Palm Beach Florida Divorce & Family Law Blog

IMPUTING INCOME TO STAY-AT-HOME PARENTS IN FLORIDA DIVORCES

Published on: November 29, 2021 | by Lane Law Firm, P.A.

A divorce case involving the imputation of income to a stay-at-home parent was recently decided by the Florida Court of Appeal. In a case captioned Wilkins v. Wilkins, the Former Wife appealed the lower court’s order granting temporary relief to the Former Husband. During the course of their relationship, the Former Husband and the Former Wife agreed that the Former Wife would live with her family and take care of the parties’ minor child and a child from the Former Wife’s previous relationship while she was completing her nursing degree.

The trial court found that the Former Wife took only one nursing course during the time that she lived with her family, and imputed income to the Former Wife for purposes of calculating child support. The trial court ordered the Former Wife to pay child support to her Former Husband, who was on active military duty.

The Florida Court of Appeal reversed the decision of the trial court. The appellate court ruled that although a trial court is ordinarily required to impute income to a parent who is voluntarily unemployed or underemployed, a trial court should give great deference to the parties’ joint decision that one of the parents should stay home to raise their children.

HOW ARE BUSINESSES VALUED IN HIGH ASSET/HIGH NET-WORTH DIVORCES IN FLORIDA?

Published on: November 8, 2021 | by Lane Law Firm, P.A.

Valuation dates are important in high asset/high net-worth divorce cases in Florida. In a case captioned Murphy v. Murphy, the Florida Court of Appeal recently addressed this issue. In Murphy v. Murphy the Husband appealed the Final Judgment of Dissolution of Marriage. The Wife cross-appealed the trial court’s Final Judgment.

The Husband and Wife were married in 2001. In 2003, the Husband opened an investment and retirement savings plan. The Husband contributed to the investment and retirement savings plan during the course of the parties’ marriage. After the Petition for Dissolution of Marriage was filed, the Husband continued to contribute to the investment and retirement savings plan. The trial court ruled that the investment and retirement savings plan was a marital asset. Accordingly, the lower court divided the plan equally between the parties. The Husband argued to the Florida Court of Appeal that his contributions to the investment and retirement savings plan after the filing of the Petition for Dissolution of Marriage was filed made this plan a nonmarital assets.

The Florida Court of Appeal agreed with Husband’s position and reversed the trial court. The Florida Court of Appeal stated that in high asset/high net-worth divorce cases, when the increase in the value of an asset was the result of one spouse’s individual efforts after the filing of the Petition for Dissolution of Marriage, that asset should be valued as of the date of the filing of the Petition for Dissolution of Marriage. For example, a business might be worth $90,000,000.00 at the time of the filing of the Petition for Dissolution of Marriage. Subsequent to the filing of the Petition for Dissolution of Marriage, the business might be worth $180,000,000.00. Under the Florida Court of Appeal analysis in Murphy v. Murphy, the asset will be valued for purposes of equitable distribution on the date of the filing of the Petition for Dissolution of Marriage.

WHAT IS MARITAL MISCONDUCT IN FLORIDA?

Published on: October 27, 2021 | by Lane Law Firm, P.A.

In a division of property and assets case captioned Roth v. Roth the parties were married for twenty-nine years. The Former Husband was seventy-four, and the Former Wife was fifty-eight. Both had high school educations, and both worked in the automotive industry. The Former Husband was in a car accident and suffered injuries. The parties filed a personal injury lawsuit and received a settlement award of $28,154.00. On the day before the Former Wife left the marital home, she withdrew $13,000.00 from the settlement funds.

The Former Wife testified that she used the portion of the settlement funds that she withdrew to pay for her attorney’s fees and to pay for her living expenses. The Husband testified that he used a portion of the settlement proceeds to pay for his living expenses and expenses related to the parties’ home.

The trial court included the settlement proceeds in its division of property and assets in this case. The Former Wife argued that the trial court erred when it included these funds in the Court’s equitable distribution because the funds did not exist at the time of the trial. The Florida Court of Appeal agreed with the Former Wife’s position, and stated that ordinarily it is a mistake for a trial court to include assets in an equitable distribution scheme that no longer exist.

HOW ARE PERSONAL INJURY SETTLEMENTS DISTRIBUTED IN A FLORIDA DIVORCE?

Published on: October 11, 2021 | by Lane Law Firm, P.A.

In a division of property and assets case captioned Roth v. Roth the Wife appealed the Final Judgment of divorce. The parties were married for twenty-nine years. At the time of the hearing, the Wife was fifty-eight and the Husband was seventy-four. Both of the parties worked in the automotive industry. The Husband was the primary income earner during the marriage. The Wife was a stay-at-home parent after the parties’ son was born, and returned to the workforce when their son was in high school.

During the marriage, the Husband was in a car accident and suffered injuries. The Husband and Wife filed suit and recovered $28,154.64. The Wife withdrew approximately $13,000.00 of the settlement proceeds the day before she left the parties’ marital home. The Wife testified that she used these funds to pay for her attorney’s fees and her living expenses. The Husband testified that he needed to use these funds to have an operation for an injury to his neck, because he could not afford it otherwise.

