taking pension or Social Security benefits a party will receive a reduced amount, it is improper to impute these benefits to that party as income. Deferring receipt of these benefits is not considered to be an intentional reduction in income; it is considered to be a wise investment strategy.

In a recent decided alimony case captioned Shimer v. Corey, the Florida Court of Appeal held that the lower court made a mistake when it required the Husband to purchase a life insurance policy as part of the alimony award in this case. The Florida statutes permit a court to require a party to maintain a life insurance policy to secure alimony payments. In making a decision as to whether a payor should be required to purchase insurance to secure an alimony award the trial court should consider the following factors.

First, is insurance needed? Second, is insurance available? Third, what will the policy cost? Fourth, what will be the financial impact on the payor of requiring the purchase of life insurance? In the case at bar, the lower court failed to conduct the aforementioned analysis, and the case was reversed. Additionally, the appellate court independently reviewed the record and determined that life insurance was not appropriately awarded in this case.

To speak with an alimony attorney in Palm Beach Gardens, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

In a recent alimony case captioned Gillette v. Gillette, the Florida Court of Appeal refused to impute income to a small business owner who chose to continue working in his own business rather than working for a larger employer.

The parties in this marriage were married for twelve years. The Husband was an engineer at a technology company. In 2001, the Husband started a computer storage business. He operated the computer storage business on a part time basis, and continued to work at the technology company until 2004. In 2004, the Husband resigned from the technology company and started working full time at his own computer storage business.

The Wife did not object to this arrangement until the divorce was filed. After the divorce was filed, the Wife objected to Husband working in his own computer storage business. She argued that the Husband was voluntarily unemployed and presented testimony from a vocational expert that Husband could earn significantly more as an employee of a larger company.