FL Family Law Flashcards
FL Bar
Florida Marriage Rights
A Civil Contract.
Parties need to be:
- Capacity
- Consent
- Consideration in the form of
- Mutual Promises, and the
- Imposition of rights and obligations.
A marriage contract cannot be modified or terminated without state intervention. Maynard v. Hill, 125 U.S. 190 (1888).
Capacity and consent are implicit to the concept of marriage and are legally required in all jurisdictions.
Ceremonial Marriage
Parties must:
- Obtain a License
- Solemnize the Marriage
License Requirements
- Age
a. 18 yrs old to marry
b. 17 yrs old if:
i. Minor’s
Parents/Legal
Guardian provide
written consent - Premarital Prep Handbook and Course
- Waiting Period (3 Days)
a. Waived if:
i. Good Cause
Exists
ii.Non- FL Resident
iii. If parties
complete the prep
course
A marriage that is in substantial compliance with the statutory procedures and entered into in good faith is deemed valid.
When is a marriage license NOT issued?
A marriage license will not be issued when:
1) MARRIED to someone else ALREADY;
2) The parties are too closely related, as defined by statute; INCEST
iii) SHAM MARRIAGE; or
iv) LACK CAPACITY to understand the nature of the act.
Solemnization Requirement
Within 10 days after the ceremony, the license must be–>
certified by the person who solemnized the marriage and must be returned to the licensing office.
Are Proxy Marriages valid in FL?
NO –> Proxy marriages are not valid in Florida.
A proxy marriage is a wedding in which one of the parties is not present and is represented by another individual. (ex. -military/incarcerated parties)
Is legal process required when a party changes their name?
Legal process is only required when adopting a name that is neither her maiden name nor her husband’s surname, such as a hyphenated variant of both names.
to revert back to a maiden name - no legal process required
Common-law Marriage
Common-law marriages are defined as marriages when the parties:
1) AGREE that they are married;
2) COHABIT as a married couple; and
3) HOLD THEMSELVES OUT to the public as married.
Does FL permit Common-law Marriages?
NO –> Florida no longer permits common-law marriages.
**BUT, common-law marriages in Florida BEFORE 1968 are not void and therefore are recognized as fully valid. Fla. Stat. § 741.211.
Does FL recognize Common-law marriages that are valid in other states?
YES –> Florida recognizes common-law marriages validly entered in a jurisdiction that recognizes such relationships.
Common-Law Marriage - Intent
Jurisdictions vary between:
- , Clear and convincing evidence;
- Preponderance of the evidence.
How can a party show intent?
This intent must be evidenced by:
- PRESENT TENSE WORDS
- FOR THE PURPOSE OF ESTABLISHING A MARITAL RELATIONSHIP
- -> if a party can’t show PT words –> Cohabitation and Reputation can support a CLaw Marriage claim
- *FUTURE TENSE WORDS
- -> NOT VALID**
How can a party end a marriage?
DAD
A valid marriage, including a valid common-law marriage, can be terminated only by: "DAD" 1. D- DIVORCE 2. A - ANNULMENT 3. D - DEATH
Annulment
An annulment voids a marriage and declares it as having never been valid.
Does Annulment effect children in a marriage?
YES –> Florida follows the CL approach, as
- An annulment will affect the LEGAL STATUS of ANY CHILD
Children born of a void marriage/voidable marriage later annulled are not considered marital children
Except for probate purposes, when the child is considered a lineal descendant of the father, so long as the parties participated in a wedding ceremony before or after the child’s birth
Void Marriage
Void Marriage
- -> is treated as if it never happened.
- -> does not need to be judicially dissolved
- ->will not be legally recognized for any purpose.
Any party may seek an annulment of a void marriage, and such marriage may be collaterally attacked by another party, such as a parent or guardian. A void marriage may become voidable if the impediment is removed.
Who can annul a void marriage?
ANY PARTY may seek an annulment of a void marriage
–> AND
Such marriage may be collaterally attacked by another party, like a PARENT/GUARDIAN
What happens if the impediment making a marriage VOID is removed?
A void marriage may become VOIDABLE if the impediment is removed.
Prior Existing Marriage
STRONG PRESUMPTION REGARDING THE VALIDITY OF A MARRIAGE
- -> If there is a VALID PRIOR EXISTING MARRIAGE
- -> at the time that the SUBSEQUENT MARRIAGE is entered into,
THEN:
–>The presumption of validity applies to the MOST RECENT MARRIAGE
A party attacking the validity of a marriage must first rebut the heavily weighted presumption. See Cobo v. Sierralta, 13 So. 3d 493 (Fla. Dist. Ct. App. 2009); In re Estate of Beacher, 177 So. 2d 838, 839–40 (Fla. Dist. Ct. App. 1965)
How does one rebut the presumption of the most recent marriage?
To rebut the heavily weighed presumption:
- PRIMA FACIE evidence of a marriage is presented,
- ->the party SEEKING THE ILLEGALITY of that marriage has the BURDEN of proving - THE CONTINUANCE of the PREVIOUS MARRIAGE
and the
- INVALIDITY of the 2nd MARRIAGE.
–> COGENT EVIDENCE of the existence of a prior valid marriage must be established.
If proof is given that the 1st marriage didn’t end, what happens to the 2nd marriage?
2nd Marriage is VOID
–> If there is sufficient proof of a valid marriage that has not been dissolved to rebut the presumption, the later marriage is void.
Mental Incapacity/Capacity
A Party MUST - UNDERSTAND - NATURE of the marriage contract and its: —DUTIES and its duties —RESPONSIBILITIES in order to enter into a marriage.
LUCID = VALID
TEMPORARY INSANITY = VOIDABLE
Voidable Marriage
A voidable marriage is VALID
——UNTIL——
One Spouse seeks to LEGALLY VOID the marriage.
How does a party legally void a voidable marriage?
- JUDICIAL DECREE to dissolve the marriage.
–> In a voidable marriage, ONLY A SPOUSE may seek an annulment.
–>If a spouse dies, the MARRIAGE CANNOT BE INVALID.
A voidable marriage may be ratified by a subsequent act. Grounds for a voidable marriage include incest, age, impotence, intoxication, and fraud or duress.
What are some grounds for a Voidable Marriage?
FADIII
FADIII
F- FRAUD A - AGE D - DURESS I- INCEST I - IMPOTENCE I - INTOXICATION
Incest as Grounds for Annulment
Marriage/Sexual Relations between people related within the prohibited degree of kinship.
All states, including Florida, restrict marriages by consanguinity (blood relationships)
Florida also prohibits marriages between relatives of half-blood
While most jurisdictions hold marriages between persons too closely related to be void,
–> Florida treats them as VOIDABLE (can be ratified - and then valid)
What type of family members are ok?
ADOPTIVE = A OK
Marriage between Parents/Children/Siblings/
Aunts/Uncles/Nieces/Nephews
= NO WAY JOSE
Age as Grounds for Annulment
A party who is:
- UNDER the age of consent to marry
and - Didn’t get PARENTAL CONSENT/COURT
–> may apply to have the marriage annulled.
Can a party still seek annulment based on age, after they turn 18 yrs old?
NO –> Florida will prohibit the filing of an annulment based on age once the party who was not of legal age has
– ATTAINED AGE OF MATURITY
and
–Continued to freely COHABIT with the other party as a MARRIED COUPLE.
Impotence as Grounds for Annulment
A marriage is voidable if one party is
“NATURALLY and INCURABLY” impotent, UNLESS --> the other party KNEW OF impotence: - BEFORE MARRIAGE or -RATIFIED by CONSUMMATING, after finding out
Intoxication as Grounds for Annulment
If EITHER party was under the influence of drugs or alcohol
- At the Time of Marriage
- Making them Incapable of
- Contracting into Marriage
–> then that marriage may be ANNULLED.
Parties need to show they didn’t RATIFY the Marriage
by continuing to Voluntarily Live with each other AFTER the ceremony.
