Florida law provides that a presumption of entitlement to alimony arises in long term marriages. This presumption does not mean that the spouse purporting to be in need automatically receives alimony in a long term marriage.  Even in long term marriages (which are defined by the 2nd District Court of Appeal, including Pinellas/ Paso, Hillsborough and Manatee Counties, as one of at least 15 years’ duration), the Court will evaluate both the ”need” (for the support) and the “ability” (to contribute towards same). In so doing, the Court will evaluate a variety of factors which are set out in section 61.08, Florida Statutes, including:  (a) the standard of living;  (b) duration of the parties’ marriage;  (c) the age and health of the parties;  (d) the financial resources of the parties (including non-marital assets);  (e) in certain instances, the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment; (f) the contribution of each party to the marriage, including considerations of homemaking and child rearing; and (g) all sources of income available to either party. Section 61.08(2)(a)- (g), F.S. 

Generally, in a long term marriage, if the spouse with the perceived ability to pay does not rebut the presumption (of entitlement), and the other spouse has a demonstrable need for support , then the court may award permanent periodic alimony (there are other types of alimony but this post will deal primarily with “permanent periodic”).  The amount of support will be based primarily on the receiving spouse’s need, which takes into consideration such expenses as household and living expenes (rent or mortgage, utilities, phone, food, gas); insurances (car, health); and even items based on standard of living considerations (vacations, entertainment, grooming, clothing).   However, the court must also evaluate the other spouse’s ability to so contrnot award support in an amount that leaves the other spouse without an ability to meet his or her own reasonable living and household expenses or otherwise destitute. Case law also states that the courts must not simply “equalize” the parties’ incomes but must consider the factors set out in section 61.08(2), F.S. and the other spouse’s true need for the amount of support.  

Determining need and ability gets murky in situations in which one party (or both) is (are) voluntarily under- or un-employed. Let’s say that the Wife worked during the parties’ long term marriage except for two brief periods of maternity leave.  During the Marriage, and as recent as two years ago, the Wife was earning upwards to $50,000 gross annual salary with benefits. This is the most she ever earned during the Marriage. She is 42 years of age, good health and has a college degree. The Husband is currently earning approximately $75,000 gross annual with benefits. The parties’ two children are minors but both are in school. Two years ago, the Wife decided to pursue a business opportunity which would provide her flexibility of scheduling so she could spend more time with the children.  Unfortunately, during the past two years, the Wife has not generated enough gross receipts in order to pay herself a salary from this business. The Husband is now the sole source of support for the family. A divorce proceeding is instituted and the Wife requests, among other claims, permanent periodic alimony. Will she prevail?  What can the Husband do to mitigate? Assuming the parties’ marriage is long term, the Wife has a present need and the Husband has some ability to so contribute, I believe the Wife can legitimately claim permanent periodic alimony. However, the Husband may argue that the Wife is (and remains) voluntarily under-employed and has a comparable earning capacity to him. In this instance, the Husband would have the burden of proving that the Wife has a recent work history and job qualifications to obtain comparable employment with comparable pay in the local community. One way to prove up that the Wife is voluntary under-employed is to enlist the services of an expert vocational rehabilitation specialist/ evaluator.

All sources of income are to be considered in determining one’s ability to contribute towards the other spouse’s support and/ or the other spouse’s need for support. For example, if the spouse with a perceived ability to pay owns a closely held corporation (let’s say, he or she is the only owner), and an approximate $ 10,000 of ordinary income is in the business’ account at the end of the quarter, is this amount to be considered in determining that spouse’s ability to pay? What if the spouse who is seeking permanent periodic alimony is earning interest and/ or receiving dividends on his or her investments or is receiving other income of a recurring nature, such as from a family member? These are facts that must be explored by the attorney as part of the mandatory disclosure requirement (namely, both parties must provide financial information in the form of pay stubs or other evidence of income; bank records; statements of account; etc.).  Sometimes, an expert CPA may be enlisted to perform a forensic accounting, which would include a determination of the sources of income, any concealment of income, transfers of assets for less than fair market value, and the nature of expenditures (for example, is one’s business paying for personal expenses). 

Alimony may be subject to modification, up or down.  In order to obtain a modification, the one requesting same must prove that a substantial change(s) in circumstance has (have) arisen warranting a modification.   What constitutes a substantial change in circumstance warranting modification?  Each case is unique and is dependent on it’s own particulars. Simply being let go from a job is a change but may not prove to be a “substantial” change if same is not a permanent loss of employment or income potential. Being injured on the job and temporarily unable to work may also not be a permanent loss warranting a modification. Let’s say the obligor spouse loses his job through no fault of his own (the company he worked for downsized due to bad economic times).   He was making $ 60,000 per year at the time he was let go.  Subsequent to termination, the former husband undertakes a diligent job search looking for a position with comparable pay but is only able to find work within the range of $ 32,000 to $ 40,000 per year without benefits. If, arguendo, the former husband was diligent in his pursuit of a job, then this fact pattern may warrant a downward modification of his support obligation.   On the flip side, what if the former wife enters into a “supportive relationship” and is less in need.  This, too, may amount to a situation in which the obligor may seek a downward modification. The case law defining what constitutes a “supportive relationship” is across the board but Florida law does provide for a downward modification (or termination, if applicable) in such instances.  

