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).

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.

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 fo 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 peform 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 dligent 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 for a free initial consultation.

Alimony Modification:  “Supportive Relationship”

Situation:        

The Wife was awarded permanent periodic alimony in the initial divorce proceeding.    At the time of the trial, the Husband and Wife had been married for 17 years and had one minor child.  The evidence showed that the Husband, an accountant, was earning a gross annual salary of $ 75,000.    Although the Wife was 47 years of age and in relative good health, she had not worked outside the marital home during the marriage except for brief periods of part-time employment as a child-care provider.   The Court awarded the Wife the amount of $ 2,000 per month as and for permanent periodic alimony until she died or remarried.   Two years after the Final Judgment was entered, the parties’ child turned 18 and graduated from High School.   The Former Wife then commenced living with a male “roommate”.  The Former Husband now seeks to modify or terminate his alimony obligation to his Former Wife based on the allegations that she is living with another person, who is supporting her and she, therefore, is no longer in need of the alimony. 

Argument: 

An award of spousal support (“alimony”) is based on one spouse’s NEED for the support and the other spouse’s ABILITY to pay it.  Let’s assume that the trial court correctly determined that the Former Husband had the ability to pay $ 2,000 per month in light of his earnings; and that the Wife was in need of $ w,000.00 per month permanent periodic alimony based on her then-living expenses and lack of a comparable earning capacity (to that of the Husband) not to mention the length of the marriage.    

Alimony is modifiable.  In order to downward modify or terminate his alimony obligation, the Former Husband will need to prove that a material, permanent and unanticipated substantial change in circumstance has arisen since the date of the Final Judgment.    The Former Husband may prove a substantial change with evidence that his Former Wife is no longer in need of the support because she is in a “supportive relationship”.   The Former Husband will bear the burden of proving that the Former Wife is in a supportive relationship.   Section 61.14(1)(b), Florida Statutes.    

During the discovery phase of this modification proceeding, the Former Husband may inquire of his Former Wife as to the nature and extent of her relationship with the roommate.   Section 61.14(1)(b)2. lists out circumstances the court will consider in determining whether a “supportive relationship” exists, such as:

a.         The extent to which the obligee (here, the Former Wife) and the other person (here, the “roommate”) have held themselves out as a married couple.  By way of example, have they used a common mailing address or referred to themselves as “Husband” and “Wife”?

b.         The period of time the obligee and the other person  have resided together in a permanent place of abode.  By way of example, have they lived together for, let’s say, over one year in his or her home and share the same bedroom?

c.          The extent to which the obligee or the other person have pooled their assets or income.  By way of example, have they deposited their income into a joint checking account and paid common household/ living expenses out of this Account?

d.          The extent to which the obligee or the other person has supported the other, in whole or part.  By way of example, has the other person paid over a relatively significant period of time for the obligee’s living expenses and/ or made major purchases of assets for the obligee (such as a vehicle)?

e.          The extent to which the obligee or the other person has performed valuable services for the other.  By way of example, have they shared in all household chores, such as cooking, cleaning, laundry, etc.? 

f.          The extent to which the obligee or the other person has performed valuable services for the other’s company or employer?  Similar to subparagraph e., above, has the obligee assisted in an employment capacity with the other person’s business without remuneration?

g.          Whether the obligee and the other person have worked together to create or enhance anything of value?  By way of example, has the obligee used her income including alimony to improve the real property of the other person, such as adding a swimming pool or room addition?

h.          Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property?

i.          Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support (similar to a pre-nuptial agreement but without any expressed intention to marry).

j.          Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support?

k.          Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so?

At the time the Former Husband filed this modification proceeding, the Former Wife and her roommate were in an intimate relationship and shared the same bedroom for 18 months.   The evidence further showed that they used their residence as a common mailing address and the address was on their Florida drivers’ licenses.  Although they did not co-mingle their funds into a joint checking account, they did add the other onto their respective checking accounts as a signer.   The Former Wife only works part time, and her roommate pays for a majority of the household living expenses including the rent, utilities, cable, telephone and food.  Further, they purchased a vehicle which is held in joint names.   In light of these circumstances, the Former Husband may prevail upon the court as to the existence of a “supportive relationship”, of which “ . . . provide[s] economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances . . .   .”  Section 61.14(1)(b)3., Florida Statutes.

Remember, each case is unique and stands on its own facts.  No litmus test exists in determining whether a “supportive relationship” exists.