Fraud, misrepresentation, duress, coercion, or force as Grounds for Annulment
Most states permit an annulment when the marriage was the result of a
1. FRAUD TO THE ESSENTIALS OF MARRIAGE
Annul Due to Fraud –> the ANNULMENT REQUEST must be based on:
—PRESENT FACTS( not future. In Florida, once the fraud is discovered, the marriage may be ratified by continuing the relationship after the fraud is discovered.
What are some examples of insufficient grounds of misrepresentation/fraud etc. for Annulment?
(MICAH)
Concealment of defects of: —Morals, —Character, —Habits, —Fortune, and —Temper typically are INSUFFICIENT GROUNDS for an annulment
Lack of intent as Grounds for Annulment
Most jurisdictions, including Florida, permit annulment when the parties participated in the marriage ceremony as:
—IN JEST
—HILARITY
and do not have the requisite intention to be bound by the act.
This type of marriage is commonly referred to as a “limited purpose” marriage
Must not INTEND to consummate (ex. Immigration)
CONSUMMATION = NO ANNULMENT
Does a party HAVE to consummate the marriage for a marriage to be valid?
NO –> While consummation of the marriage is NOT A PREREQUISITE to find the marriage valid,
—FAILURE to consummate a marriage MAY BE GROUNDS FOR ANNULMENT
Distribution of Property or Alimony in an Annulment
Florida case law is unclear on the distribution of property after an annulment
Most Cases
—Courts have tried to place the parties in the SAME POSITION THEY WERE IN PRIOR to the marriage.
Generally…
—ALIMONY is UNAVAILABLE after an annulment,
but
—it may be granted PENDENT ELITE
What is Pendent Elite?
PENDENT ELITE is alimony that is granted DURING the PENDENCY of the annulment action
What happens to the innocent party after an annulment?
DAMAGES for the innocent party may be awarded in limited cases
Defenses to an Annulment Action
- LACHES
- RATIFICATION
Additionally, either party can raise the defense that the ALLEGED IMPEDIMENT to the marriage is NONEXISTENT
What is Laches?
Laches – an equitable defense, and occurs when a person has delayed in asserting her rights and, as a result, is no longer entitled to the original claim.
**Basically - the failure to assert one’s rights in a TIMELY fashion will BAR one from the requested relief.
Is there a SOL on the ability to bring an annulment action?
NO – There is no statute of limitations on the ability to bring an annulment action,
BUT…
–> The Court will consider the length of the marriage/conduct of the parties
Ratification
A party may ratify a marriage through conduct that occurs after the defect to the marriage is discovered. The necessary conduct to constitute ratification is dependent on the nature of the defect. When the defect is nonage, the mere continuation of the marital relationship after reaching the age of majority will likely be sufficient conduct to ratify the marriage.
Condonation
Condonation, or forgiveness of a spouse, is a defense to an annulment. There must be knowledge of the misconduct or defect to the marriage and forgiveness of the misconduct or defect, and the party must resume marital relations with the guilty party. In an annulment action, the continued cohabitation with the other party after the discovery of the defect will constitute condonation.
Recrimination
Recrimination, which is akin to the unclean-hands doctrine, occurs when both spouses have committed a wrongdoing of like conduct or have grounds for annulment. In other words, because both parties were guilty of the same or similar offense that would justify an annulment, a court could not grant the request. While still a viable defense, it is rarely used.
Divorce and Separation
Divorce is a legal dissolution of a marriage. Florida recognizes only a complete divorce; there is no remedy of judicial separation.
Grounds for Divorce
Florida is considered a “no-fault” divorce state, and it recognizes two grounds for divorce. The ground that the marriage is “irretrievably broken” is most commonly used. It is important to note that Florida has a legislative policy of granting divorces to terminate “dead” relationships. The no-fault grounds eliminate fault and wrong as a ground for dissolution.
Irretrievably broken
Under Florida law, a marriage may be dissolved when the court finds that the marriage is irretrievably broken. For the court to grant a divorce, there must be testimony of at least one spouse with regard to the status of the marriage. The testimony of either spouse is sufficient proof to establish the requisite grounds. Despite the terminology, the fact that the discord stems from a curable condition will not prevent divorce on a no-fault ground. Fla. Stat. §61.052(1)(a).
Uncontested without minor children
If the parties do not have minor children of the marriage, the parties both agree that the marriage is irretrievably broken, or the responding party does not deny that the marriage is irretrievably broken in the answer to the pleadings, and the court finds sufficient evidence that the marriage is indeed irretrievably broken, a judgment of dissolution will be entered by the court. Fla. Stat. § 61.052(2)(a).
Contested or minor children
If the parties have minor children of the marriage or the responding party denies that the marriage is irretrievably broken in his responsive pleading, then the court may:
i) Continue the proceedings for a period not to exceed three months for the parties to attempt reconciliation;
ii) Order the parties to undergo counseling; or
iii) Order the parties to take any actions that the court feels may be in the best interests of the parties and the minor children.
If the court determines that the marriage is indeed irretrievably broken, it will enter the judgment of dissolution of the marriage. There is no timeframe according to which the court must wait prior to making this determination. If the court determines that the marriage is not irretrievably broken, then the petition shall be denied. Fla. Stat. § 61.052(2)(b).
Incapacity
A marriage may be dissolved upon the finding that one of the parties has been adjudged mentally incompetent for a period of at least three years preceding the filing of the complaint. It is important to note that, in any case, when the marriage is dissolved on the basis of incapacity, the court may require the petitioner to pay alimony. Fla. Stat. § 61.052(1)(b).
With the court’s permission, a spouse may be deemed incapacitated, and, through his guardian, initiate a petition for dissolution of marriage. Fla. Stat. §744.3215(4)(c). To dissolve the marriage, the court must first find that the incompetent individual’s spouse has consented to the dissolution. Fla. Stat. §744.3725(6).
Defenses
Florida has abolished the defenses of condonation, collusion, recrimination, and laches for divorce actions. The only defense available to the parties is a denial of the grounds. Fla. Stat. §§ 61.044, 61.052.
Jurisdiction
To hear a family-related dispute, the court must have subject-matter jurisdiction and personal jurisdiction over the parties.
Subject matter jurisdiction—durational residency requirement
Florida law requires at least one spouse to be a resident of the state for six months before commencing a matrimonial action. Fla. Stat. §61.021. The divorce action may be entertained even when the parties lived in another state and the grounds occurred at that location, provided the six-month residency requirement has been met prior to the filing of the complaint. In determining residency, the parties need not be physically located within the state for the entire six-month period. If the parties did not reside within Florida for the entire six-month period, the court will consider a party’s intent to make Florida her principal residence and will consider the reasons for the absence. See Ogden v. Ogden, 33 So. 2d 870 (Fla. 1947). The parties must provide proof of their residency by way of a valid driver’s license, identification card, voter’s registration card, or the testimony of a third party.
Personal jurisdiction
Proceedings may be brought against an out-of-state resident. Personal jurisdiction against that person may be obtained based on the person’s physical presence in the state, property located in the state, or minimum contacts. Fla. Stat. § 61.061. Additionally, actual or constructive notice of the complaint is required for the court to establish personal jurisdiction.
Divisible and ex parte divorces
Under the doctrine of divisible divorce, also known as “ex parte divorce,” a court may have sufficient jurisdiction to grant a divorce but lack jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support. A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse. When a court makes such a determination, the defendant can challenge the court’s orders because of the court’s lack of in personam jurisdiction over the defendant. Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); Estin v. Estin, 334 U.S. 541 (1948).
Collateral attack on jurisdiction
The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff was not domiciled in the divorcing state at the time the judgment was granted or that he left the state’s domicile immediately after the entry of the divorce. If the court had both personal and subject matter jurisdiction over the parties, and the party litigated or had the opportunity to litigate, then the person will be precluded from collaterally attacking the judgment in any jurisdiction. Sherrer v. Sherrer, 334 U.S. 343 (1948). This situation is often seen in cases in which the parties colluded to obtain an out-of-state divorce. Although a third person may collaterally attack a divorce if standing exists, the third person will be precluded from attacking it if he is in privity with any party who would be estopped from attacking the judgment herself.
Proper Court
Generally, a dissolution of marriage action is brought in circuit court, as the Florida trial court with jurisdiction over most equitable cases. Fla. Stat. § 26.012.