For more information, please feel free to inquire. The foregoing IS NOT intended as legal advice or a representation. If you are in need of legal advice, please feel free to inquire by calling 727-895-5858. I do provide a free initial consultation.

Florida Law does provide for situations involving Parental Relocation (of a “parent” with his or her child(ren)). 

First, one must determine if he or she is a “parent” entitled to time sharing with the Child.  Generally, if a child is born to an intact marriage, then the Wife and Husband are the legal parents of that Child.  If a child is born out-of-wedlock (Mother not married to Father), then the Mother is the natural guardian of the Child and, if the Father signs the child’s birth certificate, then he, too, is a legal parent.   Next, a determination has to be made whether the relocating parent is entitled to time sharing with the Child.  Let’s assume the Father signed the child’s birth certificate and is then afforded temporary time sharing with the Child pursuant to a court order.    Most of the overnights are between Mother and Child.  After the court order is entered, the Mother then serves upon the Father a Notice Of Intent To Relocate With A Child.   Accordingly, the Mother wants to move out-of-state with the parties’ child so she can be closer with her family, who will be able to financially assist her and share in daily child care.    What happens?

The Mother’s Notice must comply with the statutory requirements of section 61.13001(3), Florida Statutes.   The Notice must set forth certain matter including: (1)  a description of the location of the intended new residence, including the physical address, city and state; (2)  the mailing address if different then the physcial address; (3)  the home telephone number of the intended new residence, if known; (4)  the date of the intended move or proposed relocation; (5)  a detailed statement of the specific reasons for the proposed relocation, inlcuding as an attachment, any job offers reduced to writing;  and (6)  a proposal for the revised postrelocation schedule or time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate the proposed time-sharing.  The Wife will also need to include the prescribed statement setting forth the Father’s right to object. 

If the Father objects, he must do so in writing, verified, and serve same within 30 days after service of the Mother’s Notice.  The objection must set forth a specific factual basis supporting his request to prohibit the relocation of the Child, including a statement of the amount of participation or involvement the Father currently has or has had with his child.  Section 61.13001(5), Florida Statutes.  

Upon objecting, the Mother will then have the initial burden of proving that the relocation is in the child’s best interests.  Since the current order is “temporary”, then a case is pending.   The Mother would then need to move the Court for permission to relocate.  If the prior court proceeding was concluded (and a Final Judgment was entered setting forth the time sharing arrangement), then the Mother will need to initiate a post-judgment proceeding seeking permission to relocate with the Child.   A hearing on the Mother’s request will be afforded priority on the Court’s calendar.

At a hearing, the Court will evaluate a series of factors in reaching a conclusion on the relocation request.  Let’s assume the Father has been exercising regular time sharing with the child pursuant to the court’s order; that the Father is current with his child support obligation or in substantial compliance; the Mother will be earning just as much at the intended destination as she is able to do here; and neither parent is able to afford the costs of transportation.  If this is the case, then the Court may consider denying the request even though the Mother has family to assist her.  On the other hand, if the relocation “will enhance the general quality of life for both the parent seeking the relocation and the child”, then the Court may consider such a request.  Section 61.13001(7), Florida Statutes.  In this event, the Court may order contact with the child and nonrelocating parent to include time sharing “sufficient to ensure that the child has frequent, continuing, and meaningful contact . . . with the nonrelocating parent”.  Section 61.13001(9), Florida Statutes.

THE FOREGOING IS NOT INTENDED AS LEGAL ADVICE.  If you have any questions or are in need of legal advice, then please feel free to reply to this posting and/ or contact my Office at 727/ 895-5858 for additional information.

Effective October 1, 2008, Florida Law no longer provides that either parent or both may be designated as the “primary residential” parent (custodian) and the other parent as the “secondary residential”.   If the parties cannot agree, then the Court will establish a “parenting plan” which will set forth a “time sharing arrangement”.  Each case is unique and the amount of time each parent spends with his or her child(ren) may be tailored to fit their particular situation.  For example, parent “A” may have each consecutive Monday and Tuesday overnights; and parent “B” would have each consecutive Wednesday and Thursday overnights; and the parties would then alternate weekends (Friday, Saturday and Sunday overnights).  This would be an example of “equal” time sharing (each parent has 7 overnights per two weeks).

