Florida Dissolution of Marriage
Keep in Mind- 10-15% of cases go to trial, the rest settle. Of those only 10% are appealed, so you are not seeing the majority of cases. Very fact intensive. Is primarily governed by Chapter 61 of the Florida Statutes. The purpose of this chapter is: 1.) Preserve the integrity of marriage. 2.) To promote the amicable settlement of the parties. 3.) To mitigate the possible harm to children and spouse. It is there to safeguard meaningful family relationships. There is a specific set of rules of procedure that governs family law, and dissolution of marriage. Ethical considerations Contingency, Client confidentiality, Representation of not only the spouse, but of the best interest of the children. If parties reach an agreement between themselves they are more likely to abide by their agreement. If it is not true do no say it, if it doesn’t feel right, then do not do it. Return phone calls, the same day of you can. The Roles of the Family Lawyer: 1. Counsel- (legal, and “feelings”- sitting and listening) 2. Negotiator- want to have a reputation a straight shooter. 3. Advisor- among a variety of things about the experience of settlement, and trial, where alimony is appropriate. 4. Domestic Violence 5. Advocate You cannot represent both parties, but can you recommend opposing counsel? NO. It is a bad idea, open to corruption. 61.011- Proceedings are in Chancery- they are in equitable proceedings, so there are no juries, a judge presides. The ultimate goal is to reach a fair outcome, rather than a legal outcome so to speak. 61.031- bonds of vinculo Cannot be based on common law marriages, or promises between people who live together, the must be in the bonds of marriage. (In Florida) Why does the state require marriage licenses? Higher level of proof, prevent spread of disease, and to prevent incest, if the state is going to get involved in your life when your
divorced, it should get involved when your married. To make sure people want to pay child support, and to raise a little money in the process. You must have a marriage license, and you must have the marriage solemnized. Why both? To make sure you know it is important and ceremonial. What two requirements are there before marriage in Florida? 1. Must be 18, or when they are emancipated, or that you have a child (swear), or if there is an expectant female (who can marry an older man- but does not have to turn him in). 2. Must be of opposite sex.
The Brittany Spears Provision3 day waiting period for marriages, so that people can think it over when they sober up.
Grounds and Fault 1. Irrevocably broken – a subjective standard, the Court takes a deferential approach to the matter, allowing the parties to divorce if they claim that it is irrevocably broken. 2. Mental incompetence, (adjudged incompetent for at least 3 years) Marital Preservation Act 1. Gives an incentive to couples who want to get married if they look at material that tells them about the decision they are about to make.
Fault and Compensation Wolf says that the no-fault for obtainment of a divorce, does not mean that fault is not important to getting an award of alimony, or the allocation of property. Is marriage still a contract? Financial Considerations between spouses The financial considerations are usually the basis of the real fight between the parties, as children may be handled in a more amicable fashion. Canakaris – did not involve children so the court did not send the case through the expedited track. At the trial court level the decision was made to give the wife $385,000 in assets, and the husband was left with 3 million in assets. The wife was not a wage earner, and the husband made all sorts of money. The Court of Appeal reversed the trial court’s decision because 1.) The wife had no special equity in the home, (specific reason
of why she should receive more). 2.) Ruled that she demonstrated need for alimony, 3.) Said of award of attorneys fees were improper because she could afford to pay her attorney. Equitable Distribution – coupled with this is the idea of abuse of discretion, the system is very deferential to the dissolution system. If the court awards an alimony payment it may decide if there should be a monetary payment in lump sum, or if it should be paid in installments. The trial court hears the entire case and then makes a final order based on the parties needs, and grievances. This is different in abuse cases, the distribution of assets occurs before child support structure is considered, and changes are made afterwards to determine the parties ability to pay for the lifestyle they have been accustomed to. Non-Marital Assets- assets brought into the marriage, or gifts that are not related to the marital relationship. Of course you must look at the appreciation of non-marital property, these increases in the value of non-marital property creates marital property- the increased equity. The earliest date to which the marriage can be said to be over, (date of valid separation agreement, Atkins- A diligent older husband, and a 47 year old wife with a trophy-nest lifestyle left for weeks on end and then sued for alimony. The House – a non-marital asset was increased in value because of passive appreciation, and because of marital expenditure –mortgage payments and repairs. The court said that passive appreciation was not a part of the marital property, and that it was the husband’s burden to prove that since he is seeking special equity in the home- otherwise the wife can obtain money from the passive appreciation. Oxley – had an irrevocable trust (WORKS LIKE A PRENUPTUAL AGREEMENT) that shot up in value, was the wife entitled to the increase in the value of the trust? Court said no because the trust was handled by a professional manager and there was no real marital labor that was expended on the trust- so the wife was not entitled to the gain, even on the increase, because it was properly categorized a non-marital asset. Commingling of funds- commingling of certain gifts or distributions does not mean that all the funds are commingled, and of course you can testify that the funds are separate. Robbie v. Robbie – Son of Joe Robbie divorced, wife wanted the Dolphins, Joe said he was just a figurehead of the Dolphins and did not actually run the team, Court said he held himself out as the General Manager, even though he didn’t do much, the court said that his work enhanced the value of his percentage of the organization, and that this enhanced value in the percentage of the team was subject to marital property and equitable distribution. Broke the passive appreciation, brought in marital labor-made it subject to distribution.