County court—simplified procedure
Florida does provide a simplified procedure to dissolve a marriage when (i) the parties agree that the marriage is irretrievably broken, (ii) there are no minor or dependent children of the marriage, (iii) the wife is not currently pregnant, and (iv) the parties have amicably divided all of their property, assets, and debts. The county court has jurisdiction over the simplified dissolution procedures. The purpose for the simplified procedure is to permit the parties to obtain a dissolution of the marriage without legal assistance. In addition to the above factors, which must be included in each party’s sworn affidavit, the parties must complete a financial affidavit, a marital settlement agreement, and financial disclosures, unless the parties agree otherwise in their settlement agreement. Fla. Stat. § 34.01(2); Fla. Fam. L. R. P. 12.105.
Venue
In an action to dissolve a marriage, venue is generally proper in the county in which they last lived together as a married couple or in the county where the defendant resides. Carroll v. Carroll, 341 So. 2d 771 (Fla. 1977). If the defendant is not a resident of Florida, there is no venue restriction on the county in which an action may be maintained. Fla. Stat. § 47.011; Kopecky v. Kopecka, 967 So. 2d 1109 (Fla. Dist. Ct. App. 4th Dist. 2007).
Issues Relating to Indigent Parties
Courts cannot require that an indigent party pay costs and fees in order to access the court system. Such requirements are unconstitutional. Boddie v. Connecticut, 401 U.S. 371 (1971). Although there is no legal right to counsel for indigent parties in divorce proceedings, the court has the discretion to award attorney’s fees and costs if the party is unable to afford the services of legal counsel.
Full Faith and Credit
Florida will give full faith and credit to a valid divorce from another state that has an effect on property located within Florida as long as it is an action that Florida recognizes. For example, Florida does not recognize judicial separation or a divorce from bed and board; as a result, the judgment will not be binding on the spouse residing in Florida.
Example: Husband obtains a divorce in State C based on Wife’s abandonment. Wife is a Florida domiciliary. As a part of the judgment of dissolution, Husband may remarry, but Wife must seek the permission of the court to remarry in light of her abandonment of Husband. The out-of-state judgment will not be binding on Wife because Florida will not recognize a degree that limits a party’s right to remarry. Wife would have to seek, and would be granted, a dissolution in Florida. Fla. Stat. §61.031.
Foreign Country Divorces
The constitutional requirement of full faith and credit does not apply to divorces rendered in countries outside the United States. The decrees or judgments, however, may be honored under comity and reciprocity. Florida, generally, will honor a foreign divorce when (i) there is reciprocity, (ii) one of the spouses is domiciled in the country rendering the judgment, and (iii) the other party has received notice of the action and the right to a fair trial.
What types of Marital Agreements are there?
3 PPP’S
(3 PPP’S)
- Premarital Agreement
- Postnuptial Agreement
- Separation Agreement
- Property Settlement Agreement
Premarital agreement
A premarital (or “prenuptial” or “antenuptial”) agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death. As with any contract, consideration is required. A valid marriage is sufficient consideration for a premarital agreement. Accordingly, the premarital agreement becomes effective upon the date of the marriage. Fla. Stat. § 61.079.
Florida, along with approximately 26 other states, has adopted the Uniform Premarital Agreement Act (“UPAA”). The UPAA is a uniform law relating specifically to these types of contracts and imposing the same standards that are discussed below at § II.C.2, Validity of Marital Agreements. Fla. Stat. § 61.079. Importantly, premarital contracts may not adversely affect a child’s right to support or determine parental responsibility. Any terms authoritatively addressing either child support or parental responsibility will typically be deemed unenforceable.
Postnuptial agreement
Postnuptial agreements are made between a married couple during the marriage, entered into in contemplation of an ongoing, viable marriage. While consideration is required, the mutual exchange of promises will suffice. These agreements can define property division and spousal support. While a postnuptial agreement can address child support or parental responsibility, it may not adversely affect a child’s right to support or firmly determine responsibility; any provisions that do so will be unenforceable. Unlike prenuptial agreements, postnuptial agreements are not subject to the Statute of Frauds and, therefore, need only be in writing if the subject matter falls within the Statute of Frauds, such as with a transfer of land.
Separation agreement
Separation agreements are made between a married couple who are planning for divorce. These agreements can define property division, spousal support, child support, parental responsibility, and time-sharing. These agreements are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure.
Property settlement agreement
The purpose of a property settlement agreement is to settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued. A property settlement agreement must intend to be the final settlement of obligations concerning the property, both real and personal, of the parties. Once executed, a property settlement agreement is specifically enforceable and may not be modified by the court.
The reconciliation or remarriage of the same parties will abrogate the unexecuted portions of the prior marital settlement agreement with that spouse absent an explicit statement in the agreement to the contrary. Execution provisions are unaffected by the remarriage or reconciliation.
Validity of Marital Agreements
A premarital agreement is enforceable if there has been full disclosure, it is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged. Proof of the invalidity of such an agreement is by clear and convincing evidence.
In Florida, a provision in a premarital agreement awarding attorney’s fees to the prevailing party in an action regarding the validity of the agreement is enforceable.
If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result. Fla. Stat. § 61.079(8).
Full disclosure
Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Disclosure is an important consideration to the court, as it demonstrates that the parties exercised a meaningful choice when they agreed to the terms of the contract. Absent full disclosure, a court generally will refuse to enforce the agreement. In Florida, a marital contract will not be enforceable when it is unconscionable at the time of execution or when, prior to execution, the party contesting the agreement (i)was not given a fair or reasonable disclosure of the other party’s financial status, (ii) did not expressly waive any rights to disclosure, and (iii) did not have, or could not obtain in a reasonable fashion, an adequate knowledge of the property or financial obligations of the other party. Fla. Stat. § 61.079(7).
A party will be prevented from challenging the adequacy of the financial disclosure of a property settlement agreement executed after the initiation of the dissolution action and completion of discovery, as all of the relevant and necessary information could have been obtained through the appropriate discovery mechanisms. Macar v. Macar, 803 So. 2d 707 (Fla. 2001).
Fair and reasonable
The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure. To determine if a premarital contract’s terms are reasonable, the courts consider the parties’ wealth, age, and health. An agreement obtained by fraud, duress, or undue influence may be set aside as unfair. When a mediator participates in the creation of a settlement agreement, misconduct by the mediator (e.g., bias toward one spouse) can give rise to grounds for setting aside the agreement. If a confidential relationship between the spouses exists, the burden of proving the fairness of the agreement or the absence of undue influence may be placed on the dominant spouse.
Florida evaluates the fairness of the agreement at the time of execution of the contract.
Voluntary
The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or misrepresentation). Courts consider factors such as time pressure, the parties’ previous business experience, the opportunity to be represented by independent counsel, and statements made between the parties at the time that the agreement was presented.
A party’s insistence on the agreement as a condition to marriage is not considered duress.
Impoverished spouse
Even if a valid agreement has been voluntarily executed and meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result winds up leaving one spouse woefully impoverished to the extent that he becomes dependent on the state (i.e., welfare). It is irrelevant if abrogation of the exact terms of the agreement results.
Modification of Marital Agreements
While a court may uphold a provision in a marital agreement that prevents modification of property rights, including spousal support, a court may always modify child-support provisions in a marital agreement even if the agreement states that no modifications may be made.
A premarital agreement may be amended, revoked, or terminated by written agreement of the parties. No consideration is required.
Probate Rights
In addition to a party’s rights to determine the division of property in the event of divorce, parties may include provisions regarding probate rights in a premarital or postnuptial agreement, including the waiver or modification of intestacy benefits or rights previously conferred under an earlier will. Fla. Stat. § 732.702.
Premarital waiver
There is no additional consideration required, other than the execution of the agreement, to waive a party’s probate rights. Unlike with property division in the event of divorce, no disclosure is required to effectuate a valid agreement concerning probate rights. While fraud in the inducement will not invalidate a premarital probate agreement, fraud in the execution may constitute sufficient grounds to void the agreement.
