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) 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.

A court has the authority to enforce it’s support orders albeit child support or spousal support (alimony).  One way to enforce such an order is via the court’s contempt powers.   If an obligor (party which owes the support) fails to pay the support as court-ordered, the one owed the support (obligee) may file a Motion For Civil Contempt.  At the hearing on the Motion, the Court will follow a two-step procedure for establishing civil contempt.  First, the court will determine whether the obligor has willfully violated the court order(s); and, if so, the court must then determine an appropriate remedy, which may include incarceration.  If incarceration is the remedy, then the court must make a separate, affirmative finding that the obligor has the present ability to pay a purge.  Bowen v. Bowen, 471 So.2d 1274, 1278- 1279 (Fla. 1985).

Hypothetical # 1:  Husband is ordered to pay to Wife the amount of $ 1,000.00 per month as permanent periodic alimony.  At the time of the court order, the Husband’s net income is approximately $ 4,000.00 per month; the Wife’s net income is about $ 1,000.00 per month.   Two years later, the now Former Husband loses his job through no fault of his own and undergoes a diligent job search to find comparable employment (for approximately 90 days).  During the 90 day period, the Former Husband pays his Former Wife the amount of $ 600 per month out of his savings and his unemployment compensation.   Is the Former Husband in contempt?  Answer, he may be in technical contempt since he has failed to pay the court ordered amount but may not be in “willful” contempt since he has made a best faith effort to pay his obligation out of his available financial resources.  

Hypothetical # 2:   What if the Former Husband in hypothetical # 1, above, voluntarily resigned from his position.  Let’s further assume that the Former Husband is also currently residing with his paramour and he is assisting her with her expenses, such as her mortgage and car payment.  Let’s further add that the Former Husband’s parent(s) have historically assisted him with all of his obligations such as his car payments, mortgage payments, and additional amounts for legal fees, all of which are significantly greater than his support obligation to his Former Wife.  The Former Husband refuses to pay his support obligation since he is unemployed and has no income.  Further, the Former Husband has a house and a car, both of which are worth less than is owed.   Is the Former Husband in contempt?   Answer, under this fact pattern and assuming the Former Husband has not made any effort to obtain employment or pay any of his obligation, then the court may hold that the Former Husband is in ‘willful’ contempt of court and may order his incarceration.  

In the forgoing hypothetical, the court may order incarceration in order to obtain compliance of the Former Husband with it’s prior court order (of spousal support).  In so doing, let’s say the court finds that the Former Husband’s paramour and parent(s) have the ability to assist him with a “purge” amount in the amount of $ 10,000.00.    The Court did not make any findings that the Former Husband, himself, has the income or assets in which to pay a purge amount.  Can the court do this?   The general rule is that the court cannot base one’s present ability to pay a purge on the prior assistance and/ or available resources of family or friends.  However, certain case law does set out circumstances justifying an exception to this rule.   The “exception” usually involves assistance by third persons in amounts much greater than the amount owed by the obligor to the other spouse and/ or the obligor was perpetrating a fraud on the court by concealing, dissipating or transfering assets to avoid payment not to mention his or her voluntary resignation from a job to avoid paying the support obligation.  

In any event, prior to any hearing on such a Motion (for civil contempt), I would recommend that the party seeking enforcement use “discovery” in order to obtain information as to the obligor’s present ability to pay a purge amount.   Such discovery tools may include interrogatories or requests to produce (financial information such as bank records, income information, etc.).  You may also take the obligor’s deposition to learn further about non-exempt assets and/or any transfers of property since the date of the subject court order.

*** The foregoing is not intended as legal advice.  If you have any additional questions or comments, feel free to either post a comment/ response or contact my Office for a free, initial consultation to discuss the particulars of your situation.

