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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.

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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.

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All prenuptial agreements executed after October 1, 2007, must be in writing and signed by the parties.  Premarital agreements executed after October 1, 2007, are not enforceable under the following circumstances.  First, when the agreement was not executed voluntarily.  Second, when the agreement is the product of duress, fraud, coercion or overreaching.  Third, the prenuptial agreement was unconscionable at the time that it was signed and (a) the other party did not provide a reasonable disclosure of his or her assets and liabilities, (b) the party contesting the prenuptial agreement did not voluntarily waive disclosure of the other party’s assets in writing, and (c) the party contesting the prenuptial agreement did not have or reasonably could not have had sufficient knowledge of the other party’s assets and liabilities.

In a case captioned Bates v. Bates, a prenuptial agreement was successfully challenged.  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.

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A divorce decree from a foreign country will be enforced by a Florida Court when: (i) the parties were given sufficient notice and an opportunity to be heard at the divorce hearing, (ii) the foreign court had jurisdiction, and (iii) the divorce decree does not offend the public policy of the State of Florida.  The law of a foreign country will not be applied when the law is unjust or unreasonable, or it contravenes the strong public policy of the State of Florida.

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.

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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.

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A parent involved in a child custody and visitation dispute may be required to submit to a psychological evaluation when his or her mental condition is in controversy and good cause is shown for the examination.  Seeking custody and visitation, in and of itself, does not put a parent’s psychological condition in controversy.  The parent requesting that a psychological evaluation be performed on the other parent must prove that the other parent has mental health issues that could significantly impact on his or her ability to care for the parties’ children.  There must be evidence that the alleged mental health condition causes the other parent to be unable to meet the needs of the parties’ children.

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.  The Florida Court of Appeal stated in Ludwigsen v. Ludwigsen that “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 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.

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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.

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In a recently decided alimony case captioned Ritacco v. Ritacco, the Husband and Wife were married for more than twenty-two years.  The Husband was the sole income provider during the marriage. The Wife raised the parties’ daughters, and did not work outside of the home.  The Husband receives a salary, a pension, and owns a DROP account.  The Florida Court of Appeal decided four alimony issues.

First, the appellate court pointed out that there is a rebuttable presumption that the trial court should award permanent alimony when there is a long term marriage.  A long-term marriage is a marriage that exceeds seventeen years.

Second, the Court of Appeal recognized that a trial court should impute income that can reasonably be received from a party’s liquid assets.  Where a party receives an award of equitable distribution that will result in immediate income, this income will be included in making an alimony calculation.  However, in the case at bar, the amount of income was so small that the court declined to impute it as income.

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In a recently decided alimony case captioned Ritacco v. Ritacco, the Husband and Wife were married for more than twenty-two years. The Husband was the sole income provider during the marriage. The Wife raised the parties’ daughters, and did not work outside of the home. The Husband receives a salary, a pension, and owns a DROP account. The Florida Court of Appeal decided four alimony issues.

First, the appellate court pointed out that there is a rebuttable presumption that the trial court should award permanent alimony when there is a long term marriage. A long-term marriage is a marriage that exceeds seventeen years.

Second, the Court of Appeal recognized that a trial court should impute income that can reasonably be received from a party’s liquid assets. Where a party receives an award of equitable distribution that will result in immediate income, this income will be included in making an alimony calculation. However, in the case at bar, the amount of income was so small that the court declined to impute it as income.

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In an alimony case captioned Waldera v. Waldera, the trial court was presented with evidence concerning the Husband’s income during the previous ten years. However, the trial court only considered the Husband’s income during the one year period that preceded the entry of the Final Judgment. The Florida Court of Appeal ruled that this was error.

Calculating alimony was recently discussed by the Florida Court of Appeal in a case captioned Waldera v. Waldera.  In Waldera v. Waldera the case,  the Wife appealed the amount of the alimony that was awarded to her by the trial court in the Final Judgment of Dissolution of Marriage.    She argued that the trial judge reached an erroneous alimony determination, by improperly calculating her Husband’s income.  In reaching its calculation, the trial court relied solely on the Husband’s income for one year.  The Florida Court of Appeal agreed with the Wife that this was an error.

The appellate court pointed out that in making an alimony determination, a trial court is required look at all sources of income that are available to both parties.  For purposes of determining alimony, income is considered to be any type of payment, regardless of the source.  Income includes salary, bonuses,  commissions, and earnings as an independent contractor.  In awarding alimony, courts are required to consider all economic factors, including income, past earnings, net worth, and the parties’ assets.  In this case, although the trial court was presented with evidence concerning the Husband’s income between 2009 and 2016, the trial court only considered the income that Husband earned during the year preceding the entry of the Final Judgment for Dissolution of Marriage.  The appellate court pointed out that there is a presumption that a payor will continue to earn the same amount that he or she has historically earned, unless there is evidence to the contrary.

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