As to a premarital probate agreement, misleading a spouse as to one party’s net worth (fraud in the inducement) will not invalidate the agreement, but fraudulently obtaining a spouse’s signature on the agreement may constitute sufficient grounds to invalidate the agreement (fraud in the execution). See Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985) (fraud in the inducement was found insufficient grounds).
Violence and Abuse in the Home
- Domestic Violence
Every jurisdiction, including Florida, has enacted a statute granting civil relief to victims of domestic violence.
Abuse
The purpose of the domestic violence law is to prevent future abuse of family or household members based on the defendant’s current or past abusive actions toward the plaintiff. In Florida, domestic violence is defined as assault, sexual battery, battery, kidnapping, stalking, false imprisonment, or other criminal offense by a family or household member against another family or household member that results in physical injury or death. Fla. Stat. § 741.28(2).
Protected parties
Only certain persons may receive protection under the domestic violence laws. Florida’s statute limits protection to those persons who have one of the following relationships:
i) Spouses, current or former;
ii) People who live as if they were spouses but who are not legally married;
iii) Parents and children;
iv) People related by blood or marriage;
v) People residing together, either currently or formerly, as if they were family; and
vi) People who have a child in common.
Fla. Stat. § 741.28(3). There are no minimum residency requirements.
All of the people seeking relief, with the exception of those people who have a child in common, must live together, either currently or in the past.
Relief
The primary form of relief is an injunction, although there are several forms that may be granted. To receive an injunction, the petitioner must certify under oath that the respondent has committed one of the enumerated acts discussed in §II.D.1.a., Abuse, supra, or that there exists a reasonable belief that the respondent will commit one of those acts. The respondent must be personally served with the petition for protection by a member of law enforcement. With the exception of an ex parte injunction, there must be a hearing established by the court at the earliest possible time. The injunction may not be amended by either party without a court order. Fla. Stat. §741.2902.
1) Ex parte temporary injunction
After the filing of a petition, the court will determine whether an ex parte injunction should be entered. The temporary injunction will provide immediate relief for the petitioner and may include protection for her family or other household members. Notice should be provided to the adverse party, except when there is an immediate and serious threat of harm to the petitioner. The court can only consider the verified pleadings or affidavits unless the respondent appears at the hearing or has received reasonable notice. Fla. Stat. § 741.30(5)(b).
For the injunction to be issued, the court must determine that the petitioner has a reasonable cause to believe that there is an immediate danger of domestic violence. Fla. Stat. § 741.30(5)(a). If the petitioner does not meet the standard, the court must deny the injunction and issue a written statement of the grounds for denial. Fla. Stat. § 741.30(5)(b). If the only reason that the injunction is not issued is that the court does not find a reasonable cause to believe that there is immediate and present danger to the petitioner, then the court must set a full hearing on the petition for injunction at the earliest possible date, with notice to the respondent. Fla. Stat. §741.30(5)(b). If issued, the ex parte injunction will be effective only for a period not to exceed 15 days, absent a finding of good cause to issue a continuance that can include an extension to obtain service of process. The general injunction hearing must be held within those 15 days unless a continuance has been granted.
Reasonable belief of violence
In determining whether the petitioner has a “reasonable cause to believe” that she is in imminent danger of becoming a domestic violence victim, the court must consider all relevant factors alleged in the petition for injunction, including, but not limited to:
i) History between the parties, including threats, harassment, stalking, and physical abuse;
ii) Attempted harm to the petitioner, her family members, or her household members;
iii) Threatened harm, kidnapping, or concealment of the petitioner’s children by the respondent;
iv) The respondent’s criminal history of violence or threats of violence;
v) Use or threatened use of weapons by the respondent against the petitioner;
vi) Intentional injury or death of a family pet by the respondent;
vii) The existence of a verifiable order of protection previously issued in any jurisdiction; or
viii) Destruction of the petitioner’s personal property by the respondent.
Fla. Stat. § 741.30(6)(b).
Possible relief
The court can grant multiple forms of relief when issuing an ex parte injunction, depending on the individual circumstances of each case. Such forms of relief include the following:
i) Restrain the respondent from committing any acts of domestic violence against the petitioner, any family member of the petitioner, or any household members of the petitioner;
ii) Restrain the respondent from communication or contact with the petitioner, any family members, or any household member;
iii) Award the petitioner temporary possession and use of a shared residence with the respondent, or restrain the respondent from the petitioner’s residence;
iv) Exclude the respondent from the petitioner’s place of employment, school, or specific locations frequented;
v) Award temporary custody of any children in common to the petitioner;
vi) Order the surrender of the respondent’s firearms and/or ammunition; or
vii) Order any protection necessary for the safety of the petitioner.
General injunction for protection
After the issuance of an ex parte temporary injunction or order denying the injunction but setting a hearing date due to a lack of imminent harm, the court will hold a hearing for a general injunction for protection. Unlike with the ex parte injunction process, notice to the respondent and a hearing is required before a general injunction can issue. Any relief granted can be for a fixed duration or until further order by the court. The petitioner has the right to request that the relief be extended. Fla. Stat. § 741.30(5)(c). Permanent injunctions are available when necessary to protect the petitioner.
Possible relief
In addition to the relief available at an ex parte injunction hearing, the following forms of relief are available at the time a general injunction for protection is granted:
i) Establish temporary support, custody, and visitation for minor children in common or alimony for the petitioner;
ii) Refer the petitioner to a domestic-violence center;
iii) Order counseling or any other necessities for the minor children;
iv) Order the respondent to undergo a substance-abuse or mental-health evaluation and complete any recommended treatment; or
v) Order the respondent to attend and complete a batterers’ intervention program, which is mandatory for any respondent who has violated an ex parte injunction, who has previously been convicted or adjudicated of a crime of violence, or who previously had an injunction entered against him in any jurisdiction after a hearing with notice, except when the court determines that the person does not qualify. (A batterers’ intervention program is also required as a condition of probation or other community supervision when the person is convicted of a domestic-violence offense.)
Mutual injunctions are prohibited by statute.
Other injunctions
In addition to the ex parte injunction and general injunction, there are injunctions that may be issued in cases of repeat violence, dating violence, and sexual violence. Unlike the domestic-violence injunctions listed above, there is no requirement that the parties be family or household members.
Sexual violence
A petitioner seeking an injunction based on sexual violence must acknowledge or certify that there was a single incidence of (i) sexual performance by a child, (ii)sexual battery, (iii) any forcible felony when a sexual act was attempted or committed regardless of the filing of criminal charges, (iv) luring or enticing a child, or (v) a lewd or lascivious act committed against or in the presence of a person under the age of 16 years.
Dating violence
A petitioner seeking an injunction based on dating violence must first establish that she and the respondent have or had a dating relationship of a continuing or significant nature that is romantic or intimate. In determining whether the requisite relationship exists, the court will consider whether the relationship:
i) Was in existence within the past six months;
ii) Included the expectation of mutual affection or sexual intimacy between the parties; and
iii) Was over a period of time and during a continuous basis during that interim.
To obtain an injunction based on dating violence
To obtain an injunction based on dating violence, the petitioner must establish that she is:
i) A victim of past dating violence who has a reasonable belief or cause to believe that she is in imminent danger of an additional act of dating violence;
ii) A person who has a reasonable belief or cause to believe that she is in imminent danger of becoming the victim of an act of dating violence; or
iii) A parent or guardian seeking an injunction on behalf of a minor child residing with her and that she personally has observed, has direct evidence of, or has affidavits from eyewitnesses regarding the alleged act of dating violence.
Repeat violence
A petitioner seeking an injunction based on repeat violence must attest or certify under oath that the respondent has committed at least two acts of assault, battery, sexual battery, or stalking against her or against an immediate member of her family, and one of the acts must have occurred within the past six months.
Violation of injunction
There are several remedies available when a respondent violates a provision of the injunction. These remedies include civil contempt and criminal contempt, and such violations may rise to the level of a crime if certain statutory criteria can be established. When available, criminal prosecution of the violation is preferred. Fla. Stat. §741.31. The injured party may recover damages, including attorney’s fees and costs.