The question is whether the amount of time one parent spends with his or her child(ren) impacts the amount of child support?  Yes.  This aspect of Florida Law has not been changed.  Let’s say parent “B” in the example above has at least 40% of the overnights throughout the year, then his/ her child support obligation would be reduced.  This is called “substantial” parenting time.   Section 61.30, Florida Statutes provides for this reduction in “B’s” child support obligation.

Although neither parent is to be designated as the “primary residential” parent, parents still have disputes over  ”time sharing” because of the impact on child support (among other possible reasons).  Let’s say the parties have been living separate and apart for several months and, during this time, “B” rarely exercised any time sharing with his/ her child(ren).  Assume further that “A” has not concealed the child’s location and has even encouraged “B” to spend time, including overnights, with the child.  Now, “A” files for child support.  In turn, “B” counters with his/ her own petition for the establishment of a parenting plan to include EQUAL time sharing.  One could argue that “B” is fully aware of the impact “substantial” parenting time has on his/ her child support obligation and is, therefore, now asking for additional time with the child.  “A” may consider raising the argument that “B” should have limited overnights with the child so as not to disrupt the child’s routine and that the time sharing should be more reflective of “B’s” historical involvement (or the lack thereof) with the child.

Again, each case is unique.  Parents should try to find some common ground when discussing the terms of their parenting plan.  The concern is always the “best interests” of the child!

Here is a basic Florida parenting plan and a supervised parenting plan.

Situation:

During their Marriage of several years, let’s say 8 years in length, the Husband contributed significant funds from his premarital assets towards the purchase of the parties’ Marital Home.   The Home is titled jointly in both parties’ names as “Husband and Wife”.  Let’s further say that the Wife did not have any assets at the date of marriage and, therefore, the Wife did not contribute any separate, non-marital funds towards the purchase of the marital home.  Further, the Wife did not work during the Marriage except for brief periods of part-time employment and pretty much was a stay-at-home mom raising the parties’ two children.   The parties are now getting a divorce, and among other issues, the Husband claims that the Marital Home should be awarded to him as his separate, non-marital property or that he should receive the Home as part of an UNEQUAL distribution.  

Does the Husband prevail on this issue?

Answer:

Based on the foregoing, probably not.   The Court will first separate out the parties’ non-marital assets from those that are “marital”.  In this case, the Home was purchased during the parties’ marriage and is jointly titled (“tenants by the entireties”, or as “Husband and Wife”).   During the marriage, the parties’ earnings (including the Wife’s part-time employment earnings) were applied towards the mortgage, maintenance, repair and improvement of the Property.   Let’s assume arguendo that the Court finds the Property to be a marital asset.  “All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.”  Section 61.075(6)(a)2., Florida Statutes.

But, is the Husband entitled to an “unequal distribution” of the Marital Home as a result of his acquiring it with his pre-marital (non-marital) funds?   Once the Court identifies the marital assets and liabilities, including the marital home and the mortgage encumbering it, the starting point is an equal division (50- 50).  However, the Court may award an unequal distribution of a marital asset(s) if justified.  In this case, the Court may consider the Husband’s contribution of non-marital funds towards the acquisition of the Home in determining whether the Husband is entitled to an unequal distribution of that asset.  The burden would be on the Husband to prove his entitlement to an unequal distribution. 

Given the facts as stated herein, Florida case law suggests that the Husband will probably not prevail on this argument.   Let’s say the Husband could prove that the purchase of the Home was from a significant contribution of his non-marital funds.   However, the Wife may argue that the Husband’s non-marital funds used towards the purchase of the Home were, in essence, “commingled”, especially in light of the fact that the parties took title to the Property as “Husband and Wife” and, thereafter, both parties contributed to the maintenance and upkeep of the Property.    The Wife may further argue that the Husband’s contribution, as commingled, is untraceable and/ or was a gift from the Husband to the Wife.   Further, even though the mortgage principal was reduced primarily as a result of the Husband’s marital earnings, this does not give him any further legal basis for an unequal distribution.  

One other noteworthy matter.   The parties have two minor children.  Let’s say that the children have lived in the marital home since birth; that the Home is within their school district; and the note/ mortgage payment with taxes and insurance, is “financially feasible” (for example, the monthly mortgage payment including taxes and insurance is relatively affordable and rent for a leased property would be the equivalent cost).   Let’s assume the Husband gets a majority of overnights with the children as part of the parenting plan.  Can the Husband obtain an unequal distribution of the Home in this instance?    A parent may obtain the exclusive use and possession of Home (not ownership) if maintaining the Home as a residence for the children during their minority is desirable and same would otherwise be in their best interests and, further, to do so is “financially feasible”.  Section 61.075(1)(h), Florida Statutes.    The Wife may argue that the Home is the parties’ only significant asset, that it has equity and she is in need of her 1/2 share of the equity to re-establish herself in another residence.   If the Court agrees with the Wife’s position, then the Husband may not be awarded the exclusive use and possession of the Home during the minority of the children (although he may refinance and buy out the Wife’s interest).