The Florida Court of Appeal ruled that in a personal injury case, a damage award is distributed in the following manner. First, payments for pain and suffering, disability, loss of consortium, and loss of ability to lead a normal life are considered to be nonmarital property. Payments for these loses belonged exclusively to the Husband. Second, economic damages which will occur subsequent to the termination of the marriage, including lost future wages and future medical expenses are considered to be nonmarital and belong exclusively to the Husband.

HOW TO CHALLENGE A PRENUPTIAL AGREEMENT IN FLORIDA

Published on: September 30, 2021 | by Lane Law Firm, P.A.

A prenuptial agreement was successfully challenged in a Florida Court of Appeal case captioned Bates v. Bates. The facts of this case are as follows. In May of 2001, the Husband and Wife met in Colombia through a singles website. Husband was a forty-one year-old pilot. Wife was eighteen years old. Husband didn’t speak Spanish. Wife spoke little English. The parties used a translator during their initial meetings. They used a chaperone to accompany them on their dates. In June 2001, the Wife got pregnant, and the Husband paid for her to have an abortion.

As a precondition to getting married, the Husband required the Wife to execute a prenuptial agreement. Sixteen years after the parties were married, the Wife filed for divorce, and sought to invalidate the prenuptial agreement. The trial court found that the Wife was in severe pain and distress from the abortion when she signed the prenuptial agreement. Additionally, the trial court found that the Husband required the Wife to either sign the prenuptial agreement on the day before the wedding, or there was not going to be a wedding. The Wife was also told that if she did not sign the prenuptial agreement, she was not going to be permitted to immigrate to the United States.

The Wife challenged the prenuptial agreement based on duress and coercion. Duress is defined as a condition of mind that is produced by improper external pressure, that destroys a party’s free will, and that causes a person to perform an act that is not of his or her own volition. Duress involves an act that is involuntarily performed as a result of coercion or improper conduct. In the context of prenuptial agreements, a party’s external pressure must cause the other party to lose his or her free will at the time the agreement is executed. Duress occurs when a spouse threatens to take an action against the other spouse for his or her own economic advantage, such as where a spouse threatens to harm the other spouse’s reputation for their own gain. Even if the wrongdoer has the legal right to take the adverse action, it can still constitute duress.

WHEN WILL FLORIDA RECOGNIZE A DIVORCE DECREE FROM A FOREIGN COUNTRY?

Published on: August 12, 2021 | by Lane Law Firm, P.A.

In a divorce case captioned, Armand v. Amisy, the Husband and Wife were married in Haiti in 2008. In 2014 they moved to Massachusetts with their three children. In 2016, they moved to Florida. Husband filed for divorce in Florida in September of 2017. Wife filed an Answer and a Counter-Petition in Florida. Husband then filed a Voluntary Dismissal in Florida and a Motion to Dismiss Wife’s Counter-Petition. Husband alleged that Florida lacked subject matter jurisdiction. Husband argued that he was a Haitian citizen and resided in Somalia, and that his Wife had returned to Massachusetts with their children prior to filing her Counter-Petition in Florida.

Prior to the hearing on Husband’s Motion to Dismiss, Husband filed a divorce decree from Haiti. Husband stated that he initiated a dissolution proceeding in Haiti in 2014, and that a Final Judgment granting his divorce was entered in May of 2017. In May of 2018, Husband filed a Second Motion to Dismiss for want of subject matter jurisdiction based on the fact that the parties were already divorced in Haiti.

In a case captioned, Armand v. Amisy, the Florida Court of Appeal pointed out that Florida trial courts only have jurisdiction as a result of the Florida Constitution or a Florida statute. Parties cannot agree to jurisdiction and objections to subject matter jurisdiction cannot we waived. A court’s lack of subject matter jurisdiction can be raised at any time.

ARE ASSETS ACQUIRED AFTER A DIVORCE WAS FILED MARITAL ASSETS?

Published on: May 28, 2021 | by Lane Law Firm, P.A.

A division of property and assets case captioned Ritacco v. Ritacco was recently decided by the Florida Court of Appeal. This case involved a twenty-two year marriage. During the course of the marriage, the parties had two children. Both are now adults. The Husband drew a salary, received a pension, and owned a DROP account. The Wife moved out of the marital home on the day that she filed her Petition for Dissolution of Marriage.

The Wife also borrowed $65,761.00 from the parties’ HELOC on that date. The Wife deposited these funds into her bank account. She testified at the final hearing that she used these funds to support her daughter and herself. She stated that she used these funds to purchase gas, clothing, food, and to pay for medical visits for her daughter. At the hearing, the Husband asserted that the Wife’s withdrawal from the HELOC was a non-marital debt.

