Question Of The Month – July 2010

Issue: Types of alimony and who is entitled.

Question: I am curious about recent amendments to Florida alimony law and whether I am entitled to permanent alimony.   My Husband and I were married for thirteen years.  We are now separated and our two children (11 and 8 years of age) primarily reside with me in the marital home.   During the marriage, I did work except brief periods of maternity leave.  I currently am 40 years of age, have a BS degree in business management, and currently earn approximately $ 50,000 per year.    On my salary and raising two boys, I can barely meet my living and household expenses not to mention child-related expenses.  My Husband is 43 years of age, good health, has a Masters’ Degree in engineering and currently earns about $ 125,000 per year with benefits.  Am I entitled to permanent alimony?  I need support.

Answer: Effective July 1, 2010, recent amendments to Florida’s alimony statute took effect.    In regards to your question, Florida law now defines a long term marriage as 17 years or longer in length; a moderate term as being 7 years but less than 17 years; and a short term as being less than 7 years.   Your marriage falls within the moderate term and permanent alimony may be awarded to you.  For example, you may argue that your Husband has a significantly higher earning capacity than you as well as a higher education level.  Further, you may argue that the most you can earn is $ 50,000 in today’s market whereas your Husband may be able to earn even more than his current level in light of his employment skills.

In the event you are not awarded permanent alimony, Florida law now provides for “durational alimony” which may also be awarded in moderate-term marriages.   Durational alimony is awarded to “provide a party with economic assistance for a set period of time” when permanent alimony may not be appropriate.   Section 61.08(7), Florida Statutes.   I would argue that, in light of your living/ household expenses as well as standard of living expenses, such as grooming, social clubs, entertainment and vacations, you are a candidate for durational alimony.

Another form of alimony is “bridge-the-gap” alimony, which is awarded “to assist a party by providing support to allow the party to make a transition from being married to being single.”  Section 61.08(5), Florida Statutes.         The length of such an award may not exceed two years.  Again, based on the information provided by you, I would argue that you have a claim to permanent alimony, in the alternative, durational alimony for a period of time exceeding more than two years.

The foregoing is not intended as legal advice.  If you are in need of legal advice and/ or more information on the recent amendments to Florida’s alimony statute (section 61.08), the please feel free to schedule a free initial consultation.

Question Of The Month – June 2010

Issue: Division of marital assets (or liabilities).

Question: Is my spouse entitled to the condominium that I purchased with my own funds after we separated? We have been separated for over four years!

Answer: I would argue that you are entitled to an unequal distribution of the condominium and that same should be awarded to you. If you purchased your condominium after you and your spouse separated, but BEFORE either of you filed for divorce, then the condominium is a marital asset subject. According to Florida Law, the starting point for a division of the marital assets and liabilities is an equal (50/50) division, but a lengthy separation is a justification for disparate treatment of any marital asset purchased post-separation.

If you and your spouse have been living separate and apart for over 4 years and have separate households and finances, then I would argue the condominium should be awarded as part of an unequal distribution to you, and that your spouse is not entitled to any portion of the condominium.

Can the Court put a lien on a spouse’s non-marital asset(s) in order to secure a child support or alimony obligation?

Question:    My Wife and I are divorcing.  We were married for twelve (12) years and she was pretty much a stay-at-home mom.  She is seeking both child support and alimony.  I was recently laid off and I remain unemployed.  At the time I was laid off, I was making about $ 50,000.00 per year with benefits.  Although I am hopeful I will find a job, I do not have any certifications or other marketable skills such as computer technology or an ability to speak a foreign language.  I was with my former employer for 12 years and my only skills were acquired on that job.    In order to secure the child support and whatever alimony may be awarded by the court, my Wife is seeking a lien on my non-marital asset (a home that my brother and I inherited about three years ago).    I was told that she has no claim to my share of this Property since it is not a marital asset.  Can the court impose a lien on my share of the Property or any other non-marital asset to secure a support obligation?

Answer:   Under certain circumstances, a court may impose a lien on a spouse’s non-marital property to secure a child support or alimony obligation.   Simply because your Wife was a stay-at-home and you were making $ 50,000 does not automatically result in a lien.  In order for a lien to be imposed on your non-marital asset(s), there must be “special circumstances”.   For example, your Wife may argue that she has limited earning capacities inasmuch as she stayed home to raise the children; that the children are primarily residing with her and are in need of your support; and that you have limited marketable skills and were recent laid off.     In this regard, a lien does not give your Wife an ownership interest but security in the event you are not able to obtain employment any time soon and/ or she is unable to financially provide for the household without your assistance.   

I recommend that you perform a diligent job search, which amounts to at least one job application or interview per day.  As part of the search, I would also recommend that you keep a Journal consisting of the name/ contact information for each prospective employer; the position applied for and rate of pay/ benefits; and any follow up information.   This information may prove useful if you are unable to obtain comparable employment to the $ 50,000 previously earned and to minimize any support obligation.   Let’s say you do find a job but are only able to earn $ 30,000.   If you performed a diligent job search and the highest rate of pay for any one job was approximately $ 30,000, then  you will be able to defend against any claim that you are voluntarily under-employed.  Further, your $ 30,000 level of pay would be applied to the child support guidelines in arriving at your child support obligation (not the rate of $ 50,000).  If you have no available income after you pay your own fixed living expenses and the child support, then I would further argue that you have no ability to pay any alimony.  This may obviate the need for any lien on your non-marital asset(s).

Does a spouse have a marital claim to the other spouse’s asset(s) acquired prior to their marriage?

QUESTION:   I own a beach property, which I acquired prior to my Marriage.  My Wife did not contribute towards the purchase of this Property.  During our Marriage, my Wife and I spent an approximate $ 40,000 on miscellaneous repairs to the Beach Property, such as replacing a leaking roof and windows, repairing water damaged walls and other general upkeep/ maintenance type matters.  We did not make any improvements to the Beach Property.   I never put my Wife’s name on the title, and the Mortgage encumbering the Beach Home remains in my name.   Does my Wife have any claim to a portion of my Beach Home?

ANSWER:    Let’s assume the Beach Home had a Fair Market Value of $ 200,000 at the date of marriage and that the Home is  worth about $ 800,000 in today’s market.    Did the repairs ($ 40,000.00) lead to any of the increase in value from $ 200,000 to $ 800,000?  Although the types of repairs seem necessary, I do not believe they enhanced the value of the Home.   The fact that marital funds were used to finance the repairs does not convert your non-marital Beach Home into a marital asset.    Improvements, such as room addition or installation of a pool or converting a car port to a garage, may enhance the value of a real property.  Such enhancement in value of a non-marital asset is “marital”, and the non-owner spouse would have a 1/2 claim to this enhancement in value (not the entire asset itself).  The burden of establishing the value appreciation is on your Wife, the non-0wner spouse, and I do not think she will be able to prove any enhancement in value as a result of the repairs made to the Beach Home.   

You mentioned a mortgage encumbering the Beach Home.  If, during the marriage, you paid down the principal on the mortgage, then your Wife may have a claim to 1/2 the pay down.   Only the actual amounts spent toward mortgage principal reduction are marital assets subject to a claim by the non-owner spouse (your Wife), but any increase in value of the Beach Home resulting from passive appreciation (such as inflation or certain market forces) is not a marital asset.