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.

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.

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.

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.

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.

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.

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.

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.

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.

Contact Information