The Florida Court of Appeal stated that under Florida statutes, there are three dates that a Court may utilize to classify marital assets and liabilities. The first date is the date on which the parties executed a valid separation agreement. The second date is a date agreed to by the parties in a valid separation agreement. In the event that neither of these dates apply, the date that Florida Courts utilize to classify marital assets and liabilities is the date that a Petition for Dissolution of Marriage is filed.

PSYCHOLOGICAL EVALUATIONS IN CHILD CUSTODY CASES IN FLORIDA

Published on: April 22, 2021 | by Lane Law Firm, P.A.

A child custody and visitation case involving a request by a parent to have her spouse psychologically evaluated was recently decided by the Florida Court of Appeal. In a case captioned Ludwigsen v. Ludwigsen, the Florida Court of Appeal stated that in order for a psychological evaluation to be required by a Court, the party submitting the request must demonstrate that: (i) the condition for which the examination is being sought is in controversy, and (ii) that good cause exists to order the examination. In order for a condition to be “in controversy”, a parent’s mental condition must be directly involved in the determination of the issue that is currently before the Court. “Good cause” is shown where a parent has been unable to meet the needs of the parties’ children.

The requesting party must provide the trial court with verified allegations that the other parent has a mental condition that substantially affects his or her ability to raise their children, or that a parent has been unable to meet their children’s needs. This can be accomplished by demonstrating that the other parent’s mental illness places the children at risk of abuse, abandonment or neglect. The fact that parties are contesting time-sharing (custody and visitation), does not, in and of itself, warrant a psychological evaluation. The issue is not whether a parent has demonstrated good or bad parenting. The Court is looking for an indicator of significant mental illness that affect the wellbeing of the children. The requesting party is also required to demonstrate to the Court that expert testimony is required to resolve the child-related issue that is before the Court.

The Order requiring a parent to submit to a psychological examination must clearly set forth the parameters of the evaluation, including its scope, length, manner and type of testing. The Order must also identity the person or persons who are permitted to conduct the evaluation.

How to Receive an Unequal Division of Marital Assets

Published on: March 25, 2021 | by Lane Law Firm, P.A.

A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned Ortiz v. Ortiz. In this case, the Florida Court of Appeal pointed out that in making a division of property and assets, a trial court is required to begin with the assumption that there will be an equal division of marital assets and liabilities, unless there is a reason for an unequal division based upon the following factors: (a) each spouse’s contribution to their marriage; (b) the parties’ economic circumstances; (c) the length of the marriage; (d) whether there was an interruption of either party’s careers or educational opportunities; (e) whether one spouse contributed to the other spouse’s career or educational opportunities; (f) the desirability of one party retaining particular assets, such as corporations, businesses, and professional practices; (g) each spouse’s contribution to the production of income, the improvement of assets, or the accumulation of debt; (h) the need to retain the marital home as a place in which the children or the other spouse can to live (based upon a determination by the Court that it is fair to do so, is in children’s best interest, and is fiscally feasible; or based upon a finding that it would be fair to provide the other spouse with exclusive use and possession of the home); (i) the intentional dissipation or destruction of marital assets; and (j) any other factor that is necessary to bring about a just result.

In the case at bar, the trial court failed to make the foregoing factual findings, and therefore the Florida Court of Appeal reversed the decision of the trial court and remanded the case back to the lower court with instructions to make these findings.

To learn how courts divide property and assets in Florida, contact a Palm Beach Gardens divorce attorney at the Lane Law Firm, P.A. at (561) 363-3400.

Imputing Income for Purposes of Alimony in Florida

Published on: March 24, 2021 | by Lane Law Firm, P.A.

An alimony case involving imputation of income was recently decided by the Florida Court of Appeal in a case captioned Waldera v. Waldera. In this case, the husband and wife were married in 1999. At the time of their marriage, the wife held a bachelor’s degree in accounting. She worked as a fulltime bookkeeper at the husband’s law firm. When their only child was born, the husband and wife agreed that the wife would work part-time and would home school their child. The wife continued to work part time at her husband’s law firm until 2011. After 2011, the wife worked part-time as a bookkeeper for some private clients. In 2015, divorce proceedings were instituted.

In this appeal, the wife argued that the trial judge erred in its imputation of income to her. The Florida Court of Appeal agreed. In reaching its determination, the Court of Appeal pointed out that in order to impute income to a party, the trial judge must find that the party has the ability to earn more income than he or she is currently earning, and that he or she has deliberately refused to be employed at this higher earning capacity. A court must make a finding that a party failed to make his or her best efforts to earn more money. Income cannot be imputed based upon records that are over five years old. Additionally, courts may not impute income to a party that is greater than that party has historically earned, absent special circumstances. The party seeking to impute income must establish the range of salaries that are currently being paid for available employment opportunities in the area, based upon the employee’s qualifications, including their work history, education, and physical restrictions. Finally, a trial court is required to award significant deference to the parties’ decision that a spouse is to stay home in order to care for their children. This is especially so when the parties have established a course of conduct over a period of time.

To speak with a Wellington, Florida divorce attorney to discuss alimony, contact the Lane Law Firm, P.A. at (561) 363-3400.