Child support is established in accordance with section 61.30, Florida Statutes (the child support guidelines).   Generally, a parent’s child support obligation is based primarily on both parents’ respective incomes and is calculated using a formula set out under section 61.30, F.S.    For example, let’s say Father takes home (net) $ 2,000 per month; and Mother takes homes (net) $ 2,000 per month, for a total combined available income of $ 4,000.00 per month.  If the parties have two children together, then the basic guideline support amount for the two children is: $ 1,288.00 per month, of which each party is responsible for 50% (both parents earn $ 2,000 each for a combined $ 4,000), or $ 644.00 per month.   This is the parents’ basic obligation for the support and maintenance of their children (and same is to be applied towards the children’s share of the living and household expenses such as rent/ mortgage, utilities, food, gas for the car, etc.).

What does “child support consist of?”  As explained above, child support includes the basic obligation of both parents towards the child’s (ren’s) living expenses.   I usually describe “child support” liking baking a cake . . . different ingredients go into the baking of a cake.  The first ingredient is the basic obligation.  Then, we add “health insurance” and uncovered or non-reimbursed expenses.  Generally, a parent’s share of the health insurance premiums for the child’s (ren’s) coverage is based on the guidelines.  For example, if the Father has a net monthly take home of $ 3,000 and the Mother has a net monthly of $ 2,000, then the Father’s share of the premiums and any uncovered expenses would be 60% ($ 3,000 divided by the combined $ 5,000, or 60%).   Another ingredient in the child support “cake” is: day and/ or after care.  If a parent has to work or is in school, and as a result the child(ren) has to be put into daycare, then both parents have to contribute towards this expense.  However, the total amount of the daycare (or aftercare) expense is first reduced by 25% (the parent receiving the Earned Income Credit pays is, in essence, responsible for the first 25%), and then the parents share the remaining 75% of this expense pursuant to their respective guideline share.  Some children may have special needs, which is yet another ingredient, so to speak, of child support.

What if a parent is unemployed.  Does he or she have to pay any child support?  How can you calculate his or her child support obligation if the parent is unemployed?   Both parents have a continuing obligation to support their child(ren).    This obligation does not go away if a parent becomes unemployed even if through no fault of his or her own.   If that parent receives benefits such as unemployment, then he or she must pay a percentage of the benefit towards support.  Further, the unemployed parent must undergo a diligent job search to find employment earning comparable pay to that level prior to being let go/ terminated.   Let’s say the Father is court ordered to pay $ 750.00 per month in child support for the care of the parties’ two minor children but then loses his job due to poor economic times.   The Father then pounds the pavement to find work through a variety of sources including job fairs, but is unable to find any emploment within 30 days and he has not yet received his first unemployment check.  The Father misses a child support payment.  Is he in contempt?  Maybe, he is technically in contempt because the Court ordered him to pay $ 750.00 and he paid nothing.  However, let’s assume arguendo that he did not voluntarily resign from his job;  he can prove he’s been looking for work;   he has not yet received his first unemployment check:  and he has no savings or liquid funds in which to pay any support.  If this be the case, I would argue fervently that my client is not willfully violating the court order of support. 

Imputing Income:   What if the Father, in the example above, decides to pursue his dream and opens up a business opportunity or takes a job making much less than he is capable of earning (according to the Mother).    After a period of time of opening up his business, the Father files for a downward modification of his child support because he is not making what he previously was earning.  Will he prevail?  In my opinion, without more facts, I would say no.   I would argue that the Father is voluntarily under- or unemployed and that his prior level of income should be “imputed” to him.  A court can impute income to a parent if he or she is voluntarily under- or unemployed.  Basically put, if the voluntarily under-employed/ unemployed parent is earning $ 20,000 per year but was recently earning $ 60,000 per year, then the court may calculate that parent’s child support obligation as if he were earning $ 60,000 per year.    In order to impute income, the other parent must prove up the under-employed (or unemployed) parent’s recent work history and earnings, qualifications and credentials and the availability of jobs at that earning level in the local community.

If you have any questions, please reply and inquire.  Every case is unique and dependent on it’s own particulars.  The foregoing is NOT intended as legal advice.