Law enforcement
Any law-enforcement officer investigating a domestic-violence matter must advise the victim of the types of services that are available, and such advice must include the legal rights and remedies available. Additionally, law-enforcement officers are immune from civil actions filed against them if an arrest is made in good faith and supported by probable cause while enforcing a court order or service of process in a domestic-violence matter.
Action for continuing domestic violence
Any victim of domestic violence who has suffered physical or psychological injuries over an extended period of time as a result of continuing domestic violence has a cause of action against the perpetrator of the violence. The action may be brought for compensatory and punitive damages, but no plaintiff may recover twice for the same incident giving rise to the cause of action. No portion of the punitive damages received may be allotted to the state. Fla. Stat. § 768.35.
Address confidentiality
The new address of any victim of domestic violence, including her residence, her place of employment, or her school, may be kept confidential if the victim fears for her safety. The confidentiality is to prevent the perpetrator from discerning the location of the victim. Fla. Stat. § 741.403. Any victim desiring to participate in the program must forward a sworn statement to the office of the attorney general, who shall designate an address for use by all governmental agencies. The confidential address is not subject to the open public records law, and it may be released by court order only if the victim no longer desires to participate in the program or to execute an arrest warrant.
Firearms
Any respondent who has had a final injunction entered against her enjoining her from engaging in acts of domestic violence may not possess, control, or have custody or care of a firearm. A violation of this provision is a first-degree misdemeanor. Additionally, no dealer of firearms may sell a firearm to anyone convicted of a misdemeanor crime of domestic violence at any point or to anyone who has been adjudicated of guilt withheld or a sentence suspended within the last three years on any misdemeanor or felony crime of domestic violence. Fla. Stat. § 790.065(2)(a).
Moreover, a concealed-weapons permit may not be obtained by any person (i)subject to a domestic-violence injunction or (ii) found guilty of or who has had a suspended adjudication or sentence on a misdemeanor crime of domestic violence within the past three years. None of the above restrictions applies to officers who possess firearms because of their official duties. Fla. Stat. §741.31(4)(b).
Abuse of the Elderly or Disabled
Florida has enacted legislation known as the Adult Protective Services Act to protect the elderly or the disabled from abuse and neglect. Fla. Stat. §§ 415.101–415.113. The Act protects persons aged 60 or older who have an impaired ability to protect themselves because of neglect or infirmities associated with aging or persons over the age of 18 who suffer a form of mental or physical disability that restricts their ability to live a normal life. As with child abuse, there is a mandatory reporting procedure for known or suspected abuse. Once a report has been received, the Department of Children and Families (“DCF”) will investigate the allegation, and if abuse, exploitation, or neglect is founded or substantiated, the state’s attorney will prosecute. Protective services may be provided, as needed, to those individuals who are determined to be abused, neglected, or exploited. The services may include medical services or legal services, including placement outside of the home on either an emergent or a permanent basis. The consent of the individual is typically required, except when (i) the services are on an emergent basis due to a substantial risk of death or immediate and serious physical harm and the person is incapable of consent due to lack of capacity or (ii) the person lacks the capacity to consent. If the neglect is caused by life circumstances as opposed to by another party, a referral to community-based care is appropriate. A periodic review of the need for services must be performed.
Division of Property
Florida is an equitable distribution state. Upon dissolution of a marriage, marital property is divided in a fair and equitable manner. Each party does not necessarily get 50% of the marital property. While Florida law commences with the premise that the parties will receive an equal distribution of all marital property, if the court is presented with justification for unequal distribution, the court, which has broad discretion in fashioning an equitable distribution award, may do so. Fla. Stat. § 61.075(1).
Court - equal then Alimony
The court may equitably divide the property of the parties without consideration of whether alimony will be awarded. After a determination of an equitable distribution of marital property, the court should consider whether to make an alimony award. Fla. Stat. § 61.075(9)
an equitable distribution award, unlike permanent alimony, will survive death or remarriage of either
The court may award a cash payment, in either a lump sum or installments, as a part of the equitable distribution award. If awarded, an equitable distribution award, unlike permanent alimony, will survive death or remarriage of either party. Fla. Stat. § 61.075(2),(10). The court generally cannot order a party to maintain an ex-spouse as beneficiary of a life insurance policy, but the parties themselves may enter into an enforceable agreement to that effect. Cantrell v. Home Life Ins. Co., 524 So. 2d 1063 (Fla. Dist. Ct. App. 5th Dist. 1988).
The Florida Family Law Rules
The Florida Family Law Rules require each party to file financial affidavits, including three years of tax returns, evidence of three months of current income, loan applications, and financial statements for the past year with any request, or in opposition to a request, for financial relief, whether permanent or temporary, or in enforcement proceedings. Fla. Fam. L. R. P. 12.285,
When necessary to protect the parties from abuse, the court can conditionally seal the financial information or court record.
When necessary to protect the parties from abuse, the court can conditionally seal the financial information or court record. There are specific timeframes required for disclosure and/or inspection and sanctions for failure to comply, including the inadmissibility of documents. Fla. Fam. L. R. P. 12.380.
Florida does impose an ongoing duty to amend all discovery responses,
Florida does impose an ongoing duty to amend all discovery responses, including financial disclosures, and it requires that the supplemental information be served as soon as possible, but not later than 24 hours before any applicable hearing, absent a showing of good cause.
The court must first determine which assets are marital and which are nonmarital.
The court must first determine which assets are marital and which are nonmarital. The nonmarital assets are the property of their owner.
Marital Property
Marital Property
Generally, property acquired during the marriage is marital property. In addition, the increase in value of nonmarital property (“enhanced value”) during the marriage as a result of the efforts of either spouse or from the contribution of marital funds or marital assets is marital property (“active appreciation”).
By contrast, an increase in the value of nonmarital property due to inflation or market conditions (passive appreciation) is not marital property simply because the increase took place during the marriage
By contrast, an increase in the value of nonmarital property due to inflation or market conditions (passive appreciation) is not marital property simply because the increase took place during the marriage. However, a further increase in the enhanced value of nonmarital property that constitutes marital property is also marital property, even though this further increase is due to inflation or market conditions.
The burden
The burden is on the owner of the nonmarital property to establish the extent to which an increase in the value of the property is not attributable to marital funds or labor.
Interspousal gifts made during the marriage
Interspousal gifts made during the marriage and any retirement, pension, insurance, or similar benefits, whether vested or nonvested, that accrued during the marriage are also marital property.
Title to the property
Title to the property is immaterial, except that the court will presume any property, real or personal, titled as tenants by the entirety is marital property regardless of when it was acquired. It is important to note that the taking of property in the names of both spouses will presumptively create a tenancy by the entirety. Even if the property is titled as tenants by the entirety, it will not preclude a spouse from requesting an unequal distribution.
Property ownership
Florida has abolished the legal disabilities once imposed on married women and property. Under the current law, spouses own their own property, real and personal, both prior to and during the marriage. After dissolution of the marriage, the property held in a tenancy by the entirety becomes property held as a tenancy in common. Additionally, all conveyances of property made between spouses are effective to convey title.
Exceptions to marital property
The following property is not marital property:
i) Property acquired before marriage or property acquired in exchange for property acquired before the marriage;
ii) Property excluded by the parties’ valid agreement entered into before, during, or after the marriage;
iii) Property acquired by gift (except between spouses), bequest, devise, or descent, or property acquired in exchange for such property; and
iv) Property or income derived from nonmarital assets during the marriage, unless the income was used or relied on by the parties as a marital asset.
In addition to dividing marital assets, the court will also equitably divide marital liabilities or debts. As with assets, all liabilities incurred by either spouse during the marriage are presumed to be marital unless that presumption is rebutted. Fla. Stat. § 61.075(8). If, however, any liability was incurred as a result of the forgery or unauthorized signature of one spouse signing the name of the other spouse, without permission, then the liability will be the nonmarital liability of the spouse who engaged in the forgery or affixed the unauthorized signature.