People used money from the same account to increase the value of the cottage, they also benefited from passive appreciation at that time, so how can it be sorted out? Very hard to do must prove the amount that was a gain from marital property.
Special Magistrate- all circuits over a certain size have a separate family division, many of these people are lawyers who serve to keep the load down, they submit recommendations based on the parties filings, and if there are legal exceptions to the recommendation the litigants can object, and have their case heard by the circuit court judge. You may also object to having a special magistrate judge, and get a regular judge, but this is looked down upon. Slade- burden shifting- must show it is a non-marital asset, once that is shown the burden of proof shifts to the other party to show that the increase of value was done by marital labor, once that is shown then the burden shifts to show that the increase in value was done by passive increases. Commingled Funds – usually a problem because it is hard to trace money placed in an account because there can be arguments on how it is spent, whether it freed up other money and so forth. By manipulating the stock portfolio you can see you have provided marital labor, and that gives you an entitlement to the enhanced value of a stock portfolio. Retirement Benefits- according to the fact of the case it may be better to award a cash payment, rather than a portion of the retirement package so far accumulated. Degrees are non-marital assets, but what about the extra income that is gained? Workers Comp – for lost wages then it goes to the marital assets, for pain, suffering etc… they go to the person who was hurt. Loss of consortium- Goes to the Wife, even though she is leaving and will be able to have sex again- they are the wife’s pain and suffering so to speak. Future lost earning capacity- not a marital asset, neither is gaining earning capacity, if it is an issue it will be dealt with in the alimony section. You should be aware of tax consequences in dissolution of marriage cases, and how the division of property may not account for tax factors. Liabilities- usually they are distributed equitably, but the specific liabilities must be specifically allocated to one party, based on the statutory factors on page 25, contained in 61.075
The courts are all over the place with distribution of liabilities, some imes they split the baby, or act in a way that makes their job easier. The courts will usually try to keep assets intact, especially family business, or other assets that are the source of income. The marital home will stay with the dependent children if possible, to reduce the impact the divorce will have on their emotional well being. Destruction or dissipation or waste of marital property- the court should look at any such actions with respect to the marital property that occurred less than 2 years before the petition for divorce, or after the petition for divorce. The court may also look further back if necessary. Man gets hurt in accident can’t work, gets a divorce, court says wife contributed way more to the marriage, and the marital assets, so she gets more- the court allowed it- the reasons supporting the court included the fact that the husband had left the marriage and neglected to care for his children. Deliberately concealed assets worth more than 409,000 in value, the court equalized the fraudulent concealment of the asset by allowing him to keep the trust- which was irrevocable and in the name of his children, and offset this by giving the wife everything else. The Doctor and the Engineer Generally speaking, liabilities occurred after the separation stay with the respective parties, however under certain circumstances it can be allocated, or allocated in a skewed way, it is based on the facts and how you can manipulate them. If a person has a drug addiction – then they will probably not give them unfettered access to the funds awarded to them, or that are a part of the marital distribution. Simple mismanagement of parties marital assets usually do not got factored by the court, it must be blatant, or wasteful, or deceitful. Vices are usually seen as ways of depleting marital assets, which give rise to skewed distribution. Adultery does not matter unless it leads to a depreciation of assets.