Factors in the distribution of marital property
The distribution of the parties’ marital property should be equal, unless there is a justification for unequal treatment based on the following relevant factors:
i) Length of the marriage;
ii) Economic circumstances of each spouse;
iii) Contribution of each spouse to the marriage, including homemaker services, child rearing, and education of the children;
iv) Contributions of one spouse to the education or personal career of the other spouse;
v) Interruptions to either spouse’s personal career or education;
vi) Interest or desirability of one spouse retaining an asset free from the claim of the other spouse, such as a business or professional practice;
vii) Contribution of the spouses to the improvement of, enhancement of, production of income from, or incurring liabilities against the marital or nonmarital assets of the parties;
viii) Dissipation, waste, or destruction of marital assets on an intentional basis after the filing of the divorce complaint or within two years preceding the filing of the complaint;
ix) Interest or desirability of one spouse retaining the marital residence for the dependent children, or other party, when financially feasible and in the best interests of the child or the other party, if the parties can financially retain the residence until the emancipation of the children or a date established by the court; and
x) Any other factors that the court finds necessary and just.
Special equity
Special equity is a vested interest acquired by a spouse because of contribution of funds, services, or property made beyond the performance of normal marital duties. Florida abolished claims of special equity by statute and instead allows only claims for unequal distribution of marital property, based on the factors listed above. Fla. Stat. § 61.075(11).
Use of marital residence
A court may award exclusive use of the marital residence to one party, but the court must first determine that the award of the residence is in the best interests of the dependent children to remain in the residence, or if exclusive use is requested for someone other than the minor children, the court must first determine that equities will be served by the award. An award is subject to modification at any point in which a change in circumstances is established.
Date for determining marital property
The date for identifying whether property, assets, and liabilities are marital or nonmarital is the earliest of the following dates: (i) date of the filing of the complaint for divorce; (ii) date that a valid property settlement agreement was executed; (iii) date provided in the parties’ valid property settlement agreement; or (iv) date provided by the court that has been determined to be fair and equitable under the circumstances. Fla. Stat. § 61.075(7).
The date for determining the value of the assets and liabilities is established by the court and is based on what is fair and equitable under the circumstances. Different dates may be used for different assets based on the individual circumstances.
Treatment of Specific Types of Marital Property
a. Professional licenses or degrees
Florida, which follows the majority view, does not treat a professional license or degree as a distributable property interest. Joachim v. Joachim, 942 So. 2d 3 (Fla. Dist. Ct. App. 2006). The court may, however, consider an advanced degree or license as an increased earning capacity, which may have an effect on the determination of alimony or the distribution of marital assets. The reason behind the exclusion of a professional license as a distributable property interest is its speculative nature in measuring future earning capacity.
Retirement or pension benefits
Retirement or pension benefits, whether vested or nonvested, acquired during the marriage are considered marital property and subject to equitable distribution. Fla. Stat. Ann. § 61.075 (6)(a)1.d. These benefits include military pensions.
Courts should use evidence of present value, not future value, in calculating equitable distribution of pension benefits. Ascherman v. Ascherman, 977 So. 2d 763 (2008).
Personal-injury claim proceeds
In Florida, the critical element for the allocation of personal-injury or workers’ compensation awards is the nature of the award. Based on the nature, the award is allocated between marital and nonmarital property. Compensatory damages for pain, suffering, disability, and loss are considered separate to the injured spouse. Consortium losses are considered separate property of the noninjured spouse. Awards for lost wages, loss of earning capacity during the marriage, and medical expenses paid from marital assets are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property. Weisfield v. Weisfield, 545 So. 2d 1341 (Fla. 1989).
Goodwill
Goodwill
The reputation and clientele of a professional practice (such as that of a doctor or lawyer) is considered marital property in Florida if it was developed during the marriage. Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991). Goodwill is typically defined to be property of an intangible nature, which includes the expectation of continued public patronage that exists separate and apart from the reputation of a particular individual. Therefore, in Florida, for professional goodwill to be marital property, it must be a business asset having a value independent of the continued presence or reputation of any particular individual.
Expectancy
A possible future interest in property (e.g., inheritance) is not distributable.
Social security
Social security benefits are not subject to equitable distribution. Flemming v. Nestor, 363 U.S. 603 (1960) (applying accrued property rights to the social security system would deprive it of the flexibility in adjustment that it demands).
Interim Distribution
Upon the showing of good cause, the court may enter an interim order during the pendency of the dissolution action permitting a partial distribution of assets and liabilities so long as it does not result in an inequitable result or otherwise prejudice either party as to claims for support or attorney’s fees. Any partial interim distribution shall be credited against the final allocation of equitable distribution.
Final Determination
Once the judgment of dissolution has been entered dissolving the marriage and equitably distributing all of the parties’ property, the property settlement is final and may not be modified. If it was procured as a result of fraud, it may be overturned upon the filing of a motion seeking relief within one year. If the motion seeking such relief is filed based on a fraudulent financial affidavit, then the one-year statute of limitations is inapplicable and it may be filed within a reasonable amount of time. Fla. Fam. L. R. P. 12.540(b).
Attorney’s Fees
In Florida, attorney’s fees may be awarded to either spouse in a dissolution action. Fla. Stat. § 61.16. For an award of attorney’s fees to be granted, the spouse must demonstrate a lack of funds in comparison to the other party and must demonstrate that the other spouse has the means to provide the funds. The court will also consider other factors in determining whether an award is warranted, including (i) the duration of the litigation, (ii) the history of the litigation and its scope, (iii) the course of prior or pending litigation between the parties, and (iv) whether the litigation or the position of the parties was primarily to harass the other spouse. See Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). Attorney’s fees may also be granted to equalize the ability of each party to seek competent legal counsel or to prevent an inequitable dissipation in one spouse’s assets in comparison to the other for the payment of attorney’s fees.
Collaborative Law Process
The Florida Legislature enacted the Collaborative Law Process Act to provide a “unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.” Fla. Stat. § 61.55. The goal of the collaborative process is to reach an agreement resolving issues of divorce, property distribution, child and spousal support, parental responsibility, paternity, and other family law matters.
The collaboration is not compulsory and either party may terminate the process at any time. Unless otherwise agreed, communications made during the collaboration process are confidential and privileged. This privilege can be waived and does not apply to threats of injury, criminal activity, or claims of professional misconduct (among other limitations). Fla. Stat. §§ 61.55–61.58.
FINANCIAL SUPPORT OF SPOUSES
Spousal Support (Alimony)
FINANCIAL SUPPORT OF SPOUSES
Spousal Support (Alimony)
Spousal support (called “alimony” in Florida) is the obligation of one party to provide the other with support in the form of income. Although typically awarded as a part of a dissolution action, it may be awarded at any time if a spouse is not fulfilling her reciprocal obligation of support. Alimony is awarded if one spouse cannot provide for her own needs with employment. Alimony, while typically paid over a period of time, may take the form of a lump-sum payment. Unlike property settlements, alimony obligations cannot be discharged in bankruptcy. The right to receive alimony, however, may be expressly waived for consideration. Fla. Stat. § 61.08.
Factors
In determining whether an award of alimony should be granted, the court must first make a specific factual determination as to whether either party has an actual need for alimony and whether either party has the means to pay such necessary alimony. To determine the proper alimony type and amount, the court considers all of the following economic factors, as well as any factors that promote equity and justice between the parties.
Financial resources
The court considers the financial resources of the spouse seeking support, including nonmarital assets, property to be awarded in the divorce, and any child support. It also takes each spouse’s earning potential into account, as well as the ability to pay of the spouse from whom support is sought.
Standard of living
The standard of living of the couple during the marriage is considered.
Time
Courts also consider the time it will take for a spouse to find employment or to complete any education or training necessary for a job.
Length of marriage
The length of the marriage is considered in determining alimony. In Florida, there is a rebuttable presumption as to the duration of a marriage for purposes of determining alimony. Marriages are divided into three durational categories, which are determined from the date of the marriage until the date of the filing of dissolution.
i) Short-term
i) Short-term
A short-term marriage is one lasting less than seven years.
ii) Moderate-term
ii) Moderate-term
A moderate-term marriage is one that lasts more than seven years but less than 17 years.
iii) Long-term
iii) Long-term
A long-term marriage is one that lasts 17 years or more.
Contributions to the marriage
Contributions to the marriage
Contributions by one spouse to the marriage, particularly those that enhanced the earning potential of the other spouse (e.g., education, training), may be considered. Services rendered in homemaking and caring for the children are also considered.
Age and health
The parties’ ages and health, both physical and emotional, are considered in determining support.
Marital misconduct
In Florida, fault or marital misconduct in the form of adultery may be taken into account when determining spousal support. Fla. Stat. § 61.08(1). While the courts are statutorily permitted to consider marital misconduct, the modern trend is to consider the marital misconduct of an adulterous party only when the adultery contributed to a dissipation of marital assets or resulted in a negative financial impact. Pardue v. Pardue, 518 So. 2d 954 (Fla. 1988); Noah v. Noah, 491 So. 2d 1124, 1127 (Fla. 1986) (adulterous conduct may be relevant if it “contributed to the depletion of the financial resources of the family”). As a result, absent a negative effect on the family’s financial resources, it is improper to consider adultery in determining alimony. Phillips v. Phillips, 504 So. 2d 412, 413 (Fla. Dist. Ct. App. 1987), review dismissed, 511 So. 2d 299 (Fla. 1987).
Children
The future responsibilities that each party will have with regard to any common minor children may also be considered.
Sources of income
All of the sources of income available to each party are considered, including investments held by the parties.
Taxes
The tax treatment and consequences to both parties if alimony is awarded, including the designation of all or a portion of the payment as nontaxable or nondeductible, also is considered as a factor.
Insurance
The court may order the party who must pay alimony to purchase and maintain a life insurance policy or bond to the extent necessary to protect the alimony award. Fla. Stat. § 61.08(3).
Types of Support
Florida recognizes five types of post-divorce spousal support or alimony, each with its own purpose. A court may award a combination of these types of alimony if appropriate.
In addition to the five types of alimony discussed below, the court may also grant exclusive possession and use of the former marital home as a form of alimony or child support.
Bridge-the-gap alimony
Bridge-the-gap alimony is awarded to allow a party to transition from being married to being single. It is designed to help a party with legitimate, specific short-term needs. Bridge-the-gap alimony may not exceed two years in duration, and it may not be modified. Additionally, it terminates upon the death of either party or the remarriage of the party receiving alimony.
Rehabilitative alimony
Rehabilitative alimony
Rehabilitative alimony is for a limited period of time to assist a party in establishing self-support, such as until the spouse receives education, training, or employment. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse.
How is a party awarded rehabilitative Alimony?
To award rehabilitative alimony, the court must order a specific and defined rehabilitative plan, such as a budget for education and living expenses. Rehabilitative alimony may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the plan, or upon completion of the plan. Remarriage of the recipient spouse will not necessarily terminate rehabilitative alimony, but it is one of the factors the court will consider as to whether there has been a material and substantial change in circumstances warranting termination. Vaccato v. Pustizzi, 648 So. 2d 1206 (Fla. Dist. Ct. App. 1995); Owens v. Owens, 559 So. 2d 321 (Fla. Dist. Ct. App. 1990).
Permanent alimony
Permanent alimony is an award for the remainder of the dependent spouse’s life, unless certain circumstances occur. Permanent alimony is awarded to provide for needs and life necessities as established during a marriage for the party who lacks the financial ability to meet such needs after dissolution. Permanent alimony will most likely be awarded after a marriage of long duration. Following a marriage of moderate duration, the court must find based on clear and convincing evidence that such an award is appropriate based upon the aforementioned list of factors to consider when awarding alimony. Permanent alimony is awarded after a short-term marriage only if exceptional circumstances exist.
To be awarded Permanent Alimony?
To award permanent alimony, the court must include a finding that no other form of alimony is fair and reasonable under the parties’ circumstances. Permanent alimony terminates upon the death of either party or the remarriage of the receiving party. Permanent alimony may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship.
Durational alimony
If none of the other categories is suitable, durational alimony may be awarded for a short period. Following a short-term or moderate-term marriage (or a long-term marriage without an ongoing need for permanent support), the court may order durational alimony to provide economic assistance to a party for a set period. The length of durational alimony may not be greater than the length of the marriage. Durational alimony terminates upon the death of either party or upon the remarriage of the party receiving such alimony. The amount of durational alimony may be modified based upon a substantial change in circumstances, but the length of such an award may not be modified absent exceptional circumstances.
Pendente lite
Pendente lite, or temporary, alimony is available only from the time of separation until the time that the marriage of the parties is dissolved. Fla. Stat. § 61.071. The purpose of pendente lite alimony is to put the lesser-earning spouse on equal footing with the greater-earning spouse and permit the lesser-earning spouse “not to be put out of court.” The court may, upon a showing of good cause, modify, vacate, or set aside a temporary support award either before a final order is entered or at the time that the final order is entered. Retroactive modifications are permissible and may extend to the date that the temporary order was initially entered or the date that the petition for support or dissolution was filed. Fla. Stat. § 61.14(11). Unlike the right to receive alimony post-divorce, the right to receive temporary alimony cannot be contracted away.
Alimony and spousal-maintenance payments are generally taxable as ordinary income to the recipient and are tax-deductible by the payor.
Palimony
Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. First recognized in 1976 by the Marvin decision, palimony is available only when the cohabitants have lived together in a stable long-term relationship. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). Florida does not recognize palimony. Crossen v. Feldman, 673 So. 2d 903 (Fla. Dist. Ct. App. 1996). Additionally, Florida does not recognize an implied contract of marriage. However, Florida will recognize express contracts between unmarried parties as to the distribution of earnings, property, and support as long as illicit sexual relations were not a part of the consideration under the contract. Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997).
Modification of Support
In general, alimony may be modified, even when it has been deemed permanent. Additionally, if a party was not awarded alimony initially and the court did not reserve judgment to award alimony in the future, then no modification may be sought. The party seeking modification typically has the burden of establishing a significant change in circumstances in either (i) the needs of the dependent spouse or (ii) the financial abilities of the obligor that warrant the modification. As with child support, a party who willfully or voluntarily reduces her income will not receive a reduction in her support payments. Florida does not distinguish between the level of proof required for modifying a court-ordered obligation and one established in a property settlement agreement. Fla. Stat. § 61.14(7).
To petition for a modification, either party may file a supplemental petition in the circuit court setting forth the modification grounds. If it was the court that issued the decree, then a new service of process is not required, and personal jurisdiction is retained so long as it was initially established. Notice of the hearing, however, is paramount. If it was not the issuing court, then service of process, personal jurisdiction, and notice of the hearing must be established.
Death
Spousal support generally continues until the death of a spouse. Support is usually not included as a liability of the deceased spouse’s estate, unless specified by the court.
Remarriage
In most jurisdictions, including Florida, if the receiving spouse remarries, spousal support may be terminated. A subsequent annulment of the subsequent marriage generally does not revive a spousal-support obligation from a former marriage, even though an annulment usually results in a marriage being treated as invalid as of the date of its inception.
Cohabitation
If the recipient spouse cohabits with someone who is not family, then spousal support may be modified or terminated if the recipient spouse’s need for the support decreases as a result of the cohabitation. The existence of a conjugal relationship is not necessary.
Factors the court will consider in determining whether a supportive relationship exists are:
Factors the court will consider in determining whether a supportive relationship exists are:
i) The period of time that has elapsed since the recipient spouse has lived with the other person in a permanent residence;
ii) The extent to which the recipient spouse and the other person have held themselves out as a married couple;
iii) Whether the recipient spouse and the other party have jointly contributed to the purchase of property, real or personal;
iv) Whether the recipient spouse and the other party have contributed support to the children of one another; and
v) The extent to which the recipient spouse and other person have supported each other or performed services of value for the other or the other’s company.
Do Cohabitation terminate alimony?
Cohabitation does not terminate alimony pendente lite, which is paid during the pendency of the divorce litigation.
Retirement
Voluntary retirement is one of the factors that Florida will consider in connection with a claim of substantial change in circumstances.
Tax Consequences and Bankruptcy
- Taxes During the Marriage
Tax Consequences and Bankruptcy
- Taxes During the Marriage
For married couples, both parties are jointly and severally responsible for their tax obligations during the marriage, unless one of the parties can demonstrate that they were innocent in any fraud or wrongdoing toward the IRS.