Pension PlansOther spouse should not be treated like a creditor, but the true owner of the marital portion of the pension plan Special Equity Canakaris- Special equity should only be used with regard to a vested property interest. Generally- a special equity usually applies to a non-owners spouse’s interest in nonmarital property. Look to contribution of non-marital funds, or non-marital labor that is over and above “usual marital labor”. Or a contribution of marital labor that should create an interest in the non-owner party. Normally the investment of non-marital funds into jointly held property is presumptively held as a gift, that must be rebutted by the party seeking to demonstrate special equity. Establishment of a special equity in a property does not give you a right to possess the property, only to be compensated for your interest in that property. Property that is indivisible – court will order sale of property, and then order proceeds for the sale. Court must have in rem jurisdiction over the property, especially real property, (because personal property is transportable to the district, --and away) Equitable Distribution 1. 1st step in considering the division of the marriage, then alimony and the child support, however special attention should be related to the other parts, like: maintenance of the family home for the children, and so on… 2. The first thing you want to do before any decision is establish the duration of the marriage, because it helps to classify assets as either marital or non-marital. Non-Marital Assets- are those acquired prior or after the marriage, given by non-inter spousal gifts (inheritance, etc…), income derived from non-marital assets (unless relied upon marital assets, establishing commingling) the stream of income for the future is a non-marital asset, or property that is excluded by a prenuptial, or liabilities incurred because of forgery (unless party has ratified this liability).
Marital Assets- Liabilities and assets during the marriage, unless specifically labeled as non-marital during the marriage are presumed to be marital. All enhanced value that is a result of marital funds or marital labor, inter-spousal gifts, pensions and retirement plans are all forms of marital property. Look at special requirements for city pension funds Tax Penalties are always considered. Party arguing for non-marital assets must overcome burden of proof/presumption. Insurance, stock options are included Loss of consortium is basically a damage award for putting up with disabled spouse Freq. Flyer miles, Promissory notes, earned portion of bonuses is a part of marital property as is accumulated sick pay and vacation days. The date of valuation is what the judge appears to be equitable, a business valuation should include good will- (fair market value for the name- over the assets- Thompson) Earned non-contingent attorneys fees, not contingent fees awarded AFTER end of marriage, they are too speculative. Look at the liquidity of the item, and consider transaction costs associated with dividing an asset- it may be easier to provide it in another form. Duration Short-term marriages- may allow unequal distribution in the gold digger cases. 9 years is too long for an unequal division, this is the beginning of the gray period. Interruption of personal career is a consideration for equitable division. A degree is not a marital asset, however the extra earning capacity may come up during alimony, and other later stages. The contribution of each partner in the creation of liabilities; ignorance of debt is usually no excuse, however in the case of sticking people with liability, or there is one party benefits, or fraud, the court may look at and maybe consider ordering an inequitable division of marital property. Start with equal division of liabilities- but then the liabilities are generally divided up by the parties’ ability to pay. Lump sum payment to achieve equitable distribution- it is not alimony, there is no modification- no modification for e. distribution.
Relocation Can the non-custodial parent move from the district? Yes, but there are some exceptions to this rule; if there is some extraordinary need to keep the non-custodial parent, like special medical needs of the children.
When handling a relocation case look for arguments that the children would be better here than there, or vice versa: 1. Bigger home 2. More money to support children- (not as strong if financially secure at home) 3. Better schools 4. Closer to family support network
Child Support guidelines establish a rebuttable presumption of the minimum needs of the children. Cannot divert income to avoid paying child support- Camus v. Prokosch? Said you can’t just look at wage income, but all forms of income, including non-marital assets Imputed Income- if parent is voluntarily unemployed, or underemployed, income can be imputed based on their marketability (probable earnings considered past work experience and training). However, if the person was voluntarily unemployed because they were seeking to increase their income through education, it may be allowed if it is in the best interest of the child- that is they may be able to go to school without having the extra income imputed.- (Look at the age of the children, will they benefit when he gets out?) While the imputed income seems mandatory from 61.30(2)(b) it is held to be discretionary, because it is the best interest of the child that is important. Smith standard- must show that they have the actual ability to earn income and that she is deliberately refusing to return to work at a higher capacity to avoid paying child support. Must show competent substantial evidence. Unlike Alimony: 1. Workers Comp 2. Disability benefits are included for child support reasons
(absent medical condition)