Tax Consequences of Equitable Distribution
Equitable distribution payments are not taxed in the same manner as regular income. Property that is transferred between divorcing spouses is tax-free at that time. The transferee’s tax basis is the same as the transferor’s, and the property becomes taxable when it is sold.
Tax Consequences of Spousal and Child Support
Alimony is considered taxable income to the recipient and is deductible by the payor. A parent cannot, however, deduct child-support payments as alimony or include them as income. The custodial parent automatically gets the child dependency exemption, unless the parties agree otherwise. Often, the parties agree to alternate the exemption. The parent that pays medical expenses may deduct those expenses.
Bankruptcy
Bankruptcy’s goals often conflict with the goals of divorce. In bankruptcy, support of any kind is nondischargeable; however, collection of arrears, if reflected in a final judgment, will be stayed and possibly reduced. Nonsupport obligations may be dischargeable in bankruptcy. Attorney’s fees are often treated as support. The characterization of payments upon divorce is important in determining if a payor spouse will be able to avoid those payments in the future.
PATERNITY
The obligation of child support falls on the child’s parents. Questions may arise, however, as to the identity of the child’s father. Under Florida law, any expectant woman or mother of a child, any man believing to be the father of a child, or any child, may bring an action for paternity when paternity has not otherwise been established. Fla. Stat. § 742.011. Once paternity has been established, the court may also award costs associated with the birth, including hospital and medical expenses, attorney’s fees, child support, parental responsibility, and time-sharing. Fla. Stat. §742.031. The court retains jurisdiction to modify the order later. Fla. Stat. §742.06.
If a man fails to file a claim of paternity with the Florida Putative Father Registry, he may be estopped from filing a paternity action establishing his paternity of a child when a petition for termination of parental rights is filed.
Genetic Testing
If there is a question as to paternity, a court may order genetic testing of the child, the biological mother, and the possible fathers to determine paternity. Fla. Stat. § 742.12(1). The order may be sua sponte or at the request of a party. If the defendant in a paternity matter is indigent, he is entitled to genetic testing at the state’s expense to establish or disprove paternity. Little v. Streater, 452 U.S. 1 (1981); Fla. Stat. §409.256(4)(c)(7). If the particular case involves more than one party claiming paternity of a child, the court must consider the best interests of the child and the rights of the legal parent before ordering the test. See Privette v. State Dep’t of Health & Rehab. Serv., 585 So. 2d 364 (Fla. Dist. Ct. App. 1991) (dispute between husband of biological mother, who was deemed the father based on marital presumption, and another man).
Once the results have been obtained, they are admissible absent any objections, which must be filed with the court at least 10 days prior to the hearing. Florida presumes paternity when the test results reveal a statistical probability of 95% or greater that the alleged father is the biological father. Fla. Stat. § 742.12(4). If the presumption is not rebutted by either party, the court may enter a summary judgment of paternity. If the test results demonstrate that the alleged father is not the biological father of the child, then the case is dismissed with prejudice. A party may apply for a retest if the results are disputed, at the expense of the disputing party, if the request is reasonable.
Unconstitutional Time Limit on Paternity Petition
A time limit on the filing of a paternity petition in order to secure support from the purported father is invalid unless there is a reasonable opportunity to pursue such an action, and the limit is substantially related to the government’s interest in restricting such an action (e.g., prevention of fraudulent claims). Otherwise, the time limit is a violation of the Equal Protection Clause of the U.S. Constitution because it subjects illegitimate children to restrictions not imposed on legitimate ones. Pickett v. Brown, 462 U.S. 1 (1983).
Marital Presumption
There is a marital presumption that a child born to a married woman is the child of that woman and her husband. In Florida, for the marital presumption to apply, the child must be born of a valid marriage. Unlike the majority rule, if the marriage is void or later annulled, the child will no longer be considered a marital child. If the marriage is voidable, but not annulled, the child is still a marital child. If the marriage is of questionable validity, it is public policy to declare the child to be marital. Pitcairn v. Vowell, 580 So. 2d 219 (Fla. Dist. Ct. App. 1991). A child born within nine months of the termination or dissolution of a marriage, or the death of the husband, will be considered a marital child. The marital presumption may be rebutted with clear and convincing evidence. If the parents of the child marry after the birth of the child, then the child is marital, and upon payment of costs, the paternity petition is dismissed. Fla. Stat. §742.091.
The establishment of a child-support obligation in a final judgment of dissolution is a final determination of paternity. D.F. v. Dep’t of Revenue, 823 So. 2d 97 (Fla. 2002).
Artificial Insemination
Florida has an irrebuttable presumption that a child born during a valid marriage by artificial insemination is a marital child so long as both spouses have consented in writing to the insemination procedure. Once a spouse has expressly consented, his duty to support the child may be enforced. Fla. Stat. §742.11.
Estoppel
Estoppel
A husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support. Under the doctrine of equitable estoppel, the husband may be required to pay child support when:
i) There is a representation by the husband that he would provide for the child;
ii) The wife relied on his representation; and
iii) The wife suffered an economic detriment as a result of the reliance (e.g., lost the opportunity to obtain child support from the child’s biological father).
Estoppel Doctrine in FL
In Florida, the doctrine has been held to be inapplicable when the only misrepresentation is the one provided in the original birth certificate, and no misrepresentation was made to a spouse or child. Albert v. Albert, 415 So. 2d 818 (Fla. Dist. Ct. App. 1982); cf. Marshall v. Marshall, 386 So. 2d 11 (Fla. Dist. Ct. App. 1980).
Acknowledgment
Paternity also may be established by the express acknowledgment of the father. While the acknowledgment must be in writing, even an informal writing will be sufficient to establish paternity. Fla. Stat. § 742.10.
In Florida, it is a misdemeanor in the first degree for any type of publication—including but not limited to radio, newspaper, and magazine—to publish the named parties to a paternity action, except when it is for the purpose of service by publication. Fla. Stat. § 742.09.
Statute of Limitations
The statute of limitations for a paternity action, regardless of whether it is for support or intestacy, is four years from the time the child reaches the age of majority. Fla. Stat. §95.11(3)(b). Retroactive support may be ordered up to 24 months prior to the filing of the petition. Fla. Stat. § 61.30(17). The defense of laches is generally inapplicable to an award of retroactive support. Cartee v. Carswell, 425 So. 2d 204 (Fla. Dist. Ct. App. 1983).
There is no time limit for motions for relief from judgment based on the filing of a fraudulent financial affidavit in paternity or marital cases. The fraud must be established by a preponderance of the evidence. Fla. Fam. L. R. P. 12.540.
Disestablishment of Paternity
When a man is determined not to be the biological father of a child, he may petition for the disestablishment of paternity and for termination of his child-support obligation. Service on the mother or custodian of the child must be effectuated. To petition the court, the man must provide the following: (i) an affidavit regarding newly discovered evidence that has come to light since the establishment of paternity or a child-support obligation, (ii)scientific testing results that exclude the man as the biological father or an affidavit attesting that he had no access to the child to perform such testing, and (iii)proof, via an affidavit, that he is current or has substantially complied with his child-support obligation and that arrears, if any, are attributable either to an inability to pay or to just cause.
Relief
The only statutory reliefs available are limited to child support and paternity. Child support may not be retroactively recovered, nor is the legitimacy of a child born during a marriage affected. The paternal status of the father shall remain until the date of the order disestablishing paternity, and all actions that were made while the paternal status of the father was conferred are retroactively confirmed. Relief must be granted when (i) the child is under the age of 18 at the time the petition was filed, (ii) the scientific testing was accurate, (iii) the man did not subsequently adopt the child, (iv) the child was not the product of artificial insemination while the man was married to the mother, and (v) the man did not thwart the biological father from asserting his rights. The court may not grant relief if, after determining that he is not the biological father, the man voluntarily acknowledged paternity in an attested document, married the mother and voluntarily assumed parental obligations (including the duty of support), voluntarily and expressly promised to support the child, or disregarded the official notice in regard to submission of scientific testing.
